Today in Supreme Court History: March 6, 1857

3/6/1857: Dred Scott v. Sandford decided.

Comments

[Dan Schiavetta]

What was Taney thinking? Being about to turn 80 was possibly relevant to this question. Maybe he wanted to be the Ultimate Settler of Questions like his predecessor Marshall.

[DaivdBehar]

I would be interested in knowing whether this case was covered in law school from anyone.

[Krychek_2]

Yes we discussed it. As I recall the consensus was that Taney was right on original intent.

[DaivdBehar]

It remains relevant to any argument of substantive due process, today.

[DaivdBehar]

Dred Scott leads to Roe v Wade, and the killing of 19 million black babies.

https://www.stanfordlawreview.org/online/substantive-due-process-as-a-two-way-street/

[DaivdBehar]

Eugene will be cancelling me. I appreciated everyone who listened.

[DaivdBehar]

Eugene has nothing to say about the extra-judicial executions of 63 million babies without due process. He is upset about enforcing the law, and executing 25000 lawyer traitors to this country with due process.

[Brett Bellmore]

I don't think so. The authors of the Constitution went to great lengths to avoid any mention of race or slavery. And as a matter of historical fact, there were blacks treated as citizens at the time the Constitution was adopted.

My impression is that people have taken to claiming that Taney was right on original intent as a way of attacking the Constitution. 1619ism, essentially. But the truth is that he pulled that business about blacks not being able to be citizens out of his nether orifice.

[Krychek_2]

Brett, as a veteran trial attorney, let me offer two pieces of unsolicited advice.

First, if you are trying a case, and there is a piece of evidence, or a legal precedent, that is against you, you don't win either by ignoring it or by pretending it's anything other than what it is. All that does is lose you credibility with the judge and jury. Rather, you honestly face up to it and then explain why you still have a good case in spite of it. That way, you keep the respect of the judge and jury -- they know you're honest, even if they ultimately rule against you -- and it gives you credibility to make what good arguments you have.

If you want to argue that originalism is a good thing despite Dred Scott, make that argument. But the idea that the framers intended that Blacks would be citizens of the federal republic -- that just gets you laughed off the stage.

My second piece of advice? Don't waste time engaging Daivd Behar. Every time he says something that suggests that just for once he might be interested in having a genuine, non-moronic conversation, and I take the bait, I get burned.

[Michael P]

Well, that's an excellent way to avoid engaging with Brett's substantive criticism of Taney's claim to originalism.

[Dilan Esper]

Brett's just wrong. The Constitution contains a Fugitive Slave Clause. Dred Scott obviously goes farther than that with a substantive due process holding which just about everyone dislikes, but the notion that the framers would have originally understood that someone in Dred Scott's position would not be free and would lose his suit is not only not crazy, I would think it would be by far the most reasonable construction of what the framers thought and did. As far as originalism is concerned, Taney could at most be said to have gotten there by the wrong route.

I should say, I don't think Dred Scott is quite the "gotcha" that originalism's critics think it is either, even though I think originalism is mostly BS. Everyone, of any judicial philosophy, accepts at some level that if the Constitution just flat out says something, you can't ignore it. E.g., nobody expects the Supreme Court to declare the Senate unconstitutional, even though a lot of people are critical of its setup. An originalist judicial philosophy would have rejected Dred Scott's claim, and so would a number of other judicial philosophies, because this country was founded by people who wanted to make sure that their favorite rape victims were returned to them for further rapes should they escape, and who wrote that into the Constitution.

The real "gotchas" for originalism are cases like Loving and Brown, where there's extensive evidence that the original understanding of the 14th Amendment permitted practices that conservatives, both for political reasons and (I will credit them here) because they actually believe that certain historically accepted forms of racism were wrong, have to oppose. Or the entire jurisprudence of 14th Amendment sex discrimination cases- nobody in 2022 believes that, for instance, a government could refuse to hire any female prosecutors, but under the original understanding of the 14th Amendment, they surely could.

The central issue with conservative originalists is not that they think original understanding is important- it is- but that they pretend that all of us who say it isn't the end all and be all are just unprincipled activists who make up the law to say whatever it is we want it to say. Self-styled originalists do plenty of that too, and indeed originalism has not proven to be any sort of constraint on judging. The real constraint is precedent- and originalists hate precedent.

[DaivdBehar]

Dilan. Read the plain English. If you do not like it, amend.

Article I Section 1 says no lawmaking except by Congress. Marbury and its result, Dred Scott, are lawless. They resulted in multiple holocausts. The worst has been Roe not the Civil War.

Nothing comes close to the toxicity and damage of the lawyer profession.

But then you collect the rent and have no idea what I am referring to.

[Brett Bellmore]

"Brett's just wrong. "

You apparently misunderstand my position.

Even the fugitive "slave" clause studiously avoids the word "slave". Slavery was a topic the framers avoided acknowledging.

But this doesn't mean that a genuinely originalist decision would have been in Scott's favor. You didn't even need originalism, he lost as a matter of textualism. Yeah, sometimes the Constitution genuinely means something unfortunate. That's what Article V is for dealing with.

"The real "gotchas" for originalism are cases like Loving and Brown"

Speaking of Loving, it is historically relevant that immediately after the ratification of the 14th amendment, states began repealing their laws against inter-racial marriage, where the courts didn't strike them down. This was happening until the Supreme court put a stop to it, not because the lower courts and states were wrong about the meaning of the 14th amendment, but because the majority on the Court didn't like the 14th amendment.

From an originalist standpoint, yeah, inter-racial marriage had to be legal.

Brown is a bit more complicated; Separate but equal certainly would have satisfied the 14th amendment. But as an originalist I can't complain about the courts eventually noticing that separate never WAS equal, and calling an end to the lie.

[LawTalkingGuy]

“Slavery was a topic the framers avoided acknowledging.“

No it was a word the drafters of the constitution avoided using. They, and their generation, obviously acknowledged and engaged with the topic of slavery.

[Brett Bellmore]

Yes, and it's not an accident they refused to use that word.

[LawTalkingGuy]

Right. But you’ve been saying they avoided the “topic.” They obviously didn’t.

[Brett Bellmore]

I've got Behar muted. Finally got tired of the rants, even if I didn't think he was totally off base, he was just too tiresome.

"If you want to argue that originalism is a good thing despite Dred Scott, make that argument. But the idea that the framers intended that Blacks would be citizens of the federal republic -- that just gets you laughed off the stage.

My argument would be that the framers, as a group, had no intention in that regard. They were all over the map on it, and deliberately avoided the topic in drafting the Constitution.

Accordingly, the Constitution took no position on this question, provided no support for either side of it. It was silent on the issue, and Taney none the less pretended that it did, definitively, take a side.

Dred Scott is not an originalist decision. It is frequently portrayed as an originalist decision, as a way of attacking originalism.

[Dilan Esper]

They were all over the map on it, and deliberately avoided the topic in drafting the Constitution.

"No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due."

They didn't "avoid" the topic, and indeed, the vast majority of the founders owned slaves. They also wrote other protections for slavery into the document. Bear in mind, the original pre-Bill of Rights constitution contained almost no civil rights at all, but protected for the next 20 years the rights of international slave traders to carry on their business.

They didn't avoid protecting the institution of slavery, they avoid the WORD "slavery", because they knew that word made them look really bad. But there was no way they were going to create a union that forced them to actually give up their slaves, and they didn't.

[Kevin Smith]

You and Brett seem to be having two different conversations here. No one is questioning that the original constitution provided a separate class of person for slaves, the question was whether free blacks could be citizens, one which the constitution is silent.

The Dredd Scott case didn't even need to answer that question, as the real question before the court was whether a slave became free upon his owner taking him to a free state (not fugitive). The court essentially dodged that question but declaring that blacks could not be citizens, therefore had no standing to sue for freedom whether the law demanded they be freed or not

[Krychek_2]

It strikes me as unlikely the framers would have thought that the same people who could be held as slaves with no rights at all could also be eligible for citizenship. That’s one major disconnect.

[Bob from Ohio]

The Framers knew about occasional manumission of slaves.

Once freed, they weren't slaves, what was their status?

Only three classes of people mentioned [directly or by implication] in the Constitution, citizens, slaves and Indians. A freed slave was not an Indian nor a slave. Citizen is all there is left.

[Brett Bellmore]

"The Framers knew about occasional manumission of slaves."

They were also aware that there were a rather large number of blacks who weren't slaves in the first place, to even need manumission.

Technically, Indians not taxed. Meaning, the ones who were citizens of sovereign tribes, rather than US citizen who just happened to be Indians.

[Krychek_2]

Not enslaving them, and letting them into your citizenship club, are two very different things.

Is there any actual evidence that the framers did think blacks could be citizens? We’ve been talking about this from the assumption that the Taney set has to prove that they didn’t. But I’m not aware of any evidence that they did. My suspicion is that it wasn’t explicitly mentioned because in 1789 no one seriously thought the issue would ever come up and of course blacks can’t be citizens.

“For ourselves AND OUR POSTERITY” is a bit of a clue.

[David Nieporent]

Only three classes of people mentioned [directly or by implication] in the Constitution, citizens, slaves and Indians. A freed slave was not an Indian nor a slave. Citizen is all there is left.

To the extent you're disagreeing with Krychek, I agree with your point, but that's not quite right. They certainly recognized a category of non-citizen residents as well, at least by implication, since immigration and naturalization were understood then (as now) to be separate things.

[Armchair Lawyer]

"In there any evidence..."

Well, free African Americans did have the right to vote in NJ and NY and PA when the Constitution was signed, and for 2 decades afterwards....

[Brett Bellmore]

"Is there any actual evidence that the framers did think blacks could be citizens?"

We have to assume they weren't living in caves, and were aware of what was going on around them, including the fact that in some Northern states, free blacks WERE citizens. Had the vote, if they met the general qualifications. They later lost it, but, yes, at the time the Constitution was actually adopted, blacks voted in many places in the North, if they met the same qualifications whites had to meet.

[Krychek_2]

Voting made them citizens of those states which is not the same thing as having federal citizenship. Is there any actual evidence that the framers intended free blacks to have federal citizenship?

[Brett Bellmore]

The Constitution was actually written in a city, Philadelphia, where free blacks could vote, so the question has shifted from evidence that the framers of the Constitution thought blacks could be citizens, to whether they thought blacks could be federal citizens.

As though that were actually distinct from being citizens of states. What do you suppose, that these free blacks weren't permitted, somehow, to cast votes in Congressional elections?

Why don't you just admit it? Taney pulled "blacks can't be citizens" out of his rear. He almost certainly knew that they had been, it wasn't some secret.

[Armchair Lawyer]

Krychek,

There is no such thing as "citizens of a state, but not the federal government". It makes no sense. What were they going to do. Have a passport to the State of New York, but not the US as a whole?

They were citizens of the United States.

[Stepped Reckoner]

I wish I could click "LIKE" on this comment. That's exactly what was happening.

[DaivdBehar]

Brett. No one has ever rebutted my assertions here. I have been called names, nitpicked, shunned, and reprimanded. I was banned on other platforms by the lawyer filth denier, Volokh. But, not one has ever rebutted my arguments.

[DaivdBehar]

Brett finds my rants tiresome. Funny. He has no idea how tired of the lawyer profession the whole country is.

[DaivdBehar]

KryKry. You say, face the adverse argument. Then, you say, shun the loving critic of the most failed and toxic profession.

[David Nieporent]

Free blacks were citizens before Dred Scott. (I don't mean categorically; I mean that some were.) It was terrible "originalism" from Taney, little more than handwaving.

[Armchair Lawyer]

Taney could be called a "living constitutionalist"....the constitution "evolved" to fit the times.

[Krychek_2]

Yes and a pig can be called a cigar too. Doesn’t make it one. Fred Scott was an originalist decision.

[Brett Bellmore]

Your cigar is oinking, don't think we don't notice.

[Armchair Lawyer]

That makes zero sense. Free blacks had the right to vote in several states in 1790. It can't be originalist.

[Krychek_2]

AL you do understand the difference between being a citizen of a state versus being a citizen of the United States, right? And that it’s possible to be one but not the other? That’s basic federalism 101.

[Armchair Lawyer]

Krychek,

I don't think it actually exists. A case where someone is a citizen of "one" of the United States, but not of the United States.

Can you give any case examples where this is true after 1787? We can also cut out the period from 1860-1865 for clarity.

Again, any case where someone is a citizen of one of the United States, but not the United States as whole?

[Krychek_2]

I can give an example of someone who is a citizen of the United States but not a citizen of any state: A vagabond with no address who moves from place to place. In fact, in my 20s I pretty much did that; I took a couple of years to explore the United States by walking, hitchhiking and freight train jumping (people still did that then), and when I ran out of money I'd take a labor job for a few weeks wherever I was, before moving on again. It was a fantastic experience, one of the best of my life, and one I still look back fondly on. Obviously, I hadn't lost my US citizenship, but which state was I a citizen of? The one where I was tenting that night? The last one in which I'd earned any money? I don't think I spent more than a couple of weeks in any one state that entire period; I had no address; no voter registration; and by the time it was over my driver's license had expired so I didn't even have one of those. Please don't tell me the last place where I did have a fixed address; that was Canada. So I would hold that out as an example of being a citizen of the United States but not of any state.

For the converse, New York and California are both talking about allowing non-citizen residents to vote in their state elections. If they actually pass it, that would be an example of someone having state citizenship, as evidenced by the right to vote, without being citizens of the US.

Again, this is basic federalism 101. The overwhelming majority of people are citizens of both, but it is indeed possible to have state citizenship without having federal citizenship and vice versa.

[Armchair Lawyer]

Krychek,

1. Per the 14th Amendment "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside"

So whichever state you resided in, you were a citizen there.

2. As expected, there's not a single example you have of someone being a citizen of "one" of the United States, without actually being a citizen of the United States. This concept you have, doesn't exist. Free African Americans WERE citizens of the United States in several states at the founding.

[Krychek_2]

1. I didn't "reside" anywhere.

2. As expected, you've ignored that states can grant citizenship to whomever they like, irrespective of whether they are US citizens.

[Krychek_2]

David, what’s your evidence that blacks were free citizens pre Dred Scott?

[Brett Bellmore]

That's a kind of vague question. Nobody asserts that they were free citizens everywhere and at all times. Just that they were free citizens, if they were free, in several states at the time the Constitution was adopted.

Which makes a hash of Taney's categorical claim that blacks couldn't be citizens, and more of a hash of the claim Taney was practicing originalism when he wrote that opinion.

[Armchair Lawyer]

Here's some reading for you on the African American vote before the civil war.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3240214

[Dan Schiavetta]

The problem was overreach. At first Taney assigned the opinion to Nelson who wrote a “hands off” decision on procedural grounds. Taney should have left it at that.

[Brett Bellmore]

He should have. The commentary on how blacks could never be citizens, and here's this parade of evils that we'd face if they could, was totally gratuitous. It wasn't remotely necessary to decide the case.

Taney hijacked the case to write an editorial, essentially.

[Dan Schiavetta]

Yes

[Armchair Lawyer]

Indeed. But Taney had a cause. He saw an injustice that he would fix. And rather than listen to the Constitution, and have the politicians hash it out, he was an activist judge who developed new policy from the bench.

[Cal Cetín]

I'd say his sense of justice was warped. Facing unclear Constitutional clauses (definition of "citizen," authority to enslave territorial residents), he saw the injustice in allowing black inhabitants any rights the white man was bound to respect (and he projected that view of his back to the Founders). He should have looked it from the other way about - if citizen isn't fully defined, then define it without invoking ancestral or complexional distinctions, and in the territories, note that the Constitution's reference to slavery pertain to the states only, and the federal government cannot deprive territorial inhabitants of liberty without due process of law.

[Cal Cetín]

The Constitutional compromises on slavery are bad enough without Taney making up new ones.

Focusing on the words the Founders actually put into law, and then pouring justice into the gaps in the positive law, I see no room for Dred Scott. In its own circumlocutory way, the Constitution recognizes at least some distinctions between slave and free, at least within the states, but it doesn't deal specifically with the status of the inhabitants of federal territories, except to say Congress can make rules and regulations, and that no person can be deprived of life, liberty or property without due process of law. Here I don't see a lot of room for territorial slavery, certainly not when Congress has specifically forbidden it. Unless we're proslavery and our idea of justice is to presume that certain people are slaves, then this gap in the law is best filled by not allowing territorial slavery at all (except as a punishment imposed by due process of law).

As for the idea that certain voting inhabitants of the early states (including North Carolina) weren't citizens, because though free they were the "wrong" race, also seems absurd and unjust, and since there's nothing in the Constitution's words requiring such a result, I say go with justice.

So even if, pre-13th Amendment, we have to accept positive law provisions allowing slavery for some, that doesn't mean there's some "invisible radiation" which enslaves or denationalizes others.