Thursday, January 23, 2014

“Raw Judicial Power” II: Scott v. Sandford, 1857


As we saw in yesterday’s posting, the “issue behind the issue,” that is, the true significance of Roe v. Wade, was not the particular decision of the United States Supreme Court in 1973.  It is, rather, the fact that the Court’s decision in Roe v. Wade reflected a prior bad resolution to a serious problem: the question as to what, exactly, is a human person, and who decides who or what is a person?

This conflict was built into the United States from the very beginning.  The Founding Fathers attempted to establish a government based on the precepts of the natural law, especially the sovereignty of the human person.  At the same time, however, they violated these precepts at the most profound level by allowing the contradiction of human chattel slavery (human beings owned as private property by other human beings) to continue.

What made matters worse was that a number of technological advances made chattel slavery seem economically essential.  The cotton gin made it possible to process tons of cotton in the time it had previously taken to process pounds.  The invention of power looms combined with a ready supply of cheap fiber made decent and affordable clothing for the masses a reality.

Once cotton could be supplied in seemingly inexhaustible streams, it rapidly supplanted wool and linen, both of which took longer to produce in lesser quantity, and were more costly to process.  Cotton, as David Christy put it in his 1855 monograph justifying slavery, was king.  The economic survival of both the United States and the British Empire, Christy claimed, depended absolutely on the slave cultivation of cotton.

It comes as no surprise, then, that in 1857, when a slave named Dred Scott sued for his freedom on the grounds that his master had taken him into the free states where slavery was illegal, the United States Supreme Court ruled against him.  No human being of African birth or descent, so the Court declared, could ever be a person as that term is meant in the U.S. Constitution.

Obviously, as the South had been attempting to do for nearly forty years, the Dred Scott decision overturned the Missouri Compromise of 1820.  Anyone who wanted to own slaves, even if he did so in the free states, could now do so.  Slaves by definition have no rights, and you need rights to be a person.

Evidently unnoticed at the time was the fact that the Dred Scott decision made a fundamental change in the theory of sovereignty on which the United States was founded.  Before 1857, the theory was that rights are inherent in each human being, and granted to the State by the organized body of the citizens.  The human person was sovereign.

After 1857, the theory was that rights are somehow inherent in the State, and the State decides who or what is a person, and then doles out rights to those the State chooses to recognize as persons.  The State was sovereign.

It’s impossible at this point to know whether or not the judges making the decision, or even the people pushing for it, realized what had to happen.  Maybe all they were thinking of was the presumed necessity of expanding the cultivation of cotton as far as possible — and they were convinced that the cultivation of cotton depended absolutely on slave labor.

The fact is that cotton wears out land.  To keep production up, constant expansion is essential if no effort is made to maintain the land or replenish the soil.  Southern cotton producers believed they had to bring as much land under cultivation as possible to continue to produce enough cotton to feed the mills of Manchester, and that meant that slavery, too, had to expand.

#30#

No comments: