Harvard re-examines Dred Scott decision
Earl Evleth
familiar with ‹ democracy, justice, rights and responsibility ‹ but that's
not what the country was in 1857," Payton said."
I view Guantanamo as demonstrating that in fact we have not
come far enough.
Encore, un peu d'effort.
***
Harvard re-examines Dred Scott decision
By STEVE LeBLANC, Associated Press Writer Sat Apr 7, 7:20 PM ET
A century and a half after the Supreme Court ruled in the Dred Scott
decision that no black ‹ slave or free ‹ could ever become a U.S. citizen,
the case's legacy is still being debated.
The fallout from the 1857 decision, which helped spark the Civil War, was
the subject of a mock re-hearing of the case before a 10-member court led by
Supreme Court Justice Stephen Breyer at Harvard Law School on Saturday.
While the decision, issued by Chief Justice Roger B. Taney, is almost
universally seen as the moral low point of the court's history, participants
in the mock hearing said the case still had a lot to say to the country 150
years later.
Former Whitewater prosecutor Kenneth Starr said the case has a lesson for
judges. Besides being racist and morally bankrupt, the Dred Scott decision
also reflected the arrogance of judges like Taney, who tried to elevate
themselves over the U.S. Constitution, he said.
"This is an enduring lesson ‹ this isn't just a history lesson ‹ for judges
including of course justices of our Supreme Court to be humble, because
Chief Justice Taney was anything but humble," Starr said. "Quite apart from
its immorality as a matter of natural justice and fairness, it also showed
the arrogance on the part of the Supreme Court."
In the ruling, Taney wrote that since the country's founding, blacks had
been "bought and sold, and treated as an ordinary article of merchandise and
traffic, whenever a profit could be made."
Even more troubling for many, was Taney's dismissal of the promise of the
Constitution that "all men are created equal."
"It is too clear for dispute, that the enslaved African race were not
intended to be included, and formed no part of the people who framed and
adopted this declaration," Taney, a former slave owner, wrote at the time.
Breyer said the case raises not just legal and ethical questions, but
practical questions for justices involved in thorny moral legal cases.
"For me it immediately raises the question as a judge: How do you talk to
other judges and persuade them about matters where you really think they're
going to do something quite wrong?" Breyer said. "Do you talk only on a
technical level?"
"Or," he added, "do you just go around perhaps saying through your words and
voices, 'This is a real horror?'"
The decision is both a history lesson and a cautionary tale, according to
John Payton, another lawyer participating in the mock hearing. It shows how
far the country has come from its slave-holding past, but can also shed a
light on lingering racism and other aftereffects of the decision, he said.
"The United States today uses the highest principles that we're all familiar
with ‹ democracy, justice, rights and responsibility ‹ but that's not what
the country was in 1857," Payton said.
"It's important for us to appreciate what we were in 1857 to better
understand what we are today," he added.
(A previous version of this story misspelled Kenneth Starr's last name on
first reference.)
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