Brad DeLong's Semi-Daily Journal (2004)

He may be objectionable on other grounds, but I'm not sure Dick Cheney ever plotted to extend slavery nationwide.

Yes indeed...

However, Asscroft did propose a repeal of the 13th amendment.

Neat. But a pedant might point out that Taney is pronounced Tawney, which makes the slip a little harder to make.

A realist would note that ... whatever the Hon. Mr. Taney would or could have done, slavery in the United States had reached it's natural boundries in the decade before the Civil War.

North of the Ohio slavery was not economically sustainable. West of the 98th meridian it ceased to be viable due to the climate.

Actually, the "natural limits" thesis (the product of a school of thought from the early twentieth century that deemed the Civil War itself avoidable) is at best debatable. Slavery was very nearly adopted in Illinois at statehood, the Northwest Ordinance (let alone viability) notwithstanding, and most certainly was adopted in Missouri, which sits at the same latitude (as does Virginia). To the southwest, slavery had hardly reached its natural boundaries, but was still expanding at the time of the Secession Crisis. And while it is probably true that the viability of plantation agriculture faded as one moved north and west, slaves could be used for other purposes--say, mining. It was precisely that threat that led Californians to demand free-state status in 1850; if slavery hadn't been "viable" there, why spark a major sectional crisis to keep it out? That slavery didn't spread beyond those states where it was legal had a lot to do with its need for legal backing--hence (perhaps) the failure to move slaves into insecure Kansas in the 1850s, and hence the southern demand for a federal slave code for the territories, a demand that split the Democratic Party in 1860. There may have been a "natural limit" to slavery, but it's difficult to test in the messy laboratory of history. And certainly it was reasonable for Republicans (not having read certain later historians on the subject) to fear that, with the legal backing of the Supreme Court, slavery could indeed have become national.

As I understand it, the Dred Scott decision has nothing to do with states giving full faith and credit to one another's laws. Slave Scott’s owner took him to the free state of Illinois and then to a federal territory that forbade slavery under the Missouri compromise. After returning to Missouri Scott sued for freedom under the theory that once he was on free soil he should then be forever free. Scott won in Missouri trial court, but lost in Missouri Supreme Court. Scott then made a federal case out it only to lose in trial court. He then appealed to the US Supreme Court under Chief Justice Taney. The Scott holding is turgid is nothing else. Those guys most have thought they were getting paid by the word. Essentially the Taney court found a “liberty interest” in the constitution for owning slaves that the federal government cannot abridge in a state or territory. While the Missouri compromise was repealed in 1854, Dred Scott was in free territory before that. Taney based his reasoning on a creative reading of the Fifth Amendment, the earliest example of applying the modern principle of “substantive due process.” So if you like the reasoning in Roe v. Wade or the more recent Lawrence v. Texas (liberty right to engage in sodomy) then should not find Taney’s method of legal reasoning defective.

If Cheney was around to extend slavery in the 1860s, then Bush would have paid 300 dollars to some poor dumb Irish bastard from the slums to go fight for him. "Rich man's war, Poor Man's fight."

Ashcroft would have been a nasty self-rightous Copperhead.

The CIA and NSA would have been on the crack intel staff of General McClellan. "What?! 300,00 confederates in front of me? I think I'll just spend my time scratching my butt on this Peninsula."

David,

"To the southwest, slavery had hardly reached its natural boundaries, but was still expanding at the time of the Secession Crisis. And while it is probably true that the viability of plantation agriculture faded as one moved north and west, slaves could be used for other purposes--say, mining."

I'm not sure what you're talking about; slave labor built the plantation economy; elsewhere slave labor was not viable or insignifigant. The plantation economy _stopped_ in Texas well before the 98th meridian; past that line farming was impossible.

Plantation agriculture didn't just fade outside of the south, it ceased for a number of reasons, historical and economic.

"It was precisely that threat that led Californians to demand free-state status in 1850; if slavery hadn't been "viable" there, why spark a major sectional crisis to keep it out?"

Why? One explanation is that the passions by that time were running high and fevered. The extreme elements .. on both sides of the equation .. forced polarity on the rest. Reasonable men would have found a comprimise and avoided war.

I'm not saying the war was unavoidable; but it _should_ have been.

Brian identifies plantation agriculture and slavery. Slavery is a legal form, plantation agriculture is an economic form. Plantation agriculture was pretty much coextensive with slavery in the US but elsewhere you could have either one without the other. You still have slavery in Saudi Arabia, without plantation agriculture, and plantation agriculture in Latin America until quite recently, without slavery. Outside the area of plantation agriculture slavery wouldn't have been as dominant as it was within them, but it could have existed in its niches.

How about a nice Marxist discussion now of "slave society" as a stage of development on the way to Communism?

Brad: Wait just a minute. When Cheney was a member of the House of Representatives, representing Wyoming, a non-binding vote of sympathy for Nelson Mandela came up on the House floor. Incredibly, Cheney voted against it. Think about it. Nelson Mandela. Imprisoned most of his adult life. Fighting apartheid, a system that is absolutely fundamentally 180 degrees opposite of any of the ideals upon which our country was founded and to which it sometimes aspires, and Dick Cheney votes against a non-binding voice of support for Mandela and the ANC. Why? He claims because Mandela had espoused Marxist sympathies. Thus, in Cheney's closed, closed mind it is better to be an Apartheidist (is that a word?) than a Marxist. Cheney, in his limited, intellectually squalid thinking, cannot fathom why a man like Mandela, and his followers may be Marxists, or embrace Marxist thought, ideals or be open to considerations of socialism or Marxism in South African. If you are deemed inhuman, or subhuman or partially human or separate and inferrior by those who hold political power, is it so far a stretch of the imagination that Mandela and his fellow fighters against apartheid would embrace almost anything and everything that was against the values held by those in power who held Mandela and his people down? Is that such a stretch? Wouldn't it have been better to look past that and assist Mandela in his noble, moral, heroic struggle, helping and hoping that one day he would overcome apartheid so that the US could be a great friend to the new government? But, noooooooooooooooooooo, Cheney hides behind the facade of Marxism-hating as his justification for voting against Mandela. This is unforgiveable in my opinion. There is no excuse for Cheney's action then and no reason to cut him any slack today on these issues.

Zarkov misleads when he says "Taney based his reasoning on a creative reading of the Fifth Amendment, the earliest example of applying the modern principle of 'substantive due process.' So if you like the reasoning in Roe v. Wade or the more recent Lawrence v. Texas (liberty right to engage in sodomy) then should not find Taney’s method of legal reasoning defective."

Taney actually said (in turgid dicta after holding jurisdiction absent because negros couldn't be US citizens capable of suing in Federal court) that "an act of Congress which deprives a citizen of the United States of his liberty or property [i.e. a slave], merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." (60 U.S. at 450) Using property rights to sanctify slavery resembles the discredited 'liberty of contract' theory that was used to strike down labor laws before the 1930's, not Roe or Lawrence.

Gwailo: Taney wrote: “[The rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life liberty and property without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws could hardly be dignified with the name due process of law.” The first sentence states that the substance of law must be applied through fair procedures. The second sentence (improperly) tries to mandate what the allowable substance of the law must be. In other words, Taney says there is a right to own slaves implicit in the Constitution. It’s like Douglas’ penumbras. This is the first use of the modern concept where a due process clause is transformed into a substantive clause. The “liberty of contract” concept comes from Lochner v. New York State 198 US 45 (1905). Here the Supreme Court found such a liberty exists through the fourteenth amendment. Yet another application of reasoning by the oxymoronic “substantive due process;” just with a different amendment. Most all the decisions which find a right to something not explicit in the Constitution, or that follow from a major premise laid down by the Constitution are using some form of a substantive due process. And this applies to Roe, Lawrence, Griswold and many others.

"It’s like Douglas’ penumbras. This is the first use of the modern concept where a due process clause is transformed into a substantive clause."

Ahistorical nonsense! Simply an attempt to smear the supporters of decisions like Roe and Lawrence.

Dred Scott is more aptly characterized as an example of Scalia-like "original intent" jurisprudence--blacks could not be citizens, and therefore could not be permitted to sue in federal court, because the founding fathers supposedly didn't envisions blacks ever becoming citizens when they used the word, "citizen," in the constitution.

Similarly, slaves were property, according to Dred Scott, because that's how the founding fathers regarded them.

"Substantive due process" is nowhere mentioned in the opinion--the idea wasn't developed until many years later.

zizka

"Brian identifies plantation agriculture and slavery. Slavery is a legal form, plantation agriculture is an economic form. Plantation agriculture was pretty much coextensive with slavery in the US but elsewhere you could have either one without the other. You still have slavery in Saudi Arabia, without plantation agriculture, and plantation agriculture in Latin America until quite recently, without slavery. Outside the area of plantation agriculture slavery wouldn't have been as dominant as it was within them, but it could have existed in its niches."

I never disputed that - the topic of discussion was (or I thought it was) slavery in the United States.

"How about a nice Marxist discussion now of "slave society" as a stage of development on the way to Communism?"

Not tonight dear, I have a headache.

rea: You’re reading the decision much too narrowly. It goes way beyond the individual of Scott and his standing to bring a cause of action. Taney found a “right” to own slaves in the Constitution not based on an argument of originalism, but on finding substantive law through the Fifth Amendment. See “The Constitution in the Supreme Court: The First Hundred Years” (1985) by D. Currie.

Brad DeLong writes, "of course, the federal principle at the base of our Constitution requires and mandates that no federal court can say anything about acts of a state legislature allowing or prohibiting slavery within its borders,"...

This ignores the other ***explicit language*** that was in the Constitution at the time of Dred Scott:

"No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

In other words, it WAS proper for a federal court to disregard any state law that "made" a slave from a slave state a free person. Any such state law was an ***explicit*** violation of the U.S. Constitution, which was the Supreme Law of the Land.

To me, it is pretty clear: the Dred Scott decision was--*****ON THE BASIS OF THE EXISTING LAW*****--correct. It was a proper ***legal*** decision.

I find it very frustrating and somewhat frightening that it is an almost universally held belief that the Dred Scott decision was the worst decision ever made by the U.S. Supreme Court. The fact that such beliefs are so widely held indicates that people think that Courts should ignore the law, and do what's "right."

I name more than a score of Supreme Court decisions that are much more ***legal*** abominations than the Dred Scott decision.

"And certainly it was reasonable for Republicans (not having read certain later historians on the subject) to fear that, with the legal backing of the Supreme Court, slavery could indeed have become national."

The Constitution's *explicit language* supported slavery. The Supreme Court was simply following the Constitution. (That's a novel thought in today's times, but is wasn't so novel back then.)

It had long been the law throughout the United States that a slaveowner passing through free territory with his slave did not thereby lose the slave. And if he returned to slave territory with the slave, the master-slave relationship was unimpaired.
Dred Scott could have been decided on those grounds, and should have been. Leave until later the question of what happens if you stay a long time in free territory and seek freedom while still there.
But Taney thought he could settle a political question dividing the nation but not, strictly speaking, before him. A horrible botch by a Chief Justice who otherwise would have ranked much higher in history's estimation. (But other than that, Mrs. Lincoln, how did you like the play?)

"Similarly, slaves were property, according to Dred Scott, because that's how the founding fathers regarded them."

And you have a **legal** problem with that?

"It had long been the law throughout the United States that a slaveowner passing through free territory with his slave did not thereby lose the slave. And if he returned to slave territory with the slave, the master-slave relationship was unimpaired. Dred Scott could have been decided on those grounds, and should have been."

No, it should not have been. Because even before that question could be addressed, it needed to be determined that Scott had standing in a federal court. He didn't. He was property. He had no rights. That was the law. The Dred Scott decision was legally proper.

Standing is a tricky business. In Dred Scott, the question of standing was inseparable from the merits. IF he was (legally) a slave, he had no standing. If he was not a slave (which is what he claimed), he did. To decide standing, you have to decide whether he was a slave, which is what the lawsuit was about. Somehow or other, the merits have to be addressed. There was simple way to decide the merits, and Scott would probably have lost, but Taney got ambitious.

Remember that Dred Scott was taken to a free federal territory (not a state), and it was on this basis he sued for freedom. The Dred Scott decision would not be the subject of so much criticism had Taney Court simply: 1. Refused to hear the case and let the lower court finding against Scott stand, 2: found against Scott on narrow terms. But no, Taney wanted to take the burning political issue of the day and transform it into a settled legal issue. It doing so he over reached. This same kind of over reaching has occurred again and again in the 20th century starting with Lochner.

"It had long been the law throughout the United States that a slaveowner passing through free territory with his slave did not thereby lose the slave."

Actually many free states had time limits upon which expiring the slave was automatically emancipated. George Washington freed one such slave by " forgetting " to return him to Virginia. Other states attempted to bar entry by slaves or free Blacks by law ( Illinois being one such state ).

Mark:
Yes, that's true, and that's a useful refinement, but the limits were long enough that the truly transient slaveowner just passing through a free state with his slave had nothing to worry about.

What does the preamble to the Constitution say?:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..."

Anyone who wants to claim that the Constitution's "explicit language" supported slavery has to deal with (i) the absence of the word "slavery" from the text of the Constitution, and (ii) the facts that the purpose of the Constitution is to "establish justice" and "secure the Blessings of Liberty."

Few indeed are the people who would argue now or then that a system in which some are masters and others are slaves is an establishment of justice. Why, indeed, did Jefferson tremble for his country when he thought "that God is just, and his justice cannot sleep forever"?

There are powerful anti-slavery time bombs embedded in the Constitution and the Declaration, and in the absence of the British Industrial Revolution and Eli Whitney's cotton gin they would have gone off long before 1860.

Brad DeLong asks, "What does the preamble to the Constitution say?"

I'll bite...what does it say? ;-)

He continues: "Anyone who wants to claim that the Constitution's 'explicit language' supported slavery has to deal with (i) the absence of the word 'slavery' from the text of the Constitution,..."

Geez! Does Dr. DeLong honestly think that...

"No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

...does NOT refer to runaway slaves?! If so, who does he think is being referred to?

This section of the Constitution was unquestionably added specifically at the demand of delegates from states where slave ownership was allowed. It was what they most wanted from the Constitution. Without it, all their slaves could have run away (at least from the slave states bordering free states) and there would be nothing that the slave owners could have done about it.

And does Dr. DeLong also think that the "other persons" referred to here are NOT slaves?

"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.)"

If these "other persons" are NOT slaves, who are they?

This isn't even a close call!

Dr. DeLong continues, "...and (ii) the facts that the purpose of the Constitution is to "establish justice" and "secure the Blessings of Liberty.""

As Taney points out very clearly and logically in the Dred Scott decision, that clearly did NOT apply to slaves. It was written by a bunch of free white men, and meant to apply TO free white men (and women).

Dr. DeLong concludes, "Why, indeed, did Jefferson tremble for his country when he thought 'that God is just, and his justice cannot sleep forever'?"

Jefferson wrote that specifically because he KNEW that the laws of his country--laws which he took advantage of--were unjust.

"There are powerful anti-slavery time bombs embedded in the Constitution and the Declaration, and in the absence of the British Industrial Revolution and Eli Whitney's cotton gin they would have gone off long before 1860."

The Declaration isn't law. It's an expression of ideals. The Constituition ***IS*** law, and it quite clearly supported slavery (prior to the 13th amendment). The Constitution did so because the delegates from the slave states demanded it. As I wrote above, this isn't even close.

Taney was (mostly) right. The Dred Scott decision is legally sound. The Constitution was flawed, in that it immorally supported slavery. Taney followed The Law. It's unfortunate that none of our current Supreme Court judges do the same.

>>Geez! Does Dr. DeLong honestly think that... "No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due." ...does NOT refer to runaway slaves?! If so, who does he think is being referred to?<<

It refers to slaves. But it is *very* *important* to note that the Founders thought it *very* *important* to keep the word "slavery" out of the Constitution.

Dr. DeLong admits the obvious: "It refers to slaves. But it is *very* *important* to note that the Founders thought it *very* *important* to keep the word "slavery" out of the Constitution."

So the Constitution expressly supported ownership of "canis familiarises (familiari?)." But the Constitution did not support ownership of "dogs."

I see the distinction, but I don't see the difference. How is it "very important" that the Constitution supported the return of runaway "persons held to service"...and simply didn't call them "slaves"?

I too don’t understand why it is important that the Constitution does not use the specific term “slave.” We have a bunch of lawyers writing more than 200 years ago and they had their argot as we have today. Perhaps they were simply uncomfortable using the word outright so they adopted euphemisms. Or for them the word “slave” was not precise enough. Perhaps the good professor will enlighten us as to why he ascribes so much importance to this terminology.

"Perhaps the good professor will enlighten us as to why he ascribes so much importance to this terminology."

I hate it when people do this to me ;-), but...

Dr. DeLong wants to pretend that the Dred Scott decision was an abomination, and that the men who founded this nation didn't write a document that had at its heart a fundamentally immoral aspect (a defense of slavery, in the fact that there was a Constitutional requirement to return runaway slaves).

He'd rather pretend that it was the big, bad Dick Cheney (er, Roger Taney) and his evil Supreme Court that flouted the Constitution.

Such an interpretation may make Dr. DeLong feel good, but I don't think it's based in fact.

Mark Bahner (Chairman of the Roger Taney/Dred Scott Decision Defense Committee ;-))

P.S. As the wink shows, I'm (sort of) joshing. I simply think the overall ruling itself was ***legally*** very sound. Dred Scott was not, as the law stood in 1857, a citizen of the State of Missouri. He was a piece of property in Missouri, according to The Law.