Echoes of Dred Scott

“No, Elie, don’t start this now.  You have to get home today, and soon, to finish logging in and enrolling for health insurance on that constantly crashing bummer of a New York State of Health website.  You have less than five working days left to do it, during the arbitrary and stressful Christmas to New Year’s window, and the phone lines and website are going to be overwhelmed.  If you don’t sign up with a new company and complete the paperwork now you’ll have no health insurance until March at the earliest,” said the skeleton.

Got you covered, man, going to get on it as soon as this is tapped out.  I’m not going to write a full account of this infamous Supreme Court decision, just pluck out a few great lines.  

“Don’t start with this today, Elie, I’m telling you.  You have to attend to your own health issues and make sure you have insurance and see the several doctors you need to see.  You have problems with two of the four chambers of your heart, you need to speak to a cardiologist.  You have to follow up on the state of your kidneys, which are spilling protein into your urine.  You haven’t seen a dermatologist in a few years, with denials from various insurance plans, after multiple skin cancer operations.  Don’t fuck around with this, Elie.  For one thing, you have a long way to go to make these 800 pages into a book.  Don’t fuck me, man,” said the skeleton.

Jesus, dad, I wouldn’t fuck you with Eli’s dick.  

“OK, clip out those sections from Dred Scott and get on your way,” said the skeleton.   

The Court signed off on Chief Justice Roger Taney’s long, impeccably reasoned decision 7-2.    

“Impeccably reasoned?” said the skeleton.  

Arthur Kinoy, my by then doddering professor emeritus in law school, cited it as an excellent example of legal legerdemain.  He challenged us to find a weak link in Taney’s argument.  Once you accept the premise of the Negro’s inferiority to the white man, he pointed out, the rest flows like a river.  I found that to be true at the time, even as my glance at it today made me wonder about some of it.    

“You know, Elie, I feel like the fish in the Cat in the Hat.  I have to raise my front fin in caution again, do not do this, do not get into this swamp.  I know you have a point you want to make, or have me make, or whatever your damned plan turns out to be, but I urge you, please, get in the shower, get dressed, get on your way.   After you’ve taken care of the fucking Obamacare stuff, return to this and finish it.  For the love of Christ, Elie…”

I hear you, man.  Just two things.  

“Oh, no!  Two?!” said the skeleton.  

The first is a very weak bit of legerdemain from fucking Roger Tawny.  

“Yeah, that’s how you say the fucker’s name, though it’s spelled Taney,” said the skeleton.

He cites, as proof that the Negro, inferior and enslaved, was never intended to be considered a human or citizen under the original intentions of the Founding Fathers, the vaunted language from the Declaration of Independence that has stirred so many hearts over the centuries.   Here he goes, the motherfucker:

The language of the Declaration of Independence is equally conclusive:

It begins by declaring that, ‘when in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and nature’s God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation.’

It then proceeds to say: ‘We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.

The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.

“Utterly and flagrantly inconsistent with the principles they asserted, oh, my!” said the skeleton.  

Taney continues:

Yet the men who framed this declaration were great men—high in literary acquirements—high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.

The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares that it is formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was necessary.

But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

“Oh, God, these are great clauses, direct and specific, I’m so glad the Honorable Mr. Taney brings them up,” said the skeleton, cheerfully.  “I remember you telling me about these clauses when you stumbled on them in law school.  You seemed so shocked, it was hilarious.”

Taney continues:

One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then formed should endure. And these two provisions show, conclusively, that neither the description of persons therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen.

No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union.

Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended to them.

“Well, dassum shit,” said the skeleton.  “I love that bit: high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting.  After all, Elie, the high and inviolable sense of honor and principle of wealthy and influential men who raped their slaves is beyond question.  Although, of course, it is impossible in that world of solemn legalities to call the rape of property ‘rape’, you understand, as rape only applies to a creature capable of giving consent.  By that logic, Mr. Jefferson’s liaisons with Ms. Hemmings were a discreet and purely personal matter, roughly the same as Mr. Jefferson having a favorite and well-loved sheep, or goat, the intimate parts of which he sought for tenderness and release.”  

Weren’t you telling me I have to get out of here?  

“Yes, yes, make your second point and get going.  And make it snappily– nobody wants to read all that Tawny bullshit.”  

Short and sweet, then, and containing one of the great lines ever written by a Supreme Court justice, a bit of inadvertent, unvarnished truth telling.  

Speaking of the time leading up to the formation of these United States (in five of which, one dissenting judge pointed out, blacks were allowed citizenship, including the right to vote), Taney writes:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

“No one thought of doubting or disputing any of this, of course, except for the millions who did dispute it.  Or legislators of the five states that allowed blacks to vote when the Constitution was ratified,” muttered the skeleton.   “They can read a condensed version of the dissents here, where you just saw that startling fact.”

The beauty of it, and a hideous beauty it is, to be sure, is that Taney uses the ‘originalist’ argument here, speaking of all this shit as the well-understood intent of the men who framed our republic, and by that quaint device ratifying it for the future, even as he quietly acknowledges how much times and beliefs have changed since.  ‘All men created equal,’ written now, would surely have a different ring than in 1776, he admits.  But since in bygone times white men regarded Africans as plainly inferior, we must respect this tradition in the face of those today who insist it is not so.  He speaks of the past while setting it out, pious, infallible prick that he was, as immutable law for the future.  

“With the beautiful irony, of course, from a legal perspective, that he denied Dred Scott, still held as a slave, standing to even bring the case in federal court, which should have been the end of the matter.   If Dred Scott had no standing he should have dismissed the case.   Yet, instead of dismissing the it, he rambled on at great, tedious and labored length, to explain why a piece of property and member of an inferior race had no rights a white man was bound to respect,” said the skeleton.

Beautiful irony, pops, that lives on, undisturbed, to this very day when our great nation imprisons more people than China, a ruthless state with four times our population.  The U.S. prison population, naturally enough, disproportionately non-white, many with no rights the white person is bound to respect.  Now, if you will excuse me…


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