When you hear the term “judicial activism,” you probably think of Tea Party politicians decrying progressive Supreme Court rulings. Right-wing politicians want to use the letter of the law to oppress people, so they attempt to delegitimize the decisions of the Court by pushing forth the outrageous idea that laws should mean what they say. This seems to be the popular wisdom, at least. Originalism, adherence to the Constitution’s original meaning at the time its provisions were adopted, is taken to be a conservative judicial philosophy. Judicial activism is for progressives standing up for the rights of the marginalized.
The popular wisdom, however, is dead wrong. Judges have often imposed their personal views on the Constitutional text in order to take rights away from the little guy, not to give them to him. In particular, the Supreme Court did huge damage to the struggle for civil rights for blacks by interpreting the Fourteenth Amendment into oblivion in the late 19th century. In this series, I will explain some of the Court’s rulings that modern progressives and originalists alike can and should condemn. My point in doing this is to show that originalism is compatible with defending civil liberties, and that a living constitution is compatible with destroying them.
Dred Scott v. Sandford (1857)
Dred Scott was a Missouri slave suing for his freedom. The legal basis for his claim was that he had resided for a significant period of time in a free state, as well as in a U.S. territory in which slavery had been made illegal by Congress. Under Missouri law, slaves were emancipated after residing in a jurisdiction that outlaws slavery. As a result of heightened sectional tension following the compromise of 1850, however, the Missouri Supreme Court overruled its precedents and declared that Dred Scott was still a slave.
Scott then sued for freedom in the federal courts. In order for the federal courts to have jurisdiction over Scott’s suit, Scott had to be a citizen of the United States. Chief Justice Roger Taney ruled that Scott was not a citizen of the United States because he was black. According to Taney, blacks could not be citizens. No provision of the Constitution can be reasonably construed to support such a claim. Taney was abusing his power as a Supreme Court Justice and treating his personal opinions as if they were the supreme law of the land. The best he is able to do is give some bad historical analysis, which the dissenters in the case thoroughly refute. (Justice Curtis’s dissent in the case is particularly worth reading.)
Taney also held that Scott could not be a citizen because he was a slave, notwithstanding his residence in free jurisdictions. In order to defend this claim, Taney has to do some creative interpretation concerning the power of Congress to govern the territories. According to Taney, Congress did not have the right to prohibit slavery in the territories, because the Constitutional provision which authorizes Congress to govern the territories actually doesn’t mean what it says:
The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. (Art. IV Sec. 3)
Taney gets around the plain meaning of the clause by saying that the word “Territory” refers “to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government” (page 431 here).
In multiple instances, Taney conjures up constitutional principles out of thin air for the purpose of keeping Dred Scott and all other blacks in a state of permanent subjugation. This is judicial activism at its worst.
The decision of the Court in Dred Scott provoked a great deal of outrage in its own day, and is recognized today as one of the worst, if not the worst, Supreme Court decisions ever. You can say that the pursuit of justice is a sufficient reason to override the plain meaning of the words of the Constitution, but if you adopt that rule and apply it consistently, eventually someone who defines justice in a way you don’t like will get on the court, and you will likely be singing a different tune. The alternative to the rule of law is tyranny, and you can’t guarantee that the tyrant will be on your side.