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View Diary: Dred Scott, Explained: It's About Abortion (338 comments)

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  •  Agree that it is oversimplification (none)
    But Taney's argument, that granting standing to a slave would amount to a taking of a form of property continuously recognized by the Constitution, via its acceptance of the practices Tanney enumerates, is pretty sound.  The weakest part of the decision is the one that you allude to- disregarding states' rights to recognize the legal personhood of fugitive slaves.  But, being a SOB and something of an outcome oriented jurist, Taney avoided the obvious solution of remanding the case for a finding and award of proper compensation to Scott's putative owner as a condition precedent to allowing Scott standing.
    But, if you can direct me to a place where Scott was used as the basis for disregarding the citizenship of an African American when properly based on legal residence or free birth in a state, then I'd be interested in seeing it.

    Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

    by Myrkury on Mon Oct 11, 2004 at 12:40:55 AM PDT

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    •  Bass Askwards 3 Ways From Sunday (none)
      "The weakest part of the decision is the one that you allude to- disregarding states' rights to recognize the legal personhood of fugitive slaves."

      (1) "The weakest part of the decision" is the whole ball of wax, according to Taney's own introduction.

      (2) And it's not simply the "states' rights to recognize the legal personhood of fugitive slaves."  It's whether any black whatsoever can be citizen.

      (3) "But, if you can direct me to a place where Scott was used as the basis for disregarding the citizenship of an African American when properly based on legal residence or free birth in a state, then I'd be interested in seeing it."

      Since it lead so quickly to the Civil War, which in turn lead to the 13th, 14th and 15th Amendments, it didn't have much time to stand as precedent to do such mischief. But it obviously would have, since that is plainly what it said.

      Operation 'Fool Me Once' -- Targeting Papers That Endorsed Bush in 2000

      by Paul Rosenberg on Mon Oct 11, 2004 at 03:15:50 AM PDT

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      •  Beg to differ (none)
        There were plenty of African American citizens in the period between Scott and the Civil War and there are quite a few instances of Fedral litigation involving them as plaintiffs in mundane disputes.  If Scott stands for what you postulate, all those cases would have been dismissed.  As evil as the holding in Scott was, it really wasn't that broad.
        Also, please note that I don't want to be understood as supporting Taney or the decision.  I just think that a broad reading of Scott unjustly releives the rest of the American slave sytem unaccountable.  Slavery was entrenched in our constitution and maintenance of slavery was one of the primary purposes of states' rights.  I personally find a "Blame Taney" argument to underly the evisceration of the 13-15th Amendments.  Morrison v. Virginia (Congress has no power to provide a civil remedy for rape despite admission by 40+ states that they do not adequately protect women from gender motivated violence) does not treat with Scott, but it does reflect the perspective that the Pre-Civil War Constitution can provide for adequate protection of rights.  The logic then follows that the 13th-15th Amendments are a temporary reminder that Blacks are citizens rather than a guarantee of liberty for all persons.
        In sum, the argument that Scott was wrongly decided supports the argument that the Civil Rights Amendments are superfluous.  Contra, to argue that Scott was a correct interpretation of evil laws supports the argument that but for the Civil Rights Amendments, the U.S. system of governance has the same institutional capacity for evil on the order of slavery.

        Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

        by Myrkury on Mon Oct 11, 2004 at 08:28:28 AM PDT

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        •  Multiple Confusions.... (none)
          (1) "There were plenty of African American citizens in the period between Scott and the Civil War"

          That's 4 short years. And there were plenty of folks who thought it was wrongly decided. In such a climate, it can take a very long time for precedent to settle in. So the absence of citations--even after an exhaustive search--would mean nothing.

          (2) "As evil as the holding in Scott was, it really wasn't that broad."  

          Rather than repeat quotations from Taney's decision, which should have sealed this argument once and for all, I'll quote from the dissent, which attacks Taney's argument at its heart, in a properly realist manner:

          Mr. Justice Curtis, joined by Mr. Justice McLean, dissenting.

                      I dissent from the opinion pronounced by the Chief Justice, and from the judgment which the majority of the court think it proper to render in this case... .

                      To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.

                      Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens...

          (3) "I just think that a broad reading of Scott unjustly releives the rest of the American slave sytem unaccountable."

          I can't for moment see why.  (Nor do I accept that this is a "broad" reading. It was a broad decision. It overturned the Missouri Compromise, as well as declaring that blacks were not citizens.)

          (4) Slavery was entrenched in our constitution and maintenance of slavery was  one of the primary purposes of states' rights.  

          True. But what this has to do with your argument is beyond me.

          (5) I personally find a "Blame Taney" argument to underly the evisceration of the 13-15th Amendments.

          An equally mystifying statement.

          Conclusion:  You might have a lot more luck pushing points 3, 4 & 5 (though I don't see how), if you didn't start off by arguing that Taney's decision doesn't say what it so clearly does.

          I am not trying to "blame" Taney in the sense of scapegoating him for all the evils of the world in which he lived, which is what your arguments seem to imply. Rather, I am arguing that the delusional style of reasoning he employs--under the guise of "strict construction"--is a perfect expression of what that world required.

          And I am arguing that the exact same thing can be said about the "strict constructionists" who gave us the Bush v. Gore decision, giving ballots 14th Amendment equal rights, but not people.  (People who also just happened to be black.)

          Bush v. Gore is the ultimate proof that everything these people have been saying for the past 30-40 years is nothing but a damnable lie. They don't care a whit for precedent, for literalism, or for original intent, much less states rights on one extreme or rational argument on the other. All they care about is power.  The only high-profile defense of their decision only makes matters worse. It comes from Judge Posner, who faults them for not lying.

          Operation 'Fool Me Once' -- Targeting Papers That Endorsed Bush in 2000

          by Paul Rosenberg on Mon Oct 11, 2004 at 06:17:06 PM PDT

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          •  Dicta vs. Holding (none)
            Taney's introductory remarks, and the response of the dissent are arguments extending from the holding of the case.  Which is that a slave, legally held in one state (Scott), by virtue of his presence in a state whose laws would give him legal standing to sue, may not be given acces to  the Federal Courts without implicating the property rights of the slave's putative owner.
            One can speculate that Scott might have been used as precedent to prohibit Blacks from citizenship (although even Taney's introduction as you've read it would leave intact the citizenship of Blacks who immigrated free and their descendants), but an admittedly cursory search shows no indication of anyone making a motion to dismiss for lack of standing (or the equivalent) an ordinary civil suit by a free black citizen.  Lawyers were perfectly sharp back them and somebody would have tried it if it were credible.
            I beleive that my argument that an understanding of Scott as a blanket denial of legal personhood to all blacks that was cured by the Civil rights Amendments leads to an unduly narrow understanding of those Amendments.  
            What I meant wass, if Scott is simply absurd, then the Civil Rights Amendments only cure that absurdity.  If Scott was reasonable under the Constitution as it stood, then the Civil Rights Amendments must be understood as making the life and liberty interests of all persons at least coequal to property interests and recognizing that government is created to protect and preserve those rights for all persons.
            The narrow historical analysis is used by the Court (particularly O'Connor) in the congruence and proportionality test for 14th Amendment legislation.  So far it has been used to shoot down the Violence Against Women Act (Morrison) and portions of the ADA.  
            As to the nature of the current Court and your analysis of the so called "strict constructionists", I heartily agree.

            Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

            by Myrkury on Mon Oct 11, 2004 at 08:48:27 PM PDT

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            •  One Man's Holding Is Another Man's Dicta (none)
              As pointed out here, the dissent argued that the denial of citizenship was the holding:

              This was only the second time that the Supreme Court had found an act of Congress to be unconstitutional. Curtis, in dissent, attacked that part of the Court's decision as obiter dicta, on the ground that once the Court determined that it did not have jurisdiction to hear Scott's case its only recourse was to dismiss the action, not to pass judgment on the merits of his claims. The dissents by Curtis and John McLean also attacked the Court's overturning of the Missouri Compromise  on its merits, noting that none of the Framers of the Constitution had ever objected on constitutional grounds to the United States Congress' adoption of the antislavery provisions of the Northwest Ordinance passed by the Continental Congress, or the subsequent acts that barred slavery north of 36 30'.

              Operation 'Fool Me Once' -- Targeting Papers That Endorsed Bush in 2000

              by Paul Rosenberg on Tue Oct 12, 2004 at 03:33:03 AM PDT

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      •  An example of my argument (none)
        Here's an article on Scalia folloing the logic of Scott: here
        He can get away with it if we read Scott and thereby the Civil Rights Amendments as narrowly adressing the error of racism and slavery rather than reforming a government that did not protect the rights of all persons into one that does.

        Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

        by Myrkury on Mon Oct 11, 2004 at 08:42:04 AM PDT

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