An old thin hand, bony and parchment-like, had written long days and nights on foolscap paper. It was the hand of Mr. Chief Justice Taney of the Supreme Court of the United States.

And it put the fool's cap of death, and sorrow, and hardship upon millions of Americans.


By the use of one word.


The High Court had assumed a monopoly of interpreting the Constitution, and had exercised it.

A law of the people of the United States, enacted through their legally, constitutionally elected representatives, and one which did not interfere with the affairs of any state, in any way whatever, was declared to be no law at all. The law declared unconstitutional was the Missouri Compromise, enacted nearly forty years before. In this compromise Congress had made no effort to restrict slavery in the South. Congress only sought to bar it from the territories, where it would have meant complete economic ruin for the white farmers and workers.

Dred Scott, a black slave, was taken on two occasions by his master up into the territories, once into a part of the original Northwest Territory, and once into what had been part of the Louisiana Purchase—all free territory. Then Dred was taken back to Missouri, a slave state. Claiming freedom by his sojourn in free territories, he sued. But the Missouri State Supreme Court held that he was a slave.

His case was then taken into a federal district court. The court decided against Dred Scott. Dred appealed to the Supreme Court of the United States. The judges in conference first decided to side-step the hot issue. But politics intervened and they then decided to deal with the slavery issue involved in the case.

All seven judges wrote long, tiresome, laborious decisions. They were moral (or immoral) lectures. Using as authority Chief Justice Marshall's assertion that the Court had a right to declare a law unconstitutional, the Court went far beyond anything dreamed of by Marshall.

The merits of the case are not now important. What is important is that the decision established the idea—wholly false—that the Court could hold anything unconstitutional for any reason suitable to the Court, whether warranted by the express words of the Constitution or not. From the Dred Scott decision sprang the notion, still prevalent, that the Supreme Court is the highest of the three branches of government, although the Constitution established the three branches as co-ordinate.

Presumptuous and extravagantly despotic, the Court proclaimed, in effect, not only supremacy over the other two branches of government, but superiority over the will of the people. In magnanimous language the Court announced that questions of "peace and harmony of the country required a settlement of them by judicial decision."

The implication was clear. A handful of judges, favorable to the large plantation-owners and having lifetime jobs with no responsibility to the people, were telling the world that they could direct the economic, social, racial, agricultural, business, and political forces involving millions and millions of people. More, they would tell millions unborn what they must do for centuries to come!

It was this case, then, that really made of the Supreme Court a super-legislature without responsibility—one above the constitutionally elected legislature of the people.

Justice Taney wrote pages to show that the Negroes were a degraded race. He ruled that Negroes had been regarded as so inferior that they had "no rights which the white man was bound to respect." In spite of all the if's, and's, and but's, this was at least the upshot. He held that Negroes could not become citizens of the United States, not even in free states in which there were many Negro children of free-born parents—and not even though Negroes had served in the American Revolution, and had had citizenship in some states from the beginning. Why? They would thereby be entitled to "liberty of speech" and that would "inevitably lead to insubordination and discontent" among the slaves.

The slave interests of the South had special reason to be pleased. Congress had forbidden slavery in the Northwest territories. Yet the Court held that Congress had no right to legislate for and govern the territories according to its own judgment, though the Constitution expressly gave Congress "Power to dispose of and make all needful Rules and Regulations respecting the Territory . . . of the United States. . . ." The Court held, in effect, that a white man from the South had as much right to bring slaves into the territories as a white man from the North had to bring in his horses and mules. Strangely enough, the Northwest Territory was excepted because, the Court said, that had been created under the Articles of Confederation, in which the states had agreed to outlaw slavery. They had likewise agreed in the Constitution that Congress had the power to rule the territories. Completely inconsistent, the Court upheld the one and ignored the other.

What did this mean to the poor white man of the North? It meant that if he migrated to the territories, he might be destroyed by the competition of plantation slavery. Everyone well knew what it had done to the poor white farmers of the South.

The people everywhere were confused over the long laborious decision, and its effects. Even today many of them do not realize the injurious effects. One thing, however, the people understood: the Supreme Court had blessed slavery and had ordered its extension.

The Dred Scott decision was a direct blow at the American concept of democratic government. Basic to this concept is the right of the majority of the people, through exercise of legislative controls, to see to it that the Law of the Land is operated for their common good. But should the people ever allow an individual or group, not of their choosing and not subject to their recall, to decide on what matters they may legislate and how—to dictate, that is, how they shall use the soil and regulate their economy, then they have surrendered their basic democratic rights. For vesting of such power in any non-elected body means that it is possible for minority interests to secure for themselves liberties at the expense of the people.

The Supreme Court may, upon occasion, become such a body. It did in the Dred Scott Case. And therein lies the significance of that decision. For the idea that the Supreme Court can act thus again persists among groups who fear to lose their monopoly on certain liberties which today the people are demanding be extended to all for the general welfare—electricity; health; housing; the benefits of insurance; a voice in setting wages, prices, and rentals.

The Court had acted in exactly the same manner as the Privy Council of England had when it declared the colonial acts against the slave trade to be null and void. And the justices of the Supreme Court were just as far removed from the people as the Lords of the Privy Council had been, sitting in London beyond the seas, holding their noble jobs for life.

The Dred Scott decision put the North and the West in a rage.

There could be no settlement, no arbitration, no compromise now. The High Court had made it impossible.

Indeed, the writing of this thin old hand of Mr. Chief Justice Taney made war as certain as the death that was creeping upon the old man as he wrote.

So the people got a plantation-grown, judge-made, ready-to-wear strait jacket of war and death. It was always thus. For when old men write in ink, young men write in blood. Once again the people had to fight and die for their liberty.

This is not to say that the Supreme Court judges were responsible in themselves for causing the war. Judge Taney and his confederates were, after all, symbols. They represented the interests of the slave-owning aristocracy of the South. It was this class and their system that stood in fundamental conflict with the manufacturers and farmers of the North and West and their system.

The one required low tariffs for the importation of manufactured goods; the other high tariffs for their protection. The one had no interest in large-scale federal improvements in communication systems and aids to commerce; the other had every interest. The one wanted new territory to replenish soil destroyed by intensive plantation cultivation; the other wanted new territory to build free farms and markets. And, finally, the one required slave labor bound to its master for life; the other required free labor for hire by its master by the day or by the hour.

The war between these systems was inevitable. War is always inevitable when a small group enjoys an irresponsible liberty derived from an unbalanced distribution of land and economic power. Under such circumstances government will tend to serve the narrow interests of that group rather than the broader interests of the people as a whole. At the time of the Civil War the Northern manufacturers and farmers happened to represent these broader interests.

The present plight of the descendants of the men who fought and died would seem to be ironically tragic. The children of those blue-coated farmers live in the bonds of an industrial servitude which fails to provide them with even the security that was assured the Negro slave. The children of the gray-coated five-sixths of the South's population that owned no slaves are outcasts in their own land, peon share-croppers upon an exhausted and barren soil. And the children of the slaves remain an oppressed race, landless and indigent.

Nevertheless the Civil War was a progressive war. The North and West did represent broader interests of the people. And what the Northern interests did with their power—how they enjoyed their liberty, once they had it, is another story.

Out of the Civil War came another constitution—the Confederate. The Southern lawyers set forth upon paper the liberties they held dear. And it is well worth our while to examine them, for today powerful groups would likewise secure their liberties at the expense of the people's. Once again there are in the Supreme Court old men—or men with old and dead ideas—who write in ink.

But let us look at this written Constitution of the Confederate States of America.