THE EXERCISE OF JUDICIAL REVIEW: CIVIL RIGHTS. Topic #18. The Missouri Compromise (1820). Dred Scott v. Sandford (1857).
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Scott had been a slave who had resided (with his master) for extended period in territory in which slavery had been prohibited by the Missouri Compromise legislation enacted by Congress in 1820.
It had been generally understood that Congress had the power to do this under Art. IV, Sec. 3(2):The Congress shall have power to make all needful rules and regulations respecting the territory . . . belonging to the United States.
Believing that he had thereby gained his freedom, Scott sued Sandford (his nominal owner) in federal court for his freedom.
He sued under the diversity clause of the Constitution.
The judicial power [of the U.S.] shall extend to all cases between citizens of different states.
Scott now resided in Missouri and Sandford in New York.
Chief Justice Roger Taney wrote the opinion of a divided SC.
The question is simply this: Can a negro become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?
We think [African-Americans] are not … included, and were not intended to be included, under the word "citizens" in the constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.
Taney could have stopped there and dismissed Scott’s claim, but he did not.
It is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner with the intention of becoming a permanent resident.
Historical footnote: Shortly after the decision, Scott was freed by his owners, who had anti-slavery views.
Taney’s general theme: we may be more enlightened now, but the SC must interpret and apply the Constitution as it was written 70 years ago and in light of “original intent.”
On Taney’s interpretation, it is understandable that the abolitionist William Lloyd Garrison denounced the Constitution as “a document forged in Hell.”
In fact, most historians believe that
Southerner slave owner defended slavery with much more enthusiasm and confidence in 1857 than 1787; and
Taney’s rulings were inconsistent with common earlier understandings of the meaning of the Constitution.
The original Constitution made no reference to race (or religion or gender).
Three specific provisions of the original Constitution dealt with slavery (but avoided use of the term).
[The Apportionment Clause] Representatives . . . shall be apportioned among the several States according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons . . . three fifths of all other Persons.
[Commerce Compromise] The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to 1808.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
In the immediate post-CW Reconstruction period, African-Americans and white (“carpetbagger”) Republican allies (protected by a sympathetic Republican administrations and Congress and by federal civil rights laws) dominated politics in many Southern states.
Following the disputed Presidential election of 1876, “redeemer” white Democratic governments took control in all Southern states.
Initially, this did not greatly affect the status of African-Americans.
But beginning about 1890, Southern states began to draw up new Constitutions which, together with other laws and extra-legal practices, established a regime of “white supremacy” (often called “Jim Crow”), which had two principal elements:
de jure [in law] racial segregation (which the post-CW amendments did not explicitly prohibit); and
de facto [in fact] racial disenfranchisement (which was explicitly prohibited by the 15th Amendment).
The object of the [14th] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other . . . We consider the underlying fallacy of the plaintiff\'s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Dissenting opinion by Justice Harlan:
In respect of civil rights, common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. . . . Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. . . . In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.
The NAACP Legal Defense began challenging “Jim Crow” segregation laws in the 1930s, focusing on education (initially at the graduate/professional school level)
Typical case: Sweatt v. Painter (1950)
The state of Texas had created a “separate but equal” law school, which manifestly was not equal in either “tangible” or “intangible” respects to the (white-only) Law School at the University of Texas.
Problem: By 1950, the NAACP evidently could win virtually any school segregation case on the grounds that the separate schools for African-Americans were not equal (as was almost always manifestly the case)
But there were thousands of segregated schools and school districts and each had to be challenged individually.
The NAACP looked for cases that would force the SC to reconsider and overrule the Separate But Equal Doctrine itself, at least as it applied to education.
Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.
Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question - the constitutionality of segregation in public education.
Brown v. Board (1955)
Full implementation of these constitutional principles may require solution of varied local school problems. . . . Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those [Federal district] courts.
The judgments below, except that, in the Delaware case, are accordingly reversed, and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.