On September 10, 2015 presidential candidate and former
Arkansas governor Mike Huckabee announced that the Supreme Court decision in
the 1857 Dred Scott v. Sanford case is the law of the land. This announcement was met with raucous
laughter from historians, anyone with a basic understanding of law, and anyone
that managed to stay awake during a high school civics class.
If you aren’t one of those people, that’s okay. I am, and I’m going to tell you what this is
all about and why Mike Huckabee is wrong.
Dred Scott
Dred Scott was a black slave born sometime around 1800 in
Virginia. Mr Scott lived most of his
life in the slave system of the American South, predominantly Virginia and
Alabama. However, when ownership of Mr
Scott was transferred upon his original owner’s death (yes, that’s a thing that
happened), he was taken for a period of years to Illinois and then to Wisconsin
(1).
This was in the 1830s, a time that can best be described as
the “let’s not talk about this slavery thing because it makes people fight”
years. See, despite what many of us are
led to believe, the Civil War didn’t just erupt one day out of nowhere after
some guy decided slavery was a bad idea.
It was instead the product of decades of infighting between economies
based on slave labor and the plantation system and those that were not. Slavery was very much a salient moral issue
for a large portion of the population at the time but, more importantly in this
context, it was an economic and a political issue. Slave economies could not run without
slaves. Further, slaves were counted as
a fraction of a person for purposes of population calculation, and the reason
for this was that population determined representation in the House of
Representatives (2). So the issue
transcended the moral accountability that is often rightly emphasized, but
wrongly over-emphasized, in many Civil War discussions.
So, due to this delicate balancing act we were trying to
maintain to keep us out of war over the issue of slavery, a series of
convoluted and often patently ridiculous sounding laws were passed in an
attempt to appease whichever side was yelling louder at the time. One of those laws dictated that slaves that
spent a specific period of time in free territory were allowed to make a legal
case for their own freedom. Now, Dred
Scott certainly met the qualifications under this law at the time that he was
in Illinois and Wisconsin (which was still a territory, FYI), however he did
not, for reasons unknown, make that case at the time. Eventually, he was moved back south with his
master and it was at this time, in 1847, that he made the claim that he should
be free based on his time in free lands.
No one knows for sure why he waited, however, the general theory is that
he wasn’t aware of the law (1). Which
isn’t hard to believe assuming most slaves weren’t allowed to learn to read,
let alone be brought up to date on their own legal standing given their
territory of residency.
The 1847 case resulted in a loss for Scott on a paperwork
technicality, however, in 1850 the Missouri Supreme Court ordered the case to
be retried and the St Louis circuit court found in Scott’s favor. In 1852 the Missouri Supreme Court retried
the case yet again and reversed that decision, finding that Scott was still
legally a slave. This sounds silly and
like Missouri just can’t get its collective shit together, but in all honesty
it’s not surprising considering the competing influences in the nation as a
whole and Missouri specifically regarding the status of slaves, the validity of
laws regarding slaves in free states, etc.
The Case and “The Law of The Land”
So since Missouri couldn’t get its collective shit together
considering the competing influences in that state regarding slavery, the
Supreme Court stepped in in 1856. Well,
that’s not necessarily true. The Supreme
Court doesn’t just “step in” because people elsewhere can’t get their shit
together (ie: any southern state regarding anything ever). So let’s talk about the Supreme Court for a
second just in case, like the former governor of Arkansas (and probably Alaska),
you aren’t really up on how it works:
The
Supreme Court was established in the United States in Article III of the US
Constitution (3). However, like many
things the founding fathers did, the wording used to establish said court was
frustratingly vague (for other examples of this see: Second Amendment). So the court itself was established, but we
didn’t really know what to do with it until 1803 with the case of Marbury v.
Madison (4). This case is a landmark
piece of legislation in the US and a lot of people honestly aren’t real up on
what it was or why it was. The
circumstances surrounded an incoming president not honoring the appointment of
an outgoing president and, honestly, doesn’t really matter. No one cares about Marbury or whether or not
he retained his job. We just don’t. Deal with it, Marbury. Anyway, what is important about this case is
that it established the concept of Judicial Review.
Judicial Review=the power of a federal court to void an act
of Congress that does not mesh with the Constitution.
So what this did, in essence, was establish that the Supreme
Court was a branch of government equal to the Congress and the Executive (nb:
executive=president, for any purpose a normal person would actually need it
for). So today we have a Supreme Court
that is capable of voiding laws, but—and here’s the important part—one that is
also capable of MAKING laws. See, since
this is a separate and equal branch of government, Supreme Court decisions
carry the weight of law, thus making them the “law of the land” as literally
everyone is fond of calling it now for some fucking reason I can’t put my
finger on.
So why do we care?
Dred Scott went before the Supreme Court in 1856 and
presented his case for freedom. In 1857
the Court decided that Scott was not entitled to his freedom due to his time
spent in free territory and the reason for this is that slaves are not citizens
and, therefore, could not sue in a federal court for anything, much less their
freedom (5).
Yes. If you’re paying
attention, yes. In 1857 the Supreme
Court of the United States ruled that slaves are not citizens.
Please take this moment to do what you need to do to wrap
your head around this.
Sometimes we fuck up.
Sometimes we fuck up royally.
This was one of those times.
Why Mike Huckabee brought it up on a radio show
If by now you have not heard of Kim Davis I have no idea how
you’re reading this because obviously you have no access to the internet. But, I will humor you. After the 2015 ruling of the Supreme Court
that all states must allow the gays to marry a Kentucky clerk went rogue and
fucking refused to issue marriage licenses to gay people. This clerk was Kim Davis. Some people love her (Mike Huckabee) for
standing up for her religious principles.
Others hate her, calling her a bigoted douche that isn’t doing her
job. Regardless of where you stand, we
know where Mike Huckabee stands—staunchly on the side of Kim Davis. So, on Thursday September 10, 2015 when asked
to defend this position on a radio show, the host of which very rightly pointed
out that gay marriage was the “law of the land” (seriously, we need a new
term), Mike Huckabee countered with a point involving the Dred Scott case. He stated that:
“the Dred Scott decision of 1857 still remains to this day
the law of the land which says that black people aren’t fully human. Does
anybody still follow the Dred Scott Supreme Court decision?” (6)
Why Mike Huckabee is Wrong
The Dred Scott decision is not the “law of the land”. It WAS the “law of the land”. Until 1868 and the passage of the 14th
amendment. The 14th amendment
granted citizenship to “all persons born or naturalized in the United States”
(7). Which included slaves.
So how does this happen?
Well, remember when I told you, dear reader, that the Supreme Court
could void acts of Congress if they were unconstitutional? Well, that doesn’t make the Supreme Court
King Shit on Turd Mountain, necessarily.
The Congress can void acts of the
Supreme Court. *Note to anyone reading
this with a firm grasp of constitutional law: I’m purposely putting this in
overly simplistic terms because 1.) this blog is already too fucking long and
2.) legal jargon gives me a fucking headache*. Congress can do this by amending the
Constitution.
Essentially, an amendment is a change to the basic
foundation of our government and this has happened 27 times in the history of
the United States and is done in one of two ways. Either, 1.) a constitutional convention is
called ala 1787, or 2.) an amendment is proposed in the House of
Representatives and wins by a 2/3s majority and then does the same in the
Senate. Never in the history of the
United States has an amendment been passed via option 1 (8). So, after the Civil War three amendments were
passed via option 2: the 13th,
14th, and 15th amendments. When these passed, laws that were in place
that were in opposition to them, regardless of who they were established by,
were essentially void.
Thus, this is why Mike Huckabee is wrong. The 1856 Supreme Court decision was reversed
in 1868 by the 14th amendment.
You’re welcome.
My apologies to Mr Huckabee.
 |
| AND gravy, even.... |
Also, my apologies to Ms Palin. That jab was unnecessary and unfair. However, I stand by its general premise.
Also, apologies to anyone that actually pays attention to
the citations in this blog, as I totally made up the citation style as I went
along because I honestly fucking hate citing sources, though I do completely
understand that just taking my word for shit is a dangerous thing so I have to
back my shit up.
2. The Heritage Foundation. 2012. Three-Fifths Clause. http://www.heritage.org/constitution#!/articles/1/essays/6/three-fifths-clause
3. The National Archives. The Charters of Freedom. Constitution of the United States. http://www.archives.gov/exhibits/charters/constitution_transcript.html
4. PBS. 2007. The Court and Democracy. Marbury v. Madison (1803). http://www.pbs.org/wnet/supremecourt/democracy/landmark_marbury.html
5. Library of Congress. 2015. Dred Scott v. Sanford. http://www.loc.gov/rr/program/bib/ourdocs/DredScott.html
6. Benen, Steve. 2015. Huckabee: Dred Scott still ‘law of the land’. http://www.msnbc.com/rachel-maddow-show/huckabee-dred-scott-still-the-law-the-land
7. Library of Congress. 2015. 14th Amendment to the US Constitution. https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html
8. National Archives. The Constitutional Amendment Process. http://www.archives.gov/federal-register/constitution/
