Dreaming of Dred Scott

A recent set of Gorsuch-weighted Supreme Court rulings have finally given Republicans something to crow about. The court’s approval of Trump’s Muslim Ban seemed like a blast from the German Vergangenheit but recent labor and reproductive rights rulings have been equally disturbing. Mitch McConnell and Neil Gorsuch met for a photo-op to troll Democrats. Their meeting demonstrated just how badly “checks and balances” work in this country and how shattered American democracy really is.

But while the extreme right exults in the belief that their Crusaders have finally pulled off a Reconquista, let’s remember the Dred Scott decision. Then, as now, the case reflected a Supreme Court that had totally lost its way — and the irreconcilable differences between Americans’ views of what sort of nation we want to be.

Dred Scott was a slave who sued for his and his family’s freedom in a state where slavery was illegal. In 1846 Scott filed suit from St. Louis, Missouri, where since 1824 there had been legal precedent for recognizing the freedom of escaped slaves: “Once free, always free.” Scott’s wife Harriet was friendly with Abolitionists who championed the family’s legal case. Scott lost the suit, re-filed and appealed, and lost again. In 1857 his case was again heard by the United States Supreme Court.

On March 6th, 1857 the Supreme Court ruled 7-2 against Scott. Chief Justice Roger Taney delivered the majority opinion, which was that Africans, free or not, could not be citizens of the United States. “The right of property in a slave is distinctly and expressly affirmed in the Constitution.” Furthermore, African-Americans had “no rights which the white man was bound to respect.” Consequently, freedom and citizenship could not be conferred upon non-whites and, since by the court’s criteria Scott was not a citizen, Scott had lacked “standing” to bring the suit in the first place.

The South did a victory lap. The Richmond Enquirer wrote, “A prize, for which the athletes of the nation have often wrestled in the halls of Congress, has been awarded at last, by the proper umpire, to those who have justly won it. The nation has achieved a triumph, sectionalism has been rebuked, and abolitionism has been staggered and stunned.”

But the Charleston, South Carolina Mercury speculated that this was just the beginning of a greater conflict between North and South: “In the final conflict between Slavery and Abolitionism, which this very decision will precipitate rather than retard, the principles of the judgment in the Dred Scott case may be of some avail to the South in giving an appearance of justice and moderation to its position.”

The Supreme Court had ruled in favor of White Supremacy and slavery but now it was the law. Abolitionists mocked the reckless, immoral ruling and doubled their efforts to end slavery. Ultimately Dred Scott, just as the Mercury had predicted, ignited a national conflagration that overturned slavery and destroyed the South.

Modern-day slavers and reconquistadores want to return us to 1857. America is as deeply divided now as it was then, and the prospects of a Trump Court for decades is deeply unsettling. But the fight for America’s soul is far from over. The arc of justice is frustratingly long but it will arrive. Whether in 2018, 2022, or later — Congress will pass into younger, browner, more progressive hands. Laws will be written to make legally explicit our liberties, protecting them from capricious, partisan rulings. The Trump Court will shuffle around in their robes, dreaming of Dred Scott.

Better Angels

The other day I noticed that the liberal-ish press had suddenly become obsessed with civility and had begun hectoring us to listen to our better angels — to “play nice” with the Deplorables. Someone denied a cheeseburger to a White House spokeswoman who lies for a living, defending the cruelest of policies. And you’d have thought the end of civilization was near.

On the importance of maintaining “good form” both CNN and FOX News were in total agreement: “Fox Business host Trish Regan defended CNN’s Jim Acosta on Tuesday, calling verbal attacks on the reporter at a Trump rally are ‘not only bad manners, it’s bad form,’ while calling out both sides for a total lack of civility.”

Lots of people noticed the break from reality and bizarre lack of perspective. Philosopher Robert Paul Wolff (author of “The Poverty of Liberalism”) wrote, “The norms of public political discourse vary considerably from country to country, and even from neighborhood to neighborhood within a country. The British Parliament is much more raucous than the American Congress, and I will not even talk about the Israeli Knesset. Only in the world of the Washington elite does being denied service at a restaurant appear to be a violation of sacred norms calling for serious discussion of the foundations of democratic society. […] But whatever the local norms of civility may be, it can always be asked under what conditions it is right, even required, to violate them as part of a political protest.”

On December 12th, 1964 Malcom X spoke at the Oxford Union Club in England and, with a sly wink to Barry Goldwater, talked about “the necessity, sometimes, of extremism, in defense of liberty, why it is no vice, and why moderation in the pursuit of justice is no virtue. […] I doubt that anyone will deny that extremism, in defense of liberty, the liberty of any human being, is a value. Anytime anyone is enslaved, or in any way deprived of his liberty, if that person is a human being, as far as I am concerned he is justified to resort to whatever methods necessary to bring about his liberty again.” Earlier that year Malcom X gave his Ballot or the Bullet speech at King Solomon Baptist Church in Detroit, reminding listeners of the incivility and extremism of the American Revolution. Turns out, for much of American history dissent usually trumps decorum.

Media Matters observed that the “right-wing media are criticizing Rep. Maxine Waters (D-CA) after she encouraged people to publicly protest Trump administration officials who are complicit in the atrocious family separation policy at the U.S border. But the ‘civility’ these outlets are touting has been absent in their many vicious past attacks on Waters.”

Fairness and Accuracy in Reporting took the liberal-ish press to task for its preoccupation with manners and distaste for speaking truth to power. FAIR pointed out that the Washington Post had run “three articles between Sunday, June 24, and Monday, June 25, calling for ‘civility’ and criticizing those who interfered with the dining experiences of Trump administration officials.”

In a Bloomberg News editorial, Jonathan Bernstein wrote, “Civility Is Important in a Democracy. So Is Dissent.” Bernstein observed: “In these times, however, it’s a joke to focus on incivility by Democrats even as the Republican president routinely says things that are as bad as or worse than the attacks of the most irresponsible Democratic no-name precinct chair.” In an unusual footnote, Bernstein reminded readers that when it comes to civility in a democracy, “of course incivility wasn’t the most important problem with U.S. democracy; indeed, restrictions on the franchise and full citizenship were so severe that there’s a good case to be made that it wasn’t a real democracy until at least 1965.” Whatever temporary gains we’ve made were made in the street.

Finally, Nation writer Sarah Leonard spoke my mind with her article, “Against Civility: You can’t fight injustice with decorum.” Among Leonard’s excellent points: “Throughout history, activists have seldom won battles against injustice by asking politely. […] The people being targeted [for protest] are adults living and working in a democratic society; facing consequences for their actions, as conservatives would agree, is what grown-ups should all do. […] To cling to civility is to allow the powerful to commit crimes, as long as they do so with a smile and a handshake.”

If we are truly listening to our better angels, they’ve been whispering — “#resist.”

Our answer to hate

This my last appeal for citizens to advocate for protections for immigrant families in the 2019 budget. Originally proposed as Budget Amendment #1147 by Senator James Eldridge, these protections have been incorporated into Senate Bill S.2530 and are now in conference with the House. Call your State House Representative to ask them to support immigrant family protections. What’s happening in Washington should terrify and motivate state House Democrats to support such protections. This should be our answer to hate.

Here’s why the protections are so important

The Supreme Court just ruled in favor of Trump’s Muslim Ban. An ACLU petition asks Congress to pass legislation to block racist exclusions like this. While a ban is not the same thing as a registry, we don’t yet know how Trump’s Muslim Ban will affect citizens of the Muslim-majority countries who live in Massachusetts, whether CPB, ICE, or DHS will ask the Commonwealth to help track these Muslim neighbors — or if the occasional law enforcement official might have personal motivations to share data with ICE without authorization.

  • Protections for immigrant families in the 2019 budget bar the Commonwealth from cooperating with such registries.

Trump’s deportation machine is abusing families and children in shockingly cruel ways. Elizabeth Warren has a lengthy report on her visit to a McAllen, Texas Border Patrol facility where she was horrified by the treatment of incarcerated children. A report issued recently describes racially-motivated abuses of detainees in ICE facilities, including the Bristol County House of Correction. Last week it was reported that the Boston Public Schools took it upon themselves to share data with ICE, and on the Cape high school students were reported to ICE by guidance counselors for supposed gang affiliations simply because they spoke Spanish. This insanity must end. Let police deal with real criminals and end vigilantism.

  • Protections for immigrant families in the 2019 budget prevent state officials from being used as federal agents. Only the Massachusetts Department of Corrections will be able to fulfill some of these federal immigration functions.

Customs and Border Patrol is stopping vehicles on parts of I-93 and demanding that passengers produce proof of citizenship. Warrantless stops with requests for “papers!” is creepy and totalitarian enough without state and local police being enlisted in violations of the Fourth Amendment. Even with the 100-mile border “loophole,” many of these stops are unconstitutional. Let’s affirm that, at least in Massachusetts, a “nation of laws” requires warrants and probable cause to stop people.

  • Protections for immigrant families in the 2019 budget define strict rules under which police officers can ask about immigration status and require training on the law for all officers.

Read about these provisions yourself. Despite malicious misinformation, these provisions do not prevent police from arresting real criminals. They do make Massachusetts a lot safer for everyone and strengthen Constitutional protections many of us can still remember once having.

Call your State House Representative to ask them to support protections for immigrant families in the 2019 budget.