Don’t Cite the Dred Scott Decision as a Favorable Precedent If You’re Not Prepared to Deal With the Fallout
It shouldn’t have to be said that the decision in Dred Scott v. Sandford (1857) is easily one of the worst opinions—if not the worst—ever issued by the Supreme Court. Dred Scott was a flash point that brought the United States closer to civil war. The author of that opinion, Chief Justice Roger Taney, was a racist who supported slavery. He has slowly—and rightly—been dememorialized because of Dred Scott, including the renaming of an elementary school in Prince George’s County, Maryland in March 1993 to honor Justice Thurgood Marshall, the first Black American to serve on the Supreme Court. Poetic justice.
Here’s a quick refresher on Dred Scott. Scott and his wife, Harriett, were slaves to a family in Missouri, a slave state at the time, who were taken to Illinois and the Wisconsin territory, both of which did not allow slavery. When Scott and his wife were taken back to Missouri, and after the family who “owned” him refused his attempt to buy his freedom, he filed suit in state court. Scott lost at trial the first time around. He got a new trial because of procedural issues and won the second time. Unfortunately, the Missouri Supreme Court reversed the trial court.
After the Missouri Supreme Court, Scott appealed to the U.S. Supreme Court. Between the two venues, the “ownership” of Scott had changed. This part of the story is very muddy because of the lack of records showing the change. In any event, the case moved forward at the U.S. Supreme Court. We know that President James Buchanan influenced the Court’s holding in the case. He was informed of the deliberations and knew the outcome of the case before it was formally announced. In February 1857, the Court handed down its decision.
In the opinion, Taney gave the question before the Court. He wrote, “The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied [sic] by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?”
Taney would later answer the question:
“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.” [Emphasis added.]
And that brings us to Alex Johnson, the Georgia Republican Assembly, and the National Federation of Republican Assemblies.
I’ve already written about the Georgia Republican Assembly’s platform, including the racially charged language therein. Well, we have a new controversy involving the Georgia Republican Assembly’s parent organization, the National Federation of Republican Assemblies, and the parent organization’s president, Alex Johnson, who also happens to chair the Georgia Republican Assembly.
The far-right is back on its bullshit.
The National Federation of Republican Assemblies passed a resolution in October 2023 stating that Vice President Kamala Harris, Nikki Haley, and Vivek Ramaswamy can’t serve as president because their “parents were not American citizens at the time of their birth.” For those who aren’t familiar, Vice President Harris’s mother and father are immigrants from India and Jamaica, respectively. Vice President Harris was born in Oakland, California.
To back up the wild claim, the National Federation of Republican Assemblies cites a list of “precedent-setting cases.” That list includes Dred Scott. Now, keep in mind Congress passed the Civil Rights Act of 1866, which stated, “[A]ll persons born in the United States and not subject to any foreign power…are hereby declared to be citizens of the United States.”
Image courtesy of Loren Collins
The egregious injustice of Dred Scott was nullified with the ratification of the Fourteenth Amendment, which extended citizenship to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof…” That’s abundantly clear in Section 1 of the amendment.
There is, of course, an ongoing debate about Section 1 of the Fourteenth Amendment because of so-called “birthright citizenship.” Having read the congressional debate over the amendment, there’s no ambiguity about the intent of the framers. That’s a post for another time, though.
Back to the resolution passed by the National Federation of Republican Assemblies. The resolution quotes Article II, Section 1, Paragraph 5 of the Constitution, which states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”
Folks, keep in mind that the first nine presidents were British subjects upon their birth. (Dating from the time of the signing of the Treaty of Paris in 1783.) The qualifications for federal citizenship were established until the Naturalization Act of 1790 in the Second Session of the 1st Congress. That law states, “[A]ny alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof.”
Am I to infer from the resolution and the reference to Dred Scott and the limitations on citizenship at the time that only white guys of European descent can be president? Even more than 230 years after the adoption of the Constitution? Even after nearly 160 years since the end of slavery? Even 156 years after the ratification of the Fourteenth Amendment?
Loren Collins, a Metro Atlanta attorney who discovered the resolution and has tracked “Birther” conspiracy theories for years, shared his thoughts with me.
“Birther theories of eligibility were legally baseless and somewhat implicitly racist when they were directed at the first minority Presidential candidate from a major party over a decade ago. The NFRA not only resurrected them to attack other minority candidates, but this time chose to make that racism perfectly explicit by citing the Dred Scott case as precedent,” Collins wrote. “The Dred Scott decision had only one thing to say about citizenship, holding that the descendants of black slaves could never be U.S. citizens. And it was overturned by the 13th and 14th Amendments over 150 years ago.
“Any lawyer knows precisely what odious principles the Dred Scott decision stands for, and to cite to it in the 21st century as favorable and positive legal precedent, and on the precise subject of U.S. citizenship no less, is both wholly indefensible and a glimpse into the inner attitudes of the person attempting to give it validation,” he added.
What does Alex Johnson say about this? Well, he’s not saying much that makes sense. He told The Independent, “The media’s suggestion that referencing a court case in a 30+ page document equates to endorsing every aspect of the case is inherently dishonest and misleading.”
WHAT PART OF DRED SCOTT DID THE RESOLUTION ENDORSE?! TELL US.
Johnson also went on a diatribe about Vice President Harris’s “party’s tactics on dividing people by race and class, which mirror those that have led nations like Venezuela, Cuba, and North Korea into totalitarian regimes.”
This strikes me as desperate projection. Again, it was the Georgia Republican Assembly that included a “right of return” plank in its platform. That plank reads, “We support a program to encourage and subsidize voluntary emigration for any citizen of the U.S. who wishes to emigrate to their country of origin/ancestry provided that their ancestors were brought to this country against their will or immigrated to the U.S. since 1965.”
Does that language not divide us by race? Which party’s nominee speaks highly of authoritarians and strongmen dictators? Please, Alex, do tell. And let’s keep in mind that the Republican Party now runs on economic populism. Ask Sen. J.D. Vance (R-OH) about class warfare.
Bottom line. Dred Scott was a horrible decision. Vice President Harris, Nikki Haley, and Vivek Ramaswamy are eligible to serve as president because they were born in the United States. And someone needs to have the cajones to stand up and condemn Alex Johnson, the National Federation of Republican Assemblies, and the Georgia Republican Assembly. Silence isn’t disagreement. It’s a tacit acceptance of this. Anything other than vocal disagreement is implied or assumed agreement.
