The Dred Scott case, described by legal scholars as the worst Supreme Court decision ever, forms the legal foundation for Obama denialist definitions of Natural Born Citizen.
We have bantered about some on the question of racism and whether it plays a role in Obama denialism and the denialist views on citizenship. Whether that is so or not, Justice Taney’s decision in Dred Scott v Sandford [sic] was a clearly racially motivated decision, because it said that Negroes could not be citizens and white people could. It was as much racist as the laws (such as the Act of 1790) which said that only “free whites” could be naturalized as citizens. Taney tried to justify excluding a class from citizenship using criteria solely aligned with race.
Following is what James Kettner said about Taney’s decision in The Development of American Citizenship, 1608-1870 (pp 327-8), something I think bears directly upon Mr. Apuzzo’s natural born citizenship arguments that appear elsewhere on this site:
Taney’s conclusion that blacks could not enjoy the privileges and immunities of citizenship under the Constitution rested upon two premises. First, one had to accept the separation of state and national citizenship not only in theory but in fact. For Taney, the guarantees made to the “citizens of each state” in Article IV, section 2, protected only those members of the national community, and the clause must be therefore interpreted to read “the United States citizens of each State.” [That is one state recognizing a Negro as a citizen did not make him a national citizen.] Second, this national citizenship could not be held to derive automatically from birth “within the dominion and jurisdiction of the national government”. Rather those citizens who created the Union in 1789 formed a closed community which membership was restricted to descendants of the founders and to aliens co-opted by the process of naturalization [which incidentally was open only to free whites.]
In seeking to derive consistent exclusionist principles from an ambivalent legal tradition, Taney could only succeed by distorting history and making “bad law.” His conclusion that Negroes had never been citizens in any of the states before 1789 was reached in the face of clear historical evidence to the contrary, evidence that the dissenters quickly brought forward. Similarly, his insistence on a fundamental disjunction between state and national citizenship countered a long popular and judicial tradition of considering the two as inseparable dimensions of the same status. In making national citizenship exclusively the effect of naturalization or pedigree, he disregarded volumes of judicial precedents emphasizing place of birth without regard to ancestry. Taney’s opinion rested instead on the social fact of prejudice and discrimination.
The Oxford Companion to the Supreme Court states: “consider the Dred Scott decision to be the worst ever rendered by the Supreme Court.” David Curries’s encyclopedic The Constitution and the Supreme Court maintained that the decision was “bad policy”, bad “judicial politics” and “bad law”.
Other commentators describe it as: “the worst constitutional decision of the 19th century”, “the worst atrocity in the Supreme Court’s history” “the most disastrous opinion the Supreme Court has ever issued,” “the most odious action ever taken by a branch of the federal government”, “a ghastly error,” “a tragic failure to follow the terms of the Constitution,”, a gross abuse of trust,” “a lie before God,” “an abomination,” and “judicial review at its worst.” “Infamous” and “notorious” are the preferred contemporary adjectives. In the words of former Chief Justice Charles Evans Hughes, the Dred Scott decision was a “self-inflicted wound that almost destroyed the Supreme Court.”
In historical context, the interesting story of the Dred Scott case is a lesson to those who might bring a suit in court just to prove a point. It’s possible to lose, and to lose badly. Who could have imagined how badly?