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Spring 2014

The Real Source of Modern Judicial Review

imageDred Scott v. Sandford

Bruce P. Frohnen

Modern judicial review has a curious history. Its proponents seek to find its origins in the 1803 case of Marbury vs. Madison. The argument is that Chief Justice John Marshall “cleverly” created judicial review as an American institution. As the myth goes, Marshall gave President Thomas Jefferson what he wanted in that case—he refused to order his Secretary of State to in essence “hire” a Justice of the Peace appointed by Jefferson’s arch-nemesis, John Adams. But in the process Marshall staked claim to the ultimate power to strike down statutes violating his reading of the federal Constitution. This is not true, as Marshall’s decision merely refused to assume power to hear the case because, while a statute purported to confer that power, the Constitution was clear that it could not.

Nonetheless, the second case to which the origins of modern judicial review can be traced has been portrayed as a (misguided) follow up to Marbury. And there are certain similarities in the cases that render a patina of believability to the claim. But the patina is not the metal itself, only the product of time and mistaken notions of judicial power. The real source of modern judicial review is neither clever nor benign.

In broad outline, the facts of the Dred Scott case are reasonably well known. Scott was born a slave. Purchased by an army surgeon, he was transported to various states and territories, some of them outlawing slavery, without being freed, then taken back into slave territory. Eventually he sued his master (the widow of the man who had moved him into free territory), claiming that taking him to areas in which slavery was not legally established in effect freed him.

Chief Justice Roger Taney was determined, not just to keep Scott a slave, but to “solve” the slavery problem once and for all. His “solution” involved denying that Scott had a right to come to the Supreme Court in the first place, just as Marshall had decided Marbury was wrong to come to the Supreme Court in his. Thus both cases are sold to us as having struck down federal legislation as unconstitutional—the first two such cases in American history. But, where Marshall took only the limited, defensive move of refusing to hear a particular case, Taney truly followed the strictures of modern judicial review in going much, much farther. Without cause or judicial need, Taney struck down decades of judicial precedent and practice—including in slaveholding states—along with an essential element of the Missouri Compromise that had kept disagreements over slavery from exploding into open violence. Taney’s ideologically driven opinion misread history, precedent, and the Constitution. By taking slavery off the table for political compromise it also substantially added to conflicts that eventually produced the Civil War.

Caricatures aside, it is not the case that Southerners as a group were willing to do any and everything possible to protect and expand slavery on account of their primordial belief that that “peculiar institution” was the very core of their civilization, requiring aggressive, draconian protections if Southern culture were to survive. Judicial decisions in England and throughout the northern and southern United States long had recognized that slavery was a violation of the common law; that it was a creature of statutory law, protections of which were to be read in a strict, narrow fashion. The result was far more mixed in terms of the rights of black people in the United States than is commonly recognized.

Laws in a number of American jurisdictions had accorded significant rights to people of African descent since before American independence. States including Massachusetts, New Hampshire, New Jersey, New York, and even North Carolina at the time the Articles of Confederation were ratified considered free native-born inhabitants of African descent to be citizens. What is more, if those inhabitants, even if born of slaves, acquired the necessary property or other qualifications, they also were allowed to vote.

The federal government also addressed the slavery issue. Perhaps most important, having reaffirmed the Northwest Ordinance, Congress had regulated and even banned slavery in American territories since the inception of the United States. The mixed status of slavery in the territories only added to the complications visited on that sorry institution by the circumstances of the United States’ federal structure.

But the problematic legal status of slavery meant that courts, including in the South, acted on judicial assumptions favoring freedom. This meant, for example, that courts in a number of slaveholding states, including Missouri, Kentucky, Louisiana, and Mississippi, held that slaves who had lived in free states or territories had thereby been, in effect, freed. Obviously, it was not often the case that a slave was capable of bringing his or her master to court over such an issue, but in Missouri alone there were eleven cases over thirty years (with no comparable holdings to the contrary) during the antebellum period in which slaves were deemed by courts to have been freed because they had worked in a free jurisdiction or had lived in such a jurisdiction for a long enough time to be considered residents.

Yet Taney decided that Scott was not free. Why, and how? In the true fashion of modern judicial review, he reached beyond precedent, the language of the Constitution, and the traditions of the people and states to an abstract, ideological claim (the base nature of African peoples). From this false premise Taney in effect struck down statutes and precedents, some of them of extremely long provenance, in order to establish the “principle” that no person of African descent might possibly be a citizen capable of suing, or of gaining emancipation through the actions of his or her owner.

Taney’s argument began with a travesty of history worthy of Justice Blackmun’s creation of a “tradition” of abortion rights in Roe v. Wade. Ignoring counter examples and the very tradition of common law rights, Taney “found” that people of African descent had, since well before American independence, “been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”

Taney’s use of the unfortunate fact of racial prejudice—a false general principle—as cover to ignore clear contradictory evidence in the concrete facts of laws and judicial precedents is the very type of ideological misjudging one might find in contemporary instances of judicial review. Thus Justice Scalia pointed out in his dissent in Planned Parenthood v. Casey that the dissent in Dred Scott remains “as timely today as it was 135 years ago”:

When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.

Taney used his false history to claim that Americans of African descent were not, had never been, and could not ever be citizens of the United States or of any state. Indeed, this was his reason for claiming Scott could not sue his master in federal court, for only a citizen might invoke federal diversity jurisdiction. This also went against long-held judicial practice in that many states, including in the South, had long allowed even slaves to sue their masters when the outcome might be their freedom (this last on the grounds that, if declared free, it would be established that they had been citizens with the right to sue). Taney even reached into northern states, here, in effect declaring that free blacks could never be considered United States citizens, thereby denying them any protection from the federal Constitution.

But Taney was not satisfied with this illogical and counter-traditional misreading of the requirements of citizenship. He went further. The bulk of the decision, termed by some mere obiter dictum, or irrelevant opinion, took aim at federal policies in the territories and undoing decades of hard-won political compromise, in direct opposition to the clear meaning of the Constitution. The text at issue was Article IV, Section 3, which reads in pertinent part:

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

Taney claimed that the second part of this passage, forbidding construal of the Constitution from prejudicing any claims of the United States “or of any particular state,” effectively nullified the first part. That is, Taney held that only territories already owned by the United States at the time of the Constitution’s drafting (the Northwest Territory) were open to Congressional regulation, and that any state was protected from the results of any such regulation—including an agreement, such as in the Missouri Compromise, that it be admitted to the union as a free state.

Recognizing the perversity of this textual argument, Taney went on to emit one of the first claims in American history of rights of “substantive due process.” He looked to the Fifth Amendment, protecting citizens from being deprived of “life, liberty, or property without due process of law.” As slaves were property, Taney claimed, they could not be “taken” from citizens merely on account of that citizen having taken his “property” into a federal territory where slavery happened to be illegal. As Taney put it: “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 offence against the laws, could hardly be dignified with the name of due process of law.”

This claim was highly damaging in its provision of precedential value for another highly questionable aspect of modern judicial review: the claim that a law may be declared unconstitutional because its results were considered too onerous or unfair to be implemented without a formal trial and finding that some law had been violated. The claim also happened to be wrong as a matter of law. The property interest one might hold in a slave clearly was not the same type of property interest one might hold in a horse or a piece of furniture. Laws banning property interests in various items, including liquor and lottery tickets, and restricting use, storage, and transportation of other forms of property, including dangerous items such as gunpowder, were common enough. And the Northwest Ordinance, which not even Taney claimed was unconstitutional, clearly had treated slavery as a form of property susceptible to banishment from a territory.

Paul Finkelman and other legal commentators on the Left have sought to separate modern judicial review from its origins in Dred Scott. In essence, such claims rest on the view that Taney accurately reflected the prejudices of his time and, more importantly, the time of the drafting of the Constitution. They perversely claim, then, that only a “living” Constitution, updated according to the contemporary moral views of judges and legal commentators, can save us from the prejudices of the past.

But, particularly when read in light of the complex legal history of its time, Dred Scott shows what is lost when judges set aside the rule of law for the rule of their own views of what good policy demands: the genuine possibility that abuses may be addressed over time without the need for political conflicts that may lead to massive bloodshed.  

Bruce Frohnen is a Professor of Law at Ohio Northern University School of Law.

Posted: April 28, 2014 in Essays.

By 'the Permanent Things' [T. S. Eliot] meant those elements in the human condition that give us our nature, without which we are as the beasts that perish. They work upon us all in the sense that both they and we are bound up in that continuity of belief and institution called the great mysterious incorporation of the human race.

Russell Kirk

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