Thursday, August 16, 2018

Roe v. Wade: Further Proof (Part II)

I have read several books which claim to be “neutral” on the issue of abortion and that is far from the truth. In “Roe v. Wade: The Abortion Rights Controversy in American History” by N.E.H. Hull and Peter Charles Hofer they discuss one tragic (illegal) abortion story after another leading to the death of the mother. It is obvious the authors favored “therapeutic” abortion legislation that would give doctors more leeway to perform (legal) abortion under a wide range of conditions other than when the mother’s life being in danger. Some conditions include a poor mental state or the chance of deformed child. We are led to believe from Hull and Hofer that a women’s health suffered greatly due to abortion laws. It is odd though when Hull and Hofer point out states which implemented “therapeutic” abortion laws saw only a “slight uptick” in abortion rates. Hull and Hofer made this claim to show that implementing “therapeutic” abortion laws across the country would not have affected abortion rates too much. However, what this information tells me is that the tragic stories told in this book are rare and not nearly as widespread as they indicate. Besides, we all know that women’s health in America is much better than men’s health. How do we know this? Easy, because women live on average nearly five more years than men. And women have had a higher life expectancy than men throughout American history. Feminist would lead you to believe there is a war on women and women’s health. This is far from the truth. A far greater amount of money is spent on women’s health than men’s health in both government and charitable contributions. Consider, for example, how much money is raised for breast cancer, when far more men die from cancer than women. There is no war on women’s health when, in fact, there is a “non-equal” skew that greatly favors women. But feminist expect “non-equal protection” over the issue of healthcare and not equal protection.

It is a cop out for the pro-abortion movement to say a pregnancy places a “dispropriate burden” on women and it can be a “stigma” for unmarried women and it is a “disruption” of their lives (jobs etc.). Other pro-abortion arguments include pregnancy discriminates against the poor and it is safer than childbirth. Another extreme pro-abortion argument compares pregnancy to slavery saying it makes women slaves to their bodies. In fact, the Court’s reasoning in abortion cases seems to give credence to all these extreme arguments through reasonable statements such as: people have the right to be free from bodily restraint; people have the liberty to make decisions to marry and to have children; and people have the liberty to express one’s personality. For these reasons, the Court held the decision for an abortion was “the women’s and hers alone” and the spouse and even doctors had no say in the matter. Abortion, to feminists, was about freeing women from the oppression of pregnancy, something that no man has to go through. But in the early 1970s (time of the Roe v. Wade decision) there were things that only men went through that were much more troubling then an “unwanted” pregnancy. For instance, only young men were drafted into the military to fight in Vietnam. This could also be seen as slavery and a violation of the Thirteenth Amendment. This too could also be seen as a “dispropriate burden” and a “disruption” on their lives. The option for men drafted into the military was to fight or go to jail. Isn’t this a violation of their liberty to be free from restraint or the right to make family decisions or to express their personalities? Life in the military was much more dangerous than having an abortion or giving birth combined. Compared to the military argument, women have no argument. In fact, the women’s argument of comparing childrearing to an illness or disease once again illustrates the selfishness of the feminist and abortion movement.

Some believe Justice Thurgood Marshall’s questioning of the attorney defending (Floyd) the Texas statute in Roe was convincing because it poked holes in the Texas argument that life started at conception. Marshall asked if Texas felt that life started at conception then why didn’t the statute punish abortionists as murderers (the penalty was much less severe than murder). Marshall also asked why the Texas statute didn’t, as well as other state statutes, punish the mother for having an abortion. The Texas and most state statutes only sought to punish the abortionists. Floyd botched the answer which could have been simple. With regard to no penalty on the mother most criminal laws focus on the supply side of crimes and for good reason. Consider how laws are much harsher for drug dealers over drug users. This is obvious for a few reasons. First, drug dealers are making money off the criminal activity and preying on the weakness of addicted persons. Second, there are fewer suppliers to apprehend than users. Finally, by cutting off the supply of drugs then the demand is diminished. In many ways, we see kids dying from opioid addiction as victims and the same can be said of pregnant women. Abortion laws are no different, they focus on stopping the supply side of the activity. As for not punishing the abortionist proportionally to a murderer, this too is an easy question to answer. A murderer picks and targets its victims in a premeditated fashion. A drunk driver is usually convicted of manslaughter instead of murder because they did not intend to kill anyone. And abortionist does not seek out pregnant women (if they did, that may be murder). Pregnant women seek out abortionists and that is why penalties are less severe. There was no excuse for not being able to answer these questions correctly because this case was argued before the Court twice.

Another concern for the Justices in Roe is that anti-abortion laws drove desperate women into having dangerous illegal abortions. This too is a weak argument to legalize the activity. First, Hull and Hofer say that states with broader abortion laws did not see a big increase in abortions meaning these circumstances were rare. Secondly, the same analogy can be made for other crimes, such as drug laws. Don’t drug laws force users (victims) to buy from dangerous dealers or drug lords? Don’t prostitution laws force women to find protection from dangerous criminals? Don’t immigration laws force immigrants to find protection from dangerous criminals to earn passage to the United States. It is the nature of crime, it is dangerous. And since abortion at the time was a crime, it was a dangerous activity.

The Court invented a trimester system to compromise over the issue of abortion in Roe v. Wade (it is not in the Constitution; the Court was essentially legislating). In the first trimester, a woman could essentially get an abortion on demand. During the third trimester of a pregnancy the state could regulate abortion as it sees fit to protect the life of the fetus. The second trimester of the pregnancy could be regulated as the state sees fit (depending on when the state determines a fetus becomes viable): Before viability abortion was acceptable and after viability regulation and restrictions could be put in place. I have tried but cannot name a single Fundamental Right or action that is legal in its infancy but illegal in maturity. What can be treated as both cancer and a precious blessing? A fetus! It makes little sense that a common group of cells can act in two mutually exclusive ways that are polar opposites from each other. In its infancy mass genocide is welcome and in maturity nurturing and love are required.

Saturday, August 11, 2018

Roe v. Wade: Further Proof (Part I)

I have written a great deal about Roe v. Wade, but I have found further evidence as to why it was a bad decision that I have yet to cover in any detail. First and foremost, the Fourteenth Amendment and the Ninth Amendment used by the majority’s Roe v. Wade opinion refers to “people” and does not distinguish between men and women. However, Roe v. Wade does distinguish between the sexes. The Constitution knows no genders, races, socio-economic status, or religions.

If Fundamental Rights come first and then government and laws follow, how can abortion be Fundamental? Laws do not make rights Fundamental, they already exist. Laws may protect Fundamental Rights, but they do not create them. Moreover, no Fundamental Right is controversial like abortion. Fundamental Rights are agreed to by all. Fundamental rights don’t have unlimited restrictions and regulations like abortion. Fundamental Rights are deep-rooted in American history and tradition. In a 1989 case before the Court it was argued that abortion was deep-rooted in American society since one-third of all pregnancies ended in abortion. Abortion was the most common elective surgery so it was argued it must be deep-rooted in American society. But all controversial issues are deep-rooted in American society and history however, for something to be an American tradition like marriage, to obtain knowledge, to procreate, and so forth it has to be 100% supported by the public. By this logic we can argue that cosmetic surgery is a Fundamental Rights because it has become deep-rooted in American society. There is only one Fundamental Right that causes as much chaos as abortion and that is gun ownership. But unlike abortion which has been taboo in American history, guns have been a deep-rooted tradition. Besides, the exact Fundamental Right is not gun ownership by itself, but gun ownership for self-defense. Everyone has a Fundamental Right to defend themselves and that is 100% agreed upon by all. Furthermore, if a state can routinely and legally intervene to regulate a supposed Fundamental Right, then there is no deep-rooted tradition of freedom.

In 2006, John Finn defined a political question as “The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political … then the court will refuse to hear that case. It will claim it doesn’t have jurisdiction. And it will leave the question to some other aspect of the political process to settle out.” Without question abortion was and is a political and not a judicial question and the Court should have addressed it as such. The Warren Court, however, ruled on political questions such as in Baker v. Carr the famous “One person, one vote” case. Cases like this may have opened the door for the Court to opine where it should not have. Another reason the Court should not have ruled on the case is because there was no controversy. Jane Roe was no longer pregnant and therefore the case was moot. There was not any “justifiable federal issue” at stake per the Constitution. Since Roe v. Wade was a political issue, the briefs for both sides of the argument consisted of very little law and a whole lot of Brandies Briefs covering “medical fact” about abortion and fetal development. This is proof Roe was not a judicial issue, but a political issue.

I had written in the past about how the early women’s rights movement for contraception and abortion was radical because feminists favored these policies mostly for population control. What’s worse, feminists also supported eugenics and the idea of ridding the world of “undesirable” people with “bad genes”. Radical feminist supported contraception, abortion, and even sterilization as a means to weed out the weak, diseased, criminal, the poor, deformed, mentally ill, and other so called “undesirable” persons. These original “feminist” or feminist supporters had something else in common: they were also socialists and or anarchists. In other words, their ideas were radical not just in support of the feminist movement, but also in economics and politics. Feminist classified most people as “undesirable” when in fact by today’s standard for morals and ethics they would be the “undesirables” in American culture.

The feminist movement was a double standard in that it demanded both “equal protection” from the Fourteenth Amendment and what I like to call “non-equal protection” or autonomy depending on the circumstances. I have written about many Supreme Court injustices towards women and minorities. Decisions such as Braswell v. Illinois prohibited women from seeking a lawful profession and Mueller v. Oregon which placed workhour limits on women to push them out of the workforce. The Brandies Brief in Mueller was over one hundred pages and less than two discussed the law. The remaining pages referenced how women were inferior to men in all facets of life and therefore workhour restrictions on feeble women were a must. Since workhour restrictions did not apply to men, the outcome of the case was that employers would hire men over women. Equal protection und the Fourteenth Amendment was violated time and time again against women. Women and men should be treated as equals in all facets of life. Women should not be deprived working certain jobs and they should not be deprived of equal pay for doing the same job as men in the workforce. The present-day fight by feminists for equal pay should prevail.

All that being said, women will choose the “non-equal protection” route when it suits their radical goals such as eugenics less than a century ago. The fight for contraception and abortion in the last 50 years has been one of autonomy. Women want to deny men the right to decide with their partner or spouse the issue of contraception and or abortion. Over these subject’s women have greater rights than men and this violates “equal protection” for all. In Planned Parenthood v. Danforth (1976) the Court held that parental and spousal consent for abortion were unconstitutional. This is extremely surprising especially considering that youths did not have to gain consent. Youths in American history have limited First Amendment rights: there are age restrictions to vote, watch an R rated movie, join the military, drive a vehicle, marry, and drink alcohol to name few. It is hard to see how the issue of abortion does not meet these same age limits placed on many children’s rights. Besides, why wouldn’t the pro-abortion movement want a family to help a child make such a critical decision? Why leave it up to an immature person with limited exposure on the subject? As far as spousal notification the pro-abortion movement feared spousal abuse. I am sure there is a slight possibility of spousal abuse, but that can be settled if there is a police history of spousal abuse then spousal consent can be waived. The pro-abortion movement would argue that women may fear going to the police so there may be no record of spousal abuse. If that is true, then they would probably fear having an abortion more. I lived in a household of abuse and the police were routinely called to our residence by our neighbors. Thus, establishing a police record showing possible abusive behavior at a household is not an undue burden to waive spousal consent.

Tuesday, August 7, 2018

Dred Scott v. Sanford (Part VI)

Without Dred Scott the practice of slavery would have persisted and what’s worse Crittenden’s Amendments had a better chance of passing. This would have been more catastrophic then the bloodiest War in American history. Slavery is not mentioned in the Constitution, but the addition of Crittenden’s amendments would have added the word slavery to the Constitution 15 times officially legalizing the practice. Time would have erased slavery, but at what cost and how much longer would the practice survived? It is hard to say, but the Dred Scott decision definitely expedited the end to the evil that divided the Union from its inception. Without Dred Scott it is possible that slavery would have lasted long into the twentieth century. Most cases about race kept prejudice and discrimination alive and well for nearly one hundred years until Brown v. School Board (1954) ended Dred Scott and Plessy v. Ferguson (1896 – Separate but equal doctrine). Other cases such as the Slaughter House Cases (eliminating the privileges and immunities clause from the Fourteenth Amendment), Cruikshank v. United States (the Bill of Rights did not apply to the states who were free to discriminate), and the Civil Rights Cases (held the Civil Rights Act of 1866 and 1873 were unconstitutional) are examples of cases where racism and discrimination were upheld by the Court. The cost of freedom was high and sometimes that is forgotten. Today, we still talk about the evils of slavery and the Dred Scott decision (rightly so), but very rarely to talk about the bloody conflict that was needed to settle these issues once and for all. That being said, had slavery persisted in the South into the twentieth century who knows how big an impact of ending slavery would have had on our history and the loss of life.

The final major significance of the Dred Scott case was the effect it had on the Supreme Court during the Civil War. Lincoln violated many constitutional rights of the American Citizens to fight the Civil War. He suspended the Writ of Habeas Corpus and ignored Justice Taney’s decision in Ex Parte Merryman saying only Congress had the authority to do such an act (Taney was right). The administration also ignored Constitutional concerns from Taney about a 3% income tax to fund the war (Taney was right). Taney kept silent when Congress passed an Act to abolish slavery in the Territories reversing his Dred Scott decision. In essence, the Supreme Court lost a great deal of respect and power due to its Dred Scott ruling. Many thought that Lincoln should have pressured Taney to resign or retire and replace him with a Republican. Lincoln never considered these overtones and for good reason. He knew that such a move would violate the separation of powers and set a very bad precedent. Lincoln also understood that Taney and the Court were damaged goods and he could do what he needed (yes – violate the Constitution) to fight the Civil War. A weakened Supreme Court definitely helped the Northern and Republican effort in the Civil War.

Thursday, August 2, 2018

Dred Scott v. Sanford (Part V)

In a normal constitutional reading one would interpret the Treaty or War power as how the United States may acquire new territory; the Territory clause as being the power in which the federal government would set up a government in a newly acquired territory; and the Statehood clause as being the power in which the federal government would admit a new state into the Union from the acquired territory. However, according to Taney’s view in his opinion the Statehood clause is the power in which the government would acquire territory, set up a territorial government, and finally admit a state into the union from the territory. There is no way this is possible. For starters, the Territory and Statehood clauses are in the same Article (IV) of the Constitution given equal weight. And there is nothing in the Constitution yielding the Statehood clause a higher hierarchical standing over Treaty or War power.

One major issue with the majority opinion is that they could not agree on a methodology for both its Negro citizenship and Missouri Compromise decisions. And, for this reason, there has been a historical debate over whether there were true majorities over these issues. For example, Taney (Justices Wayne and Grier concur with the entirety of Taney’s decision) mentions the due process clause but Justices Daniel, Campbell, and Catron make no mention of it. All majority justices believe slaves are considered property but Daniel and Campbell claim that slavery is some kind of super property protected extensively in the constitution (Migration and Fugitive clauses). Justice Catron argues the Missouri Compromise violates the Treaty with France for the Louisiana Purchase, but none of the other justices make any mention of this fact. The question of Territorial power over slavery is never decided by the majority: Justice Taney denies this whereas Justice Campbell says it is political question and not up to the judiciary to decide, and Justices Daniel and Catron make no mention of the issue.

Without question, it is easy to poke holes in any Taney or concurring Justice Arguments on either the point of free-Negro citizenship or the Constitutionality of the Missouri Compromise.

Significance and Consequences:

The significance and consequences of the Dred Scott opinion was not so much increasing the divide between Republicans and Democrats as much as the divide in the Democratic Party. Since the Taney decision for the Court was, at best, vague over the issue of Federal Government involvement in slavery in Territories it caused a fracture in the Democratic message. Northern Democrats and Southern Democrats have not always seen eye to eye over the issue of slavery, but the division got much bigger over the Territories question. The Southern Democrat view on slavery in Territories was 1. The Federal Government could not interfere with any citizen taking slave property into any territory; 2. The Federal Government should protect slaveholder’s property if territory protection is deficient; 3. Finally, only when a Territory is admitted into the Union as a State can it decide over the issue of being a free or slave state. The Northern Democrat view is that the Taney Court never resolved the issue of slavery in Territories. They believed that Territory governments could still decide the issue of slavery before statehood. Finally, they believed the Federal Government should not interfere over the protection of slavery in Territories. This fracture in the Democratic Party was significant and by the 1860 election they lost control of the Presidency and the House and they knew it was just a matter of time before they lost control of the Senate and Judiciary. This was a significant reason why Southern states succeeded from the Union and formed their own Nation. The issue over slavery in the Territories as well as Northern States ignoring the Fugitive Slave Act were key reasons for the Civil War.

The last ditch effort to save the Union were six amendments proposed by John Crittenden from Kentucky. The first was to extend the 36’ 30” parallel compromise all the way to the Pacific Ocean. Republicans refused to accept this measure. The other amendments were moot: Prohibit abolition of slavery in slave-states; prohibit abolition of slavery in the District of Columbia; prohibit federal interference over slave trade; Congress to provide compensation for refusal to return escaped slaves to its owner; and the last amendment was to protect the fugitive-slave clause and the three-fifths clause in the Constitution. When Crittenden’s measures failed secession and war were inevitable. Crittenden’s Amendment’s really were not that controversial or radical (they were truly a compromise) since they would have simply guaranteed what had already been accepted the first 75 years of United States history or since the Missouri Compromise (1820) over the issue of slavery. But Southern hypocrisy was too much for Northerners to accept. The first hypocrisy was to reinstate the Missouri Compromise 36’ 30” parallel which the Court said was unconstitutional in Dred Scott and secondly, and the Democrats hypocritical claim the Federal Government has no power over slavery in the Territories except to protect slaveholding. The Dred Scott decision was one of the final tipping points in the division of America and even the Democratic Party.

Saturday, July 28, 2018

Dred Scott v. Sanford (Part IV)

The Missouri Compromise:

The Missouri Compromise of 1820 admitted Missouri into the Union as a slave-state, but no other state above the latitude of 36’ 30” would be admitted into the Union as a slave-state. All territories above the 36’ 30” line would prohibit slavery.

Article Four Section Three of the Constitution is the Territory Clause and it reads: Congress has the power “to dispose of and make all needful rules and regulations respecting the territory or other properties belonging to the United States”. Taney’s decision claims the clause only affected territories owned by the United States in 1789 (at the founding) and “other properties” included only ships, arms, and munitions inherited by the new government. In his dissent Justice Curtis points to the North Carolina and Georgia cessions of Western lands to rebuke Taney’s claim that the Territory Clause only affected territories in 1789. Taney also believed that the words “all needful rules and regulations” in the clause did not amount to much meaning or plenary power for Congress. When, in fact, it combines the word usage of two of the most powerful clauses in the Constitution: “Necessary and Proper” (needful) and to (regulate) “Commerce”. James Madison said on the power of the federal government under the Territory Clause was to “institute temporary governments”. Justice Daniel concurs with Taney and believes the Territory Clause “did not extend to political rights of citizens and settlers” it merely affected land grants. Justice Campbell argued that the American Revolution was fought over British imperialism and he doubted that the Founders wanted to create a United States imperialistic or colonial system throughout its territories by using the Territory Clause to create new governments without the consent of the people. This is somewhat similar to most Territory slave policies by Congress: Laissez Faire or in these instances called popular sovereignty to let the democratic majority to decide political questions regarding slavery. However, popular sovereignty does not mean that democratic majorities will make correct constitutional judgement or decisions. Our history is filled with unconstitutional popular sovereignty decisions. Besides, it is also a bad assumption to think that our Founders did not learn their lesson from English colonialism to govern U.S. Territories correctly. I also find it ironic that Justices are concerned about Colonial tyranny when Southern tyranny towards a specific race of people dominates their laws.

The Missouri Compromise making slavery illegal above the latitude of 36’ 30” did not penalize slaveholders any more than any unique state or territory law which may impact new citizens. For instance, people who moved from a state where gambling was legal into a territory or state where gambling was illegal could be fined or imprisoned for violating the law. Any prohibition on slavery was no different. It is argued that the government cannot confiscate or prohibit personal property. That is not true. Money is property and any fine or tax levied by a government is the confiscation of property. Furthermore, States and municipalities prohibit all types of livestock and domesticated or wild animals.

Slavery and the Missouri Compromise are both political questions that the Supreme Court lacks jurisdiction to decide. In 2006, John Finn defined a political question as: “The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.” In Luther v. Borden (1848) the Taney Court ruled that only the President and Congress can settle the political question over the Guarantee Clause in the Constitution: the “Guarantee of a Republican form of government” for each state (territory) in the union. So long as state and territory governments are Republican then the issue of slavery should be settled by the sovereign states or by territory governments set up by Congress. And this asserts that Congress, not the judiciary, can settle government issues regarding territories.

Remember, Congress may not have the power to prohibit slavery but the Constitution does not forbid it nor does the Constitution allow slavery in states or territories. And if Dred Scott is a slave with no rights as Taney proclaims, then he has no jurisdiction to sue for his freedom and the Court therefore lacks jurisdiction to decide the case and instead should have reverted to the decision of the Missouri Supreme Court. If the Court did this then they could have avoided the embarrassing opinion concerning free-Negroes and the Missouri Compromise. Unfortunately, this approach by the Court would have still left Dred Scott a slave.

A pivotal case for the legality of the Missouri Compromise was American Insurance Company v. Canter (1828). Chief Justice Marshall said “Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution which empowers congress to make all needful rules and regulations respecting the territory or other property belonging to the United States.” This sentence conflicts with Taney’s assertion that the Territory clause did not affect territories acquired after 1789. Marshall also said in the opinion “In legislating for them, Congress exercises the combined powers of the general, and of the state government.” In other words, Congress had both federal and state power over Territories. Thus, even if Congress did not have the authority to allow or disallow slavery in territories based on its enumerated powers in the Constitution, Congress had the authority to do so as acting as a state government.

Monday, July 23, 2018

Dred Scott v. Sanford (Part III)

Taney places “property” above “liberty” in the Fifth Amendment due process clause: “Persons should not be deprived of life, liberty, and property without due process of the law.” If liberty were emphasized than slaves should be provided due process of the law since the Fifth Amendment does not mention citizenship, just persons. Remember, Taney’s argument is that both free-Negroes and Slaves are not Citizens of the United States and can never be Citizens of the United States. He never argues that they are not persons, but he does suggest they have a duality of purpose being both persons (not citizens) subject to laws of the land and property. Once again the logic does not work. In science, when something has a duality purpose, it is more powerful. One would assume that Negroes having a duality purpose would make them much more powerful than Whites. For instance, light can be a particle or wave making it one of most powerful phenomenon in the mysteries of the universe. In legal terms, money has both the purpose of being property and free speech. This makes money even more powerful in political spectrum. Since Taney emphasized the word “property” in the Fifth Amendment he placed the onus of his decision on protecting a slaveholder’s property without due process of the law. However, the question should not have been whether slaves were “property”, but instead if they were deprived “liberty” without due process. The Fifth Amendment’s due process clause protects all persons, even those who are not citizens. The word slave is never mentioned in the Constitution. The Constitution is “colored blind” as declared by Justice Harlan in Plessy v. Fergusson in 1896. The “Three-Fifths” clause refers to persons, not property. The “Fugitive” clause refers to persons, not property. Remember, this clause included indentured servants who had to work off debts most notably for their passage to immigrate to America. The “Migration and Importation” clause referring to “slave trade” also talks about persons and not property. In fact, President Jefferson signed into law an Act prohibiting the importation of slaves in 1807. It took effect in 1808 at the earliest date allowed by the Constitution in the “Migration and Importation” clause. It is also important to note in Barron v. Baltimore (1833) the Marshall Court said the Bill of Rights in the Constitution did not apply to the States, but only the Federal Government. Therefore, Taney was treading in deep waters when he applied the Fifth Amendment’s due process clause to this case. The Fifth Amendment certainly did not apply when Dredd Scott was temporarily taken to Illinois. On the other hand, the Fifth Amendment could have applied when Dred Scott was taken into Wisconsin Territory which was federal land. But Taney specifically states that Congress has no power to deny slavery in the territories. And by proclaiming the Missouri Compromise is unconstitutional, Taney is saying Congress has little authority in both States and Territories. Hence, his Fifth Amendment argument makes little sense based on both precedent and his own reasoning. If Congress has no Constitutional authority to prohibit slavery in the states and territories then the Fifth Amendment argument does not work.

Taney’s dual citizenship theory in his opinion changes the meaning of privileges and immunities clause from “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states” to “the citizens of each state, who are also citizens of the United States, shall be entitled to all the privileges and immunities of citizens in the several states”. In 1839 the Taney Court issued a decision that held corporations were citizens within the meaning of the privileges and immunities clause. Five years later in Louisville, Cincinnati, Charleston Railroad v. Letson the Taney Court held that corporations were citizens in that they can sue and be sued in a federal court under the Diversity-Citizenship Clause. The Taney Court made a similar ruling in Marshall v. Baltimore and Ohio Railroad (1853). In other words, corporations were citizens in some respects but not in others. The same can be said of women and children during the founding era. Women and children were not given the same privileges and immunities given to men but were still considered citizens. Free-Negroes were no different. They had some rights, but even in free-states they were denied many privileges and immunities such as the right to bear arms. Only in Maine where free-Negroes considered equal to Whites in terms of privileges and immunities. But in most free-states, free-Negroes had the right to marry, sue in federal courts, and own property. This was enough for them to be considered citizens of free-states and should in turn be considered citizens of the United States. The Taney duality citizenship argument makes little sense.

Finally, Taney argues that the militia requirement for “free able-bodied white male citizens” placed in a 1792 Act is evidence that Negroes were not citizens. However, if free Negroes were never considered citizens, then the “white” reference would not have been necessary.

The implication of the Dred Scott decision was vast especially in the North. Most Northerners felt the ruling would ultimately violate state sovereignty over the issue of slavery. After all, if slaves were property then how could any state or territory in the Union forbid or prohibit it? They couldn’t and thus they feared that slavery would not only spread throughout new territories, but perhaps through established free-states. What was to stop the nationalization of slavery? To complicate matters, shortly after the Dred Scott decision there was a bitter battle over Kansas statehood: would it be admitted as a slave or free-state? Furthermore, the Ableman v. Booth (1858) decision continued the fear and grew animosity further in Northerners. In this decision, it should come as no surprise that the Taney Court upheld the Fugitive Slave Act in Wisconsin territory. It is no wonder historian Charles Warren said “that Chief Justice Taney elected Abraham Lincoln to the Presidency.”

Tuesday, July 17, 2018

Dred Scott v. Sanford (Part II)

The “Diverse Citizenship” clause was widely used over the years to give both slaves and free-Negroes the right to sue in a federal court. In fact, Taney used the clause in LeGrand v. Darnall (1829). In this case, Taney used the diverse citizenship clause so a former slave, one of the parties in this federal suit, had a right to file suit in federal court. Dred Scott’s defense successfully used the diverse citizenship clause in his defense to bring his case before the Missouri Supreme Court. However, Taney’s ruling changed the meaning of the diverse citizenship clause. Taney’s opinion changed the diverse citizenship clause from “the judicial power shall extend to controversies between citizens of different states” to “the judicial power shall extend to controversies between citizens of the United States residing in different states”. Taney’s decision carefully distinguishes between state and United State citizenship: that the two were mutually exclusive statuses.

Ely v. Thompson and State v. Manuel are also good examples of precedent reached in state cases that would refute Taney’s citizenship claims about free-Negroes. In fact, in State v. Manuel, North Carolina declared free-Negroes were in fact citizens of the state. Marshall exclaimed in the 1832 case Gassies v. Ballon “a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State.” In other words, United States citizenship was synonymous with State citizenship during our founding. The Constitution does not deprive any class of people citizenship. In fact, the Constitution does not define citizenship except for the naturalization of aliens. Hence, any free-Negro in North Carolina was citizen of that state (State v. Manuel) and therefore any North Carolina Citizen was a citizen of the United States (Gassies v. Ballon). I use the North Carolina example since they were a slave-state. Obviously free-states had similar laws or statutes that made free-persons including free-Negroes citizens.

Chief Justice Taney wrote the majority opinion (7-2) for the Court. He asserted that both free-Negroes and Slaves had the same status and could never be citizens of the United States. According to Taney’s reasoning in his opinion and noticed by Don Fehrenbacher “American Negroes, free and slave, were the only people on the face of the earth who were forever ineligible for American citizenship”. Even foreign nationals who were black could be naturalized, but not any American born black (slave or free) could earn United States citizenship regardless of his state citizenship status. This violates the precedent in Gassies v. Ballon set 25 years earlier.

Furthermore, Don Fehrenbacher identifies “There were no equivalent slave-states where slavery was universal and freedom forbidden.” There were however universally free-states and states were slavery and freedom existed side by side. So the analogy to the Dred Scott case would be if a free-citizen entered a slave state and became a slave and upon his return to a free-state would remain a slave. That would not happen since free-states did not have slavery. And this is why the converse should also not happen. Logic from the above analogy suggests a slave entering a free-area should earn his freedom regardless of the duration of his or her stay.

Taney uses substantive due process when he asserts “the right of property in a slave is distinctly and expressly affirmed in the Constitution.” He continues by saying that states had a right to “traffic in it (slave trade)” for 20 years, but Jefferson ended slave trade when that memorandum expired in 1808. Taney furthermore proclaims “And the government in express terms is pledged to protect it in all future time, if the slave escapes from his owner” referring to the “Fugitive (Slave)” clause. But the Fugitive (Slave) clause was an agreement in the Constitution between states: that is why the clause was listed in Article IV and not in Article I Section 8 which denotes Congress’s enumerated powers. Taney also wrongly asserts “and no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description.” Taney mentions both the “(Slave) Migration and Importations” clause and the “Fugitive (Slave)” clause where the Constitution does place more restrictions on slavery than “other property” (although these clauses only refer to persons and not property). Taney conveniently fails to mention the “Three-Fifths” clause which states: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” This clause refers to “free persons” and “three fifths persons” and makes it impossible to infer that slaves are property. The clause clearly states persons and the clause can be interpreted as follows: free persons are citizens and three fifths of slaves are citizens. It is ironic that the “Three-Fifths” clause gave Southern Democrats control over Congress, the Executive, and the judicial branches of government. This power enabled them to denigrate the rights of all Negroes, rule the Missouri Compromise was unconstitutional, and essentially give them the power to nationalize slavery. However, the Court firmly neglects to even acknowledge the existence of such a clause in the Constitution because it pokes holes in their “property” argument.