Three Supreme Court mistakes

As a general proposition, saying that the Constitution means what the Supreme Court says it does is only true in a narrow legal, and sometimes temporary sense, but not always in a historical, legal or moral sense. The Supreme Court makes mistakes.

  1. Dred Scott v. Sandford (1857). In the Dred Scott decision, the Supreme Court denied the historical fact that African Americans had been considered citizens by some states at the time of the ratification of the Constitution, and concluding that no African Americans could be citizens of the United States, except that they be naturalized (something then not allowed by law). Further the Court said that slaves where property and not persons. The decision was effectively overturned by the Civil Rights Act of 1866 and put on a constitutional footing by the 14th Amendment, but only after the issue was resolved by civil war and half a million deaths. Dred Scott is regarded by some to be the worst mistake the Supreme Court has made, and bad law by most everybody.
  2. The Slaughterhouse Cases (1873). This group of cases involved a state-chartered monopoly or franchise for the butchering of animals. A group of butchers sued, arguing that the 14th amendment’s “privileges and immunities” clause gave them a right to ply their legal trade outside the monopoly. Historians generally agree that the Court ignored the original intent of the 14th amendment by setting out a doctrine that said this clause only applied to federal citizenship (as distinct from state citizenship) and thereby only granted an extremely limited number of rights (mostly the right to run for federal office and navigation on the high seas). It did not grant citizens the equal privilege to try to make a lawful living. Only in recent times is the “privileges and immunities” clause being re-examined.
  3. Plessy v. Ferguson (1896). Mr. Plessey, a mixed race individual, bought a first-class railway ticket, but was arrested and put in jail when he tried to use it because non-whites were, by law, required to ride in carriages assigned to their color. The Supreme Court derisively said that the 14th Amendment never intended to end racial segregation, adding “separate but equal” to the common law. This decision was eventually overturned by Brown v Board of Education of Topeka Kansas in 1954.

I suppose it is no surprise that those today wishing to get around the 14th Amendment would look to historical cases that themselves denied the history and intent of the 14th Amendment for source material. We’ve seen Dred Scott and The Slaughterhouse Cases already in Obama denialist arguments. Can Plessy be far behind?

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29 Responses to Three Supreme Court mistakes

  1. misha says:

    “Can Plessy be far behind?”

    Scalia already said he would have voted against Brown. He said the status quo was constitutional. So he did give ammunition to the Denialists.

  2. dunstvangeet says:

    Mind giving a link to that, misha? I have a hard time believing that Scalia would have thought that Segregation was legal.

  3. Expelliarmus says:

    Apparently Scalia was misquoted — it appears that he actually said that he would have dissented from Plessy v. Ferguson because the original meaning of the 14th Amendment prohibits racial discrimination. See

    (there is a video posted there and you can draw your own conclusions about what he said and what he meant)

  4. Whatever4 says:

    I saw part of that program this weekend. (Breyer and Scalia On America and the Courts, CSPAN. Scalia looked like his hemorrhoids were bothering him.)

    He started talking about Brown, then corrected himself to talk Plessy v. Ferguson, saying he would have gone with Justice Harlan’s dissent. (Harlan was the lone dissent in Plessy, Brown was unanimous.)

  5. misha says:

    I did not read the follow up correction. I just saw the original story, and flipped. So when I saw another story with ‘Scalia’ in the headline, I ignored it.

    So, I apologize. I’ve been seething for nothing.

  6. ballantine says:

    I think it has been the conventional wisdom that Brown, and almost all the important civil rights cases, were contrary to the original intent of the 14th amendment, at least contrary to the brands of orginalism of the likes of Bork, Scalia and Thomas. Most members of the 39th congress had been memebers of the previous congress which segregated the DC schools and did nothing to change such segregation following adoption. Most of the states adopting the amendment had segregated schools and there is little evidence that anyone thought the amendment applied to segregation. Opponants of their brands of orignalism have gleefully been pointing this out for decades. Of course, these so-called orginalists have constantly abandoned their methodology when it resulted in inconvenient outcomes, such in Bush v. Gore, as nothing is clearer than the fact that the 14th amendment didn’t apply to voting or political rights. I think the fact that no one can really agree how to interpret the constitution means that it is hard to say that decisions are right or wrong.

  7. I didn’t intend to assert that the 14th amendment originally intended to end segregation, but that that the “privileges and immunities” clause was intended to extend to both state and federal laws. After all, what was the 14th amendment but insurance that the South couldn’t legislate blacks back into de facto slavery?

    A second-class carriage is by definition second class.

  8. Det. Cliff Hanger says:

    Scalia ia a quote machine.

    “The only thing you can be sure of is the Constitution will mean whatever the American people want it to mean today,” Scalia said. “And that’s not what a Constitution is for. The whole purpose of a constitution is to constrain the desires of the current society.”

  9. I’d like to lock Judge Scalia, Thomas Paine and Thomas Jefferson in a room for an hour.

  10. ballantine says:

    “After all, what was the 14th amendment but insurance that the South couldn’t legislate blacks back into de facto slavery?”

    Well, that’s the million dollar question that has clearly been the subject of more debate than any other constitutional issue. Obviously, outlawing the black codes was the original purpose, but the incorporation of the bill of rights to apply against the states was nothing short of a interpretive revolution that people will never stop debating. Bingham’s contention that the “privileges and immunities” clause he wrote incorported such rights has seen a recent revival after decades where Bingham’s reputation was trashed by conservative scholars. The contentious adoption by the court of incorporation through the due process clause has largely made the debate solely an academic one at this point, but the question again points out the problems with commonly held notions of originalism as the fact is there is no clear evidence of what the original intent or understanding was for such clause.

  11. One must wonder what else (like separate but equal) may change. The tests for standing?

  12. Black Lion says:

    I am surprised that Mario hasn’t cited any of those cases yet in his great argument regarding Natural Born Citizenship…If you recall he basically misquoted other SCOTUS cases in order for his theory to seem to have legs….

    “Vattel Asked for History to Be His Judge

    It was Emer de Vattel in his, The Law of Nations, Or Principles of the Law of Nature (1758 French edition) (1760 first English edition), who defined for the Framers what an Article II “natural born Citizen” is. It was Vattel, who stated in Section 212: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. . . .” Vattel, Section 212 (1797 London edition)(and as translated by the United States Supreme Court in Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (repeating Vattel’s definition without citing him); The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Marshall, C.J., concurring) (cites Vattel’s definition of “natives or indigenes” which is later translated to “natives or natural born citizens”); Shanks v. Dupont, 28 U.S. 242, 245 (1830) (same definition without citing Vattel); Ex parte Reynolds, 1879, 5 Dill., 394, 402 (repeating Vattel’s definition and stating in referring to his definition: “The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. . . This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case. . . .”); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (citing and quoting the same Ex parte Reynolds references to natural law, the law of nations, and Vattel); U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (citing and quoting Minor and its recitation of Vattel’s definition of “citizen” and “natural born citizen”).

    Rep. John Bingham, in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment, repeated Vattel’s definition when he said: “[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866).

    Obama fails to meet Article II’s “natural born Citizen” eligibility test because when he was born in 1961 (where ever that may be), he was not born to a United States citizen mother and father. At his birth, his mother was an United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which by descent made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he become even a legal resident or immigrant to the United States

    At best, Obama may be a plain born “citizen of the United States” under the 14th Amendment (if he was born in Hawaii). But he is not an Article II “natural born Citizen,” for upon Obama’s birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks Unity of Citizenship and Allegiance to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen, who despite taking an oath later in life to having sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.

    Our nation is now debating what a “natural born Citizen” is and whether Obama meets that definition which would make him eligible to be President and Commander in Chief of the Military. We have seen above that, even if he was born in Hawaii, he does not meet that test and is therefore not eligible for the Office of President. Concerned citizens asked Obama to clear this matter up but he has refused all such requests and rather litigated at great expense against the interest of the nation that he is suppose to represent. These concerned citizens then asked both Congress and the Judiciary to resolve the debate. But neither of these two branches of government has so far wanted to get involved. What else are the people to do to have their grievances brought to justice and heard?

    Whatever the outcome of the debate, Vattel expressed his sentiments perfectly. I want to share with you what he wrote in the Preface to his 1758 first edition which he wrote in French:

    “As to the rest, I have, both in these examples and in my reasonings studiously endeavoured to avoid giving offence; it being my intention religiously to observe the respect due to nations and sovereign powers: but I have made it a still more sacred rule to respect the truth, and the interests of the human race. If among the base flatterers of despotic power, my principles meet with opponents, I shall have on my side the virtuous man, the friend of the laws, the man of probity, and the true citizen.

    I should prefer the alternative of total silence, were I not at liberty in my writings to obey the dictates of my conscience. By my pen lies under no restraint, and I am incapable of prostituting it to flattery. I was born in a country of which liberty is the soul, the treasure, and the fundamental law; and my birth qualifies me to be the friend of all nations. These favourable circumstances have encouraged me in the attempt to render myself useful to mankind by this work. I felt conscious of my deficiency in knowledge and abilities: I saw that I was undertaking an arduous task; but I shall rest satisfied if that class of readers whose opinions are entitled to respect, discover in my labours the traces of the honest man and the good citizen.”

    Indeed, Vattel wrote with a clear conscience and pure purpose and asked for history to be his judge.

    Mario Apuzzo, Esq.
    185 Gatzmer Avenue
    Jamesburg, New Jersey 08831
    November 2, 2009″

  13. Black Lion says:

    More disrespect of our President from the…

    “Never before has the United States been under attack from within. We are at war with those who believe in the ideology of slavery of the indomitable and independent human spirit. There can be no second place, there is no reeducation for true Americans. Only the coldness of the grave awaits us if we do not speak up.

    The courts whose function is to protect the American people from abuses from the Executive and Legislative branches and uphold the Constitution refuse to hear any case on its merits. They legislate absurdities from the bench, but contort the law to protect a usurper.

    Congress who is tasked under the constitution to insure that only constitutionally qualified people are elected to the Presidency and Vice-Presidency refuse to see the evidence or more accurately lack of evidence. They will spend billions investigating ways to save a million, but will not cast one vote to defend our Constitution.

    The media who waive the Constitution around when it suits their ideological needs is strangely silent on the millions of emails sent to them. They chase the most absurd stories when it seems to ridicule people who want to protect the Constitution but omerta is their code for their fellow conspirators in treason.

    Until Obama releases the documents that prove, he is a natural born citizen as defined under our common law then we have a pussy for pResident, and a bunch of chump chimps enabling the rape of our Constitution. We can expect no quarter, we ask for no quarter, so we give no quarter. Until the documents are released, the Birthers will refer to the pretender Obama as the Pussy pResident.”

    Real classy….Can you imagine the outrage if someone called Sarah Palin an unflattering name like that? There would be calls from right to silence that individual…

  14. SFJeff says:

    “Concerned citizens asked Obama to clear this matter up but he has refused all such requests and rather litigated at great expense against the interest of the nation that he is suppose to represent.”

    Exactly what would President Obama clear up and how? President Obama published to everyone to read that his father was not a US citizen, but somehow everyone but Mario missed that this disqualified him. How would President Obama ‘clear this’ little matter up exactly? Should he ask for a special session of Congress to address Mario’s concerns? A special session of the Supreme Court?

    How much time should the President of the United States spend responding to what appears to the majority of voters as a total whackadoodle theory?

  15. SFJeff says:

    yeah well the Birthers movement seems a home for those with Politcal Tourette’s syndrome, along with those who apparently never learned how to spell.

    The anonymity of the internet makes them all very, very brave.

  16. Kevin Bell says:

    I see Teo’ Bear has finally flipped his froot loops over at The guy writes this stuff somewhere in Brazil. What a patriot.

  17. misha says:

    I was wondering when you were going to show up here. In February, 2001 I drove to Alaska for the Iditarod, found a job in the Dimond Center, and stayed for 3 months. As a licensed optician, employment is readily available, especially with a New York State license.

    I had so much anti-Semitism thrown in my face, I gave up and drove back. And most of it was from evangelicals, Palin’s church especially. I could write chapters on their wacko beliefs. They love Israel, but hate Judaism and Jewish culture.

  18. Kevin Bell says:

    Oh My Stars!!!

    Teo Bear!!

    Religion Nut + bigot = Teo Bear

  19. misha says:

    I read his profile. The only reason they are opposed to a peace settlement, is because no turmoil means no Armageddon.

    Those wacko fundies are bad news. They egg on the settlers into violent confrontations with Arabs. Disgusting.

    And Hagee is an odious, fat bigot.

  20. euphgeek says:

    More hilarity from Orly Taitz filed today:

    First, she filed a Declaration basically denying that she suborned perjury.

    Second, she filed a Motion for Reconsideration which among other things accuses the judge of being unduly influenced by Siddharth Velamoor and of accusing her of doing things she did not do. Needless to say, the word “defamatory” appears multiple times in the document.

    Finally, she filed a corrected version of the Sinclair Affidavit along with the coroner’s report for Donald Young. She still believes that Obama and Sinclair were gay lovers who did crack together.

  21. I guess sanctions are back on the table.

  22. Black Lion says:

    The specific section of Orly’s amended complaint. The entire thing is comedy at its best but the way she tries to tie the “Fort Hood” shooter is just crazy due to the racial profiling and bias she is advocating….

    “12.The undersigned counsel requests the court to strike out of the order unsupported, prejudicial, demeaning and defamatory language p8, line 22-24 insinuating that the military plaintiffs in this action are cowards and writing: “The court will not interfere in internal military affairs nor be used as a tool by military officers to avoid deployment. The court has a word for such a refusal to follow the orders of the President of the United States, but it will leave the issue to the military to resolve”. The undersigned has submitted to this court a letter from Captain Crawford, Legal Counsel to Admiral Malin, Chairman of Joint Chiefs of Staff, which clearly stated that the commander in Chief is considered a civilian and there is nothing military can do regarding his eligibility. Based on this response from the military the plaintiffs have brought this matter to the Federal court to ascertain legitimacy and allegiance of the Commander in Chief, who is not a part of the military. The order completely misstated the complaint and standing justification. Recent terrorist incident at Fort Hood has given this question paramount importance. This order has advocated blind obedience by the members of the military. If someone were to have common sense, brains and strength of character to challenge allegiance of Nidal Malik Hasan in court, after he made numerous anti-American and antimilitary statements, maybe 12 young boys wouldn’t be 6 feet under today, maybe 12 mothers and 12 fathers wouldn’t had their hearts ripped out of their chests and torn apart. Similarly, in the oral argument the undersigned counsel didn’t bring rhetoric, but rather she brought valid observations, as she pointed out to Mr. Obama’s actions from the beginning of his rein, when he almost immediately cut veteran’s health benefits by $500 million a year, while giving $900 million to Gaza, which is governed by a terrorist organization Hamas, which announced war on the United States of America. She argued that it is important to proceed with Mr. Obama’s eligibility action expeditiously and ascertain his Natural Born Status and allegiance expeditiously as tremendous harm can be done to this Nation and this military by one with questionable status and questionable allegiance. Therefore, the plaintiffs request all of the above language stricken and the standing reconsidered.”

  23. Dan Goodman says:

    To all,

    I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:

        “We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.


        “In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.

    The last was later reaffirmed in Cole v. Cunningham:

        “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

    The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:

        “In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).

    So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:



    The Effects of the Fourteenth Amendment on the Constitution of the United States


    A Look At Corfield (On Citizenship)


  24. NbC says:

    So there are now two citizens under the Constitution of the United States. One needs to find out information on both.

    There is only one that matters now, the Citizen of the US.

  25. The Slaughterhouse cases had virtually nothing to do with citizenship, but rather how far the privileges and immunities clause of the 14th Amendment applied. The court eviscerated that clause of the 14th amendment, applying the it to only a narrow list of federal rights (such as navigation of rivers). The Slaughterhouse decision was probably a bad one, but it is irrelevant to our question here. US v Wong was about citizenship, and is the case cited repeatedly by subsequent courts on that subject.

  26. Scientist says:

    The idea of separate state vs national citizenship explains a lot. Such as, why you must pay a toll on bridges and tunnels when you leave New Jersey, but not when entering the state.

  27. SFJeff says:

    Interesting- I had never read about the Slaughter House cases. However the commentaries I have read basically are all like this one:

    “The Slaughterhouse Cases proved to be more important as a historical snapshot than as a lasting court decision. The strong dissenting opinion by Justice Stephen J. Field, arguing that the Fourteenth Amendment protects the fundamental rights and liberties of all citizens against state interference, was later adopted by the Supreme Court’s majority. Although West Coast Hotel v. Parrish (1937) ended the reign of Field’s influence in this area, the Fourteenth Amendment was interpreted, over the course of the 20th century, to incorporate most of the rights protected in the first eight amendments against deprivation by the states. ”

  28. Dan Goodman says:

    The Slaughterhouse Cases is best known for reading the Privileges or Immunities Clause of the Fourteenth Amendment out of the Constitution. However, the case is also known for deciding that citizenship of a State was to be separate and distinct from citizenship of the United States. This, of course, has a direct bearing on citizenship under the Constitution. As before this case, citizenship of a State and citizenship of the United States were considered one in the same.

    In addition, “[t]he Supreme Court, however, adopted a narrower view when it first interpreted the Fourteenth Amendment in 1873 in the Slaughter-House Cases. These consolidated cases addressed several butchers’ constitutional challenges under the Reconstruction Amendments to a Louisiana statute granting a monopoly on the butchering of animals in New Orleans to a single slaughtering company. Justice Miller, writing for the five Justices in the majority, rejected each of the butchers’ constitutional claims, holding that the statute did not violate the guarantees of the Thirteenth Amendment or the Fourteenth Amendment’s Privileges or Immunities Clause, (fn 86) Equal Protection Clause, or Due Process Clause, all of which he believed were concerned predominantly with the protection of the recently freed slaves. . . .


    fn 86: Id. at 72-80 The Court divined a purported distinction in the text of the Fourteenth Amendment between the ‘privileges and immunities of citizens of the United States’ and those ‘of citizens of the several states.’ Id. at 74. The Court then expressed that the clause only protected ‘the privileges or immunities of citizens of the United States,’ which it limited to those owing ‘there existence to the Federal government, its National character, its Constitution, or its laws.’ Id. at 79. . . .”

    Source: Rhodes, Charles W. (Rocky), “Liberty, Substantive Due Process, and Personal Jurisdiction”, Tulane Law Review, Vol. 82, No. 2, 2007. This paper can be downloaded at the Social Science Research Network at .

  29. I fail to see how Barack Obama is not a natural born citizen under any statute of Hawaii in effect in 1961.

    I would also comment that the Court’s distinction between state and federal citizenship is in direct opposition to the intent of Congress as expressed in the debates over the 14th Amendment.

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