Tuesday, June 27, 2017

Health Care Update

As of Tuesday morning, it looks as if the Republicans in the Senate--like those in the House--will have to delay their initial scheduled vote on their health care measure.  The situation is exactly parallel to the House, insofar as both conservatives and moderates have refused to go along with the bill as written.  Once again, the mainstream media is jubilantly suggesting that the plan is bound to fail.  I  am sure however that the recess will become the occasion for an all0oyut pressure campaign against all the Republican Senators in an effort to reduce opposition to 2 and allow the Vice President to break the tie. There will be more cosmetic changes in the bill, as in the House, but I still think something like it will pass.  If it doesn't, we will have years of chaos as the Administration tries to destroy Obamacare from within.

Friday, June 23, 2017

Crunch Time

For the past 40 years, Republicans have been winning most of our political battles over economic issues, while social issues polarize the country.  Ronald Reagan swept into office in 1980 and eliminated the progressive tax system that was the legacy of the New Deal.  Deregulation began and has continued through Republican and Democratic administrations alike.  Bill Clinton did put through one tax increase, but he also signed a very unfortunate crime bill, cut back welfare, and put Glass-Steagall to rest.  George W. Bush immediately undid Clinton's tax cuts, and then some. Barack Obama's one major triumph, the ACA, looks set to expire over the next few weeks.

The election of Donald Trump, as I have said several times, must be viewed from at least two different perspectives. On the one hand, the election of an often-bankrupt businessman and TV star with little or no real knowledge of public affairs shows up the bankruptcy of our political system and threatens us with unprecedented dangers.  On the other hand, because Trump is a Republican, it gives Congressional Republicans--who in turn are bound hand in foot to extreme conservative contributors led by the Koch brothers--the chance to undo what remains of the New Deal and the Great Society, if not the Progressive Era.  In the Fourth Turning that began sometime in the last decade (in my opinion, in November 2000), the Republicans have generally been able to keep the initiative precisely because they were committed to the death of the old order, while the Democrats felt the country could continue to go in a more liberal direction.  Both sides believe their stances are morally right and their opponents are evil, but the Democrats, it seems to me, have tended even more to believe that LGBT rights, affirmative action, and even safety for illegal immigrants must prevail simply because they are such just causes.  If young men and women still learned any real history in schools and colleges, they would know that justice has never guaranteed victory.

Thus, the mainstream liberal media has been unable to face the scale of the impending Republican triumph.  It remains fixated on the very serious scandals implicating Trump and people around him and the controversies over the investigation of them.  I think those investigations will eventually turn up evidence of long-term financial and political connections between Trump and the Russian government and/or Russian oligarchs, but I do not know that thta could force him out of office.  The media has also pushed the line, from the beginning, that the repeal of the ACA could not go through.  They eagerly seized upon the GOP's problems in the House, only to see Paul Ryan overcome them. Then they assumed that the Senate could not possibly pass the House bill--but the conservative Republicans who drafted the Senate alternative in secret made it, in some respects, even worse.  Equally significant, the four Republican Senators who immediately announced that they would oppose the draft in its current form were conservatives, not moderates.  Their stance will probably keep the final draft from veering leftward, and I predict most of the moderates will be bullied into going along.  If Lisa Murkowski and Susan Collins refuse to vote aye, Mike Pence will break the tie and Republicans will break into a huge July 4 celebration.

Yes, the Republicans are making a mockery of the legislative process, holding no hearings, allowing almost no debate, and ignoring (presumably) the warnings of the Congressional Budget office. Yes, they are passing bills that the bulk of the American people oppose.  But they can do it--and they don't care.  They have won all the special House elections that have been held this year, and the Democrats do not appear to have much real traction in red states.  The Democrats are deeply divided among themselves, both between centrists and progressives and between the old and the young.

About 25 years ago Bill Strauss and Neil Howe predicted that their (and my) Boom generation would reshape America during the coming crisis.  What they did not see was that major Boomer politicians are almost all Republicans.  Although the Boom has now given us three Presidents--Clinton, Bush II, and Trump, all born in 1946--the most influential Boomer in American politics, I would argue, is Newt Gingrich, who has fought for more than 30 years for a new vision of America, one that is now coming to pass.  And the Boom did not produce a single Congressional leader of any note within the Democratic Party.  Chuck Schumer, a tool of Wall Street, is the first Boomer to lead the Democrats in either House of Congress.  Nancy Pelosi, a Silent, faced her leadership challenge from Tim Ryan of Ohio, who is from the second half of Generation X.  Another Silent, Bernie Sanders, is now the only real link to the New Deal, and he will be too old to run an effective campaign in 2020.  Both Bill Clinton and Barack Obama left the Democratic Party much weaker in Congress than they found it, and both built their careers around contacts with wealthy donors, not strength in the grass roots.

The ACA is only one key Republican initiative.  As Steve Bannon just admitted, many of Trump's cabinet selections were put in place to destroy the agencies they lead--starting with the EPA.  The Trump budget aims to take government money away from key Democratic constituencies.   And I expect some major initiative on immigration designed to remove much larger numbers of illegal immigrants from the US.

A number of my younger friends are convinced that Millennials will not only stop, but reverse, the Republican tide within the next ten years.  For reasons I cannot develop today, I am doubtful.  The Millennials have been infected during their education by the Boomer idea that right must inevitably prevail.  Few of them have been taught the kind of systematic thinking necessary not to only to figure out what the country needs, but how to achieve it.  They also face difficult economic conditions which will keep them focused on their private lives.  Eventually things will swing the other way, but it may take a very long time.

Friday, June 16, 2017

A civil rights milestone

On May 23, Mayor Mitch Landrieu of New Orleans--the scion of one of Louisiana's leading political families--gave a speech explaining the decision to remove statues of Robert E. Lee, Jefferson Davis and P.G.T Beauregard from their prominent outdoor place in the heart of New Orleans, with plans to move them indoors to a museum.  The mayor was undoubtedly moved, as he made clear, by the strong feelings of his black constituents that men who fought a war to preserve secession and slavery should not be celebrated publicly.  His speech, however, took full responsibility for the decision and argued for its necessity on very sound historical and political grounds.   And for that reason, the speech represents, I think, a milestone in American political history.  I cannot be sure of my facts here, but I suspect that Mitch Landrieu was the first white southern politician since the time of the Civil War itself to state publicly that the Confederacy was on the wrong side of history and humanity, as he put it, and that it rightfully lost the war.

We must not forget that quite a few white southerners held that view when the war began in the 1860s, and committed everything to the Union cause.  One such was Andrew Johnson, a poor white Tennessean, who remained in his seat in the Senate when Tennessee seceded and became Lincoln's vice president in 1864, with tragic consequences. (It turned out that Johnson hated free blacks even more than he hated southern planters.)  Others included George "Pap" Thomas, a Virginian, and David Farragut, a Tennessean by birth who had lived most of his life in the South, who became, respectively, the commander of the Union Army of the Cumberland and a leading Admiral of the northern fleet during the war.  The Texan Sam Houston also opposed secession.  Ironically, even Robert E. Lee--whose statue was among those removed--made it clear in 1861 that he felt secession was a terrible mistake, but opted anyway to fight with his native state of Virginia, and spent four years trying to preserve the Confederacy.  After the war, however, things changed.

Few historical forces and more powerful than bad consciences.  In the white South, it became essential in the decades after Appomattox to argue that the "war between the states" had been forced upon the southern states by the north, that it was not really about slavery, and that, fortunately, heroic southerners had preserved white supremacy after the war.  In the decades following the conflict southern politicians and northern Democrats managed to prevent Lincoln's birthday from ever becoming a national holiday, and agitated unsuccessfully to create a national holiday in honor of Lee.  They also, of course, established segregation and deprived their black citizens of equal rights.

Not until the wake of the Second World War, I believe, did a new type of white southern politician begin to emerge.  The New Deal had combined poor southern whites and black voters in the North within the same coalition, and many white southern politicians had supported it, while remaining opposed to integration.  But the GI generation spawned a number of white southern politicians who supported at least some progress on civil rights.  They included Estes Kefauver, a New Deal liberal from Tennessee who came quite close to winning the Democratic nomination for President in 1952, and Lyndon Johnson and Ralph Yarborough from Texas.  While Johnson, as Robert Caro showed, came into the Senate in 1949 as a loyal white southerner dedicated to white supremacy, he moved to the center on civil rights by 1957, largely because of his presidential ambitions  Another remarkable southern politician was Governor Jim Folsom of Alabama, who spoke bluntly on behalf of civil rights for black citizens in the mid-1950s.  On the Supreme Court, Hugo Black, a New Deal liberal from Alabama, joined in the Brown v. Board of Education decision in 1954 and in numerous other decisions affirming the rights of black Americans--but he, of course, was safely protected from the whims of the voters.  In 1948, Harry Truman, from Missouri, became the first President to endorse a modern civil rights program, and ordered the desegregation of the armed forces.  And when Johnson became President in 1963, he became of course the most effective civil rights advocate to occupy the White House since Lincoln, signing both the great Civil Rights Act of 1964 desegregating public accommodations and the Voting Rights Act of 1965.  Nearly every white southern politician, however, opposed those bills, although Mayor Ivan Allen of Atlanta testified for the 1964 act before Congress, and Al Gore, Sr., of Tennessee voted for voting rights.

Unfortunately, while much of the white South had embraced the New Deal, they were not ready for civil rights.  It was in the late 1950s and early 1960s, indeed, that South Carolina and certain other states began flying the Confederate flag in their state houses.  Southern schools continued to teach their white students about the "War of Northern Aggression," and white southerners grew up believing that the war was not really about slavery.  Just a few years ago I met a legal scholar from Virginia, roughly my own age, who declared that the world would have been better off if the North had allowed secession and said that as a Virginian, he inevitably had a low opinion of Lincoln.  In the 1990s millions of Americans watched the historian Shelby Foote fight off tears as he lamented the fall of the Confederacy in Ken Burns's documentary on the Civil War.

Following in LBJ's footsteps, the next two Democratic Presidents--Jimmy Carter of Georgia and Bill Clinton from Arkansas--forthrightly embraced civil rights for black Americans.  But neither of them, to my knowledge, every bluntly said what Mitch Landrieu said last month.  I quote from his speech.

"The historic record is clear, the Robert E. Lee, Jefferson Davis, and P.G.T. Beauregard statues were not erected just to honor these men, but as part of the movement which became known as The Cult of the Lost Cause. This ‘cult’ had one goal — through monuments and through other means — to rewrite history to hide the truth, which is that the Confederacy was on the wrong side of humanity. First erected over 166 years after the founding of our city and 19 years after the end of the Civil War, the monuments that we took down were meant to rebrand the history of our city and the ideals of a defeated Confederacy. It is self-evident that these men did not fight for the United States of America, They fought against it. They may have been warriors, but in this cause they were not patriots. These statues are not just stone and metal. They are not just innocent remembrances of a benign history. These monuments purposefully celebrate a fictional, sanitized Confederacy; ignoring the death, ignoring the enslavement, and the terror that it actually stood for.

. . .  "Should you have further doubt about the true goals of the Confederacy, in the very weeks before the war broke out, the Vice President of the Confederacy, Alexander Stephens, made it clear that the Confederate cause was about maintaining slavery and white supremacy. He said in his now famous ‘cornerstone speech’ that the Confederacy’s 'cornerstone rests upon the great truth, that the negro is not equal to the white man; that slavery — subordination to the superior race — is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.'

"Now, with these shocking words still ringing in your ears... I want to try to gently peel from your hands the grip on a false narrative of our history that I think weakens us. And make straight a wrong turn we made many years ago — we can more closely connect with integrity to the founding principles of our nation and forge a clearer and straighter path toward a better city and a more perfect union."


Now I am not enough of an authority on 20th and 21st century southern politics to be sure of what I am about to say, and I would be delighted if any readers can cite evidence that will prove it wrong.   But to my knowledge, Landrieu is, literally, the first white southern office holder to bluntly state the simple truth that the Confederacy was wrong and to welcome its defeat.  That is what his fellow whtie southerners need to hear.  Meanwhile, white and black Americans throughout the nation--deluged to political correctness and false history on many fronts--also have to learn to give credit to the many white people who never accepted slavery, brought about and won the civil war, and laid the foundation for a better America.

This, indeed, the mayor also did at the very conclusion of his speech. 

"It is our acknowledgment that now is the time to take stock of, and then move past, a painful part of our history. 

"Anything less would render generations of courageous struggle and soul-searching a truly lost cause. Anything less would fall short of the immortal words of our greatest President Abraham Lincoln, who with an open heart and clarity of purpose calls on us today to unite as one people when he said: 'With malice toward none, with charity for all, with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds...to do all which may achieve and cherish — a just and lasting peace among ourselves and with all nations.'

"Thank you."

Thank you, Mayor Landrieu.  I hope we all hear a lot more about you in the future.







Friday, June 09, 2017

Trump, the Republicans, and History

Even before Donald Trump took office, comparisons between him and the right wing totalitarian leaders of the 20th century were flying freely around the net and social media.  I have made comparisons of my own here before, but my comparisons incline me to reject any equivalence between Trump on the one hand and Hitler, Mussolini, or Franco on the other.  Trump and the Republican Party with which he is working are simply not totalitarians.  They want less government authority, not more. Their model is the United States before the Progressive era, not Italy or Germany during the last great Atlantic crisis.  Yet in another way, as the President's speech withdrawing from the Paris accords showed, there is a profound similarity between Trump and the Republicans on the one hand, and all the totalitarian movements of the last century on the other, including not only National Socialism and Fascism, but Communism in both the USSR and Mao's China. Like the Nazis, the Stalinists and the Maoists, the Republicans and Trump have sold themselves on a view of the world that has little or no relation to reality.  Having developed that worldview over several decades, they are now trying to implement it.  But because it is a fantasy, this attempt is bound to do enormous harm--whether the American people find the strength to reject it during the next 20 years or so or not.

President Trump in his speech last week did not warn that the United Nations was planning to land a force in black helicopters to take over teh USA, but he might as well have.  The Paris accord, he said, "is simply the latest example of Washington entering into an agreement that disadvantages the United States, to the exclusive benefit of other countries, leaving American workers, who I love, and taxpayers to absorb the cost in terms of lost jobs, lower wages, shuttered factories and vastly diminished economic production."  The Green Climate Fund, he claimed, "is costing the United States a vast fortune," although our commitment of $3 billion amounted to just $10 per US citizen.  Incredibly, Trump claimed that the fund would cost us tens or hundreds of billions of dollars, with no evidence whatever. This is the way that Hitler (with more justification, actually) talked about the Versailles Treaty and the reparations settlements that followed it during the 1920s, and the way the Bolsheviks talked about the huge prewar loans from France, Britain, and other nations, which had funded the development of the Russian railway system.  Continuing, Trump claimed that the Paris accord was going to cost us 2.7 million jobs by 2025, citing a discredited study from a conservative think tank.  Their report painted a picture of incredible economic devastation which the President of the United States treated as fact.  Rather than give in, the President promised a renaissance of American coal mining and jobs for miners--which no one believes can possibly happen in the current energy environment.  The President talked about the rest of the world the way Communist leaders talked about the capitalism world, painting it as a vast conspiracy designed to cripple the United States for their own benefit. "The rest of the world," the President said, "applauded when we signed the Paris Agreement. They went wild.  They were so happy. For the simple reason that it put our country, the United States of America, which we all love, at a very, very big economic disadvantage. . . .The agreement is a massive redistribution of United States wealth to other countries."  Unspoken was the obvious conclusion, spread by Dinesh D'Souza and other conservative pundits, that President Obama signed it because he has always hated the United States.

The President specifically argued that China and India would take advantage of the agreement to increase coal production while the US had to cut it, but those countries are in fact moving away from it.  He said nothing, of course, about the rapidly falling price of clean energy and the jobs that could be gained by investing in it.  That is because the Republican Party is virtually a wholly owned subsidiary of the most conservative elements of the energy industry, led by the Koch brothers.  And that is a key difference between today's Republicanism on the one hand, and the National Socialists and Communists on the other. They were genuinely motivated by ideology; the Republicans are simply slaves to private interests.

The recurring theme of Trump's speech, that he is reasserting America's national sovereignty against illegitimate international authority, could be traced back to the 1950s and the founding of the John Birch Society--led, among others, by the Koch brothers' father. "It would once have been unthinkable that an international agreement could prevent the United States from conducting its own domestic economic affairs," he said. "But this is the new reality we face if we do not leave the agreement or if we do not negotiate a far better deal."  And the Paris agreement--which is based, in fact, entirely on voluntary compliance--will be, he warned, only the prelude to further attacks on our sovereignty. In the last 60 years, such fringe ideas have found their way to the summit of power.  That idea may also have led Trump to refuse to promise our NATO allies that he would defend them all against attack, and it will encourage him to take more and more unilateral steps in foreign affairs, just as Hitler boasted of freeing Germany from the shackles of the Versailles Treaty and the subsequent Locarno Pact before he unleashed the Second World War.

The situation with regard to health care is similar.  Committed to the belief that the free market will provide the most people with the best insurance, the Republicans have to ignore the unpleasant reality that insurance companies love writing policies for healthy people but would rather not insure sick ones.  Thus they are trying to eliminate the ACA, and insurance for at least 20 million Americans, while claiming that this will make things better.

Where will all this lead?  History is not especially encouraging.

National Socialism could not, as I pointed out in an earlier post, deliver on its promises to the German people, but totalitarian methods secured its hold on power .It destroyed itself because it was dedicated to a hopeless war of expansion that brought it into conflict with three superior industrial and military powers.  Fascism was not particularly successful, but it had survived for 18 years before Mussolini in 1940 made the fatal mistake of following Hitler into war.  Franco,. who carefully avoided that mistake, survived for the rest of his life, 36 years, after seizing power.  And the Soviet Union, with the help of totalitarian methods, survived for more than four decades after the Second World War despite its clear failure to meet the needs of its people.

Trump and the Republicans, it seems to me, will further enrich the fossil fuel industry, take away health care from millions of Americans, and roll back some of the regulations of the financial industry--which have never been severe enough as it is.  But given the entrenched power of the Republicans, the continuing movement of population to the Sunbelt, and the Democrats' inability to unite behind a compelling alternative set of policies, we cannot be sure that the Republican philosophy, which has been steadily gaining in power since the 1980s, will not remain dominant for some time to come.  The politics of the Gilded Age disgusted many educated and patriotic Americans from the time of the Grant Administration forward, but not until Theodore Roosevelt--30 years later--did any real reforms begin. 

The threat of climate change is, of course, very real.  In fact, serious students of the subject have argued for some time that the Paris accords were grossly inadequate to meet the threat and threatened to lull the public to sleep.  I have been convinced for some time that only a series of environmental catastrophes such as the flooding of Miami will mobilize the world to the necessary extent in any case.  Such a chain of events is, paradoxically, perhaps our best hope of recovering some civic spirit and mobilizing resources for good ends.   I can't see much else that would have that effect.

Thursday, June 01, 2017

The Dred Scott Decision

Some weeks ago I saw a reference to the Dred Scott decision and decided that it was time finally to read it. Delivered in March 1857, the decision was a key step towards the Civil War.  Chief Justice Roger Taney, a Marylander, ruled against Dred Scott, a Missouri slave who had sued on behalf of himself, his wife and two children, arguing that they had become free by virtue of years of residence (with their master) in the free state of Illinois, and in parts of the Louisiana territory north of the 36' 30" line that had defined the permissible area of slavery under the Missouri Compromise.  Taney argued that Dred Scott had no right to sue because the Founders, he claimed, had never imagined that either slaves or their free descendants could become citizens.  But Taney had not just ruled against Scott in this case: he had declared any Congressional attempt to limit the area in which slavery would be permitted to be unconstitutional, and he appeared to endorse the increasingly popular white southern view that slaveholders had a right to take slaves, like any other property, with them anywhere in the Union.  The Republican Party had just lost a fairly close election to Democrat James Buchanan, and the decision alarmed northerners who, while not abolitionists, wanted to keep slavery out of new territories and out of the North.  The principle behind the decision--that slavery could not be restricted--split the Democratic Party three years later in 1860, paving the way for the election of Lincoln, the secession of mot of the slave states, and the Civil War.

Slavery is the subject of renewed controversy nowadays, and Taney's opinion and the two dissents by Justices McLean and Curtis  raise critical questions about slavery's relation to the Constitution and its role in the early Republic.  The opinions make up one of the longest entries in the whole record of the Supreme Court, and I did skim parts of Tawney's and skipped a couple of concurring opinions.  But the whole experience was extraordinarily educational.

"Originalism" is of course the dominant right-wing judicial philosophy today, and Taney's opinion turns out to be originalism on steroids.  He began by asking whether Dred Scott had the right to bring suit in the first place, given that he was black, a slave, and the descendant of slaves, and answered the question with a resounding no.  The Founders, he argued, never believed that such beings could become citizens of the United States or full members of the community.   That was proven, he argued, by their status in all the original colonies, North and South, which treated all blacks as inferior beings.  It was also proven, he argued, by the text of the Constitution, which in at least two places specifically acknowledged and thereby endorsed the existence of slavery.  Now Taney, from the Compromiser generation (like Henry Clay and Daniel Webster), was old enough to remember the adoption of the Constitution, and he argued that no subsequent generation could disregard the views of the framers on this point.  Going even further backward to the Declaration of Independence, Taney argued that "all men are created equal" could not possibly be taken to include black men.

The question I am going to address at length with the help of Justice McLean's and Justice Curtis's dissents is whether Tawney was right.  This question now has far more than historic interest.  What immediately struck me was how closely Taney's view of the Constitution and the views of founders echoes what PC academics argue today:  that the Constitution specifically relegated black people to inferior status and that no one had the slightest intention of every changing this.  But it turns out that Taney sustained his argument only with the help of extremely selective evidence and highly tendentious reasoning--as the two dissenters made very clear.

Taney cited a number of colonial and even post-revolutionary statutes from New England states that did indeed mark out "negroes" (as the opinions used and wrote the word) as a separate class and denied them certain rights.  But almost without exception, the statutes that he quoted referred to the right to marry: they barred miscegenation and punished it with fines.  We shall see in a moment how incomplete this historical view was, but I might also remark that I see a great inconsistency in Taney's view.  He was using these colonial and state laws to argue that the people of the states in 1787 did not believe black people could be citizens, but arguing that that view bound the whole nation for all time, even though it was based upon state laws that obviously could, and sometimes were, changed at a later date.  It was incumbent upon him, it seems to me, to show that this view was actually reflected in the Constitution itself, and this, in my opinion, he most definitely could not do.

The two brief constitutional provisions that Taney cited to make his case deserve to be quoted.  The first, from Article I, Section 9, related to the importation of slaves: "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 the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."  The second, from Article IV, Section 2, related to fugitives from one state to another: "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."  Now both of these passages did refer indirectly to slavery.  The first allowed states to continue importing slaves for twenty years, or until such time as Congress prohibited the trade (as indeed it did in 1807, although enforcement of the prohibition was unfortunately lax.)  The second provided for the return of fugitive slaves from one state to another.  Yet in fact, Taney's interpretation of these clauses, in my opinion, is clearly backwards.  They do not enshrine a right to hold slaves, much less a permanent inferior status for black people, in the Constitution.  First of all, neither of these passages refers only to slaves.  The first covers "migration" as well as "importation," and "migration" could not possibly refer to slaves.  And the second obviously refers, in fact as well as in theory, to all those white people who were bound to masters for set terms of service, and to apprentices as well.  These provisions do not establish a separate status for any of the men and women to whom they refer: they are referred to simply as "persons," one of the framers* favorite words, for which we owe them our thanks.  And their language--like the language of the three-fifths clause, which Taney interestingly chose not to mention--was obviously designed to avoid putting the word "slave" into our founding document.  That tends to confirm the historical view of Abraham Lincoln (and many others), opposite to Taney's, that most of the founders regarded slavery as an evil that had unfortunately found its way to our shores, one that they had already kept out of the Northwest territories, and one that they hoped and expected to disappear.  And last, but hardly least, just as the Constitution includes no explicit reference to, or definition of, slavery, no one could possibly argue that it defined even a third group of "persons," free black people who could not be citizens, which Taney's argument assumed to exist then and for all time.

It was not necessary, however, to wait 160 years for an historian to discover the logical and historical weaknesses in Taney's argument.  Justice McLean (from Ohio) exposed both the logical and historical flaws in Tawney's argument in quite scathing terms.  To begin with, he argued, Taney was ruling against Scott on the grounds that he was a slave--but the question of whether he was in fact a slave was the one the case was supposed to decide.  (And Scott had in fact prevailed in a lower court!)  Then Curtis showed that Taney's argument about the historical view of black people within the United States was utterly without foundation in theory or fact.


"In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and, in this view, have recognized them as citizens, and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida. No one ever doubted, and no court ever held that the people of these Territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of Congress."

In short, McLean simply reported that black people's status varied enormously from state to state and that there no prohibition, neither explicit nor customary, against them enjoying the rights of citizens, nor had there ever been.  He proceeded in another lengthy argument to show that Taney's arguments that Congress had no power to ban slavery from territories, or even to legislate for territorial governments, was without foundation, a tendentious claim reflecting a violent contemporary controversy over the extension of slavery.  And last but hardly least, drawing on older British precedents, he argued that Dred Scott's slavery had ceased when he took up residence with his master in a free state.  Slavery, he argued powerfully, existed only where it was protected by local law.  And while the Constitution did require free states to return fugitive slaves, a master surrendered his right to his slaves the moment that he crossed with them into a free jurisdiction.  In other words, taking the white southern argument head on, McLean argued that law did not regard slaves as property like any other, but rather as property only when explicitly sanctioned by local law.

But it was when I reached Justice McLean's discussion of the actual legal point that would decide the freedom of Dred Scott that I got a real shock.  That point was the issue of whether Dred Scott had become free by virtue of his residence with his master in Illinois and in free Louisiana territory where slavery had been outlawed by the Missouri Compromise.  From the moment I first read about the case when I was perhaps ten years old, I had assumed that Dred Scott, perhaps influenced by abolitionists, was asserting a novel right and that Taney's decision reflected precedent. I could not have been more wrong.  Many state courts, and the courts of Missouri in particular, had heard such cases in the previous decades and had frequently awarded the aggrieved slaves their freedom.  The Missouri Supreme Court had explicitly repudiated more than 20 years of precedence in denying him his freedom.    It was Taney who was making new law by fiat, reflecting new slaveholder militancy, just as the whole South was making new law by asserting the inability of Congress to prohibit slavery in the territories.  In fact, McLean noted that not only Missouri, but also Mississippi, Virginia, Louisiana, Kentucky, Maryland and other states had held that slaves taken by their masters to reside in free states became free.

Justice Curtis, who hailed from Massachusetts (and specifically from Watertown where I now live myself), began with a very lengthy technical argument about jurisdiction but then went straight to the heart of Tawney's argument that descendants of slaves could not be citizens.  The Constitution, he noted, referred to "citizens" of the United States, by which it could only have meant citizens under the Articles of Confederation, which in turn meant citizens of the various states.  There was no question that the citizenry included persons of African descent.   "Of this there can be no doubt.  At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens."

Curtis proceeded to quote from an extraordinary 1838 decision from the Supreme Court of North Carolina defining the status of free black inhabitants in terms opposite to what Taney had said, and remarkable for its use of the terms "persons" and "property", keeping in mind that only the word "persons" is used to refer to slaves in the Constitution when such reference cannot be avoided.

"According to the laws of this State, all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects -- those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not, in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax, and it is a matter of universal notoriety that, under it, free persons, without regard to color, claimed and exercised the franchise until it was taken from free men of color a few years since by our amended Constitution."

Curtis, like myself a proud New Englander, proceeded to show that Taney's statements about the status of free blacks in revolutionary-era New England were simply wrong.   The Articles of Confederation, he noted, granted "the free inhabitants" of all the states "all the privileges and immunities of free citizens of the several states," and during the debate on the adoption of those articles in the Continental Congress,an amendment proposed by South Carolina to insert the word "white" between "free" and "inhabitants" was voted down.  The basic rule of citizenship, he showed at length was the one now enshrined in the 14th amendment, that it was conferred by birth.  Curtis also stood another of Taney's arguments on its head.  Taney had cited a 1792 federal law establishing the militia, to which "every free, able-bodied, white male citizen" should belong, as evidence that black people were not regarded as citizens. In fact, Curtis argued effectively, it proved the exact opposite, since if it were agreed that black people were not citizens it would have been unnecessary to add the word "white" in the first place.  And when Missouri was admitted in 1821, he showed, the Congress specifically invalidated a provision of its Constitution that would have barred free colored persons from settling in the state, on the grounds that it would have unconstitutionally deprived citizens of other states of privileges to which the Constitution entitled them. He also argued that international law was common law, and that international law had rejected slavery for some time.  He also argued that Scott's master had effectively recognized his freedom by allowing him to conclude, in the Wisconsin territory, a lawful marriage!

Curtis aggressively asserted the power of Congress to legislate against slavery in a territory, and did not hesitate to note " the social and moral evils of slavery, its relations to republican Governments, its inconsistency with the Declaration of Independence and with natural right." The attempt to argue that rules against slavery would discriminate against inhabitants of the southern states, he argued, was an attempt to write an exception into a categorical clause of the Constitution for which there was no basis.

Let us then put this decision in the context of American history, with particular reference to race and slavery.

Because so many of them believed slavery to be an evil, the Founders, while unable to do anything about it in southern states, did not specifically recognize or protect it in the Constitution. When the Constitution was first adopted the Confederation had just banned slavery in the Northwest territories, clearly anticipating that Congress would be able to do the same. Meanwhile, most of the northern states had just abolished it.  Many southerners also hoped to see it disappear, and a number of the founders, including Washington, freed their slaves upon their death.  However, with the invention of the cotton gin and the rise of a new generation of southerners, the view that slavery was a necessity and a positive good gained ground.  In  1820, when the Missouri Compromise banned slavery north of 36' 30" (except in Missouri), some southerners were arguing that slave property was protected everywhere--but they clearly lost that fight in Congress.

Like the NRA and its allies in recent decades, the slave owning South now began re-interpreting the Constitution to serve their own ends.  The controversy over slavery became more and more bitter in the 1830s and 1840s, and especially after the Mexican War added vast new territories to the Union.  More and more southerners began to argue that slaves were property like any other--a claim that could not really be justified at common law, since slavery had formed no part of the English common law which the new Republic had adopted.  What happened in the Dred Scott decision was perfectly parallel to what happened in the District of Columbia v. Heller decision in 2008, when the court, by a 5-4 majority, suddenly adopted the NRA's view, overturned two centuries of precedent, and created an individual right to bear arms.  In both cases, an organized, ideologically driven minority had imposed its will upon the Supreme Court, and thence upon the country.   In the Dred Scott case the reaction was swift.  Not even the entire Democratic Party would accept the view of Dred Scott, and the decision allowed Lincoln to win a huge electoral college victory in 1860.  With no hope of making its views prevail through law, the South seceded, and the Civil War both defeated the southern states and ended slavery.

The argument that the framers and their Constitution were deeply embedded in racism and never envisioned freedom for the slaves is false. It is also politically disastrous for the nation.  Again and again we have preserved our ideals by returning to the principles the framers enshrined.  That, in my opinion, is what we must do again now, rather than argue that the American society and government has always been inherently, irretrievably racist.  Racism certainly has never been absent from American life and is not now, but it has lost ground over the centuries precisely because it is alien to our founding documents.  To argue that it is not takes away our best hope for further progress.