"I am further of opinion that it would be better for us to have [no laws] at all than to have them in so prodigious numbers as we have." ~ Michel de Montaigne
The Ghost of Dred Scott
'The government gives [blacks] the drugs, builds bigger prisons, passes a three-strike law and then wants us to sing 'God Bless America .' No, no, no, God damn America for treating our citizens as less than human.' 
Such were the words of the Reverend Jeremiah Wright as he addressed the congregation of the mostly black Trinity United Church of Christ in southside Chicago on April 13th 2003 . As the world has since learned, one of his parishioners was Barack Hussein Obama II.
Many people were shocked at Wright's rhetoric, believing racial diatribes were mostly behind us. But as Judge Andrew P. Napolitano explains in his latest book, Dred Scott's Revenge: A Legal History of Race and Freedom in America, Wright's comments are one of the predictable outcomes of government's sordid history of race relations.
The Judge's book is a gripping read from start to finish. It is not legalese that greets us as we turn the pages, but a fact-based tale of institutionalized oppression, horror, and retribution, made possible by government at every level.
How could government be complicit in racial injustice? The author builds his case with sound arguments and relevant details, some of them shocking.
Most readers have heard about black lynchings that gripped the South for generations following the War for Southern Independence . But how many knew they were often a major social event? 'Witnesses often included the entire white community,' Napolitano tells us, 'and, in many cases, the victim's body was cut up and pieces were handed out as souvenirs . . . . The local police, governments of each Southern state, and every American president from Ulysses S. Grant to Harry S. Truman allowed this to take place.' [130; numbers refer to book's page numbers]
And why were these blacks lynched? For being black. And perhaps 'for being economically successful, being more than minimally educated (they were too 'uppity'), failing to step aside for a white man's car, being politically active, staring whites in the eye . . . .'  Just about anything, because blacks had no real protection under the law.
The laws and slavery
Napolitano makes clear that there are two kinds of law: Natural law, which is given to us by virtue of our nature, and positive law, which is imposed on us by government. Natural law is enshrined in our Declaration of Independence, the 'self-evident' truths ' 'that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty , and the pursuit of Happiness.' Positive law emerges from our legislators and, to be binding, must be consistent with natural law. Slavery is the most egregious example of natural law violation.
Despite the proper implementation of slavery through positive law (laws legally enacted at the time), its violation of natural law (because it steals the core natural right: freedom) makes it inherently and profoundly unlawful . . . .
The Articles of Confederation, which were too anemic for the Federalists of that era, did not specifically recognize slavery. The Constitution did, though without mentioning it by name.
The framers' goal was to establish a stronger central government, and in doing so they had to keep certain sensitivities in mind and be willing to compromise. The South had a big stake in slavery; the North didn't. The compromises were reflected in the Fugitive Slave Clause, the Importation Clause, and the Three-fifths Clause. Slavery was an irreconcilable issue, but few were willing to admit it.
Convention delegate John Dickinson noted on July 9th 1798 :
'Acting before the World, What will be said of this new principle of founding a Right to govern Freemen on a power derived from Slaves . . . themselves incapable of governing yet giving to others what they have not.' 
It should not surprise us that the Constitutional Convention strengthened the institution of slavery. As Napolitano observes, 'Government is essentially the negation of liberty. By its very nature, government removes natural rights in one way or another.'  (If only those sentences could become standard boilerplate on all printed material.)
Slavery and its proliferation were two of the most contentious issues in early 19th Century America . Abolitionists claimed that any slave taken to a free state was thereby freed. But slaves were regarded as the property of their masters, and one's property cannot legally be forfeited by crossing a state line.
Dred Scott, a slave, claimed his freedom on the basis of the abolitionists' argument, and in 1857 his case reached the Supreme Court. Chief Justice Taney, who wrote the opinion, was a slaveholder and advocate of slavery. The Court held that blacks were not citizens and were therefore not entitled to the rights and privileges accorded to citizens. And because Dred Scott was not a citizen, he could not sue in the federal courts.
Taney added that the federal government had no power to prohibit slavery in any part of the United States . It followed logically that states had the power to enslave free blacks.
Justices Curtis and McLean, writing in dissent, pointed out that at the time of the founding, 'ten of the thirteen states allowed free blacks to vote,' though five of those ten had limited or withheld the right.  Taney's decision, Napolitano concludes, was not a case of 'dispassionate adjudication' based on a strict interpretation of the law, but rather an 'aggressive form of judicial activism to carve new meaning into the text of the Constitution.' 
Lincoln and Reconstruction
Lincoln came into office, and the South seceded; he told them they had no right to leave and tricked them into firing the first shot. Four years and a million casualties later, the South surrendered. As a voluntary association of free states , the Union was dead, the South lay in ruins, and the slaves, by virtue of the Thirteenth Amendment ratified on December 18th 1865 , were no longer slaves. They were said by some to be free.
President Johnson pursued a lenient Reconstruction policy that angered radical Republicans. Congress overrode Johnson's veto twice in 1867 to pass bills prolonging military occupation of the South in every state except Tennessee , Johnson's home state. The goal was to create loyal governments. The acts were about power, not freedom or equality.
Congress passed another bill authorizing anyone but former Confederates to write the new state constitutions. In other words, only blacks, carpetbaggers, and scalawags were qualified. White southerners seethed with resentment.
Organizations of white militants began to flourish, especially when Grant became president in 1869. Groups such as the White League, the Red Shirts, and the KKK used violence and intimidation to keep blacks from holding political office or voting for anyone supporting Reconstruction. 'These groups effectively destroyed the weak political and economic stability that Congress was trying to build in the South,' Napolitano tells us. 
By 1877, all federal troops had left the South. Reconstruction had been a failure. Republicans could not force the South to bow to their decrees. On the contrary, their orders inflamed passions against the Union and especially against blacks.
To white southerners, blacks came to personify federal intervention.
The period known as Jim Crow ran from the 1890s to the Civil Rights Act of 1964. During this period, 'Southern states began to reinforce, in law and state constitutional provisions, the subordinate position of blacks in society.'  Jim Crow 'became shorthand for the continued lawful degradation of blacks.' 
Racial ostracism extended to every place where the two races might come together, even cemeteries. 'As witnesses in court, blacks and whites had to swear on different Bibles.'  Factory workers in Alabama had to look out different windows than whites. By 1910 legalized segregation took hold in every state of the South.
Among the reasons for the extreme racism the author cites:
- The terrible violence of the war
- The Union 's wanton destruction of private property in the South
- Military occupation during Reconstruction, in which the rule of law was abandoned
In Plessy v. Ferguson (1896), eight of nine Supreme Court justices refused to rule against Jim Crow. Plessy was 'used to defend Jim Crow laws from judicial scrutiny until the second half of the twentieth century.'  The majority reasoned that separate but equal accommodations did not violate the Constitution because both races were treated equally under the law.
Roughly seven million black people quit the South between 1900 and 1970, even though in doing so they faced unfriendly conditions up North. It was government that perpetuated the endless years of discrimination, Napolitano claims. It afforded 'no relief or justice for persecuted blacks.' 
His book goes on to tell us about the plight of blacks in the World Wars, the infamous Tuskegee syphilis experiment, Brown v. Board of Education, oppressive aspects of the civil rights legislation, the '60s riots, Goldwater, Wallace, Nixon, Reagan ' and Jackie Robinson. The story of major league baseball's first black player was an uplifting way to bring his narrative to a close.
Libertarians favoring a stateless society will challenge Napolitano's conclusion that only 'by upholding the Constitution can our freedoms remain secure.'  But few will question his scholarship or fail to appreciate his robust writing. Dred Scott's Revenge was an enjoyable read from start to finish and should be high on everyone's reading list.
The Ghost of Dred Scott
Exclusive to STR
May 19, 2009