Saturday, September 5, 2015

Striking Down State Laws in Defense of A Constitutional Right

Another article I could not sell:

The Supreme Court makes a controversial decision: they rule that state laws are denying a Constitutional right.  The decision satisfies a small but rich and powerful constituency concentrated in a small number of states allied with the Democratic Party, infuriating a faction of the Republican Party that a federal judge characterized as “semi-religious.. almost invariably characterized by intolerance and bigotry.”

Are you thinking of the recent gay marriage decision?  No, it’s U.S. Supreme Court decision Dred Scott v. Sandford (1857).  Huh?  

In the period before the Civil War, many Northern states expressed their disapproval of slavery and the federal Fugitive Slave Acts of 1793 and 1850 by passing state “personal liberty laws,” for the purpose of guaranteeing that persons accused of being runaway slaves would enjoy protection of due process. Dred Scott federally overturned these state laws, guaranteeing citizens the right to own slaves across the nation, regardless of regional preference.  This effectively destroyed the right of citizens to make their own laws. 

Why the fugitive slave laws, when most states did not allow slavery?  Because the Constitution explicitly provided for such laws to which the slaveowners could point without any judicial creativity  The other reason is that a small minority of wealthy people – slaveowners – demanded these fugitive slave laws to maintain control over their slaves.  They were called by abolitionists the “slaveocracy.”  In 1856, the Democratic National Committee ridiculed the notion that the slaveocracy existed or was a problem., but clearly, they were a powerful part of the Democratic Party.

The slaveowners asserted that blacks were naturally not suited to freedom; freedom was a “curse” to them.  Their status was something they were born to, and they could not change.  This is quite similar to the current belief that homosexuality is inborn and immutable, even though the evidence strongly suggests that homosexuality and its associated dysfunctions (suicide, depression, substance abuse and obesity), at least for some, is a symptom of childhood sexual abuse.  

Of course, it was not just scientists back then promoting these views.  Christianity largely split along regional lines before the Civil War as many religious leaders decided that slavery was pragmatically good and Biblically based.  Others, largely in the North, decided otherwise.  As John Patrick Daly’s When Slavery Was Called Freedom observes, these splits over slavery were at their core splits over theology.  Slavery was only a proxy for a split built around the emerging Northern evangelical emphasis on morality and the Southern churches’ desire to embrace to the culture of slavery, power, and money.  This is much like the way many Christian churches today are selectively reading the Bible to satisfy a popular media driven need to see homosexuality as Biblical, and to be seen as tolerant by the larger society.

So where will the recent decision lead us?  Dred Scott led to increasing polarization, as Americans who abhorred slavery saw their states lose the authority to pass laws on the subject.  The election of Lincoln in 1860 led to the Civil War as the slaveocrats feared Lincoln might block expansion of slavery in the Western territories.  This time, it is more likely that the election of a pro-gay President (likely Democrat but perhaps Republican) dedicated to crushing out the right of conscience could lead to the split.  The Texas Attorney-GeneraL has already encourage county clerks to ignore the Court’s “lawless ruling.”  If this ignoring Supreme Court decisions seems dangerous, the Obama Administration has already decided to ignore a Supreme Court ruling they don’t like.  Clearly, they can’t have a moral objection to ignoring the Court.

Lines are being drawn.


  1. I don't see what Dred Scott had to do with the personal liberty laws. Dred Scott held that there was no authority of the Federal government to regulate or limit slavery in the territories; also, as an obiter dictum of Chief Justice Taney, that blacks could not be citizens.

    Personal liberty laws did not come into it at all. It is quite arguable that the personal liberty laws were unconstitutional, as they were state attempts to regulate or limit the Federal power, explicitly granted in the Constitution, to recover fugitive slaves. In fact I think there was at least one SCotUS ruling to that effect which has never been seriously disputed.

  2. During the first sentence, I thought this was going to be about the Heller decision.