Legal Tourism: Dred Scott v. Sanford (1857)

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Statue of Dred and Harriet Scott, St. Louis, MO.

I recently had some free time in St. Louis, Missouri.  Among other tourist attractions, St. Louis’s own “Old Courthouse” is the birthplace of the famous — and infamous — Dred Scott case.

If it’s not perched on the first tier of Supreme Court landmark cases, beside the likes of Brown v. Board of Education, or Roe v. Wade, the Dred Scott case surely is on the second tier, still well known to the legal community, and to students of history, but perhaps less memorable to the public in modern times.

As with all history’s enduring legal monikers, Dred Scott is both a case and a person.  The case, Dred Scott v. Sanford (1857), is remembered as perhaps the worst Supreme Court case ever. The most wrongly decided. The most tragic misuse of judicial power. As with many low points in American history, Scott involved slavery.  Scott was a slave who had been taken to a free state, and sued to obtain his freedom on this basis. Though there was legal precedent for this basis, the Supreme Court, in essence, held that Scott had no right to sue because blacks were not ‘persons’ under the Constitution and not entitled to any of its rights or privileges.

As deep a wound on the American soul as slavery was, Scott made it worse. At least for a time.  By seeming to close the door — more like slamming it shut and wedging a chair under the doorknob — on any hope that abolitionists had of using the Bill of Rights to undermine slavery, the Supreme Court became a focal point on the issue.

Abraham Lincoln’s political career was heavily influenced by the public’s reaction to the Dredd Scott decision. (Vandalia State House, Illinois ).

Prior to the decision, the battle was on Capital Hill, as pro-slavery and anti-slavery states struggled not to lose control of Congress:  the Missouri Compromise and the Three-Fifths Compromise, to name two examples.

Keep in mind that although the Supreme Court had established the concept of judicial review–the ability to declare an act of Congress unconstitutional–in Marbury v. Madison in 1803, it had never done so since Marbury and it seldom weighed into volatile politically weighty issues of the day.  Also, in the mid-1800s, before FDR’s New Deal, the Great Society, Obamacare, and before the Commerce Clause’s reign of terror, state’s rights had not sunset on the American legal landscape. This made Dred Scott v. Sanford a federal power grab – casting doubt a state’s ability to declare as free those within its borders.

The case became a flashpoint for the abolitionist movement.  It was a topic in the Lincoln-Douglas debates and contributed to launching Abraham Lincoln’s career.  Following the war, the Thirteenth and Fourteenth Amendments effectively overturned the Dred Scott decision.

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Courtroom where Dredd Scott finally granted his freedom.

After losing in the Supreme Court, Sanford sold the Scotts to their original family, who had helped to finance their litigation.  He, in turn, granted the Scotts their freedom. Dredd Scott died eighteen months later.

Sir Issac Newton is credited with the quote: “If I have seen further it is by standing on the shoulders of giants.”  Newton was lauded and famous in his time.  In our time, we have recently popularized and praised the accomplishments of Abraham Lincoln and Jackie Robinson in film (both great movies).  Had they been asked to consider Newton’s quote, I wonder if either would have gazed down upon the shoulders of Dred and Harriet Scott.

There’s No Justice Like Show Justice

The First Amendment isn’t what it used to be.  It used to be an integral part of the Bill of Rights.  It’s more of a slogan now.  Its common meaning, once vigorous, has been slaughtered on the altar of intellectual complacency and insipid self-gratification.  Its invocation today is more banal than brave; more ordinary than audacious.

One recent illustration of this is the opposition to Indiana’s Senate Bill 373. The bill would make it illegal for someone to take video or images of an agricultural operation without the consent of the owner. The bill would not apply to law enforcement officers.  Since the Fourth Amendment requires a warrant, the net effect of the bill is to say that only police officers (presumably for good cause shown) can enter into private agricultural property and take pictures without the permission of the owner.

By the reaction of some, including Matthew Tully of the Indy Star, you would think SB 373 protected Abu Ghraib-style secret prison abuse of animals.  Tully recently lamented the bill, arguing that it creates a society where “bad actors know they’ll be able to get away with more,” and “face less chance of public embarrassment and ridicule[.]” Of course, those playing by the rules will also face less chance of unwarranted public embarrassment and ridicule, and that’s the point the bill’s detractors are missing.  But like the proverbial hammer-wielding carpenter for whom everything begins to look like a nail, Tully suggests that the weapons of free speech – “embarrassment and ridicule” – are the most effective tools society has to combat wrongdoing.

You Tube justice pretends to be a crusader of the First Amendment, but has no patience with the Constitution as a whole.
You Tube justice pretends to be a crusader of the First Amendment, but has no patience with the Constitution.

In reality, law enforcement is both more effective and better-equipped to address most criminal behavior, including animal cruelty.  Aside from some specific exceptions, law enforcement officers must seek a warrant before entering onto private property.  This requires probable cause, shown to a judge. Only then can the alleged wrongdoer be charged with a crime, and only if guilt is proven beyond a reasonable doubt will punishment be tolerated.  These steps are rooted in protections as integral to the Constitution as the vaunted First Amendment.

But for the Über Free Speech crowd, that path is too slow and ineffective.  After all, they say, what if the system protects its own and the wrongdoer escapes the justice of the First Amendment posse?  Ask Richard Jewel, George Zimmerman, or the Duke lacrosse team about the “justice” of embarrassment and ridicule in lieu of thorough criminal investigations.

Tully even acknowledges that the bill creates an exception for those who turn the video over to law enforcement within 48 hours.  But that’s still not good enough: “So, what, we’re going to hope that the sheriff in Farmtown, Indiana, suddenly joins PETA?” he asks.  With all due respect, this question betrays the heart of the bill’s opposition.  Not only is Tully impatient with Constitutional protections that happen to reside outside of the First Amendment, he doesn’t trust elected officials in “Farmtown” to uphold their oaths of office.  (I’ve never been to Farmtown, but I’m guessing it lies somewhere outside of the commute between Carmel and downtown Indianapolis.)  A single prosecution for animal cruelty, while effective, is not sensational. It’s not You Tube-worthy.  Which means it’s dull news and not an effective fund raiser for PETA.

By the way, would Tully’s boss object to a broadcasted hidden video of the goings-on of the editorial boardroom of the Indianapolis Star?  Of course he would. Hidden video is only a noble cause when it finds wrongdoing.  All of the hidden video that is taken and unused–or worse, falls in the hands of competitors–doesn’t catch bad behavior at all. It erodes private property rights.