As we saw in the
previous posting on this subject, the landmark case Scott v. Sandford
(the notorious Dred Scott decision) resulted in a change in understanding the
whole basis of the United States Constitution.
It was changed from a grant of rights from people to create the State,
to a grant of rights from the State to create persons.
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| Félicité de Lamennais |
That was bad
enough, but the real puzzle was how Chief Justice Roger Brooke Taney, a
Catholic, could possibly have handed down a decision directly at odds with what
both his faith and his nationality assumed is true: that every human being is
endowed with inalienable rights of life, liberty, and private property.
As a Catholic,
Taney’s decision is incomprehensible unless we assume that, as had many
Americans by this time, he imbibed the doctrines of the New Christianity,
Neo-Catholicism, and European type liberal democracy, the type condemned by the
Catholic Church that virtually endorsed American type liberal democracy. If that was in fact the case, Taney would
have assumed as a matter of course that sovereignty resides not in the human
person created by God, but in the abstraction of the collective created by man —
exactly as Félicité de Lamennais had asserted in his “theory of certitude.”
As a
Neo-Catholic, Taney’s decision would have been a logical development resulting
from the principles of European type democracy and liberalism. Reinforced by political and economic pressure
from the South that had been demanding the removal of any and all limits to
slavery, and the growing acceptance of positivism among intellectuals, the
opinion in Scott prepared the ground
for an enormous expansion of State power.
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| Dred Scott |
Thus, as analyzed
by constitutional scholar William Winslow Crosskey (1894-1968) in his study, Politics and the Constitution in the History
of the United States (1953), the question decided in the Dred Scott case
was not, as many authorities today claim, whether a black human being could be
a citizen as that term is used in the
U.S. Constitution. Instead, the Court
decided the more fundamental issue — over which it had no jurisdiction! — of
whether a black human being could be a person
— “person” being something that has rights, status, and a position in society
by nature itself, not by a grant from the State or any authority other than
God.
In effect then,
according to Taney, the United States government in the person of the Supreme
Court has the power of God and can deny to anyone it chooses rights previously
regarded as inherent in each and every human being. Specifically, as Crosskey explained, Scott decided 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.” (William Winslow Crosskey, Politics
and the Constitution in the History of the United States. Chicago, Illinois: University of Chicago
Press, 1953, 1084.)
As Crosskey, who
died before the Supreme Court’s ruling in Roe
v. Wade, (410 U.S. 113 (1973).) commented
regarding the decision,
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. (Crosskey, Politics
and the Constitution, op. cit., 1089.)
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| George Mason of Gunston Hall |
Previous efforts
during the American Revolution to preserve slavery for some and assert liberty
for others had managed to sidestep the issue of whether slaves have natural
rights. As the colonists based their
case against Great Britain on the claim that the British had violated the
natural rights of Americans, they could not very well state explicitly that
other human beings had no natural rights at all.
George Mason of
Gunston Hall (1725-1792) inserted language into his draft of the Virginia
Declaration of Rights of 1776 that implied slaves have natural rights and
therefore have a right to be free.
Conservative members of the Virginia Convention, however, forced him to
add the contradictory qualifier that natural rights are only inalienable after
someone enters a state of society.
It is possible
that Thomas Jefferson (1743-1826), alerted by Mason’s struggles, managed to
preserve language in the Declaration of Independence recognizing the natural
rights inherent in all human beings. He
may have done this by diverting attention to a provision that explicitly
condemned slavery.
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| Thomas Jefferson |
Outraged,
delegates from the southern colonies demanded — and got — the offending passage
removed. They neglected, however, to
demand the same for the statement that all men are created equal and are
endowed by their Creator with certain inalienable rights, among which are life
and liberty. It is probable that
Jefferson’s omission of private property from the list of natural rights —
slaves being property, not persons — also helped keep attention from being
focused on the critical passage.
In any event, in
the Dred Scott decision the United States Supreme Court shifted the source of
sovereignty from actual human beings to the collective. Ironically, this would have remained a moot
point if most people had continued to own capital, and thus able to exercise
meaningful political power.
By the end of the
century, however, advancing technology and the disappearance of land available
on easy terms ensured that more and more people would be non-owners forced into
the wage system. There was simply no way
most people could finance acquisition of the capital that was displacing them
from ownership or even have the opportunity to become owners. In this way, “a small number of very rich men
[were] able to lay upon the teeming masses of the laboring poor a yoke little
better than that of slavery itself.” (Rerum
Novarum, § 3.)
#30#
