Balkinization  

Monday, March 26, 2007

Is Dred Scott uncitable?

JB

This essay by Gregory J. Wallance in the National Law Journal criticizes the D.C. Circuit's opinion in Parker v. District of Columbia for citing Dred Scott v. Sanford. Wallance writes that "there is no aspect of Taney's opinion that deserves respect, let alone a citation by a court regarded in importance as second only to the Supreme Court."

This seems hyperbolic to me. The fact that a certain type of argument appears in Dred Scott doesn't make it a bad argument. Nevertheless, because Dred Scott is the key example of a case that everyone thinks is wrongly decided, people can't resist tarring other opinions they don't like by comparing them to Dred Scott.

So pro-life people attack Roe v. Wade on the grounds that Taney makes a substantive due process argument, and therefore all substantive due process arguments must be evil. (In fact, Taney makes a different kind of argument than the one that appears in Roe. It's a vested rights argument, of the type well known at the founding, but badly managed in Taney's hands.). Living constitutionalists attack Taney on the grounds that he makes an originalist argument for the proposition that blacks can't be citizens. (In fact, Taney's originalist argument is an example of what I've called "bad originalism." It misuses history to achieve a conclusion that Taney likes. I'm sure you will be shocked to discover that this sort of thing still goes on to this day.) Because Dred Scott is so often used as a knock down argument to attack people's views, one might well reach the absurd conclusion that every part of the opinion must be wicked. And where, as in the Parker case, the court even dares to cite Dred Scott, well, aren't they just asking for trouble?

No indeed. Here's a little selection from Sandy Levinson's and my recent article on Dred Scott that addresses this very question. And if you want to know more about the good, the bad and the ugly in Dred Scott, feel free to read the entire article (as well as fellow blogger Mark Graber's excellent new book on the subject).

* * * * *

As Exhibit A in the constitutional anti-canon, it is easy enough to find objectionable features in Dred Scott. But a remarkable characteristic of even the worst legal arguments is that they are often Janus-faced—they contain ideas that, in other contexts, are entirely reasonable and even admirable. Dred Scott is no exception.

Dred Scott contains two key ideas that we might find valuable today. The first is its commitment to the idea of equality, however warped. The second is its hostility to colonialism and imperialism.

Today we think of Dred Scott as the very symbol of inequality, because it treated blacks as an inferior order of humanity. But Taney (and Catron) thought they were upholding equal rights—between Southerners and Northerners. Dred Scott held that the Missouri Compromise banning slavery in the northern territories was unconstitutional because the federal government could not subordinate the interests of Southern white slaveholding citizens to those of their Northern compatriots. Whatever else one might say about the Missouri Compromise, it generated a structural inequality at its core: Northerners could bring all of their property into the federal territories to settle them, but Southerners could not. Indeed, they might forfeit most of their wealth if they tried to enter north of the Compromise line. Of course, one might object that slaveholders could sell their slaves and use the proceeds to invest in new businesses north of the Compromise line. But slavery, of course, represented a culture as well as a form of wealth; the inability to maintain one’s status as a slaveholder and the obligation to hire free labor or, perhaps, choose an entirely new line of work meant, to many, the destruction of a valued way of life. Justice Catron, among others, argued that the Missouri Compromise unfairly discriminated against Southerners. He anticipated Justice Brennan’s argument in Shapiro v. Thompson over a century later, arguing, in effect, that the Compromise penalized the constitutional right of Southerners to travel into and settle the territories on equal terms. Indeed, Dred Scott may be the first “unconstitutional conditions” case—for Catron is arguing that the federal government could not put Southerners to the choice of purchasing cheap federal land or holding their slaves. The Compromise, Catron, argued, was not only coercive; it was discriminatory: “[T]he act of 1820, known as the Missouri compromise, violates the most leading feature of the Constitution—a feature on which the Union depends, and which secures to the respective States and their citizens an entire EQUALITY of rights, privileges, and immunities.”

George Fredrickson many years ago applied the term “herrenvolk democracy” to describe the nineteenth-century United States, and Don Fehrenbacher titled his last work The Slaveholder’s Republic. Dred Scott forces us to confront the extent to which these labels accurately characterize the America in which it was decided. The “slaveholder’s republic” offered a kind of “equality” to all whites (or at least all white male citizens). The Dred Scott majority argued that Congress held the federal territories in trust for all U.S. citizens, slaveowners and non-slaveowners alike; and that all citizens should have an equal opportunity to settle them. The Missouri Compromise barred slaveowners from bringing their slaves with them north of 36°30' latitude, imposing what we today would call a “disparate impact” on Southerners. Thus, Dred Scott not only makes an egalitarian argument for slaveholders rights, it also makes what we would today call an “antisubordination” argument. For Catron, the issue was not whether the Compromise was formally equal between Northerners and Southerners (some of whom did not in fact own slaves), but the practical effects and advantages that the law had in creating or perpetuating advantages for one group over another. As noted earlier, slaveholders could renounce their slaves or leave them behind if they wanted to settle in northern territories, but this would mean giving up not only their livelihood, but also their way of life. Consider, for example, a “compromise,” designed to overcome traditional religious conflict, that allowed Protestants to settle anywhere in the United States, but limited Catholics or Jews only to the territories of the upper Midwest.

Today, of course, antisubordination arguments are most likely to be offered by minority groups criticizing the cumulative effect of formally neutral laws that disadvantage them. It is interesting—and ironic—to note that Southern slaveholders made similar claims that they, too, were a disadvantaged and put upon minority in the United States, and they demanded constitutional remedies to prevent this unfair treatment. In its own way, then, Dred Scott exemplifies a Court that did indeed take (certain) rights seriously—the rights of slaveholders and the right to equal treatment by the federal government when it dispensed valuable goods like the ability to settle in new federal lands. Today we may be outraged by Catron’s use of equality arguments to defend the rights of slaveholders. But his argument was by no means frivolous in 1857. Indeed, it followed from the widely held assumption that slavery was a legitimate form of property, at least as legitimate as other forms, and, moreover, specially protected by the Constitution. If slavery was legal and legtimate, then slaveholders too were entitled to what we would now call the “equal protection of the laws.”

A second valuable aspect of Dred Scott is little noticed today but was quite important at the turn of the twentieth century. As America became an imperial power following the Spanish-American War, extending its sovereignty to new territories in the Phillipines, Puerto Rico, and elsewhere, the question arose whether the Constitution was equally enforceable in these new possessions. In the parlance of the day, this was the question of whether the Constitution followed the flag. The key Supreme Court decision of the time, though sadly neglected today, was Downes v. Bidwell, one of the Insular Cases of 1901, where Dred Scott is extensively cited—without shame—by both sides.

From the perspective of 1901, Dred Scott was not a case about racial equality or even citizenship, but rather about Congress’s plenary power to regulate the territories free of effective constitutional limits. Taney’s opinion in Dred Scott makes a sustained argument against such powers. Drawing on the memory of America’s struggle with Great Britain, Taney insisted that America was different from Europe. Unlike the Europeans, America would not and could not hold colonies that would never become part of the Union. All federal territories were acquired with the expectation that they would someday be states, and therefore the Constitution—and constitutional rights of person and property—applied to all of them. That is why Taney insisted that the federal government could not destroy vested rights of slaveholders when they brought their slaves to the territories.

Thus, Taney’s opinion in Dred Scott held that when the United States government acquires new territory—no matter where in the world—it must protect the rights of at least U.S. citizens who live there. The government’s power to regulate territories was limited by the Bill of Rights and other constitutional guarantees. Although he did not use the term, we could regard Taney as an “anti-colonialist,” a central term in turn-of-the-twentieth-century discourse. It was the great dissenter in Plessy v. Ferguson and the Civil Rights Cases, John Marshall Harlan, who drew on this aspect of Taney’s opinion, just as the pro-imperialist majority made every effort to describe Taney’s views as referring only to slavery—and, therefore, of total irrelevance to the vigorously expansionist United States.

To avoid the force of Taney’s logic, the Supreme Court in the Insular Cases created a new distinction between incorporated territories where the Constitution applied fully and unincorporated territories—like the Philippines and Puerto Rico—where only limited or watered down versions of constitutional rights applied. This distinction—and its rejection of Dred Scott—is still important today. As the United States became a world power, it occupied military bases around the world, including Guantanamo Bay, Cuba, where, as we noted previously, the government has argued that foreign detainees have no constitutional rights that the United States must respect. In a stunning example of ideological drift, Taney’s arguments that slaveholders retained basic rights when they traveled to territories held by the United States take on a very different meaning in today’s world, in which the United States stores detainees in prisons around the world, hoping to keep them well beyond the reach of American courts—and American constitutional rights. Although Taney’s specific argument sought only to protect the rights of citizens in territory controlled by the federal government, his larger principle-- that the Constitution should follow the flag-- has far greater reach.

Citing Dred Scott as positive authority for anything these days may give people pause, somewhat like citing Nazi medical experiments on Jewish prisoners for the useful information they might contain. The proper response to unmitigated evil, one might argue, is to refuse it even the most minimal affirmative recognition. Perhaps this is correct with regard to Nazi experiments. But is it a fit response to the legal arguments in Dred Scott? Or, on the contrary, should we recognize that elements of Dred Scott can make valuable contributions to our constitutional discourse even today?


Comments:

The Parker court cited to the Dred Scott decision, among others, because it included the right to keep and bear arms among the other individual rights guaranteed by the Constitution. This was a perfectly legitimate citation which has been made dozens of times in recent Second Amendment scholarship.

Mr. Wallace is engaged in a fit of political correctness here because the citation has nothing to do with the overall decision concerning the citizenship of African Americans.
 

Pragmatically, there seems little reason to cite to Dred Scott. What it says is either based on earlier precedent, which could then be cited, or is original to that opinion, which is therefore dubious. (The "Alexandrian library" argument, if you will.)

Rhetorically, well, isn't that obvious?
 

Whatever else one might say about the Missouri Compromise, it generated a structural inequality at its core: Northerners could bring all of their property into the federal territories to settle them, but Southerners could not.

This isn't quite right. First, the Missouri Compromise was fundamentally an issue of the power of the majority to regulate. While this particular regulation affected slaveowners (not "Southerners"), other regulations might well have disproportionately affected the owners of different property. To use Lincoln's example, if Congress had enacted an anti-liquor law, that would have affected the right to bring liquor into the Territories. That's not a structural inequality, that's what nearly every regulation does.

Second, as you go on to note, the Compromise didn't actually deprive anyone of property, just as nobody interprets an anti-liquor law as doing so. It did control the form property could take. But the law already did this in many subtle ways. For example, nobody then argued that someone could enter the Territory and make a white person a slave. When Taney created a substantive due process right to own (black) slaves, he treated slavery as a national norm when it very much was not.

But slavery, of course, represented a culture as well as a form of wealth; the inability to maintain one’s status as a slaveholder and the obligation to hire free labor or, perhaps, choose an entirely new line of work meant, to many, the destruction of a valued way of life.

Perhaps so, but the 5th Amendment did not and does not protect "culture". I don't believe even Taney thought he was creating such a right. He thought he was recognizing a property right as above.

Justice Catron, among others, argued that the Missouri Compromise unfairly discriminated against Southerners. He anticipated Justice Brennan’s argument in Shapiro v. Thompson over a century later, arguing, in effect, that the Compromise penalized the constitutional right of Southerners to travel into and settle the territories on equal terms.

Only a valid argument, of course, if owning a slave is a Constitutional right. Catron's argument is circular.

Consider, for example, a “compromise,” designed to overcome traditional religious conflict, that allowed Protestants to settle anywhere in the United States, but limited Catholics or Jews only to the territories of the upper Midwest.

"Southerners" is not a protected class, nor is there any reason to treat it as such. Indeed, doing so would inevitably result in disparate impact on "Northerners", who would then require protection, and so on ad infinitum.

In any case, as I said above, the Compromise didn't prevent "Southerners" from settling the territories, it only prevented "slaveowners" from doing so.

I do agree, though, that the basic principle that "the Constitution follows the flag" is defensible, though I'm sure citing Dred Scott as authority wouldn't bolster the argument much.
 

Professor Balkin:

What's next as a rehabilitated precedent? Plessy v. Ferguson?

I think your argument is naïve, however much it might be appreciated in whatever passes for a law school common room these days.

Scott v. Sandford certainly remains far more interesting as an historical landmark on the road to the American Civil War than as a case interpreting the Constitution. The case remains highly charged politically precisely because we continue to have a large body of citizens in this country who think it honors American heritage to fly the flag of bloody rebellion and slavery, who insist on referring to the issue dividing the nation in 1860 as one of "state's rights", and who espouse views about the Fourteenth and Fifteenth Amendments that somehow manage to overlook the sacrifice of 611,000 war dead as being a rather more important factor in determining "intent".

Scott v. Sandford retains more political potency than you might think. Wallance's claim that "no aspect" of the opinion "deserves respect" may have been a bit over the top, but citing the case is not innocent. That the case deserves more dispassionate study I do not doubt, but it has no place in live opinions of the courts of this land so long as our nation remains marked by the stain of our racist heritage.
 

Given that Dred Scott is the most reviled case in the Constitutional anti-canon and was overturned by multiple amendments, I'd think it would be suspect as precedent on any point of law. Dred Scott is widely regarded as having been wrongly decided even under the law of the time; why would we regard dicta made in the course of the Worst Constitutional Argument Ever Made By The Supreme Court as having any precedental effect? What's next, citing dicta from Plessy and Lochner?
 

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