THE Global Justice Movement Website

THE Global Justice Movement Website
This is the "Global Justice Movement" (dot org) we refer to in the title of this blog.

Thursday, September 12, 2019

“An Unbelievable Decision”

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.

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.
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.)
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.
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.)