Roger B. Taney

though the absent state would still be at liberty to contest the proceeding at a future time if it shall choose to insist upon the objection, and, and here was the crucial phrase in Scott's opinion, the court has no power to enforce the appearance of the defendant state.

And then finally, proceeding to the question of the power of the court to compel a state to abide by its decision in such a case, Scott, relying on the opinion of Chief Justice Taney in Kentucky v. Denison of 1860, concluded that quote, the judgment of the court, whether it be reached in the presence or absence of the defendant, cannot be executed by force if the defendant is not minded to comply with its terms.

Scott's commentary, looking through the form to the substance, we thus see that the states of the American Union are treated as sovereign and equal states, having no superior, that the creation of a Supreme Court in which they may be sued does not create a body superior to the states, but merely an agency by means of which state may sue state in justiciable questions, that the subpoena is in the nature of an invitation, and that the judgment is in the nature of a recommendation.

Now, when recounting this history, Scott is not only asserting that his account is accurate historically, but also that the course followed by the Supreme Court was wise.

religious influence.

So, you know, there was a lot of concern in the mid-19th century about the role of the pope and how the pope might influence the independence of certain justices, including Roger Taney, chief justice who was Catholic.

So independence was really about being able to make your own decisions.

But your own decisions were fundamentally influenced by what you thought about the political system.

Finally, on March 6, 1857, Dred Scott stood before the United States Supreme Court.

Instead of justice, Chief Justice Roger Taney delivered one of the most infamous rulings in legal history.

Taney declared that black people, whether enslaved or free, were not citizens under the Constitution and had no rights which the white man was bound to respect.

Therefore, Scott had no standing to sue in a federal court at all.

And during that time, the Democratic Party had become a little bit split over a variety of different things, including issues involving slavery.

And so this case, when Justice Taney comes out and makes the argument of the court, he says that Dred Scott could not be freed and could not sue in federal court because he was not a citizen and Black people could not be citizens of the United States.

and that the Missouri Compromise was unconstitutional because Congress did not have the right to legislate for the territories.

So the Democratic Party reacts to this in split ways because many people in the United States, not just Republicans who existed at this time, not just other Northerners, really believed that Congress had the right to legislate for the territories, really believed that this was the only way to preserve the Union, among others.

And this is good in some ways because it really... does create those protections in a variety of different places.

But in other ways, it changes the relationship between the federal courts and constitutional questions with an outsized reaction by the Supreme Court, who is now hearing many, many more constitutional questions as time goes by.

So, Salmon Chase, who was Chief Justice in 1864, comes Chief Justice, replaces Roger Taney, who made the Dred Scott decision.

Salmon Chase is someone who could not be more different from Roger Taney in that he had long made these arguments about the court not having this final authority and been really insistent that it was important that politics be the place where constitutional questions are answered.

Um, The whole fallacy of our founding was that these rights weren't extended to everyone.

We all know about the Dred Scott decision where Chief Justice Taney said, well, if African Americans were citizens, they could have rights to free speech and they could keep and carry arms wherever they went.

And so when we finally have a horrible war that ends up in the abolition of slavery, the southern states passed the Black Code provisions, and they still wanted to mandate that if a freed person had a gun, they had to have permission of the authorities to have it.

And so that was one of the impetus for the 14th Amendment being proposed because the idea was that these laws, For everyone who's born and under the jurisdiction of the United States as a citizen, they have due process rights and equal protection of the law and privileges and immunities.

And then you say that Some originalists rely on societal practice to supplant original meaning, but Douglass rejects practice-based interpretation and instead believes the meaning of the Constitution is fixed and should be interpreted in light of natural law, which is why you call his approach natural law originalism.

Tell us more about his critique of Justice Taney's opinion in the Dred Scott decision, which after all does rely on false claims about the intent of the framers and why that's not consistent with Douglas's approach.

Yeah, that's right.

If you look at Taney's opinion in Dred Scott.

So first, You know, Dred Scott.

Right.

He's a slave who's brought through Illinois into Wisconsin territory.

And then when he is brought back to Missouri, he actually sues in federal court and says, I'm actually now a free citizen by virtue of being brought into these jurisdictions that are free.

Yes, on the grounds that he had lived in free territories.

But the Supreme Court, under Chief Justice Roger Taney, ruled that African-Americans, whether enslaved or free, were not and could never be citizens of the United States.

Which is just horrifying.

It is.