Someone on Conlawprofs wondered whether there were a decent summary of the Dred Scott case, which upheld slavery before the Civil War and helped pave the way to this war which killed 600,000 Americans by Americans.
I doubted whether law school student needed to spend the time required to really understand the ins-and-outs of this dreadful case, no pun intended.
So I wrote:
I actually waded through the Fehrenbacher book, a decade or so ago, in an attempt to understand this case; I wish I could say I’ve become more enlightened about anything as a result.
How important is it, I wonder, to follow the ins-and-outs of each justice’s attudes and votes on many of the issues in the case, or even its holding unconstitutional the Compromise.
Isn’t the point of Dred Scott that the white justices decided as a court, that Negro lives had no rights deserving of respect from white people?
Therefore, Mr. Scott had no right to consider himself a citizen in the land of the whites, and not being a citizen, had no resort to the federal courts, as only citizens of different states had that right under diversity of citizenship doctrine, and so he had no standing to sue, which sort of moots anything the Court held because, the case shouldn’t have been there in the first place.
I’ve read somewhere that the discussion of property law is just wonderful legal exposition, the only problem being that the peculiar form of property in question was people, black people, in particular.
Dred Scott is useless as law.
Would anyone care to cite Dred Scott on property law in a brief in a real property dispute?
Wouldn’t that be a little like citing Josef Mengele, M.D.’s experimental results from concentration camp experiments whereby unwilling people, including children, were killed in the process?
There’s a reason that the Dred Scott case helped to crystallize opinion in the country, thus paving the road to the civil war.
It was as immoral as hell, regardless of how well reasoned, legally, it may have been. At least as I assume all of the country would say, today, but only half at the time.
Rational? Maybe.
Legal? Your choice.
Ethical? Forget about it.
Moral? Not today. Not even then. But we don’t always see the moral until after the fact and we tend to disparage those who do at the time.
I’d say skip the opinion.
Skip the 900 pages of Fehrenbacher, excellent treatment, unless you really have a lot of time on your hands and no one has briefed you on it.
And take a look at the significance of the case, illustrating the immorality of using the law to accomplish immoral ends.
If a court in Germany during the war upheld Mengele’s experiments, using all the legal reasoning and flowing language in the world, they would still be murder.
We prosecuted his alleged medical colleagues, after the war, for murder, not war crimes.
This required us to lay down certain distinctions as to which human-subject testing was allowable and which murderous.
Because, after all, we performed human subject testing, as well.
http://www.slideshare.net/ArthurOAndersonMD/pr-15149-ethical-use-of-human-subjects-in-infectious-disease-research-ebola-outbreak
This link uses slides to show the history of the development of the ethical protocols governing medical testing today.
The distinguished author is a friend and, with his kind permission, I’ve linked to it in a project on investigation that I’m developing.
When I open it up online I look forward to inviting your attention to it.
We used soldiers to test the effects of nuclear explosions.
Informed consent?
Not likely.
I happen to view America’s experience with slavery and racism as our own Holocaust, although this is not a word we consider using against ourselves.
The Dred Scott opinion, to me, is simply more evidence of how misguided we can be when we overlook the moral aspect of what we do, as contrasted, sometimes, with what we say we do.
rs
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