Saturday, July 28, 2018
The Missouri Compromise: The Missouri Compromise of 1820 admitted Missouri into the Union as a slave-state, but no other state above the latitude of 36’ 30” would be admitted into the Union as a slave-state. All territories above the 36’ 30” line would prohibit slavery. Article Four Section Three of the Constitution is the Territory Clause and it reads: Congress has the power “to dispose of and make all needful rules and regulations respecting the territory or other properties belonging to the United States”. Taney’s decision claims the clause only affected territories owned by the United States in 1789 (at the founding) and “other properties” included only ships, arms, and munitions inherited by the new government. In his dissent Justice Curtis points to the North Carolina and Georgia cessions of Western lands to rebuke Taney’s claim that the Territory Clause only affected territories in 1789. Taney also believed that the words “all needful rules and regulations” in the clause did not amount to much meaning or plenary power for Congress. When, in fact, it combines the word usage of two of the most powerful clauses in the Constitution: “Necessary and Proper” (needful) and to (regulate) “Commerce”. James Madison said on the power of the federal government under the Territory Clause was to “institute temporary governments”. Justice Daniel concurs with Taney and believes the Territory Clause “did not extend to political rights of citizens and settlers” it merely affected land grants. Justice Campbell argued that the American Revolution was fought over British imperialism and he doubted that the Founders wanted to create a United States imperialistic or colonial system throughout its territories by using the Territory Clause to create new governments without the consent of the people. This is somewhat similar to most Territory slave policies by Congress: Laissez Faire or in these instances called popular sovereignty to let the democratic majority to decide political questions regarding slavery. However, popular sovereignty does not mean that democratic majorities will make correct constitutional judgement or decisions. Our history is filled with unconstitutional popular sovereignty decisions. Besides, it is also a bad assumption to think that our Founders did not learn their lesson from English colonialism to govern U.S. Territories correctly. I also find it ironic that Justices are concerned about Colonial tyranny when Southern tyranny towards a specific race of people dominates their laws. The Missouri Compromise making slavery illegal above the latitude of 36’ 30” did not penalize slaveholders any more than any unique state or territory law which may impact new citizens. For instance, people who moved from a state where gambling was legal into a territory or state where gambling was illegal could be fined or imprisoned for violating the law. Any prohibition on slavery was no different. It is argued that the government cannot confiscate or prohibit personal property. That is not true. Money is property and any fine or tax levied by a government is the confiscation of property. Furthermore, States and municipalities prohibit all types of livestock and domesticated or wild animals. Slavery and the Missouri Compromise are both political questions that the Supreme Court lacks jurisdiction to decide. In 2006, John Finn defined a political question as: “The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.” In Luther v. Borden (1848) the Taney Court ruled that only the President and Congress can settle the political question over the Guarantee Clause in the Constitution: the “Guarantee of a Republican form of government” for each state (territory) in the union. So long as state and territory governments are Republican then the issue of slavery should be settled by the sovereign states or by territory governments set up by Congress. And this asserts that Congress, not the judiciary, can settle government issues regarding territories. Remember, Congress may not have the power to prohibit slavery but the Constitution does not forbid it nor does the Constitution allow slavery in states or territories. And if Dred Scott is a slave with no rights as Taney proclaims, then he has no jurisdiction to sue for his freedom and the Court therefore lacks jurisdiction to decide the case and instead should have reverted to the decision of the Missouri Supreme Court. If the Court did this then they could have avoided the embarrassing opinion concerning free-Negroes and the Missouri Compromise. Unfortunately, this approach by the Court would have still left Dred Scott a slave. A pivotal case for the legality of the Missouri Compromise was American Insurance Company v. Canter (1828). Chief Justice Marshall said “Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution which empowers congress to make all needful rules and regulations respecting the territory or other property belonging to the United States.” This sentence conflicts with Taney’s assertion that the Territory clause did not affect territories acquired after 1789. Marshall also said in the opinion “In legislating for them, Congress exercises the combined powers of the general, and of the state government.” In other words, Congress had both federal and state power over Territories. Thus, even if Congress did not have the authority to allow or disallow slavery in territories based on its enumerated powers in the Constitution, Congress had the authority to do so as acting as a state government.
Monday, July 23, 2018
Taney places “property” above “liberty” in the Fifth Amendment due process clause: “Persons should not be deprived of life, liberty, and property without due process of the law.” If liberty were emphasized than slaves should be provided due process of the law since the Fifth Amendment does not mention citizenship, just persons. Remember, Taney’s argument is that both free-Negroes and Slaves are not Citizens of the United States and can never be Citizens of the United States. He never argues that they are not persons, but he does suggest they have a duality of purpose being both persons (not citizens) subject to laws of the land and property. Once again the logic does not work. In science, when something has a duality purpose, it is more powerful. One would assume that Negroes having a duality purpose would make them much more powerful than Whites. For instance, light can be a particle or wave making it one of most powerful phenomenon in the mysteries of the universe. In legal terms, money has both the purpose of being property and free speech. This makes money even more powerful in political spectrum. Since Taney emphasized the word “property” in the Fifth Amendment he placed the onus of his decision on protecting a slaveholder’s property without due process of the law. However, the question should not have been whether slaves were “property”, but instead if they were deprived “liberty” without due process. The Fifth Amendment’s due process clause protects all persons, even those who are not citizens. The word slave is never mentioned in the Constitution. The Constitution is “colored blind” as declared by Justice Harlan in Plessy v. Fergusson in 1896. The “Three-Fifths” clause refers to persons, not property. The “Fugitive” clause refers to persons, not property. Remember, this clause included indentured servants who had to work off debts most notably for their passage to immigrate to America. The “Migration and Importation” clause referring to “slave trade” also talks about persons and not property. In fact, President Jefferson signed into law an Act prohibiting the importation of slaves in 1807. It took effect in 1808 at the earliest date allowed by the Constitution in the “Migration and Importation” clause. It is also important to note in Barron v. Baltimore (1833) the Marshall Court said the Bill of Rights in the Constitution did not apply to the States, but only the Federal Government. Therefore, Taney was treading in deep waters when he applied the Fifth Amendment’s due process clause to this case. The Fifth Amendment certainly did not apply when Dredd Scott was temporarily taken to Illinois. On the other hand, the Fifth Amendment could have applied when Dred Scott was taken into Wisconsin Territory which was federal land. But Taney specifically states that Congress has no power to deny slavery in the territories. And by proclaiming the Missouri Compromise is unconstitutional, Taney is saying Congress has little authority in both States and Territories. Hence, his Fifth Amendment argument makes little sense based on both precedent and his own reasoning. If Congress has no Constitutional authority to prohibit slavery in the states and territories then the Fifth Amendment argument does not work. Taney’s dual citizenship theory in his opinion changes the meaning of privileges and immunities clause from “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states” to “the citizens of each state, who are also citizens of the United States, shall be entitled to all the privileges and immunities of citizens in the several states”. In 1839 the Taney Court issued a decision that held corporations were citizens within the meaning of the privileges and immunities clause. Five years later in Louisville, Cincinnati, Charleston Railroad v. Letson the Taney Court held that corporations were citizens in that they can sue and be sued in a federal court under the Diversity-Citizenship Clause. The Taney Court made a similar ruling in Marshall v. Baltimore and Ohio Railroad (1853). In other words, corporations were citizens in some respects but not in others. The same can be said of women and children during the founding era. Women and children were not given the same privileges and immunities given to men but were still considered citizens. Free-Negroes were no different. They had some rights, but even in free-states they were denied many privileges and immunities such as the right to bear arms. Only in Maine where free-Negroes considered equal to Whites in terms of privileges and immunities. But in most free-states, free-Negroes had the right to marry, sue in federal courts, and own property. This was enough for them to be considered citizens of free-states and should in turn be considered citizens of the United States. The Taney duality citizenship argument makes little sense. Finally, Taney argues that the militia requirement for “free able-bodied white male citizens” placed in a 1792 Act is evidence that Negroes were not citizens. However, if free Negroes were never considered citizens, then the “white” reference would not have been necessary. The implication of the Dred Scott decision was vast especially in the North. Most Northerners felt the ruling would ultimately violate state sovereignty over the issue of slavery. After all, if slaves were property then how could any state or territory in the Union forbid or prohibit it? They couldn’t and thus they feared that slavery would not only spread throughout new territories, but perhaps through established free-states. What was to stop the nationalization of slavery? To complicate matters, shortly after the Dred Scott decision there was a bitter battle over Kansas statehood: would it be admitted as a slave or free-state? Furthermore, the Ableman v. Booth (1858) decision continued the fear and grew animosity further in Northerners. In this decision, it should come as no surprise that the Taney Court upheld the Fugitive Slave Act in Wisconsin territory. It is no wonder historian Charles Warren said “that Chief Justice Taney elected Abraham Lincoln to the Presidency.”
Tuesday, July 17, 2018
The “Diverse Citizenship” clause was widely used over the years to give both slaves and free-Negroes the right to sue in a federal court. In fact, Taney used the clause in LeGrand v. Darnall (1829). In this case, Taney used the diverse citizenship clause so a former slave, one of the parties in this federal suit, had a right to file suit in federal court. Dred Scott’s defense successfully used the diverse citizenship clause in his defense to bring his case before the Missouri Supreme Court. However, Taney’s ruling changed the meaning of the diverse citizenship clause. Taney’s opinion changed the diverse citizenship clause from “the judicial power shall extend to controversies between citizens of different states” to “the judicial power shall extend to controversies between citizens of the United States residing in different states”. Taney’s decision carefully distinguishes between state and United State citizenship: that the two were mutually exclusive statuses. Ely v. Thompson and State v. Manuel are also good examples of precedent reached in state cases that would refute Taney’s citizenship claims about free-Negroes. In fact, in State v. Manuel, North Carolina declared free-Negroes were in fact citizens of the state. Marshall exclaimed in the 1832 case Gassies v. Ballon “a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State.” In other words, United States citizenship was synonymous with State citizenship during our founding. The Constitution does not deprive any class of people citizenship. In fact, the Constitution does not define citizenship except for the naturalization of aliens. Hence, any free-Negro in North Carolina was citizen of that state (State v. Manuel) and therefore any North Carolina Citizen was a citizen of the United States (Gassies v. Ballon). I use the North Carolina example since they were a slave-state. Obviously free-states had similar laws or statutes that made free-persons including free-Negroes citizens. Chief Justice Taney wrote the majority opinion (7-2) for the Court. He asserted that both free-Negroes and Slaves had the same status and could never be citizens of the United States. According to Taney’s reasoning in his opinion and noticed by Don Fehrenbacher “American Negroes, free and slave, were the only people on the face of the earth who were forever ineligible for American citizenship”. Even foreign nationals who were black could be naturalized, but not any American born black (slave or free) could earn United States citizenship regardless of his state citizenship status. This violates the precedent in Gassies v. Ballon set 25 years earlier. Furthermore, Don Fehrenbacher identifies “There were no equivalent slave-states where slavery was universal and freedom forbidden.” There were however universally free-states and states were slavery and freedom existed side by side. So the analogy to the Dred Scott case would be if a free-citizen entered a slave state and became a slave and upon his return to a free-state would remain a slave. That would not happen since free-states did not have slavery. And this is why the converse should also not happen. Logic from the above analogy suggests a slave entering a free-area should earn his freedom regardless of the duration of his or her stay. Taney uses substantive due process when he asserts “the right of property in a slave is distinctly and expressly affirmed in the Constitution.” He continues by saying that states had a right to “traffic in it (slave trade)” for 20 years, but Jefferson ended slave trade when that memorandum expired in 1808. Taney furthermore proclaims “And the government in express terms is pledged to protect it in all future time, if the slave escapes from his owner” referring to the “Fugitive (Slave)” clause. But the Fugitive (Slave) clause was an agreement in the Constitution between states: that is why the clause was listed in Article IV and not in Article I Section 8 which denotes Congress’s enumerated powers. Taney also wrongly asserts “and no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description.” Taney mentions both the “(Slave) Migration and Importations” clause and the “Fugitive (Slave)” clause where the Constitution does place more restrictions on slavery than “other property” (although these clauses only refer to persons and not property). Taney conveniently fails to mention the “Three-Fifths” clause which states: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” This clause refers to “free persons” and “three fifths persons” and makes it impossible to infer that slaves are property. The clause clearly states persons and the clause can be interpreted as follows: free persons are citizens and three fifths of slaves are citizens. It is ironic that the “Three-Fifths” clause gave Southern Democrats control over Congress, the Executive, and the judicial branches of government. This power enabled them to denigrate the rights of all Negroes, rule the Missouri Compromise was unconstitutional, and essentially give them the power to nationalize slavery. However, the Court firmly neglects to even acknowledge the existence of such a clause in the Constitution because it pokes holes in their “property” argument.
Thursday, July 12, 2018
The Dred Scott case, in 1857, primarily decided the citizenship status of slaves and free-Negroes as well as the Constitutionality of the Missouri Compromise. This case is historically called the worst decision in Supreme Court history and for good reason. Let’s evaluate the arguments and precedent which tells us why this case was wrongly decided. Citizenship: Both the majority and dissenting Justices cited slave cases from English law. In 1827, the Slave Grace Case held that a slave named Grace was free when she was in England with her owner and reverted back to being a slave once she returned to Antigua. This case was most often cited by the majority. In the 1772 case Sumerset v. Stewart the English Court said that a slave became a free person once they entered England. This case was most often cited by the dissent in the Dred Scott Case. However, the majority held that Grace overruled Sumerset. But the cases were fairly different and therefore it was difficult to make that assumption. Prigg v. Pennsylvania (1842) was probably the most publicly known slave case before Dred Scott in United States history. The Taney Court ruled the 1793 Fugitive Slave Act trumped Pennsylvania law that prohibited Negroes from being removed from the state and forced into slavery. However, one could debate whether Congress had the authority to pass such a law since the “Fugitive (Slave)” clause (slave is never mentioned in the Constitution but it may be inferred in the clause) in the Constitution was written as an agreement between the states since it was in Article IV and not Article I Section 8 which enumerated Congress’s powers. This case had little bearing on the Dred Scott decision, but its outcome may have foreshadowed how the Taney Court would rule on Dred Scott. Some may find this hard to believe, but prior to the Dred Scott case many Southern and slaveholding state courts generally ruled in favor of slaves who lived in free-states and territories for a substantial time before returning back to slave-states. Slaves who lived in free-areas (states or territories) and returned home to slave-areas were generally granted their freedoms. Judges believed slavery was a necessary evil, so they tended to have some sympathy towards slaves. In Missouri there were eight cases prior the Dred Scott case which provided relevant precedent for slaves becoming free after being moved into a free-area. For instance, in Rachel v. Walker (1834) the Missouri courts granted a slave, Rachel, her freedom after she was held in a free territory (Michigan) by an Army officer for a temporary period of time. This precedent should have boded well for Dred Scott who had a similar situation. Scott was moved to both a free-state (Illinois) and Territory (Wisconsin) also by an Army officer temporarily. The Taney Court held that the Missouri precedent was for slaves moved permanently into a free-state or territory. But this is not true. In Rachel she was temporarily moved into Michigan Territory like Dred Scott was temporarily moved into Illinois and Wisconsin Territory. However, Dred Scott had another interesting aspect in his case that should have played to his advantage. Dred Scott was allowed by his master to officially be married while he resided in a free-territory. This act proves that Scott had rights not given to slaves and that he was therefore a free-Negro (slaves were not allowed to be officially married). Justice Curtis argued in his dissent the act of marriage in a free-territory was in itself an act of emancipation. One case that a strong negative bearing on the Dred Scott outcome was Strader v. Graham (1851). In this case the Taney Supreme Court held the ruling of the Kentucky Supreme Court was valid because the Court claimed to have no jurisdiction in the case. The Kentucky Court ruled against abolitionists who helped slaves escape to Canada. The slaves in question were brought from Kentucky to Ohio to perform in a musical before going back home when they were freed by the abolitionists. The abolitionist held that the slaves were free because they were brought to a free-state (Ohio). Many thought the Court’s decision favored the “reversion” principle where Slaves may be free in a free-state, but revert back to being a slave once they return home. This is not true because Scott’s defense rightly proclaims “This ruling therefore affirmed only the finality, and not the legal soundness, of the decision rendered in the supreme court of Kentucky.” In other words, the decision of the Kentucky Supreme Court should have no bearing on the Dred Scott case since Strader provides no legal precedent. Besides, Justice Curtis argues in his dissent that international law between Missouri and Wisconsin territory would force Missouri to recognize Wisconsin law as part of common law. Hence, Dred Scott was emancipated and a free-person because the reversion principle would play no role in the decision. The Missouri Supreme Court and the Taney Court would incorrectly hold that the reversion principle of Strader made Scott a slave when he returned back to Missouri.
Saturday, July 7, 2018
Segregation, marriage laws and race: Eugenics leaders and scientist also drew upon other methods, besides sterilization, to achieve their goal of a pure America. Two of the most popular were segregation and marriage laws. In the era of racist Jim Crow laws, laws opposing interracial marriage and placing “undesirables” into asylums was a common practice for eugenics supporters to achieve their goals. This is not too much different than today where minorities and the poor are segregated in our decaying inner cities fighting addictions and crime. Think about it; no one cares when blacks are killed on the streets of Chicago or die from a heroin overdose. The only stories that matter to the media are ones that affect whites in rural areas or in suburbs. The only reason people are starting to care about young adults and youths dying from drug overdoses is because the issue has spread to affect middle and upper class whites. No one cared when the problem was mostly centered on those inner city underprivileged individuals. It is modern day eugenics at practice: to let segregated underprivileged persons kill off each other in a form of legal euthanasia. The prison system is another example of segregation. Sure, hard core violent criminals need to be behind bars. But a vast majority of criminals are small time. For instance, many prisoners are there for drug possession. And possession of any illegal substance does not do anything to hurt the personal rights of other people so it is questionable as to whether possession is really a crime. Immigration policy: Eugenics influenced immigration policy in the 1920s. Immigration laws were changed to not only decrease the number of new immigrants, but limit certain types of immigrants such as Jews and those coming from continents other than Europe. In fact, immigration policy from Europe favored Western and Northern European Countries over those from the South and Eastern Europe. The government even required new immigrants to pass intellectual tests before they entered the country. Today, the fight on terrorism and illegal immigration has forced the U.S. to look seriously at its immigration policies. Environment and Education: Eugenic scientists did not give any credence to any variables that may lead to many of the “undesired” or “unwanted” qualities in humans other than hereditary. A few key variables ignored by eugenics followers were both the environment and education. Present day legislators also ignore the same obvious variables when it comes to fighting poverty. Modern governments feel any problem can be solved by throwing money at it. However, more money with the same environment and educational variables (curriculum, teachers, administrators, infrastructure etc.) is not going to change the outcome of any welfare recipients. The goal of eugenics was to stop poverty, addiction, low intellect, and crime by eliminating the offspring from “questionable” individuals whereas modern eugenics is focused on keeping the addicted, undereducated, and impoverished persons alive on welfare for the sole purpose of winning their vote. Both forms of eugenics fail to address the key reasons why it fails the poor: the environment and education. What’s worse, the environment and education are blatantly ignored for political purposes. Summary: Buck v. Bell is still good law today because it has never been overruled. In Skinner v. Oklahoma (1942) the Court held that mandatory sterilization of criminals was not constitutional. The reason was because there was no consensus as to which criminals would qualify for the medical procedure. In other words, where is the line drawn to determine which crimes qualify and which do not. So in Skinner, the Court was not necessarily against mandatory sterilization, it was just not too sure which criminals should be sterilized and which ones should be spared. In a 2001 U.S. Eighth Circuit case, Vaughn v. Ruoff, the court cited Buck v. Bell and said “involuntary sterilization is not always unconstitutional.”
Tuesday, July 3, 2018
But another reason Buck v. Bell is not an anomaly is because we as people have not learned our lessons from this decision. In the early 1900s many states had sterilization laws that were imposed on “feeblemindedness”, “idiots”, “imbeciles”, and “morons”. But sterilization was also imposed on criminals, “weaklings”, epileptics, alcoholics, prostitutes, drug addicts, organs, deformed, deaf, blind, and other diseased and moral reasons. Worse yet, sterilization was seen as way to promote ethnic cleansing. This was the science of eugenics which was highly regarded within universities, education, religion (other than Catholics and Jews), feminism (League of Women Voters, Margret Sanger), the Law, the government (Teddy Roosevelt, William Taft, Warren Harding, and Woodrow Wilson), and of course science (Alexander Graham Bell). There were literally thousands of articles and books published on the subject and its importance to keep the American race pure and free from moral sin and inferior beings. Eugenicists believed that most immoral actions, disabilities, bad behavior, vices, and traits of inferior persons were mostly passed on to offspring because they were hereditary. Madison Grant’s book on the subject influenced Hitler and his theories about a pure Arian Race and also about ridding the World of Jews. Madison Grant and Harry Laughlin would be known in American history as our “most influential racists”. In fact, German scientists on trial for War Crimes cited the American system of sterilization and Justice Holmes majority opinion in Buck v. Bell for their defense. Eugenics experts like Harry Laughlin felt that 15 million people or 10% of the American population needed to be sterilized. Laughlin and Grant are on record for defending the “Jewish” cleansing in Europe. Laughlin influenced immigration policy that prevented Jews from immigrating to the United States even though many knew they faced extermination. Laughlin used U.S. Census Bureau records to keep tabs on “undesirable” persons. Here are examples of modern social issues that are still influenced, in part, by eugenics ideas, politics, and influence. Abortion: Like abortion, sterilization was famously supported by feminists and the educational elite. Feminist in the early 1900s were working hard to earn the right to vote and modern feminist are working hard to obtain equal rights in the workplace. The League of Women’s Voters strongly supported the Eugenics movement. The cycle of civil rights movements throughout American history consistently shows groups that become empowered (women and the suffrage movement) tend to use that power to marginalize other groups of people (abortion, the poor, and eugenics). It does not take long for people to forget their struggle. In fact, by the early 1930s two-thirds of all sterilizations were done on women but yet feminists supported this practice (just a decade after the passage of the women’s right to vote). Margret Sanger, the founder of Planned Parenthood believed strongly in eugenics and more importantly its role in population control for “unwanted” and “undesirable” persons. If that is true, then abortion may be working as Sanger had hoped because minorities are many more times likely to have an abortion than Whites. For this reason, abortion fits in the narrative of pro eugenics supporters in the early 1900s to eliminate “inferior” minority populations (racial cleansing). Some may argue that abortion (voluntary) and sterilization (mandatory) are not the same thing. I agree, abortion is much worse. To volunteer to end a potential life without notifying the father is a selfless act especially considering there are literally dozens of forms of contraception. Sterilization is the violation of someone rights, abortion does not violate the rights of the mother, but only the father and child who have no say in the matter. Think about this, over 1 in 100 fertile American women have an abortion each year – averaging well over a million per year since Roe v. Wade. Abortion on this scale is an act of terrorism because it is genocide. Keep in mind, the women having abortions and women defending eugenics are one in the same. Free Speech and Science: Just as eugenics supporters and the field of science worked hard to overrule the voices of reason about sterilization, what is going on today in our universities is not much different. Similar techniques of intimidation are at work to silence conservatives at universities and those with opposing views to climate change. Depriving people of any Fundamental Right (to raise a family or free speech) is all the same. What’s worse, much of the modern free speech practiced by humanity is not much different sounding than the hate and vitriol spewed by eugenics leaders and followers. For instance, Hillary Clinton’s classification of Trump supporters as “deplorable” sounds very eugenic like. Clinton literally classified half the population as being “stupid” and her followers agreed. And no one sincerely apologized for the remark because it was truly how Clinton supporters felt, and they wished ill will on Trump supporters. Of course, there have been similar remarks from both sides of the political spectrum classifying the opposition as fitting in those classifications of people that the science of eugenics wanted to sterilize. And of course, everyone likes to compare adversaries to Hitler. This has become so common most people do not even acknowledge it anymore. That is a shame, because no one should marginalize the negative impact Hitler had on the world during his reign.