Tag: Roger Taney

Romney, Dred Scott, and the Supreme Court

In March 2016, President Barack Obama moved to fill a Supreme Court vacancy created by the death of Justice Antonin Scalia. Republican Senators, in the majority, refused to hold hearings for Obama’s nominee to replace Scalia, Merrick Garland. The Republicans’ claim was that 2016 was an election year, Obama was finishing his second term and clearly could not run again, so the Supreme Court should not have an empty seat filled by someone who wasn’t going to be president after 2016. The new president, whomever that might be after the November 2016 election, should get to fill the seat.

This was an argument never before advanced in the Senate. Think about what that argument is: why should Supreme Court Justices be chosen only by an incoming president? The clear message is that presidents should get to choose Justices who agree with them politically–that a president should be able to shape the Court to do his political bidding. A president shouldn’t have to resign himself to fighting with a Court that doesn’t toe his line.

This is deeply un-American. In the United States, the judiciary is meant to be objective. Judges and Justices are not elected because they are not meant to reflect popular sentiment. As we say in one of our many posts on the judiciary and tyranny of the majority,

The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule–the basis of democracy–ends up perverting democracy by forcing injustice on the minority of the public.

For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.

Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.

In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.

The judiciary was created to break this grip of majority tyranny. The legislature–Congress–cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.

If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.

This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.

President Obama’s candidate was blocked by Senate Republicans nine months before the November 2016 election as “too close” to the election. Now, in September 2020, less than two months before the election, Senate Republicans are united in calling for President Trump to nominate a new Justice so the Senate can hold hearings and get the nominee confirmed before the election on November 3.

At first, Republican Utah Senator Mitt Romney seemed to waver from this position. But then he toed the line using words that echo those of a terrible moment of failure in our democracy: the Dred Scott decision.

Here’s a quick summary of this 1857 case from our series on Dred Scott:

In 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared in its Dred Scott v. Sanford decision that black Americans, whether they were considered free people or enslaved, were not citizens of the U.S. and could never become citizens because of their race. Dred Scott was an enslaved man who lived in Missouri. The man enslaving him took Scott and Scott’s wife Harriet north to the free states of Illinois and Wisconsin, then took them back to slave Missouri. Scott claimed that once he and Harriet had crossed the border into free states, they had become free, as slavery was not allowed in those states. Once a person has gained free status, whether deliberate or not, he or she cannot be returned to slavery.

The Court found against Scott.. but not really. In reality, Chief Justice Taney declared in the majority decision he wrote that the Court actually decided that it should not even have heard the case at all. As we say in our analysis of Taney’s summary,

Taney began the opinion by citing precedent for upholding slavery, pointing out that slavery was written into U.S. law by the Founders. He then explained why the Founders were racist (as we would say; Taney certainly did not put it this way), and thought black people were inferior, and took this to its logical conclusion—if black Americans are ignorant and cannot understand law, they cannot be made citizens because they cannot uphold democracy. Therefore, the Founders did not accidentally omit black Americans from the definition of citizen, but consciously acknowledged that black Americans could not function as citizens. Thus, they did not ever mean for the definition of  citizen to be changed to include black Americans.

We see that Taney is actually avoiding ruling on Dred Scott and slavery at all; he is refusing to involve his Court in the slavery debate because he believes Congress should be the sole author of slave law. Taney says the Court’s hands are tied: enslaved people are miserable, Taney says, and the people enslaving them are despotic, but the law is the law.

Why not just amend the Constitution if slavery is wrong? Overturn precedent—the Court can do that. Here, in his conclusion, Taney will erase that possibility as well. Again, these are excerpts, and not the full text of the opinion, and all italics are mine:

“No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.”

Taney rules out the possibility that Americans realizing that race-based slavery is immoral (a change in “public opinion or feeling”) should ever lead the Court to overturn established law and legal precedent. Why not just amend the Constitution if we’re not all agreed now, in 1857, that slavery is justified because black people are inferior? Here’s Taney’s answer:

“…while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”

In other words, as we said then, “Taney is saying that the Constitution can be changed (altered), but until it is changed, it must be obeyed (“it must be construed now as it was at the time of its adoption”). So yes, you can change the Constitution if you deem it unjust, but until you change it you can’t change it. And he’s not going to change it… because it hasn’t been changed yet.”

Taney concludes the majority opinion by saying that since black Americans are not citizens, Scott should never have appeared in any U.S. court, and so the Circuit Court was wrong to hear the case and issue a ruling, and the case is now dismissed.

Where does Mitt Romney come into this awful equation? On September 22, 2020, he was interviewed on camera about why he supported hearings for a Republican Supreme Court nominee less than 6 weeks before a presidential election but didn’t support them for a Democratic nominee 9 months before an election. Here is a transcription of his response:

REPORTER: Back in 2016 the message was “let the voters decide” – why not now?

ROMNEY: At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.

…I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.

It’s also appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.

Let’s review:

Taney, 1857: “…while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”

Romney, 2020: “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution.”

Both men equate finding the Constitution to be unjust with popular fads or opinions. The implication is that no reasonable, far-sighted, intelligent person would ever find the Constitution to be unjust, so anyone who wants to change it is a nut who probably has lots of crazy ideas. The judiciary will not stoop to that. This despite the clear role laid out in the Constitution for the judicial branch to analyze U.S. laws and amend any that are unjust.

But it’s even worse in Romney’s case, as the Constitution says nothing about this matter. There is no law about how to proceed with Supreme Court nominations to uphold via precedent or to change via the judiciary. Let’s fact-check Romney:

At this stage it’s appropriate to look at the Constitution and to look at the precedent that has existed over—well, since the beginning of our country’s history. In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.

What does the Constitution really say? Article 2, Section 2, Clause 2:

He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

There is nothing in the Constitution that says that “in a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm.” So there is not Constitutional or legal precedent for this. In fact, a quick scan of presidential nominations to the Court from Washington to Obama shows that there were completely extra-legal “senatorial courtesies” that Senators developed and observed, like letting Senators from Georgia, for example, have the final word on evaluating a Court nominee from Georgia.

We also find that most presidents who had one nominee rejected were able to successfully nominate another person who was confirmed. The idea that anyone a Republican president nominated would be rejected out of hand by Democratic Senators is a myth.

In the 20th century, we do find a growing trend of nominees being rejected on ethical grounds. Harding, Hoover, Eisenhower, Nixon, and Reagan all had candidates rejected, refused hearings, or withdrawn for ethical reasons. Sometimes this was for the right reasons–Hoover’s candidate John Parker was opposed for his anti-labor and racist beliefs. Sometimes it was for the wrong reasons–Eisenhower’s candidate John Marshall Harlan II was rejected for his “ultra-liberal” positions. But we often find that someone who was rejected once was later confirmed–this happened with Harding and Eisenhower in the 20th century.

Nowhere in the Constitution does it say that a sitting president cannot get a hearing for their Supreme Court nominee. There is no precedent for refusing the candidate of a sitting president a hearing during an election year. If we go down this road, we invite the possibility of saying that only a president whose party is in the majority in the Senate can nominate a candidate and get a hearing. This is not our democracy.

Back to Romney and his defense of “precedent” (even when there is none):

since the beginning of our country’s history… In a circumstance where a nominee of a president is from a different political party than the Senate, then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there’s a nominee of a party that is in the same party as the Senate, then typically they do confirm. So the Garland decision was consistent with that, and the decision to proceed now, with the President Trump’s nominee, is also consistent with history. I came down on the side of the Constitution and precedent, as I’ve studied it, and make the decision on that basis.

Continuing an error–in this case, allowing partisanship to thwart the purpose of the judiciary as a whole and the composition of our highest court in particular–is justified, for Romney, because the error is longstanding. Doing the wrong thing often enough transforms the error into a precedent that must be upheld–that is, into the right thing to do. This is a solipsism: the Garland decision was consistent with other unjust decisions so the Garland decision conforms to unjust precedent so I will follow unjust precedent since others have before me. He has not studied this, or he would know that the Constitution has no role here. To make a decision to continue an error is not a high-minded, lonely stand for justice.

When Romney says “I prefer choosing those folks who are, if you will, strict constructionists, meaning that they look at the law itself, and the Constitution, rather than looking into the sky and pulling out ideas that they think may be more appropriate than either the law or the Constitution”, he is insulting anyone who believes the Constitution can or should be amended. He is also channeling Taney in the purest way. Compare Romney’s statement to Taney’s:

No one, we presume, supposes that any change in public opinion or feeling… in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted… while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.

Finally, it is not, as Romney says, “appropriate for a nation that is, if you will, center-right, to have a court which reflects center-right points of view, which again are not changing the law from what it states but instead following the law and the Constitution.” The whole point of the judiciary, as we began by stating, is to adhere objectively to the principles in our Constitution–and its amendments--to ensure liberty and justice for all, and not to follow the will of the majority, support one political party or another, or say “the Constitution is perfect and should never be changed.”

There are many ill omens in 2020 that lead the historian to draw parallels to the precarious state our nation was in on the eve of the Civil War. This statement from Romney, and the anti-democratic, anti-American partisan perversion of the Supreme Court nomination process, is one of them.

“If I could save the union without freeing any slaves…” – The victory of the Emancipation Proclamation

This post is part 3 of our series on Lincoln, racism, and slavery. Here we conclude our study of the Emancipation Proclamation.

 

The EP is short and legalistic and has been criticized for lacking moral rhetorical flourishes, but this is deliberate. It is a canny legal document designed to outmaneuver Taney and the courts. In its short lines, the EP gives its legal rationale for freeing certain enslaved people, a schedule for doing so, a definition of who is freed, and their new legal condition. In its short lines, Lincoln overrode centuries of power located in state slave codes, property ownership laws, and civil court rulings and procedures. Lincoln offers no monetary compensation. And, at last, he drops all mention of shipping freed black Americans to Africa. [Ibid. 120] There would be no more colonization, compensation, or caviling. Slavery would no longer be a part of the southern United States. If the Confederate states returned to the Union, it would be without slaves.

 

So we see the reason Lincoln did not extend the terms of the EP to the Border states, or the western territories. (This is what he is lacerated for, for only freeing slaves in Confederate states at war.) First, the Border states were not at war with the U.S. but a part of it; Lincoln could not use his war powers on them when they were not in a state of war with the U.S. The same applies to the west, which was not at war with the U.S.

 

And Lincoln did not apply the EP to the North, to the Union, to the United States as it stood in 1862, because slavery had already been outlawed in all the states then remaining in the Union. We’ll come back to this later, though; Lincoln would.

 

In the months before Lincoln published his proclamation, Horace Greeley, of the New York Tribune, wrote an editorial letter on August 20, 1862 blasting the president for not abolishing slavery already. No one outside Lincoln’s cabinet knew he had the EP written and waiting. Lincoln’s response is famous, or infamous, to us now. It is the letter in which he said that if he could save the Union by freeing all the slaves, he would, and it he could save it by freeing none, he would, and if he could do it by freeing some and leaving others, he would do that.

 

We take that as the basest kind of position. This is the quote most people use to show how racist and pro-slavery Lincoln was. They are wrong. Let’s look at the whole letter.

 

Lincoln starts by saying that his main aim in the war is to preserve the Union. He sees a few options when it comes to saving the Union. He might be able to do it by freeing all the slaves. If that was the best option, he would take it. He might, though, be able to save the Union without freeing any slaves. If so, he would take that option. Or, he might be able to save the Union by freeing some slaves.

 

You, by now, should see that he is hinting very broadly at his Proclamation, which did just that: it freed some enslaved people and left others (in the border states) enslaved. (For the reasons we have already described—under war powers, he could only free slaves in territory at war with the U.S. without Taney and the courts striking the measure down.)

 

We still shudder at Lincoln calmly talking about not freeing anyone. But people at the time saw what was really shocking: Lincoln was saying that ending slavery was on the table. For the first time in the history of the United States, a president was saying he would outlaw slavery. This had never been on the table before.

 

It would be like an American president today saying, “If I can bring peace to the Middle East without using nuclear weapons, I won’t use them. If I have to launch a few nuclear strikes to bring peace, I’ll do that.” We would say, wait a minute—when did nuclear weapons come into this question? No one has ever talked about nuclear war in the Middle East before, but now the President is saying it’s on the table.

 

So with Lincoln’s statement that suddenly abolition was on the table. No longer could anyone in the U.S. or the Confederacy believe that slavery was protected and would not be abolished. Lincoln was telling the nation that he was thinking about abolishing it—that he would abolish it, if that would win the war. To Americans at the time, it didn’t matter that it might be partial abolition. Any move toward abolition coming from Washington was unheard of, and again, certainly no president had ever moved to abolish slavery at all, anywhere, ever.

 

Lincoln underlined this new attitude by adding, “I intend no modification of my oft-expressed personal wish that all men every where could be free.” This was a pretty clear message—or warning—to the nation and the Confederacy that slavery was not going to make it out of the war intact. Lincoln was just waiting for the moment to make a move that would be effective and lawful. As Lincoln said himself after his letter appeared, his intention was to make clear that “he would proclaim freedom to the slave just as soon as he felt assured he could do it effectively…” [my italics; Ibid., 135-36]

 

Lincoln put the Proclamation out to the nation right before the November 1862 Congressional elections. This was dangerous. People might have voted all Republicans out of Congress because of the Republican president’s Proclamation. The Congress might have come under Democratic control, and those Democrats would have fought the Proclamation. But it had always been Lincoln’s wish to give the people a chance to vote on any emancipation order he issued. And 31 Republicans did lose their seats in Congress, as voting for Republicans fell 16 percent from 1860 [Ibid. 167] But the Republicans maintained their majorities in the House and Senate, and Lincoln pressed them to support the Proclamation. He knew that the Proclamation would not only free enslaved people, but galvanize the North. Once the Proclamation took effect… “the character of the war will be changed. It will be one of subjugation and extermination [of slavery],” Lincoln told T. J. Barnett.

 

He was right. After January 1, 1863, when the Emancipation Proclamation took effect, emancipation was “wedged into the war’s equation as a sine qua non of victory.” And Lincoln added that he intended to shape a follow-up policy that would be “more radical than ever.” [Ibid. 156, 228]

 

What was this radical move? To pass an Amendment to the Constitution outlawing slavery. Lincoln knew his Emancipation Proclamation would hold up during the war, and that those freed by it would remain free after the war. But what about enslaved people in the Border states, who were not freed by it? What about slavery in the west, or even in the North, unlikely as that may have seemed? Slavery was still technically possible in those areas. And Lincoln couldn’t be president forever. Once he was out of office, a new president could re-affirm slavery.

 

Lincoln could not accept this kind of risk. He began to push the new Congress to pass the Thirteenth Amendment, outlawing slavery in the United States. It seemed like a good sign when Lincoln’s legal nemesis Chief Justice Roger Taney died in October 1864. The vote on the Thirteenth Amendment came on January 31, 1865, and, as we know, it passed.

 

Next time: the final Lincoln post