Just read - no comments needed

[L Verge]

(06-21-2018 04:24 AM)AussieMick Wrote:  I'd like to comment on whether Taney was "upholding the Constitution in the Dred Scott decision".
We in Australia have a Constitution (since 1901). It is quite short (which in many ways is quite good). The developers used some of the American Constitution as a basis.

My point is that, over time, parts of our Constitution have had to be interpreted to deal with modern issues. It has happened that High Court judges have made decisions which "interpret" the meaning of relevant parts of the Constitution. That's all very good. Except that those interpretations can be controversial and can depend (of course) on the Judges (usually several of them) own political leaning. It can happen that what we call 'activist' judges make a decision which comes up with a view which is only very tenuously (if at all) based on the 1901 constitution. Their role is to try to interpret what the developers of the 1901 constitution were thinking. ( Changes can be made to the Constitution but only by referendum needing a majority of electors in the all the Australian States)

I suggest that Taney was interpreting, not "upholding", the US Constitution. Of course that was his role as Chief Justice, speaking for the Supreme Court. However, it has to be said that Judges are human beings and as such can make mistakes. Taney said that negroes could not be considered as citizens and when the US nation was created they had no rights which the white man was bound to respect. ( Hence the Founding Fathers did not include them in the Declaration of Independence or the Constitution. )

We (at least those of us who hold to generally accepted normal standards of decency) would now view those words as being unacceptable. But back then clearly many agreed with Taney. They were wrong. Many knew immediately that they were wrong and many in the US came to realize in a short time (like Lincoln) that they were wrong.

My thoughts , from afar and in 2018, are that it is difficult to see how Taney could arrive at his interpretation of what the Declaration of Independence's Founding Fathers thought and what constitutes a human being. It seems to me that he was working his way back from an interpretation which would suit the result which he wanted. He was not 'upholding' the Constitution because that would require us to believe that the US Constitution was based upon an immoral basis (IMO) ... that negroes cannot be citizens and that the rights of negroes do not need to be respected.

Our Constitutional interpretations and amendments have followed much the same incongruous trail over the centuries, and unfortunately (imo) the appointment of judges has become too much of a political game. Does anyone know who the other seven judges were that voted along the lines with Taney? David's last post still puts the onus on Taney alone.

As for trying to figure out why the Founding Fathers failed to address the slavery issue: I have always thought that getting the firm foundation "set in stone" to protect against a very feeble confederation at that time was the top priority. Get the basics down and approved and then worry about side issues.

Our Founding Fathers knew that the Constitution had to be ratified by a majority of the new states. Trying to tackle the slavery issue in that original document was not going to get that done.

[Wild Bill]

I call everyone's attention to Plutarch's quote at the bottom of each of Lockmiller's contributions.

[L Verge]

(06-21-2018 03:14 PM)Wild Bill Wrote:  I call everyone's attention to Plutarch's quote at the bottom of each of Lockmiller's contributions.

And revisionist history sure ain't helping...

BTW, I didn't know this: Influence of President Buchanan

Historians discovered that after the Supreme Court had heard arguments in the case but before it had issued a ruling, President-elect James Buchanan wrote to his friend, U.S. Supreme Court Associate Justice John Catron, asking whether the case would be decided by the U.S. Supreme Court before his inauguration in March 1857.[20] Buchanan hoped the decision would quell unrest in the country over the slavery issue by issuing a ruling that put the future of slavery beyond the realm of political debate.

Buchanan later successfully pressured Associate Justice Robert Cooper Grier, a Northerner, to join the Southern majority in Dred Scott to prevent the appearance that the decision was made along sectional lines.[21] Both by present-day standards and under the more lenient standards of the time, Buchanan's applying such political pressure to a member of a sitting court would be regarded as highly improper.[22] Republicans fueled speculation as to Buchanan's influence by publicizing that Chief Justice Roger B. Taney had secretly informed Buchanan of the decision before Buchanan declared, in his inaugural address, that the slavery question would "be speedily and finally settled" by the Supreme Court.[23][24]

I also found out that Dred Scott died of tuberculosis just 18 months after gaining his freedom in 1858.

[David Lockmiller]

(06-21-2018 03:11 PM)L Verge Wrote:  David's last post still puts the onus on Taney alone.

I believe that if you will reread my last post, you will see that I was responding to five words that you had written: "Taney considered slavery an evil."

[L Verge]

(06-21-2018 01:10 AM)My Name Is Kate Wrote:  

(06-20-2018 06:11 PM)L Verge Wrote:  And, speaking of Lincoln, Scott ruled against many of the unusual wartime measures that the President put into action.

Laurie, can you elaborate a little on the above quote from your post?

Also, wasn't Taney upholding the Constitution in the Dred Scott decision, as is the duty of the Supreme Court? It was the Constitution that needed to be changed, which the Civil War brought about.

First, I apologize for my error of saying "Scott" ruled against Lincoln's wartime measures. I certainly meant Taney, who objected to things like Lincoln's suspension of habeas corpus, treatment of civilians, etc. https://www.usnews.com/news/history/arti...al-dilemma

I certainly agree with you that Taney and six other Associate Justices felt that they were upholding the Constitution as it then stood, and I believe that they honestly thought that they were creating a solution by pointing out the non-citizen aspect. Make the black man a citizen, and then he was going to be protected under the law. Actually, I believe that about five states already made them citizens by the time the decision came around??

---

(06-21-2018 03:43 PM)David Lockmiller Wrote:  

(06-21-2018 03:11 PM)L Verge Wrote:  David's last post still puts the onus on Taney alone.

I believe that if you will reread my last post, you will see that I was responding to five words that you had written: "Taney considered slavery an evil."

So far as I can tell, David, all you did was quote from Goodwin's Team of Rivals, and she in turn quotes another author. Both of them do the same as you - put the onus on Taney alone.

I never got past Taney and the Dred Scott vs. Sanford case (even though both of us are/were Marylanders who would have lived within about thirty miles of each other) until we did an exhibit on famous Marylanders of the Civil War. Writing labels and exhibit booklets requires a bit of research.

[Gene C]

(06-21-2018 04:00 PM)L Verge Wrote:  I never got past Taney and the Dred Scott vs. Sanford case (even though both of us are/were Marylanders who would have lived within about thirty miles of each other) until we did an exhibit on famous Marylanders of the Civil War. Writing labels and exhibit booklets requires a bit of research.

I never knew you lived so close to Taney.
What was it like working with him on the exhibit?

[L Verge]

(06-21-2018 04:44 PM)Gene C Wrote:  

(06-21-2018 04:00 PM)L Verge Wrote:  I never got past Taney and the Dred Scott vs. Sanford case (even though both of us are/were Marylanders who would have lived within about thirty miles of each other) until we did an exhibit on famous Marylanders of the Civil War. Writing labels and exhibit booklets requires a bit of research.

I never knew you lived so close to Taney.
What was it like working with him on the exhibit?

There's quite some distance involved now, and he is difficult to communicate with from the other side. Otherwise, very impressive figure in history.

[David Lockmiller]

(06-21-2018 04:00 PM)L Verge Wrote:  So far as I can tell, David, all you did was quote from Goodwin's Team of Rivals, and she in turn quotes another author. Both of them do the same as you - put the onus on Taney alone.

"Battle Cry of Freedom: The Civil War Era" is a Pulitzer Prize-winning work on the American Civil War, published in 1988, by James M. McPherson. In 2003, in his book "The Illustrated Battle Cry of Freedom: The Civil War Era," McPherson wrote the following paragraph at pages 136-137:

Taney's opinion took up first the question whether Dred Scott, as a black man, was a citizen with the right to sue in federal courts. Taney devoted more space to this matter than anything else. Why he did so is puzzling, for in the public mind this was the least important issue in the case. But the southern whites viewed free blacks as an anomaly and a threat to the stability of slavery; Taney's own state of Maryland contained the largest free Negro population of any state. The chief justices's apparent purpose in negating U. S. citizenship for blacks, wrote Fehrenbacher, was "to launch a sweeping counterattack on the antislavery movement and . . . to meet every threat to southern stability by separating the Negro race absolutely from the federal Constitution and all the rights that it bestowed." To do so, however, he had to juggle history, law, and logic in "a gross perversion of the facts." Negroes had not been part of the "sovereign people" who made the Constitution, Taney ruled; they were not included in the "all men" whom the Declaration of Independence proclaimed "created equal." After all, the author of that Declaration and many of the signers owned slaves, and for them to have regarded members of the enslaved race as potential citizens would have been "utterly and flagrantly inconsistent with the principles they asserted." For that matter, wrote Taney, at the time the Constitution was adopted Negroes "had for more than a century before been regarded as beings of an inferior order . . . so far inferior, that they had no rights which a white man was bound to respect."

[My Name Is Kate]

My understanding is that the U.S. Constitution, insofar as it recognized the legality of slavery, was immoral (in an absolute sense, and disregarding the time period in which it was written.)

Who among the Founding Fathers demanded that the references to slavery be included in the Constitution? Or were they all united against slavery, but other people demanded it be included? If the Founding Fathers were conflicted on the slavery issue, how would Supreme Court judges be able to determine what their intention was when writing the Constitution? Wouldn't they be forced to rule based on the actual references to slavery in the Constitution? The fact that a slave was counted as 3/5 of a white person is proof that slaves did not have the same constitutional rights as white people.

As regards post #68 above, IMO, Taney was stating historical facts, not his own personal opinion. It supports the view that his decision in the Dred Scott ruling was intended to uphold the Constitution, and was not just an interpretation of what the Founding Fathers intended.

[David Lockmiller]

(06-22-2018 02:44 AM)My Name Is Kate Wrote:  As regards post #68 above, IMO, Taney was stating historical facts, not his own personal opinion. It supports the view that his decision in the Dred Scott ruling was intended to uphold the Constitution, and was not just an interpretation of what the Founding Fathers intended.

[T]he main theme of his twenty-eight-year tenure on the Court was the defense of slavery. Taney had no great love of the institution for its own sake, having freed his own slaves. But he did have a passionate commitment "to southern life and values, which seemed organically linked to the peculiar institution and unpreservable without it." In private letters, Taney expressed growing anger at "northern aggression." "Our own southern countrymen" were in great danger, he wrote; "the knife of the assassin is at their throats." Taney's southern colleagues on the Court shared this apprehension, according to historian Don Fehrenbacher; Justice Peter Daniel of Virginia was "a brooding proslavery fanatic" and the other three were "unreserved defenders of slavery." Because of this "emotional commitment so intense that it made perception and logic utterly subservient," the Dred Scott decision was "essentially visceral in origin . . . a work of unmitigated partisanship, polemical in spirit [with an] extraordinary cumulation of error, inconsistency, and misrepresentation." ("The Illustrated Battle Cry of Freedom: The Civil War Era," page 136)

After all, the author of that Declaration and many of the signers owned slaves, and for them to have regarded members of the enslaved race as potential citizens would have been "utterly and flagrantly inconsistent with the principles they asserted." For that matter, wrote Taney, at the time the Constitution was adopted Negroes "had for more than a century before been regarded as beings of an inferior order . . . so far inferior, that they had no rights which a white man was bound to respect."

This was false, as Curtis and McLean pointed out in their dissents. Free blacks in 1788 and later had many legal rights (to hold and bequeath property, make contracts, seek redress in the courts, among others). In five of the thirteen states that ratified the Constitution black men were legal voters and participated in the ratification process. No matter, said Taney, these were rights of state citizenship and the question at issue was United States citizenship. A person might "have all of the rights and privileges of the citizen of a State," opined the chief justice, and "yet not entitled to the rights and privileges of a citizen in any other State" -- a piece of judicial legerdemain that contradicted the Article IV, Section 2, of the Constitution: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." ("The Illustrated Battle Cry of Freedom: The Civil War Era," page 137)

[My Name Is Kate]

This according to Wikipedia:

"In the 1770s, blacks throughout New England began sending petitions to northern legislatures demanding freedom. Five of the Northern self-declared states adopted policies to at least gradually abolish slavery: Pennsylvania (1780), New Hampshire and Massachusetts (1783), Connecticut and Rhode Island (1784). Vermont had abolished slavery in 1777, while it was still independent, and when it joined the United States as the 14th state in 1791, it was the first state to join untainted by slavery."

So the concept of blacks, even in the North, having rights anything close to whites (or even as anything other than slaves), was very new at the time the Constitution was written (1787). I don't see that what Taney stated in his Dred Scott quote is contradicted by historical facts.

As for Article IV, Section 2, of the Constitution, I don't see that it is relevant to this discussion because it refers to citizens, not slaves.

When states in the North began individually and separately making slavery illegal prior to the Civil War, did it mean blacks in those states were then citizens, or just no longer slaves?

http://www.genealogytoday.com/genealogy/...nship.html

This statement in post #72 below sounds like revisionist history to me:

"In five of the thirteen states that ratified the Constitution black men were legal voters and participated in the ratification process."

[David Lockmiller]

(06-22-2018 09:29 AM)My Name Is Kate Wrote:  This according to Wikipedia:

"In the 1770s, blacks throughout New England began sending petitions to northern legislatures demanding freedom. Five of the Northern self-declared states adopted policies to at least gradually abolish slavery: Pennsylvania (1780), New Hampshire and Massachusetts (1783), Connecticut and Rhode Island (1784). Vermont had abolished slavery in 1777, while it was still independent, and when it joined the United States as the 14th state in 1791, it was the first state to join untainted by slavery."

So the concept of blacks, even in the North, having rights anything close to whites (or even as anything other than slaves), was very new at the time the Constitution was written (1787). I don't see that what Taney stated in his Dred Scott quote is contradicted by historical facts.

As for Article IV, Section 2, of the Constitution, I don't see that it is relevant to this discussion because it refers to citizens, not slaves.

When states in the North began individually and separately making slavery illegal prior to the Civil War, did it mean blacks in those states were then citizens, or just no longer slaves?

http://www.genealogytoday.com/genealogy/...nship.html

I believe that only citizens can vote. Is that correct or incorrect?

You state above: "Five of the Northern self-declared states adopted policies to at least gradually abolish slavery."

Justices Curtis and McLean pointed out in their dissents: "In five of the thirteen states that ratified the Constitution black men were legal voters and participated in the ratification process."

[David Lockmiller]

Most northern states had earlier granted slaveowners the right of transit or temporary sojourn with their slaves. But by the 1850's all except New Jersey and Illinois had laws on the books offering freedom to any slave brought by a master within their borders. Pending in the New York courts was a case concerning a slaveholder's right to retain ownership of his slaves while in transit through a free state. Lemmon v. The People had originated in 1852 when a New York judge upheld the freedom of eight slaves who had left their Virginia owner while in New York City on their way to Texas.

The Dred Scott decision challenged the principle of these laws. Virginia therefore decided to take the Lemmon case to the highest New York court (which upheld the state law in 1860) and would undoubtedly have appealed it to Taney's Supreme Court had not secession intervened.

The Lemmon case might well have become Lincoln's "next Dred Scott decision" and opened the door to some form of slavery in free states. Thus in the context of Dred Scott, Lincoln's "warning that slavery might become lawful everywhere was . . . far from absurd."

("The Illustrated Battle Cry of Freedom: The Civil War Era," page 140-141, but note that I have rearranged the sentences to form a clearer argument.)

And, all of these recent posts together, was undoubtedly the reason that President Lincoln made an extensive statement regarding the Supreme Court in his First Inaugural Address, March 4, 1861. The essence of this statement is as follows:

"If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

[My Name Is Kate]

I am not aware that the U.S. Constitution originally made any statements about race. It does mention slaves, at least twice, but does not mention race, AFAIK. Where Taney gets the idea that black people could not ever become citizens of the United States, is beyond me.

[David Lockmiller]

(06-23-2018 09:48 AM)My Name Is Kate Wrote:  I am not aware that the U.S. Constitution originally made any statements about race. It does mention slaves, at least twice, but does not mention race, AFAIK. Where Taney gets the idea that black people could not ever become citizens of the United States, is beyond me.

I think that the Pulitzer-Prize winning author and historian James M. McPherson (for his 1988 book Battle Cry of Freedom - The Civil War Era) and the renowned Lincoln historian and Stanford University Professor Don Fehrenbacher were in agreement regarding the purpose of Chief Justice of the Supreme Court Taney in writing his majority Dred Scott opinion. I just discovered this morning in Googling Professor Fehrenbacher that he won the 1979 Pulitzer Prize for History for his book The Dred Scott Case: Its Significance in American Law and Politics. [There appears to be a bit more material on the Dred Scott decision that neither of us have read.]

The following is from my post #68:

The chief justices's apparent purpose in negating U. S. citizenship for blacks, wrote Fehrenbacher, was "to launch a sweeping counterattack on the antislavery movement and . . . to meet every threat to southern stability by separating the Negro race absolutely from the federal Constitution and all the rights that it bestowed." To do so, however, he had to juggle history, law, and logic in "a gross perversion of the facts." Negroes had not been part of the "sovereign people" who made the Constitution, Taney ruled; they were not included in the "all men" whom the Declaration of Independence proclaimed "created equal." After all, the author of that Declaration and many of the signers owned slaves, and for them to have regarded members of the enslaved race as potential citizens would have been "utterly and flagrantly inconsistent with the principles they asserted." For that matter, wrote Taney, at the time the Constitution was adopted Negroes "had for more than a century before been regarded as beings of an inferior order . . . so far inferior, that they had no rights which a white man was bound to respect."

P.S. I do not know what "AFAIK" stands for.