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[L Verge]

(06-21-2018 05:24 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.