In Defense of the Dred Scott Decision

Alan Grayson and Keith Olbermann likened yesterday's Supreme Court decision to the infamous Dred Scott Decision of 1857. History has few unanimous decisions but Dred Scott is unanimously considered the worst decision by the U.S. Supreme Court in history. So much so that even the Supreme Court itself wouldn't allow the bust of Chief Justice Roger B. Taney to reside its building.

The specific background to the Dred Scott Case is fascinating history, taking us into the heart of the struggle against slavery, free slaves and life in the territories. Google it, you won't be disappointed.

The decision decided that people of African descent brought to this country by force and held as slaves and their descendents--whether or not they were slaves--were not protected by the Constitution and could never be citizens of the United States. The court further ruled that the United States Government had no authority to prohibit slavery in federal territories. Slaves or their descendents had no right to sue in courts. Slaves were legally property, the Court decided, and could not be taken away from their owners except by due process.

Judge Taney's written decision made ample use of the racist theories of the day to prove his point. We know from the history of a bloody civil war that destroyed our country and the saga of the emancipation of the slaves how horrible a decision this was. But consider this. Taney used biblically sanctioned racist theories--those preached in the South and widely held--to make his case. Few of the issues of the case had been settled law as the political debates on the expansion of slavery were the most heated of the time and the legal issue of emancipated slaves had not been settled.

Even during the civil war, Frederick Douglass had to travel clandestinely to the White House to meet Lincoln because the South had warrants for his arrest to return him to slavery despite years of freedom. And Judge Taney was one of those judges who sought him as a fugitive slave, issuing arrest warrants in Maryland for him.

In Citizens United v.The Federal Elections Commission, the Supreme Court virtually upended over 100 years of law regulating corporate involvement in our democracy. There was a long history on this subject with detailed legal explanations of why these laws were made. Judge Taney at least had an excuse to let his racism reign. In its scathing editorial, The New York Times pointed out that the Founding Fathers thought about protecting alot of things like the press, religion, the militias, the people, but not corporations. Judge Stevens in his dissent actually outlined the Founding Father's views of corporations which were not favorable.

This is a remarkable opinion in that it virtually upends the basis of our democracy. To read the majority opinion is to read a breathtakingly radical vision of America where corporate rights exceed those of the individual. There is no mistaking the implications of this decision.

The New York Times suggests that one more judge would be needed to reverse this decision. But let's look at that--Judge Stevens and probably Judge Ginzburg are probably the next to leave. The only chance would be with the fourth Supreme Court judge Obama nominates. He has to replace two more to keep a 5-4 court. Since the Wall Street Journal reports the corporations are ready to go for 2010, don't count on this happening soon or ...ever.

If you are conspiracy minded, perhaps we should have seen Roberts' flubbing of Obama's oath of office as the sign of things to come. A major television network and major corporations run a test experiment in destablizing the political system by creating the teabaggers. Republicans thought it was about them but it was to block any reforms of our economic system. With yesterday's decision the astro-turf organizations are no longer necessary to accomplish the corporations' goals. Nor by the way are political parties--a thought that hasn't reached them yet. I have yet to hear a conservative thinker opine on the decision. George Will doesn't count.

The destructive evil of this court decision will not be apparent for a short while. But it only took three years after the Dred Scott Decision to see America plunged into a civil war. Justice Roberts now joins Roger Taney in America's Hall of Infamy.

One of the many stories behind the Third Reich was the total complicity of the legal profession in enabling Hitler and his policies to happen. This profession was highly educated and sophisticated with a deep understanding of the laws of a liberal democracy. After the war, the head of the German Bar Association, someone once highly regarded by the Americans, was tried and convicted at the Nuremberg Trials for his role in facilitating the Holocaust. It's really not an exaggeration to put this decision in the context of facilitating the creation of an American form of fascism.

For the future, readers are advised to read Kevin Passmore's very sort introduction Fascism by Oxford University Press. He does an excellent job of giving a broad view of the different types of fascism that emerged in Europe and what to look forward in the months and years ahead.

If I were the Chinese and the Saudis, I would be moving front corporations to the United States and buying politicians like crazy. It's now all legal--incredible.