The pattern of conservative lying in and around Supreme Court decisions in recent decades has precedents in some of the worst cases of the 19th Century--such as Dred Scott.
July 30, 2013

Part 14 of the series, "The Structure of Lies in Conservative Jurisprudence"

Before returning to the subject of lies in contemporary conservative jurisprudence, I wanted to take note of two staggering classic examples of conservative lies in 19th Century jurisprudence. And if we're talking conservative, and we're talking 19th Century, well, how can we not be talking about bit more Dred Scott? I want to provide the full context, but the crucial words—you probably recognize them—are in italics below:

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English Government and English people.

But, as indicated, all the above is simply a lie. Yes, blacks were horrendously mistreated, and widely enslaved, but not in the universal, uniform, unbroken manner that Chief Justice Taney claimed in the passage above. Indeed, the abolitionist movement had already begun at the time of the Revolution, slavery was abolished in the Vermont Republic in 1777, and it was subsequently abolished in Massachusetts as well, well before the Revolutionary War ended, much less before the Constitution was drafted. Which is to say, there were already free black citizens—not just a handful, accidentally, but entire populations.

The Massachusetts story is particularly significant here, as a court case was involved. There is some debate over how directly the case lead to the abolition, but the link is clearly there. That's not my point here, however. My point here is that a black slave sued his alleged master for his freedom—well, at least implicitly. And when the court took his case, it most definitely was recognizing a right “which the white man was bound to respect”.

Here's a bit about the case from the Wikipedia entry for Quock (or "Kwaku") Walker who was promised his freedom on his 25th birthday by his first master, James Caldwell:

Caldwell died when Quock was ten, but his widow renewed the promise, agreeing to give him his freedom at the age of 21. The widowed Mrs. Caldwell married Nathaniel Jennison in 1763 and died about 1772, when Walker was 19.

When the time came for Walker's promised manumission, Jennison refused to let him go. In 1781, Walker, then aged 28, ran away. He went to work at a nearby farm belonging to Seth and John Caldwell, brothers of his former master. Jennison retrieved him and beat him severely as punishment. Soon after, Walker sued Jennison for battery, and Jennison sued the Caldwells for enticing Walker away from him.

Get that? “ Walker sued Jennison for battery”. A black man sued a white man for battery. This is what the Dred Scott decision held could not be done—and in the passage above, it goes so far as to falsely claim that it had not been done at the time of the Constitution.

Continuing with account:

There were three trials related to these events, two civil and one criminal. These took place during the American Revolutionary War, when language about the equality of people was in the air and after the new Massachusetts constitution had been passed in 1780. The civil cases were : Jennison v. Caldwell (for "deprivation of the benefit of his servant, Walker"), apparently heard and decided first, and Quock Walker v. Jennison (for assault and battery), both heard by the Worcester County Court of Common Pleas on June 12, 1781.

In the first case, Jennison argued that Caldwell had enticed away his employee Walker. The court found in his favor and awarded him 25 pounds. The Walker case was opened by the attorney considering the question of whether a previous master’s promise to free Walker gave him a right to freedom after that master had died. Walker's lawyers argued that the concept of slavery was contrary to the Bible and the new Massachusetts Constitution(1780). The jury voted that Walker was a free man under the constitution and awarded him 50 pounds in damages.

So there you have it, plain as day. Not only did Walker sue in court, he won his case!

Of course the cases were both appealed—but the story only gets better:

Jennison's appeal of Walker's freedom was tossed out in September 1781 by the Massachusetts Supreme Judicial Court, either because he failed to appear[6] or because his lawyers did not submit the required court papers.The Caldwells won the other appeal; a jury concurred that Walker was a free man, and therefore the defendants were entitled to employ him.

But that's not all:

In September 1781, a third case was filed by the Attorney General against Jennison, Commonwealth v. Jennison, for criminal assault and battery of Walker. In his charge to the jury, Chief Justice William Cushing stated, "Without resorting to implication in constructing the constitution, slavery is…as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence." This has been taken as setting the groundwork for the end of slavery in the state. On April 20, 1783, Jennison was found guilty and fined 40 shillings.

Cushing's jury statement clearly recognized that Walker had been granted “rights and privileges wholly incompatible and repugnent” to slavery's existence. Taney's italicized claim above is clearly a damnable lie. I guess you could call that a precedent for what the Supreme Court's been up to lately?

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