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.
