Wednesday, August 14, 2013

Abortion, Slavery, and Private Property, III: Scott versus Sandford, 1857


Scott v. Sandford in 1857 — the notorious Dred Scott case — effectively shifted the determination of who is a person (and thus who has rights) from human nature itself to the State.  As Chief Justice Roger Brooke Taney declared, no black man, free or slave, could ever be a person as that term is used in the Constitution.
On the contrary, as William Crosskey argued.  As he explained, the question decided in Scott had not (as a later Court erroneously asserted) been whether a human being of African descent could be a citizen, but if 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.” (William Crosskey, Politics and the Constitution in the History of the United States.  Chicago, Illinois: University of Chicago Press, 1953, 1084.)

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 (hence the various “Jim Crow” laws that made their appearance after the Civil War), not the federal government.

This was a complete reversal of the political theory that justified the founding of the United States.  It assumed that the status of person — defined as that which has rights — as applied to human beings is a grant from the State.  On the contrary, the political theory employed by the Founding Fathers is that rights are inherent in each human being (inalienable), not in the State.

This is made clear in the Preamble to the Constitution itself that begins, “We, the People.”  That is, the Constitution is a grant of certain powers or rights from the people to the State.  That these powers are, one, inherent not in the State but in individual human beings, and, two, that the grant is revocable, is clear from the Declaration of Independence:


“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 these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”


The State, whether in the person of the Congress, the President, or the Supreme Court, therefore has no power whatsoever to determine whether or not any human being is a “person.”  The status of person as applicable to each and every human being is assumed as a given by the Constitution in the Preamble itself.

If it were otherwise, the Constitution would, in effect, be a unilateral grant of rights to the State by itself, a self-generated sovereignty, which makes no sense at all.  Governments are formed by people, and any rights that the State has necessarily come from its creator: the people.  A State cannot declare that any human being is not a person, any more than any other creature is greater than its creator.  Persons are not creatures of the State.  The State is the creature of persons.

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