The Cranky Conservative has two first rate posts on his site here on what he regards to be the ten worst US Supreme Court decisions of all time. Having read hundreds of Supreme Court decisions, I have to salute Cranky for narrowing them down to ten. So many appalling decisions to choose from!
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.