Andrew P. Napolitano - Dred Scotts Revenge: A Legal History of Race and Freedom in America

Dred Scotts
Revenge

A LEGAL HISTORY OF RACE
AND FREEDOM IN AMERICA

OTHER BOOKS BY ANDREW P. NAPOLITANO

Constitutional Chaos:
What Happens When the Government Violates Its Own Laws

The Constitution in Exile:
How the Federal Government Has Seized Power by
Rewriting the Supreme Law of the Land

A Nation of Sheep

2009 by Andrew P. Napolitano

All rights reserved. No portion of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any meanselectronic, mechanical, photocopy, recording, scanning, or otherexcept for brief quotations in critical reviews or articles, without the prior written permission of the publisher.

Published in Nashville, Tennessee, by Thomas Nelson. Thomas Nelson is a registered trademark of Thomas Nelson, Inc.

Thomas Nelson, Inc., titles may be purchased in bulk for educational, business, fund-raising, or sales promotional use. For information, please e-mail SpecialMarkets@ThomasNelson.com.

Library of Congress Control Number: 2009923245
ISBN: 978-1-59555-265-5

Printed in the United States of America
09 10 11 12 13 QW 6 5 4 3 2 1

This book is dedicated
to all who suffered
at the hands of any government
because of the color of their skin.
It has been written with the belief
that with knowledge of history,
hatred shall lose its grip on all governments in America.

Can the liberties of a nation be thought secure when we haveremoved their only firm basis, a conviction in the minds ofthe people that these liberties are of the gift of God? That theyare not to be violated but with his wrath? Indeed I tremblefor my country when I reflect that God is just: that his justicecannot sleep for ever: that considering numbers, natureand natural means only, a revolution of the wheel of fortune,an exchange of situation, is among possible events... Thespirit of the master is abating, that of the slave rising from thedust, his condition mollifying, the way I hope preparing,under the auspices of heaven, for a total emancipation, andthat this is disposed, in the order of events, to be with the consentof the masters, rather than by their extirpation.

THOMAS JEFFERSON,
Notes on the State of Virginia, June 1785

Now hatred is by far the longest pleasure; Men love in haste, but they detest at leisure.

LORD BYRON,
Don Juan (canto XII, st. 6)

Contents

7. Reconstruction: Military Rule in the
PostCivil War South

10. Black Education in the South and the End of
Jim Crow After Brown v. Board of Education

11. The Civil Rights Legislation of the 1960s and
Afterward

12. How Democrats and Republicans Use Racial
Rhetoric to Get Elected

When Thomas Jefferson wrote in the Declaration of Independence that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness, he could not have meant then what we understand these words to mean today.

When the framers of the government wrote in the Constitution that No person shall be... deprived of life, liberty, or property, without due process of law, and that the Constitution is the supreme Law of the Land, they conveniently omitted a definition of the word person.

And when presidents from Abraham Lincoln to Woodrow Wilson to Franklin Delano Roosevelt, who either appointed judges who upheld and enforced slavery, enforced two sets of laws themselves (one that treated whites fairly and one that treated blacks unfairly) or permitted the government to conduct gruesome medical experiments on poor, ignorant black men, what did they think of their oaths to uphold the Constitution?

The history of the governments behavior in the relationship of blacks to whites in America is one of utter rejection of the very principles upon which the nation was founded and for which it has publicly stood for over two hundred years. It is this sad history that I shall recount, analyze, and explain from a legal and political perspective here.

When Jefferson wrote the immortal words of the Declaration, he attached the new nations soul irretrievably to what lawyers and judges call the natural law. When he bought and sold slaves, he rejected the natural law for himself, in favor of what lawyers and judges call positivism.

Natural law teaches that our rights come from our humanity. Since we are created by God in His image and likeness, and since He is perfectly freeor, if you prefer, since we are creatures of nature born biologically dependent but morally freefreedom is our birthright. Thus, the natural law informs that freedom comes from our humanity, not from any outside source like, for example, the government. Under the natural law, therefore, freedom to exercise your own free will; to develop your personality; to think as you wish, say what you think, publish what you say; to worship as you feel; to protect yourself from all others (including the government); to be free from arbitrary restraint; to own, use, and enjoy private property as you see fit; to enjoy consensual personal intimacy; to have the right to be left alone are as natural as our arms and faces and cannot be taken away by law or command but only by due process, which is also guaranteed.

And the natural law is color-blind. We know this because one of its principal expositors, St. Augustine, was black; its other principal proponent, St. Thomas Aquinas, was white.

Due process means that the laws one has been accused of violating have been written down (so there is no dispute over the laws language); are basically fair (laws, for example, that protect a persons natural rights, like laws against murder or theft); are not in violation of the Constitution; and do not violate the natural law. Under our constitutionally mandated due process, only legislatures may write the laws. Presidents and governors enforce them, and judges decide what the laws mean.

Thus a law enacted by the president alone is no law, since under the Constitution all federal legislative powers are vested in Congress. As well, a law enacted by Congress punishing speech is no law at all, since the law itself violates the Constitution and the natural right to speak freely. The framers of the Constitution fully understood this as they wrote in the First Amendment: Congress shall make no laws... abridging the freedom of speech. I have italicized the word the to make my point. The framers accepted the natural law premise that freedoms come with and from our humanity. The freedom of speech obviously preexisted the constitutional amendment, insulating it from government abridgement, and the use of the article the reflects the framers unmistakable acceptance of that truism.

Due process also means that the procedure by which liberty or property are interfered with by the government or guilt as adjudicated by the courts is fair; is presided over by a neutral judge; is based on the findings of a neutral jury with no interest in the outcome; permits challenges to and confrontation of evidence and witnesses; allows a freely chosen, totally loyal attorney; and permits the outcome to be appealed to other neutral judges.

Had the framers and their successors truly adhered to these beliefs for all personsblack as well as whitethere could have been no slavery, no Jim Crow, no public segregation, and none of the evils they spawned.

Unfortunately, positivism reared its ugly head. This is the name for laws that reject the natural law and the belief in natural rights. Positivism teaches that the law is whatever the lawgiver says it is, providing it is written down. Under positivism, so long as the legislature in a democracy was validly elected and followed its own rules in enacting a law, the law is valid and enforceable no matter what it says. Thus, under this wretched theory, the Congress or a state legislature could abolish free speech or even free will (as the Congress and state legislatures did for blacks) and the law would be valid, subsisting, and enforceable.