Our Racist Judicial System Wishes a Happy Birthday to Dred Scott

Yesterday (March 6th) was the 155th anniversary of the blatantly racist, but patently honest, 1857 Dred Scott decision—and the American legal system threw a birthday bash. Our legal system provided the venue. Judges served as the hosts, and the blind-eye-turning members of the American political majority worked the room as the guests. Guess who wasn’t invited: black people! As a wise man once said about political inclusion, “If you’re not sitting at the table, you’ll be eaten on the menu.” And this country has been feasting on us since 1857, actually 1788 when the Constitution with its slavery-promoting clauses was ratified, or certainly 1776 when independence was declared by 56 white male land owners—one-third of whom were slaveholders—or surely 1619 when Africans were first enslaved on this land.

Dred Scott was born in Virginia sometime between 1795 and 1800. No one knows the precise date because, like all enslaved blacks, he was not worthy of an official birth certificate. We do know that he was eventually “purchased” by Peter Blow, who took him to Missouri in 1820. Blow died in 1832, and Scott was “bought” shortly thereafter by Dr. John Emerson, an army surgeon. By the way, I’m compelled to put words like “purchased” and “bought” in quotes when I refer to human beings because the idea of legally owning one must be highlighted as the outrageously racist insanity that it is.

Emerson’s military tours took him to Rock Island’s Fort Armstrong, Illinois in 1833. What’s important about this is that Illinois was a free state, meaning slavery was outlawed there. Emerson lived in that state with Scott until 1836 when he was assigned to Fort Snelling, which was in an area of the Wisconsin Territory that had also banned slavery. While there with Emerson, 40-year-old Scott met Harriet Robinson, and in 1836, he married the beautiful 17-year-old. Her “owner,” Major Lawrence Taliaferro, “sold” her to Emerson. Although Scott and his wife remained at Fort Snelling, Emerson was transferred to the Jefferson Barracks Military Post in Missouri in 1838. He didn’t leave the married couple to enjoy a honeymoon. No way. Quite the contrary, during his absence, he “rented them out.”

Think about that for a second. He “rented them out,” like they were tools or wagons or mules. Is that effed up or what?

A few months later, Emerson was dispatched to Fort Jessup, Louisiana, where he soon married Eliza Sanford. The Emersons sent for the Scotts to come labor for them in Louisiana. During the trek, while in a free area between the Iowa Territory and Iowa state, Mrs. Scott gave birth to a daughter, who therefore technically was born free under both federal and state law. When Emerson died in 1843, Eliza Sanford Emerson inherited his estate and, for three years, continued to “rent out” the Scotts.

By 1846, after about a decade and a half of saving the little money he was sometimes permitted to earn when he wasn’t slaving for white folks, Dred Scott tried to buy his family’s freedom. Mrs. Emerson said “hell no, y’all can’t go.” In response, Dred, unable to tolerate another day of slavery for himself and his family, gave her the finger in disgust, and then gave her a lawsuit in Missouri. The legal theory was remarkably simple and was based on nearly three decades of state precedent, which held that there can be no slavery, a priori, no slaves in free territories or free states, as mandated by not only state law but also federal law. And since the Scotts had lived in a free territory as well as in a free state, they were no longer enslaved persons. Plainly stated, they forever wore the cloak of freedom after attaining that freedom. As an aside, Mrs. Scott gave birth to their second child, another daughter, while the case was pending.

When the case was finally heard in court in mid-1847, a Missouri judge dismissed it. Check out why: He dismissed it because he said Mr. Scott had failed to present a witness to testify that he and his family had been enslaved. Now what kinda bullshit is that? What the hell did the judge think the lawsuit was about—international copyright infringement? Scott petitioned for and was granted a new trial. But Mrs. Emerson appealed that ruling to the state Supreme Court. This was followed by good news and bad news. The good news is she lost, so a new trial was scheduled. And the bad news is that while awaiting that new trial, the Scott family was held in the custody of the St. Louis County Sheriff—who “rented out” the Scotts in the interim.

Fortunately, a jury of six white men in 1850 found in favor of the Scott family. What? Six good non-Northern white men in mid-19th century America? Yessssss! But the celebration didn’t last too long because Mrs. Emerson appealed once again to the Missouri Supreme Court. In 1852, the Missouri Supreme Court reversed the Scott victory, thereby unabashedly contradicting its own 28-year precedent of “once free, always free.” The court went on to say, with a straight face, “Times now are not as they were when the previous decisions on this subject were made.” Let me translate that legal jargon for those who are not lawyers or judges: “We are racist bastards who have no shame. And we will make up shit as we go along whenever we choose.”

Scott’s only option was to appeal to federal court, which he did in 1853. But the judge forced the jury to apply the law as the state Supreme Court had recently and fraudulently interpreted it. Scott then took his case to the highest court in the land, the U.S. Supreme Court, which reviewed it in 1856. The decision, handed down on March 6, 1857, was threefold.

1) Scott had no right to sue because he was a descendant of Africans and such people were not—and could never be—citizens in 1857 because they were never intended to be such in the 1776 Declaration of Independence or in the 1788 U.S. Constitution.
2) Slaves are property, and to allow property to be taken from slave-owners would violate those slave-owners’ Fifth Amendment due process rights. Seriously. The Court actually said that.
3) The Missouri Compromise is unconstitutional.

As unconscionable and repulsive as this threefold ruling was, did you know that it has never been explicitly overruled by the Supreme Court? Never. And it’s now 2012.

In the racist words of the Court’s Chief Justice, Roger Taney, who wrote the leading opinion in the Dred Scott case, blacks are to be treated as subhuman because they are of “an inferior order” and accordingly are people “altogether unfit to associate with the white race, either in social or political relations …” But here’s the part where he was candidly honest—and absolutely right—about: “[Blacks] … had (and have) no rights which the white man was (or is) bound to respect.” Just ask Amadou Diallo, Sean Bell, Eleanor Bumpurs, Donta Dawson, Delbert Africa, Rodney King, and the many other African-Americans who’ve been thuggishly murdered or brutally beaten first by cops and then by courts.

There was a happy ending for the four-member Scott family. The enlightened sons of Peter Blow, Mr. Scott’s first “owner,” used their wealth to free him and his family on May 26, 1857.