Monday, March 26, 2007

Should The Civil Rights Cases be cited? And can Roger Taney get an honest hearing from Justice Breyer?

Sandy Levinson

A vigorous discussion has been provoked by Jack's post below regarding the "citability" of Dred Scott. One of the respondents says that the case is so tainted by slavery that it should never be cited. (We offer the analogy in our article of Nazi medical "research" conducted on those incarcerated in concentration camps.) I actually disagree and therefore approve of the DC Circuit's cite of Dred Scott, since it really is the best proof for the proposition tht by 1857 it was assumed that a "privilege or immunity" of US citizenship (to use a slightly anachronistic term) was the ability to keep and bear arms in a context that has nothing discernible to do with service in a militia. (I'd even cite Nazi research if, in fact, it provides usable information about how to treat sick people and save lives. I recognize that reasonable persons might differ with me on this.)

But my real question, for those who are so fastidious, is whether they are going to be equally censurious of the current majority of the US Supreme Court that continues to cite--see, e.g., Morrison--cases like the Civil Rights Cases and Harris v. US, which can be understood only against the background of the disgraceful Compromise of 1877 that accepted the reimposition of white hegemony in the South and the neutralization of any of the anti-Klan legislation designed to stifle an incredibly important "insurgency" in American political history. As a matter of fact, I think it is disgusting that these cases are given any credence. But it also demonstrates why it is almost beside the point to focus one's ire on the truly Janus-faced Dred Scott. There are more relevant targets to be found in the pages of the current US Reports.


A rather gratuitous aside. There is an upcoming "trial" of the Dred Scott case at the Harvard Law School, featuring such outstanding lawyers as Akhil Reed Amar and Erwin Chermerinsky and a court that will include Justice Breyer and Judge Harry Edwards. So my question is this: Is it conceivable that either Justice Breyer or Judge Edwards would ever be willing to say, "You know, after fuller consideration of the arguments provided by capable counsel and by Prof. Graber's marvelous new book, I've decided that William Lloyd Garrison was really right: the Constitution was a "covenant with death and agreement with Hell," and Taney was therefore correct in his interpretation of such a pact with the devil"? This is meant as a rhetorical question, since I think it is unimaginable that either of these worthy judges would be willing to give any credence at all to such a position. For me, at least, this raises the question of why they are willing to participate in such a ritual event, other than to engage in reassurance that the Constitution is now, and always was, terrific and that decisions like Dred Scott can be explained only as "judges on a rampage" instead of an honest effort by capable judges to be faithful to the Constitution they were called on to interpret. (After all, one is stuck with the Constitution one has, not the Constitution one would like to have.)


There's a real cost within the legal system to citing cases like that. When I was a first year lawyer I had an appellate case involving the common law meaning of retraxit. In my innocence, I cited an Alabama case which grew out of a dispute over replevin of a slave. Neither my opponent nor the court paid the slightest attention to the legal reasoning of that case, they dismissed it simply because of its appalling factual predicate.

I won't be citing Dred Scott or Plessy any time soon.

I can understand not citing Dred Scott, but Plessy should be cited, followed by citing Brown v. Board of Education to demonstrate that SCOTUS can be improved in construing the Constitution, what some of us would call progress. That's to live for.

Reality continues to ruin my life.
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