Dred Scott
August 3, 2001
© 2001 The Daily Brew
 
If there is any indisputable fact about the Presidential election that will
harden into the granite of history, it is simply that the election was decided
not by the voters, but instead by the Supreme Court. Even the most ardent
Bush supporter cannot quibble with the reality that, rightly or wrongly,
the Supreme Court ended the uncertainty associated with the counting
of votes, and in so doing, determined the outcome of the election.

It is this truth, more than the tortured logic of the actual decision,
that will mark the five member majority as having authored the perhaps
the second most fundamentally anti-democratic example of jurisprudence
in the history of the United States. However, calling the decision a
blatantly political act that showed contempt for not only the law, but
also the very institution of the Court itself, may miss the point.
Perhaps these five members of the Supreme Court didn't merely set out to
frustrate of the will of the electorate for partisan purposes.  Instead,
perhaps these five members were settling a long standing score, a grudge
against democracy dating back to the election of 1860.  For if Bush v.
Gore was the second most poorly reasoned and blatantly political
decision in the Court's history, the election of 1860 was a direct
repudiation of the first.

In the early 1840s, Dred Scott, the slave of a U.S. Army doctor from
Missouri, had accompanied his master to different army posts in the
United States and the western territories. Most of the northern states
had laws offering freedom to slaves who entered accompanied by their
masters. Additionally, in the Missouri Compromise, Congress had
prohibited slavery in the territories north of the southern boundary of
Missouri. Because he had spent two years in a free state and a free
territory, Dred Scott, backed by abolitionists, sued for his freedom in
1846. In 1856, the case reached the U.S. Supreme Court, and on March 6,
1857, nine justices filed into the courtroom in the basement of the U.S.
Capitol. They were lead by Chief Justice Taney, who then read the
infamous Scott v. Sandford decision. Just as the court's decision in
Bush v. Gore frustrated the fundamental bedrock of democracy, the
conduct of fair and free elections, Taney's decision in Dred Scott
frustrated the fundamental bedrock of liberty, the recognition that
people are not, and cannot be, property.

The court had ruled that no black man, free or slave, was a U.S.
citizen; and therefore "had no rights which a white man was bound to
respect." Accordingly, a black man had no right to sue in federal court,
and Dred Scott was forever condemned to slavery. The Court went further,
though, ruling that the Congress never had the right to ban slavery in
the newly settled Territories, because the Constitution protected people
from being deprived of life, liberty, or property, and slaves were property.

The Supreme Court had sought to end, for once and for all, the
controversy surrounding slavery in the growing nation.  For as both
Northerners and Southerners knew, with respect to slavery, as the
Territories went, so went the Nation. The Court did so by appeasing the
South, a majority of whose great-grandchildren would one day support
George Bush, at the expense of the North, a majority of whose
great-grandchildren would one day support Al Gore. In so doing, they
seemingly institutionalized slavery as a permanent feature of the Union,
and the status of blacks as property. As they would again with the
election of Bush, the white men of the South rejoiced at the Dred Scott
decision, as their economic fortunes had been built directly on slavery.
Abolitionists in the North, outraged by the Court's holding in Dred Scott,
seemingly had little recourse. At least not until the election of 1860.

Leading up to the election of 1860, the editors of the Atlantic Monthly
were perhaps too prescient in reporting "the Slave-System is one of
those fearful blunders in political economy which are sure, sooner or
later, to work their own retribution." At the same time, the Atlantic
made plain that the 1860 election was a contest to undo the immorality
hoisted upon America by the Supreme Court in Dred Scott:

"Whatever be the effect of slavery upon the States where it exists,
there can be no doubt that its moral influence upon the North has been
most disastrous. It has compelled our politicians into that first fatal
compromise with their moral instincts and hereditary principles which
makes all consequent ones easy; it has accustomed us to makeshifts
instead of statesmanship, to subterfuge instead of policy, to
party-platforms for opinions, and to a defiance of the public sentiment
of the civilized world for patriotism. We have been asked to admit,
first, that it was a necessary evil; then that it was a good both to
master and slave; then that it was the corner-stone of free
institutions; then that it was a system divinely instituted under the
Old Law and sanctioned under the New. With a representation,
three-fifths of it based on the assumption that negroes are men, the
South turns upon us and insists on our acknowledging that they are
things. After compelling her Northern allies to pronounce the "free and
equal" clause of the preamble to the Declaration of Independence
(because it stood in the way of enslaving men) a manifest absurdity, she
has declared, through the Supreme Court of the United States, that
negroes are not men in the ordinary meaning of the word. To eat dirt is
bad enough, but to find that we have eaten more than was necessary may
chance to give us an indigestion. The slaveholding interest has gone on
step by step, forcing concession after concession, till it needs but
little to secure it forever in the political supremacy of the country.
Yield to its latest demand,--let it mold the evil destiny of the
Territories,--and the thing is done past recall. The next Presidential
Election is to say Yes or No".
 
Republican partisans still overjoyed with the Court's decision in Bush
v. Gore, particularly those in the South, would do well to remember the
fallout of the Dred Scott decision.  The Supreme Court had hoped they
would end the controversy.  Instead, just Dred Scott simply fanned the
flames of abolitionism.  What at the time appeared to be the ultimate
victory of slavery, would in the end cripple their cause. In the 1860
presidential election, Northern progressives, the abolitionists,
repudiated the court, soundly electing Abraham Lincoln President.  Days
before Lincoln was to be sworn into office, the South succeeded from the
Union. Within months, the Nation was plunged into the bloodiest and
costliest war in its history, a war that ultimately decimated the South.
 
Perhaps Bush v. Gore will have a similar effect on today's progressives.
Still, if progressives manage to repudiate the Court in the next
Presidential election, I rather doubt that the protégé's of Southern
secessionists, the Republican "bourgeois rioters" who stormed of the
Miami-Dade vote-counting room, will follow in their great grandfather's
footsteps. Unlike their slaveholding forefathers, I suspect they haven't
the courage for a real fight.