An Exercise in Raw Judicial Power

Thursday, January 22, AD 2015

As we observe the sad forty-second anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican.  Here are the texts of their dissents:

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical adviser willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

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15 Responses to An Exercise in Raw Judicial Power

  • “pregnancies that pose no danger whatsoever to the life or health of the mother”
    Any law that allows an abortion to be performed to preserve the life or health of the mother will prove unworkable. This was the position in Scotland before the Abortion Act 1967.
    In practice,
    (1) an unqualified abortionist was always prosecuted
    (2) the Crown Office would not challenge the clinical judgment of a salaried consultant or registrar, still less a professor, in a public hospital performing an abortion on an NHS patient; gratuity was seen as a sufficient guarantee of good faith.
    (3) an abortion performed by a doctor in private practice would be investigated by senior practitioners, nominated by the Crown Office, with indications of good faith including consultation with colleagues, such as a general practitioner, a gynaecologist, a psychiatrist; admission to hospital or a recognised nursing home; observance of normal professional etiquette, such as a consultant being called in only by the patient’s general practitioner; reasonable fees being charged and the keeping of proper records.
    How doctors chose to interpret the law varied enormously. According to the Scotsman (23 December 1966), one pregnancy in 50 was terminated in Aberdeen, compared to one in 3,750 in Glasgow. The difference resulted from the rival interpretations and clinical practice of the two Regius Professors of Midwifery, Dugald Baird at the University of Aberdeen and Ian Donald at the University of Glasgow, both of whom voiced their rival views in public. What was abundantly clear is that the Lord Advocate and the Crown Office had no intention of testing the limits of the law in the courts.
    Many saw the 1967 act as clarifying, rather than changing, the law and introducing additional safeguards (two doctors, licensed facilities) rather than expanding it. Many Christians in both houses, voted for the bill, believing it provided the greatest measure of restriction and regulation that Parliament would approve.

  • This is appropriate here because the U. S. Catholic Conference needs to read it.
    .
    Jesus wept tears over Jerusalem. Jesus wept tears of Joy over the heavenly Jerusalem coming down from heaven. Jesus wept tears of Joy for His Father.
    .
    THE NEW AGE, THE NEW SECULAR ORDER emblazon on the U.S. dollar is the Heavenly Jerusalem coming down from the sky. Jesus wept over Jerusalem. Jesus wept tears of joy over the Heavenly Jerusalem coming down from heaven.
    .
    The righteous brother of the parable of the Prodigal Son refused to weep tears of joy at his father’s command to: ”Rejoice, your brother was dead but now he is alive.” Old righteous brother begrudged his father his tears of joy and his rejoicing and his father’s tears of joy and his father’s rejoicing. Righteous brother refused to bring gladness to his father’s heart. Even then, the father reminded the righteous son that “all that I have, is yours.”
    .
    Would it not have been great, if the righteous brother had brought his friends to the prodigal’s party to make merry with his father as is commanded in Deuteronomy 14: 22-29 about tithing: “and there before the Lord, your God, you shall partake of it and make merry with your family”? Instead he, (there is no other word, but the word I cannot write here) complained about not having enough, not enough heart to ask his father for his friends’ banquet, not enough heart to request to literally throw a party for his friends.
    .
    Deut.14: 28-29 continues, and this is particularly interesting because this passage impinges of the illegal alien. The words of God, Himself: “At the end of every third year you shall bring out all of the tithes of your produce for that year and deposit them in community store, that the Levite, who has no share in the heritage with you, and also the ALIEN, the orphan and the widow WHO BELONG to your community, may come and eat their fill; so that the Lord, your God may bless you in all you undertake.”
    .
    The individual conscience of the citizen CHOOSES to bring out his tithe, every third year, to donate to the community stores. Read food bank. It is not nice to fool Mother Nature, nor try to cheat God. The individual conscience of the man cannot cheat God without forfeiting his life and his immortal soul.
    Obama tries to square himself with God for abortion and legal sodomy by extorting tithe offerings from his fellow citizens without their valid consent or their willingness of conscience. He, then, donates his contraband to the poor, and blows his horn, adorns himself with crowns and gets the democratic party favors.
    .
    Getting back to the new Heavenly Jerusalem descending from God, (as Obama has tried to depict himself). cannot happen in the absence of Truth and Justice.
    .
    I was listening to Malachi Martin R.I.P. Malachi Martin was an exorcist for several decades. Martin said that coming into the presence of evil modifies the soul of even a good person. The soul of the evildoer is modified and the soul of the innocent person is modified. Martin called coming into the presence of an evildoer “dangerous”; an open door to Satan and Lucifer.
    .
    The government is demanding that the innocent proprietors of businesses suffer the entrance of evildoers into their midst as “the price of citizenship.” The state does not own the innocence, nor the soul, nor the sovereignty, nor the personhood, nor the informed consent, nor the CITIZENSHIP, nor the life of the citizen, any citizen.
    .
    For the state to impose regulations demanding that an innocent soul be “modified” by an evildoer is separation of church and state violated. The citizen constitutes and forms the government.
    .
    “Do not weep for me, but for your children”. If Jesus knew about the New World Order”, it was not new.
    .
    “A putative mother” is a very real mother, since the newly begotten child makes a mother of the woman. If the woman was not a mother, she would be a woman without a child. The woman hauled her child into court and demanded his extinction without “due process of law”, literally annihilating the Court.
    .
    The death of the mother is predicated on her imminent death, not a prognosis.
    .
    Snowflake babies, those frozen embryos adopted and gestated are citizens with sovereign personhood even as they are created and destroyed. Science, DNA, IVF and ABORTION, the destruction of humanity, have proven that a sovereign human being comes into existence at fertilization of the egg by human sperm. Enough with the ignorance, denial and tyranny.
    .
    I am sorry this is not better.

  • “I am sorry this is not better”.
    Your not in the position to apologize since your synopsis and arguments are clear and eloquent. You make sense Mary. Your pro-life efforts make a difference. Just consider the babies born that wouldn’t of had a chance if you and other lifers we’re not visible or present to these women who had a change of heart.

    One day in Gods glory, He might just open a book for you. Don’t be surprised if he shows these souls to you. Each and every one, given a chance for life.

  • MPS, your remarks are relevant exactly how?

  • Novus Ordo Seclorum= “A new order to/for the ages,” actually.

    It wouldn’t take much rewriting to apply White to the gay marriage case that will be before the court in a couple of months.

    I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

  • Ernst Schreiber: “Novus Ordo Seclorum= “A new order to/for the ages,” actually.”
    .and that would be to follow our conscience to vocation through freedom and the pursuit of Happiness.
    .
    I love Byron White. Byron White defended against Hugo Black the right to a relationship with almighty God in public square, prayer.
    .
    The one word I would change in his writing is the word: “constitutionally dissentitled.” to constitutionally disenfranchised. The word “disenfranchised” brings the weight of our civil rights to bear as “We, the people…” especially since the scientific proof of the newly begotten child as having constitutional civil rights to Life as our constitutional posterity from the very first moment of his existence.

  • The Supreme Court was as wrong in the Roe v Wade decision of the late 20th century as it was in the Dred Scott decision in the mid 19th century. When the issue is important, the Justices sitting on the bench render the most unjust decisions possible. They fail to realize in this life that the Supreme Justice is NOT a disinterested spectator in the events of human affairs, but they will find out in the next. Yesterday a black man was not a human being and today a baby is not a human being. God sees this. The first time He allowed a bloody civil war to punish us. What will He allow today?

  • Art Deco wrote, “your remarks are relevant exactly how?”
    As the dissenting justices both acknowledge abortion to be lawful in some circumstances, any attempt to restrict or regulate it wouldbe, in practice, have proved futile.
    Things would have been no different, if the majority had upheld the Texas statute, but subject to that limitation. The Scottish experience shows why.

  • Robert Bork wrote a devasting critique of the case in clear language,exposing it as a complete sham.His book should be required reading for anyone going to DC to march.

  • “Things would have been no different, if the majority had upheld the Texas statute,”

    Complete and total rubbish. The number of abortions exploded after Roe, the best estimates indicating a doubling in number.

    Additionally there is quite a difference between a country having a high murder rate and the same country legalizing murder.

  • The very nature of liberty requires a free people to allow and accept behavior from others that is both repugnant and benighted.

  • It does not require that people allow the destruction of innocent human life.

  • On the bright side, Roe v Wade was a 7-2 decision. Most decisions upholding abortion since then have been by the thinnest of margins, many only 5-4.

  • Denver, you are describing license, not liberty.

  • Denver: “The very nature of liberty requires a free people to allow and accept behavior from others that is both repugnant and benighted.”
    .
    Snowflake babies, eggs fertilized, frozen and gestated have grown into “people”. (44,000 in U.K.) You say “a free people” must be given due process of law. “a free people” ought not be murdered.

Obama Wants Living Constitution Theory For SCOTUS Nominee

Saturday, May 2, AD 2009

With the announced retirement of Supreme Court Justice David Souter President Obama wasted no time in addressing the issue of what he’s looking for to fill this vacancy.  In so many words he clearly stated his desire for an activist judge with an eye towards reengineering America [emphasis and comments mine].

“It is also about how our laws affect the daily realities of people’s lives [meaning he wants a Justice who holds fast to the Living Constitution Theory,ie, an activist judge finding invisible law where none existed], whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”

The following excerpt clearly reveals President Obama’s contempt for legislative history in effect eliminating a potential nominee that adheres to the theory of original intent.

“I will seek someone who understands that justice is not about some abstract legal theory or footnote in a casebook.”

One thing is for sure, it will be an extremist liberal and pro-abortion nominee.

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13 Responses to Obama Wants Living Constitution Theory For SCOTUS Nominee

  • Obama’s nominee is unlikely to be an originalist, and they will certainly uphold Roe. This does not mean, however, that Obama has contempt for legislative history or the judicial record. For starters, it’s justices like Scalia who dislike legislative history (because it’s easy to find support for almost any position in the congressional record). As to the judicial record, upholding Roe at this point is respecting the principal of stare decisis. Originalists care about the original understanding of the Constitution, and less about legislative history and the judicial record.

  • John,

    I’ll take your word on it since you’ll be barristering soon enough!

  • John,

    I forgot to mention that they do use legislative history, but not in all cases.

  • Just to be clear, ‘legislative history’ is a tool of statutory interpretation which involves looking at the Congressional record and statements from bill sponsors, etc. Scalia, as a ‘textualist’, thinks only the text of the statute should matter. Obama’s nominee is more likely to favor ‘legislative history’ than a Scalia-type nominee.

    ‘Original intent’ or originalism has to do with Constitutional interpretation; and the theory of the living constitution (which, imo, all justices adhere to in practice to one degree or another) is another theory of Constitutional interpretation.

  • Stare decisis-“To stand by that which is decided”-when we feel like it.

    Stare Decisis tends to be invoked by judges who like a prior decision and ignored by judges who believe the prior decision was a piece of judicial idiocy. Of course when a court is dealing with constitutional issues stare decisis plays less of a role because the constitution, and the correct interpretation of it, is more important than prior decisions of any court. As Roe amply demonstrates however, too often the tool of Constitutional interpretation used by the Supreme Court and many other courts might rightly be called “making it up as they go along”.

  • The doctrine of stare decisis is of limited value in constitutional matters, since erroneous court decisions cannot be rectified by subsequent legislation. While this judicial doctrine has value, the weight it merits should be inversely proportional to the degree of wrongness and degree of importance of the prior decision to which it would be applied. From the standpoint of actual legal reasoning all that Roe has in its favor is stare decisis, given that its rationale is ridiculously deficient, and that is not much. But for the reasons Don suggests, that will be enough for any Obama appointee who favors abortion rights on policy grounds. He will find the scoundrel’s refuge in stare decisis for sure.

  • As Donald and Mike describe, stare decisis tends to be arbitrarily invoked and ignored depending on the judge and the issue. The post originally read ‘Obama’s contempt for legislative history and the judicial record‘. In response, I was pointing out that Obama’s nominees would be unlikely to show contempt for the judicial record (i.e. stare decisis) with regard to Roe, rather than expressing a more general opinion about the importance of stare decisis.

  • I had never been to this blog until now. Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

  • Katerina,

    You guys have a beautiful set up and have the best theme. We couldn’t’ find another one that was better. You guys chose the best template out there!

    Imitation is a form of flattery you know!

    😉

  • Cannot fault anyone for having good taste.

  • Yeah, the reference to “legislative history” doesn’t make sense here. “Legislative history” is a term referring to how Congress enacted a statute — committee reports, House reports, and the like. It’s not a term that refers to the Constitution. And moreover, Scalia (who is at least a “fainthearted originalist,” as he describes himself) is a huge opponent of looking to legislative history . . . his opinion is that Congress enacted whatever is actually in the law, and that it’s dangerous for judges to go beyond the law to look at what some Senate committee might have said that’s different.

  • Obama’s judges will be interested in stare decisis ONLY until they run into a case … such as what happened in Lawrence v. Texas … in which they suddenly decide to overturn precedent.

    This Weekly Standard piece from a while back explains the left’s new-found affinity for stare decisis:

    THE HEARINGS on John Roberts’s and Sam Alito’s nominations to the Supreme Court featured a Latin phrase most people hear only in connection with Supreme Court confirmations: stare decisis. Stare decisis is the legal doctrine holding that in general, an issue once decided should stay decided, and not be revisited.

    ***
    Nowadays, it is liberals, not conservatives, who talk about stare decisis in committee hearings, generally in the context of abortion. Oddly, though, it’s also liberals who want nominees to agree that the Constitution is a “living document.”

    ***
    How is it that liberals have become, simultaneously, the champions of both fidelity to precedent and an ever-changing Constitution?

    Part of the answer, of course, is that the left’s commitment to stare decisis is selective. Many of the Supreme Court’s iconic liberal decisions overruled prior case law. Brown v. Board of Education (1954), overturned Plessy v. Ferguson (1896); Gideon v. Wainwright (1963), which established the constitutional right to a free public defender in felony cases, overruled Betts v. Brady (1942); Mapp v. Ohio (1961), which applied the exclusionary rule to state court prosecutions, overruled Wolf v. Colorado (1949); and so on. Nor need we reach far back into history for such instances. Just two years ago, in Lawrence v. Texas (2003), the Court found a constitutional right to perform acts of homosexual sodomy, thereby overturning Bowers v. Hardwick, which itself was no historical relic, having been decided in 1986. Yet none of the liberals who now wax eloquent about stare decisis criticized Lawrence’s violation of that principle.

    ***
    When liberals talk about a “living Constitution,” what they really mean is a leftward-marching Constitution. Liberals – especially those of an age to be senators – have spent most of their lives secure in the conviction that history was moving their way. History meant progress, and progress meant progressive politics. In judicial terms, that implied a one-way ratchet: “conservative” precedents can and should be overturned, while decisions that embody liberal principles are sacrosanct. To liberals, that probably seemed more like inevitability than inconsistency.

  • Why does this blog look so shamelessly like Vox Nova? Couldn’t you guys find another theme? Come on… 🙂

    We had the ‘Kubrick’ theme for the first five months, but Kubrick doesn’t have the sidebar on individual posts. This made navigation less convenient and, as it turns out, meant the sitemeter was only catching about 40% of the visits. This format was the easiest to transition to from Kubrick. Plus, as Tito said, it looks good and there’s nothing wrong with flattery through imitation from time to time.

25 Responses to The Ten Worst Supreme Court Decisions of All Time

  • Thanks, Donald. And if we had to do a top 100, I doubt we’d run out of room.

  • I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    The Constitution does permit slavery [which Taney despised]. Slavery became illegal with the passage of the 13th Amendment.

  • I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    And I replied noting that you were wrong, dead wrong. The Dred Scott case wasn’t about whether slavery was constitutional. It wasn’t even supposed to be about Congress’ ability to outlaw slavery in the territories until Taney transformed the case. So your observation about the 13th Amendment, like Taney’s decision, is kind of a non sequiter.

  • Mr. Zummo:

    Would you refer to chapter and verse in your comments on Justice Taney? Or try to develope an argument?

    You might read Walker Lewis’ complete account of the case in his biography of Taney: WITHOUT FEAR OR FAVOR.

    I am puzzled by your remark about the 13th Amendment. If slavery was not illegal in the U.S., why was the amendment necessary?

  • I am puzzled by your remark about the 13th Amendment. If slavery was not illegal in the U.S., why was the amendment necessary?

    Umm, because slavery was not prohibited.

  • “Not prohibited” seems to mean “permitted”. But I am not a lawyer, nor a graduate of a school in the Jesuit tradition.

    The Jesuits had no problem with slavery. [Taney despised it and the slavers: “those vermin who trade in human flesh”]. Their Georgetown province had slaves until 1828, when Rome insisted that they give up the practice. They did so by selling the slaves into the deep South and using the money to finance Georgetown and Fordham colleges. [T.J. Murphy. JESUIT SLAVEHOLDING…].

  • “Not prohibited” seems to mean “permitted”.

    Yes, exactly. Slavery was permitted. Thus the need for a 13th Amendment. I’m still at a complete lose as to where the confusion is coming.

    But I am not a lawyer, nor a graduate of a school in the Jesuit tradition.

    And neither am I, though I did attend a Jesuit high school.

  • “complete lose” should read “complete loss” above.

  • I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.

    Neither the declaration nor the constitution included this, but that it was believed by Taney that the framers believed this (reasonably). I don’t see how such a ruling could square with a strict constructionist principle of jurisprudence. Do we have to hold that everything the framers believed however proven by science and reason to be false should be upheld as constitutional even though they did not write it in the constitution? Look at the abortion situation, I really don’t know the framers understanding of embryology, but what if they believed that human beings just spontaneously formed in the woman’s womb moments before delivery (not unreasonable in the late 18th century)… would that then restrict the courts from protecting unborn children as “persons” given modern day understanding that the human embryo is fully human from the earliest stages? That the framers were ignorant of the inherent equality of Africans does not mean that this ABSOLUTE fact must not be acknowledged for all eternity without a constitutional amendment?

    No, strict constructionism must acknowledge without amendment any changes in the understanding of the natural order unless they are EXPLICITLY spelled out in the constitution.

    There should have been no need for a 13th amendment nor no need for the Human Life amendment. These laws were necessary because of horrendously bad judgments. Consider how much more powerful the SCOTUS has become since these terrible errors.

  • “Neither the declaration nor the constitution included this, but that it was believed by Taney that the framers believed this (reasonably).”

    Actually that was more a reflection of what Taney and most white Southerners had come to believe by the 1850’s. In his younger days Taney reflected the consensus of the Founding Fathers: slavery was an evil that would eventually die out. By the 1850s the South felt under siege, the slave economy of the South was booming, “scientific” racism was in vogue, and the idea that slavery was a positive good was argued by many Southerners. This was a radical change from the beliefts of such Southern Founding Fathers as Washington, Jefferson, Patrick Henry, etc., who regarded slavery as an evil that would eventually pass away in the relatively near future. That several states at this time period allowed free slaves to vote, including North Carolina, is an indication that no absolute bar to citizenship was held at the time of the Revolution on the basis of race. The evolution of thinking on slavery from 1776-1861 in America is a fascinating subject. The tragedy is that it tended to develop in opposite ways in the North and the South.

  • I believe we are getting away from the decision into ad hominem arguments. Taney was always admired for the precision of his arguments and his knowledge of the legal precedents, He had been a law clerk for one of the Maryland delegates to the Constitutional Convention so had good knowledge of what the delegates believed when they agreed to the Constitution.
    In this respect, the Founding Fathers were not nice people. They were slavers {“Vermin who traded in human flesh”] and no amount of whitewash will cover that. As Samuel Johnson snorted about the DECLARATION: “Virginia slavers preaching the equality of man”. Although there were fine examples of Southern slave owners [Taney among them] who emancipated “their” slaves, none of our slaver founders did so. They could not afford it, they said.

  • Gabriel, Dr, Johnson, brilliant writer though he was, was also a paid shill of King George III, receiving a pension of 300 pounds a year from 1762, a small fortune in those days. Of course he supported King George and villified his adversaries, both in England and in America!

    George Washington freed several of his slaves during his life and freed all of his slaves at his death and left bequests for the education of the younger slaves in trades.

    Founding Father Robert Carter III of Virginia freed hundreds of his slaves during his life and made arrangements to free all of them after his death.

    Most of the Founding Fathers of course had no slaves and were opposed to slavery.

  • Taney was always admired for the precision of his arguments and his knowledge of the legal precedents, He had been a law clerk for one of the Maryland delegates to the Constitutional Convention so had good knowledge of what the delegates believed when they agreed to the Constitution.

    Which is all well and good, but that still doesn’t mean that his decision was based even remotely upon sound legal reasoning.

    Again – the Dred Scott base was simply about whether or not a slave residing in free territory could be declared free. It had nothing to do about the ultimate justice of slavery in the US. NOTHING. Taney’s decision could have been justified had he and his cohorts simply declared that Dred Scott could not be freed, He stepped over the line when he declared Congress’ ability to prohibit slavery in the territories unconstitutional.

  • Donald R. McClarey Says:
    Sunday, April 19, 2009 A.D. at 2:58 pm

    “Gabriel, Dr, Johnson, brilliant writer though he was, was also a paid shill of King George III”

    This is what I mean about the constant use of ad hominem arguments on this site [and others]. Dr. Johnson was an unapologetic Tory. He was granted the pension for his literary work. The last thing he could be called is a “paid shill”.

    “George Washington freed several of his slaves during his life and freed all of his slaves at his death and left bequests for the education of the younger slaves in trades”.

    Why not all of the “men created equal”?

    I repeat my admiration for Roger Taney who regarded slavers “as vermin who trade in human flesh”.

  • paul zummo Says:
    Sunday, April 19, 2009 A.D. at 4:37 pm

    “Which is all well and good, but that still doesn’t mean that his decision was based even remotely upon sound legal reasoning”.

    I repeat, perhaps hopelessly, that it was not Taney’s decision. It was a decision of 8 of the 9 justices. At the time it was accepted quite calmly – indicating probably a majority agreement in the country. Including Mr. Lincoln.

    I repeat my chief point: for nearly a century, slavery was accepted in the United States. One may praise democracy as perhaps the least evil of governments, while remembering that the American democracy accepted the Jim Crow laws until the 1960s.

  • Johnson was a Tory Austin and he was also a paid shill. As long as a Whig ministry was in the good graces of the King he defended the Whig ministry. He was paid his pension because he would enter the lists on behalf of George III, as he did in the 1770’s in four pamphlets. Johnson was touchy about this, and well he should have been. He was no more an independent agent than a soldier in the British Army who took the King’s shilling. If he had spoken out against a policy favored by the King that pension would have grown wings and flown away, as happened routinely to people who fell out of favor with George III.

    Your comment that the Dred Scott decision was accepted calmly by the country is completely mistaken. The decision caused an uproar throughout the North. Here is Lincoln’s speech on the decision: http://www.freemaninstitute.com/lincoln.htm

  • In regard to Dred Scott, the vote on the decision was 7-2.

  • I repeat, perhaps hopelessly, that it was not Taney’s decision. It was a decision of 8 of the 9 justices.

    Seven of nine – one of the concurring Justices disagreed with Taney’s reasoning. And since Taney wrote the decision, it makes it his opinion. But that’s just a technical matter that really has little to do with the merits of the case.

    At the time it was accepted quite calmly – indicating probably a majority agreement in the country. Including Mr. Lincoln.

    Donald beat me to the punch on this. I simply have no clue how you can make that claim.

    I repeat my chief point: for nearly a century, slavery was accepted in the United States.

    Which, AGAIN, says nothing about the correctness of the decision. I don’t know why you have this mental block that prevents you from understanding that the case wasn’t about the moral rightness or wrongness of slavery. Your insistence upon this point is a complete non sequiter.

  • To try to make Samuel Johnson the “shill” of a political party gives but a shallow idea of his great thinking ability. He also had a way with words, teste the precision of his snort about “Virginia slavers preaching the equality of man”.

    As to the facts about the events after the decision, I can but again refer to Walker Lewis’ biography of Taney WITHOUT FEAR OR FAVOR.

  • Paul Zummo writes:
    “Which, AGAIN, says nothing about the correctness of the decision. I don’t know why you have this mental block that prevents you from understanding that the case wasn’t about the moral rightness or wrongness of slavery. Your insistence upon this point is a complete non sequitur”.

    I wrote nothing about the morality of slavery. My point is the legality of slavery. The Dred Scott decision is based upon the concept that for the Constitution slaves were property – chattel. And that they were held to be inferior to others.

    This is the chief thrust of the decision.

    Lincoln also thought that blacks were inferior. Taney did not, being a good Catholic. He inherited three or four slaves. He immediately freed with a bourse those who could take care of themselves, and took into his household those who were too aged to take care of themselves. As a young lawyer he defended several blacks against criminal charges and was always generous to black associations.

  • Actually Gabriel by the 1850’s Taney was an ardent defender of slavery as noted here:

    http://books.google.com/books?id=E0HS12DV98UC&pg=PA156&lpg=PA156&dq=taney+blacks+inferior&source=bl&ots=X5iwS0tA0U&sig=FMD7525JnV8XnOSlG46cmOmoeuI&hl=en&ei=qAnuSei8GozyMqSn2fEP&sa=X&oi=book_result&ct=result&resnum=1#PPA126,M1

    Taney in writing the decision of the Court was acting as a partisan of the slaveholding south. He thought he was resolving the question of slavery in this country, which just goes to demonstrate that Supreme Court justices can be just as susceptible to self-deception as most people.

  • The Dred Scott decision is based upon the concept that for the Constitution slaves were property – chattel. And that they were held to be inferior to others.

    This is the chief thrust of the decision.

    No. It. Isn’t.

    Seriously, read a constitutional law textbook. Or perhaps simply a history book. Your understanding of this case is mind-numbingly insufficient for you to be carrying on this conversation.

  • As to the facts about the events after the decision, I can but again refer to Walker Lewis’ biography of Taney WITHOUT FEAR OR FAVOR.

    And no doubt Donald and I can refer to about 20 other books that would refute the idea that the decision went over well with a majority the population. It helps to have read more than one or two books on an issue if you’re trying to educate yourself on a given topic.

  • “I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.

    “The Constitution does permit slavery [which Taney despised].”

    The only way for Dred Scott to have been “correct” is for the Declaration of Independence of the United States of America to have been incorrect. If ALL men are Created Equal, and Endowed by their Creator with the Unalienable Rights of Life, Liberty, and the Pursuit of Happiness, and ALL governments must be instituted to “secure these rights,” then on what basis can the government of the United States permit the taking away of the rights of Life, Liberty, and the Pursuit of Happiness?

    BTW, if Chief Justice Taney was such as a foe of slavery, why on Earth did he try to insure the victory of the Southern Slave States in the Civil War by issuing the his famous Ex Parte Merryman decision attempting to release the rebellious Maryland Militia Officer Lt. Merryman?

  • Neal Lang Says:
    Sunday, May 10, 2009 A.D. at 1:26 am
    G.A.: “I sent a note to the website pointing out that the Dred Scott was correct. Disgusting, but correct.
    The Constitution does permit slavery [which Taney despised].”

    “The only way for Dred Scott to have been “correct” is for the Declaration of Independence of the United States of America to have been incorrect. If ALL men are Created Equal, and Endowed by their Creator with the Unalienable Rights of Life, Liberty, and the Pursuit of Happiness, and ALL governments must be instituted to “secure these rights,” then on what basis can the government of the United States permit the taking away of the rights of Life, Liberty, and the Pursuit of Happiness?”

    It is one of the difficulties in discussions about the Constitution is that it often confused with the Declaration. Like it or not, the Constitution is the basis of our laws. And it did permit the trade in slaves by “those vermin who trade in human flesh” [Taney] to continue for 20 years; and it did permit slavery.

    Taney is reviled for being the messenger who brought the bad news – that the U.S. was the country of freedom for white men and a few blacks [Indians not included]. Even Father Abraham believed that Negroes were inferior to whites and looked to shipping Negroes to Africa as a solution. Taney defended Negroes in court cases.

    Taney was not a partisan of the South. The decision in ex parte Merriman to suspend habeas corpus was upheld by several other courts, the argument being that only Congress had the power to suspend ex habeas.

    “Lincoln subsequently expanded the zone within which the writ was suspended. After reconvening on July 4th Congress rejected a bill favored by Lincoln to sanction his suspensions. Between 1861 and 1863 several additional federal district and circuit court rulings affirmed Taney’s opinion. Lincoln nevertheless continued making unauthorized suspensions for another two years until the Habeas Corpus Act of March 3, 1863 formally suspended the writ for him.
    “The Merryman decision is still among the best known Civil War-era court cases and also one of Taney’s most famous opinions. Its legal argument holding that Congress alone may suspend the writ is noted for reiterating the opinion of John Marshall and the court in Ex Parte Bollman (1807) and was recently restated by the Supreme Court in Hamdi v. Rumsfeld (2004)”.

    The adulation of Lincoln goes too far. It also raises the question of whether Lincoln assumed to himself sole power to declare war – a power which seems to be assumed by presidents since Truman.