Raw Judicial Power IX: "Scott v. Sandford"

Despite Thomas Dixon and Margaret Mitchell, authors of The Clansman (1905) and Gone With the Wind (1936), respectively, the period before the Civil War in the American South was anything but halcyon. This was due principally to the abomination of chattel slavery. (We're ignoring, for the sake of the argument, the condition of factory workers in the North as being, except for the fact of political liberty itself, anything to brag about.)

William Crosskey contended that the power grab by the Supreme Court that resulted in the decision in Scott v. Sandford in 1857 (the Dred Scott case) was the culmination of a decades-long effort to defend and extend slavery. To accomplish this, the theory of "states rights" had been invented, and judicial review expanded far beyond what the Founders had ever intended.

Economically, Scott v. Sandford was a triumph of southern agrarian capitalism over northern industrial, commercial and financial capitalism. The struggle between the two forms of capitalism undermined the natural law basis of the Constitution, and fostered the belief that socialism was the only alternative — viable or otherwise — to capitalism. It can be said that the southern agrarian capitalists found their position justified by the economic arguments best presented in David Christy's Cotton is King (1855). At the same time, the emotional presentation in Harriet Beecher Stowe's Uncle Tom's Cabin (1852) inspired the northern "socialist" humanitarians in their abolitionist crusade.

Thus we can say that while opposition to slavery shifted from reason to humanitarianism, support for slavery shifted from reason to economic necessity. Neither Christy nor Stowe really addressed the essential natural right of liberty that was being violated. Cotton is King did give a distorted concept of natural law, but it was clearly twisted to justify the presumed economic necessity.

All of this led directly into the Dred Scott case, Scott v. Sandford, in 1857, which overturned the Missouri Compromise, and set the stage for the Civil War as a conflict between two forms of capitalism. It was, as one Confederate soldier remarked, a "rich man's war, poor man's fight."

Like most legal cases that manage to get all the way to the Supreme Court, the facts are not as clear-cut as the history books have them. Of course, it's not the job of elementary and high school history texts to give an in-depth treatment of every issue. It's enough in most cases to get the facts straight and be consistent with the orientation of the historian(s) writing the text. And, no, there is no such thing as "objective history." All historical writing necessarily takes a point of view, or it becomes incomprehensible.

The "trick" is often trying to find out the point of view of the author so that the reader can weigh the interpretation, even the selection of facts, judiciously, and reach a reasonable conclusion. This becomes problematical when the authors themselves don't realize what their points of view are, or the implications of their unconscious assumptions. The reader's critical faculties have to shift into high gear, as Mortimer Adler made clear in How to Read a Book (1940).

For example, most people who write about such things as the rapid industrial and commercial growth that took place throughout the world in the latter half of the 19th century assume as a given that all of it was financed by cutting consumption, accumulating money savings, then investing. Comparing the "wealth of nations" at the beginning of the century with that at the end of it, however, reveals a phenomenal increase that cannot be accounted for by reductions in consumption. This was combined with vast fortunes of a very few people, and dire poverty of a great number.

The socialists claimed that, since no one could possibly accumulate such vast wealth honestly, it could only have come by stealing surplus value from workers and consumers. The capitalists claimed that those who accumulated vast wealth were of a special breed, and the wealth accumulation reflected the value of the entrepreneurship that made them special and put them above the average, especially the ability to out-produce everybody and everything at a level previously unheard-of.

Neither group considered the possibility that the true state of affairs might be that the vast increase hadn't been financed by cutting consumption at all, but by increasing production. The rich had financed the new capital by promising to pay for it out of future increases in production, rather than past reductions in consumption.

Paradoxically, those who financed new capital in this way were often unaware of the technique they were using. Like the driver of an automobile who knows how to drive expertly but not how to so much as change a flat tire, they took advantage of the system without really knowing how it worked, or why (or what to do when things went wrong).

Similarly, the U.S. Supreme Court in Roe v. Wade used a line of reasoning and a legal philosophy of which they seem to have been in ignorance. Surprisingly, the Pro-Life movement has done the same thing. The Pro-Life movement has focused on overturning Roe v. Wade, either through direct court action, or through a constitutional amendment, ignoring or even silencing potentially effective measures, tactics, and even strategies that differ from the unconsciously accepted parameters.

What leaders in the Pro-Life movement fail to realize is that there is already a constitutional amendment — more than one, in fact — that would, if interpreted correctly, render the decision in Roe v. Wade unconstitutional, that is, illegal. By accepting the current system of constitutional interpretation as a given, and attempting to work within the existing system instead of reform the system at its most basic level by working for a Pro-Life economic agenda consistent with the natural law foundations of the Just Third Way, the Pro-Life movement has, in effect, played right into the hands of the Culture of Death, and has managed to arrive at an unbreakable impasse.

As we have seen in the previous postings in this series, the legal reasoning in Roe v. Wade has a long and dishonorable history stretching back to the founding of the United States. Unfortunately for Dred Scott, the self-interest of the Supreme Court, the toadying of Chief Justice Roger Taney, and the political and economic power of the South combined to deprive not only Scott, but every member of any class not favored by the Supreme Court of allegedly unalienable natural rights, in Scott's case, liberty, which encompasses freedom of association and contract.

To summarize, the effect of Scott v. Sandford [sic — the Court misspelled the defendant's, John Sanford's, name] was to make slavery legal in all U.S. territories. Scott was a slave whose master, a U.S. Army officer, had taken him from Missouri, a slave state, to a series of free states in the course of his career, and then back to Missouri. Scott sued for his freedom in Missouri in 1846, claiming his residence in a free state and a free territory had made him free. He had also attempted a number of times to purchase his freedom, and the offer had been refused.

The opinion of Chief Justice Roger B. Taney was that Scott was not entitled to rights as a U.S. citizen and, in fact, had "no rights which any white man was bound to respect." Taney and six other justices struck down the Missouri Compromise of 1820 as unconstitutional. The Court maintained that, under the alleged doctrine of "states' rights," Congress had no power to prohibit slavery in the territories.

This was exactly the position the politically powerful southern states had been pushing for years. All they needed was an acquiescent Court willing to bend to political pressure instead of the clear sense of the Constitution. They found their man in Justice Taney, who was already notorious as a political hack willing to do anything to curry favor with the powerful.

Taney had first come into prominence as the only Secretary of the Treasury willing to follow Andrew Jackson's ill-advised orders to shut down the Second Bank of the United States. Taney's actions in the 1830s led to "Hard Times," the depression of the 1830s. In 1857, they led directly to the Civil War by making the system unworkable by denying the basis of the system itself. Civil war became inevitable as slave owners, convinced that their economic survival depended on the slave cultivation of American agricultural products, especially cotton, saw their "peculiar institution" and cherished way of life threatened by increasing pressure for abolition.

As Crosskey analyzed the Dred Scott case, the question decided had been whether any "'man of African descent, whether a slave or not,' could enjoy, under the Constitution of the United States, any right or protection whatsoever. All such men were left, by the principles of the Dred Scott case, to the absolute, unrestrained power of the separate states."

In other words, as far as the Court was concerned, a black man, slave or free, was not a "person" as that term was used in the Constitution — the possession of rights being the defining characteristic of a "person." The determination as to whether an individual of African birth or descent, slave or free, was a "person" was an issue to be decided by the various states, not the federal government.

Keep that point in mind, for it is absolutely critical to understanding what Crosskey called the "craftiness" of the Supreme Court, and we will return to it when we get to Roe v. Wade. Whether anyone is a person was an issue to be decided by the individual states, not the federal government.

As Crosskey concluded, the full import of Scott was not that human beings of African descent were to be permanently deprived of citizenship, but that such individuals were not persons as the term is used in the Constitution. Black Americans, slave or free, therefore had no rights under the Constitution, and were, in fact, "to be bereft thereafter of all rights and protection, under the Constitution of the United States, whatsoever." [Emphasis in Crosskey.]

As Crosskey commented, "This, to the present-day mind, seems an unbelievable decision; but to those familiar with the political demands of the South of the time when the decision was rendered, such a tenor in the Court's holding will not be difficult to credit. For it was exactly what the South, for a long time, had been demanding."

What, apparently, was "gone with the wind" was any semblance of a jurisprudence based on anything other than raw judicial power, or "might makes right" — the philosophy of "legal realism."

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