I’m taking Constitutional Law 2 this semester. The first week covered equal protection. As an introduction to equal protection questions based on race, we were assigned the Dred Scott decision. I hadn’t read it before, which is kind of surprising because I’m such a Civil War psycho. The holding in the case struck me hard. It reveals the Chief Justice as a selfish person acting selfishly when the moment begs for someone to be responsible.
The case appeared on the Supreme Court docket when the question of slavery was absolutely on fire. The “Missouri Compromise” led to what we now call “Bleeding Kansas,” a series of violent clashes between organized groups divided over the question slavery. A pro-slavery member of the House beat an abolitionist Senator with a cane on the Senate floor. John Brown gathered his forces and allies. The Dred Scott Decision, about a year later, is the moment the where the mere possibility of Civil War edged toward a necessity.
Dred Scott was a slave in Missouri who moved to Illinois where slavery was illegal. At the time, a slave could only be free if their status was changed in court. To emancipate a slave you had to take him or her down to the courthouse. Scott filed a complaint in Missouri asking for his freedom. His bondage was illegal in Illinois, so in respect to Illinois state sovereignty, his slave status in Missouri was therefore illegal.
Chief Justice Taney did not agree with Dred Scott. The Constitution allowed for slavery, so slavery was legal. Dred Scott was property, not a man according to the nation’s founding document.
Unfortunately, Taney’s holding in the case was correct. Slavery is an evil but to remove it you must amend the Constitution.
Taney could have said that. “Hey, it sucks, but this is the law,” would have sufficed. It would have been a disappointment, but could have correctly framed the debate. A narrow, logical holding based on law would have been in line with the other Supreme Court decisions on slavery up until then. Amistad, Strader v. Graham, and others took measured tone of respect for both sides. The Justices up until Taney seemed to respect that slavery was a powder keg, and preferred caution over bombast.
Taney did not do that. He went fucking nuts. The Chief Justice decided to address issues that were not in front of the court at all. He not only held that slavery is allowable under the Constitution, which at the time was true, he held that black people are inferior to white people. He claimed that was not only was this the case at the time, but will be in perpetuity. Actual quote from holding:
“We give both of these laws in the words used by the respective legislative bodies, because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood, the degraded condition of this unhappy race. They were still in force when the Revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the men who framed the Declaration of Independence and established the State Constitutions and Governments. They show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.” – C.J, Taney. Dred Scott v. Sandford, 60 U.S. 393, 409, 15 L. Ed. 691 (1857), superseded (1868)
Taney’s holding in Dred Scott is repugnant, his actions a stain on his family ever since. High Schools cover the case at an arm’s length. Any closer examination turns the stomach. The holding is also filled with historical mistakes, but let’s try to focus on this as a political act. We will assume Taney expressed his own, deeply held beliefs.
It’s hard to imagine the Civil War happening without the Dred Scott decision. Taney’s hard-line, fire-eater opinion made made negotiation impossible. John Brown’s raid on Harper’s Ferry was two years later, the action that formed the Army of Northern Virginia and thus the Confederate Army.
For me, reading the Dred Scott Decision this week forced me think about the allure of extremism. It’s undeniably fun to throw down a hot take on Twitter or Facebook. Take a bold stand, consequences be damned. “I don’t care who I piss off, I’m just going to say it.” Except that such stances are not bold. They are not brave. Above all, they do not help. An examination of history and specifically the Civil War suggests that moderation is key a better society; recognizing that you are a part in something larger means is not a weakness. Those who consider their fellow travelers before they speak are brave, because there is far more safety among the extremes that if a person draws fire from both sides.
It was important for me to read the decision now because of a very strange argument that has emerged on the progressive side of politics. Eve Fairbanks, writing for the Washington Post, argues that people who lament the loss of civility in our current politics are analogous to the antebellum arguments made by moderates in the lead up to the Civil War. She argues that “civility” is nothing more than a delay tactic with roots in slavery-apology. While that’s technically true, her conclusions seem to take another leap. The argument seems to suggest that moderation is a bad idea. She brings up the Lincoln Douglas debates:
“In their 1858 debates, Lincoln pressed Douglas to clarify what kind of America he really wanted: one that had slaves or one that didn’t? Douglas claimed only to stand against mob rule. But why, Lincoln asked, was he choosing to die on the South’s hill? Why would applying his principle — the mandate to protect the South from “interference” by extremist hordes — end up curtailing freedom for millions of black Americans? Was it possible, Lincoln suggested, that Douglas secretly preferred a slave society to a free one?”Fairbanks, Eve. “Perspective | Conservatives Say We’ve Abandoned Reason and Civility. The Old South Said That, Too.” The Washington Post, WP Company, 29 Aug. 2019, https://www.washingtonpost.com/outlook/2019/08/29/conservatives-say-weve-abandoned-reason-civility-old-south-said-that-too/.
The trouble is that Mr. Lincoln is a hypocrite in his questions to Douglas. The President famously kept his true opinions on slavery mostly to himself. Many times he spoke on both sides of the debate, his statements situational, adjusted to illicit an outcome. Even friends did not know his true opinion on slaves. A spoke of sending Freedmen back to Africa, and campaigned not to end slavery but to stop its spread. Examining his deeds make him look like an abolitionist. He might have been the only politician in the country who actually wanted the Civil War. The Emancipation Proclamation does not proscribe anything gradual, it is effective immediately. If Lincoln wanted to end the Civil War on a compromise over slavery, he could have done it dozens of times. It would have been politically expedient to do so after Fredricksburg, second Bull Run, or Cold Harbor. He did not, even though he claimed he would end the war for a compromise with the South. In the words of southern writer Shelby Foote, everything President Lincoln said and did during the war had been “calculated for effect.”
Consider Taney’s holding on Dred Scott in comparison to Lincoln’s calculations, and focus on the outcome. Say what you want about Taney, you cannot accuse him of holding back his opinion. He was strong, forceful and gave the nation the tough love that he no doubt thought they “needed” to hear.
That’s why he lost. His name is whispered among history’s villains, his views tossed onto the dustbin of history. His family and their name will always owe an apology. His extremism now defines him in a negative light.
Moderation is a scourge in politics today. Hilary Clinton’s leaked emails, which the right used to discredit her campaign, used Lincoln as the example to discuss having “public” and “private” positions. Her remarks shed light on responsible governance, how it is necessary to keep certain things private to preserve negotiations. Of course The Chosen One did not understand the nuances in her argument. He barked the words that triggered his minions, who nodded along in fealty.
We hear the word “strong” said over and over in today’s politics. The Chosen One has strong opinions; he fights; you at least know where he stands. Progressives seem jealous sometimes. We want our own extremist, who barks and fights their way across the political field, the squishy moderates lie in pools of maroon around their feet. We want an uncompromising shouter, because civility is for the weak. We should resist that.
The slave supporting fire-eaters must have greeted Taney’s holding with delight. White people who thought themselves of a higher race must have smiled wide when they heard the result, and likely squealed with glee at the words themselves.
The victory was short lived. Wonder if they read Taney’s decision on plantations when the sound of General Sherman’s approaching divisions kept getting louder. Perhaps they then longed for moderation, and would counsel against the short term sugar rush that goes from dropping the hot take.
Yes, its harder and slower to be a moderate. Incremental change is difficult and takes decades. It’s also stronger. The Civil War had to happen, but do you get 100 years Jim Crow if you reach a political compromise to end slavery? We’ll never know. It seems like MLK’s hard-won reforms through nonviolent, moderate means were far more lasting that what was won in the Civil War.