Dred Scott And The Birthers

by tristero

As a sort of aside in a recent post, I noted that the “filth of the Dred Scott decision” is behind the questioning of Barack Obama’s birth and therefore his eligibility to be president. I don’t want to make this a history lesson, because Dred Scott was not only a despicable but a multi-layered case. If you are interested in all the particulars, Wikipedia’s articles are a pretty good place to start. But it is the following specific portion of Roger Taney’s infamous decision I had in mind:

The Court first had to decide whether it had jurisdiction. Article III, Section 2, Clause 1 of the U.S. Constitution provides that “the judicial Power shall extend… to Controversies… between Citizens of different States….” The Court held that Scott was not a “citizen of a state” within the meaning of the United States Constitution, as that term was understood at the time the Constitution was adopted, and therefore not able to bring suit in federal court. Furthermore, whether a person is a citizen of a state, for Article III purposes, was a question to be decided by the federal courts irrespective of any state’s definition of “citizen” under its own law.

Thus, whether Missouri recognized Scott as a citizen was irrelevant. Taney summed up,

Consequently, no State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.

This meant that

no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States.

The only relevant question, therefore, was whether, at the time the Constitution was ratified, Scott could have been considered a citizen of any state within the meaning of Article III. According to the Court, the authors of the Constitution had viewed all blacks 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.

The Court also presented a parade of horribles argument as to the feared results of granting Mr. Scott’s petition:

It would give to persons of the negro race, …the right to enter every other State whenever they pleased, …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

In other words, the Dred Scott decision said, in part, that because blacks would never have been considered citizens of any state at the time that the Constitution was ratified, it was not possible ever to consider them citizens, even if individual states decided to make them citizens and accord them the rights of citizens. Note: Taney was talking about all blacks, not just slaves.

In the real world, of course, the court and the Congress reversed this shameful decision (although the Dred Scott decision was, technically, never overruled). Still, the general lesson of Dred Scott endures in the modern right wing: a very effective way to eliminate those you hate is to delegitimize them, deny them any justification to the claim of being a genuine American citizen and a voice in the public political discussion. The birther movement is simply one of the wedges used by racists, ethnocentrists, religious bigots, and homophobes to force the country to engage in an evil discourse: whether citizenship, including but not limited to the right to be president, should be culturally, if not legally, withheld from anyone they deem not sufficiently American. And in the case of Obama, the Supreme Court – via originalist arguments as specious as anything Scalia advances now – asserted it was simply impossible for blacks to become citizens and therefore it is impossible for Obama to be a legitimate president.

Birtherism may fail, but so what? The evil discourse remains: Who is truly American and who is truly not? That is the argument the right demands we address every time a Democrat is elected president. With Obama, the right has an ancient Supreme Court ruling on their side. It may be discredited legally, but culturally, the notion that any black man could ever be a legitimate president is simply unthinkable – especially a black who has thrown his hat in with the socialists of the Democrat party.

The path out of this evil discourse is simple: label it first as the disgraceful and malicious expression of racism it is. Refuse to engage the “substantive” arguments they advance. Crowd out the evil discourse with truly important discussions that the country simply needs to have.

Simple, yes, to conceptualize. Much harder to to do.