SCOTUS – Today in History

September 24, 1789 The Supremes

From “separate but equal” to the rights of terrorists SCOTUS rulings are final, inviolate and sometimes imbecilic.

Article III of the United States Constitution establishes the Supreme Court of the United States (SCOTUS), and “such inferior Courts as the Congress may from time to time ordain and establish”.

There is no mention of the number of justices. The first Congress passed the Federal Judiciary Act on September 24, 1789, specifying a six-justice Supreme Court.

Twelve years later, the presidency of John Adams was coming to an end. As a Federalist, Adams wanted nothing more than to stymie the incoming administration of Democratic-Republican Thomas Jefferson. Toward that end, Adams appointed the infamous “midnight judges” in the last hours of his administration: 16 Federalist Circuit Court judges and 42 Federalist Justices of the Peace.

The incoming Jefferson administration sought to block the appointments. Jefferson ordered then-Secretary of State James Madison to hold those commissions as yet undelivered, thus invalidating the appointments. One of the appointees, William Marbury, took the matter to Court.

The case advanced all the way to the Supreme Court, which ruled in Marbury v. Madison that the provision of the Judiciary Act enabling Marbury to bring his claim, was unconstitutional. Marbury lost his case, but the principle of judicial review, the idea that the court could preside Godlike, over laws passed by their co-equal branch of government, has been the law of the land, ever since.

In the early days of the Great Depression, Federal agricultural officials conceived the hare brained idea that artificially introducing scarcity would increase prices, and therefore wages, in the agricultural sector. Six million hogs were destroyed in 1933. Not harvested, just destroyed and thrown away. 470,000 cattle were shot in Nebraska alone. Vast quantities of milk were poured down sewers, all at a time of national depression, when malnutrition was widespread.

With the Agricultural Adjustment Act of 1938, Washington began to impose production quotas on the nation’s farmers. Ohio farmer Roscoe Filburne was ordered to grow 223 bushels of wheat in the 1941 season. Filburne grew 462.

Article 1, Section 8 of the Constitution permits Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. That is all but, on this flimsy basis, the Federal Government took Roscoe Filburne to court.

The farmer argued that the “surplus” stayed on his farm, feeding his family and his chickens. Lower Courts sided with Filburne. The government appealed all the way to the Supreme Court, arguing that, by withholding his surplus, Filburne was effecting interstate market conditions, thereby putting him under federal government jurisdiction.

Intimidated by the Roosevelt administration’s aggressive and illegal “court packing scheme“, SCOTUS decided the Wickard v. Filburne case, against the farmer. Ever since, what you don’t do can be held against you in a court of law. Get it? Neither do I.

Over time, SCOTUS has proven itself to be as imperfect as any other institution. There have only been 17 Chief Justices and 101 Associate Justices in the entire history of the court. Five Chiefs having previously sat as Associate Justices, there are only 113 in all. Should Brett Kavanaugh be confirmed, he would be #114.

Some among those 113 have been magnificent human beings, and some of them cranks. There have been instances of diminished capacity ranging from confusion to outright insanity. One justice spent part of his term in a debtor’s prison. Another killed a man. There have been open racists and anti-Semites.

There is no official portrait of the 1924 court because Justice James C. McReynolds wouldn’t stand next to Louis Brandeis, the court’s first Jewish Justice. One Justice was known to chase flight attendants around his quarters, while another spent his time in chambers, watching soap operas.

There’s the former Klan lawyer turned Justice who took a single phrase, “separation of church and state”, from a private letter of Thomas Jefferson, and turned the constitutional freedom OF religion into an entirely made up freedom FROM religion.

The Supreme Court reinforced chattel slavery with the Dred Scott decision. The Korematsu ruling gave us the forced incarceration of Americans of Japanese descent. Buck v. Bell gave Americans the “gift” of forced sterilization, and Stenberg v. Carhartt enshrined the constitutional “right” to the hideous and detestable “procedure” known as partial birth abortion. From “Separate but Equal” to the “rights” of terrorists, SCOTUS’ rulings are final, inviolate, and sometimes imbecilic.

Chief Justice John Roberts, who once said “remember that it’s my job to call balls and strikes, and not to pitch or bat,” invented a whole new definition of taxation, enshrining the “Affordable Care Act” as the law of the land.

The framers gave us a Constitutional Republic with co-equal branches of government, with power diffused and limited by a comprehensive set of checks and balances.

They gave us two distinct means to amend that Constitution, should circumstances require it.

Traditionally, Congress proposes amendments, submitting them to the states for ratification. The problem is that many believe Congress itself to be part of the problem, and a broken institution is unlikely to fix itself.

Article V gives us a way to amend the constitution, if we would take it. Instead of Congress proposing amendments, an Article V convention of state legislatures would propose amendments, to take effect only if ratified by a super majority of states. We could start with an amendment permitting 2/3rds of the People’s representatives in Congress, to overturn a SCOTUS decision. Then we could term limit these people.

Unless, that is, you believe it’s fine for the Federal Government to prohibit a farmer from growing wheat for his own use, that one man in a black robe can force you to buy a product you don’t want and call it a “tax”, or you believe that “established by the state” means by the state or federal government, at the sole discretion of the man who says, “I’m from the Government. I’m here to help”.

February 1, 1790 A Republic, if you can Keep it

Good judgement it’s been said, comes from experience. And experience? That comes from bad judgement.

Article III of the United States Constitution establishes the Supreme Court of the United States (SCOTUS), and “such inferior Courts as the Congress may from time to time ordain and establish”. There is no mention of the number of justices.

The first Congress passed the Federal Judiciary Act on September 24, 1789, specifying a six-justice Supreme Court. That same day President George Washington appointed John Jay of New York as chief justice along with associate justices John Rutledge of South Carolina, William Cushing of Massachusetts, John Blair of Virginia, Robert Harrison of Maryland and James Wilson of Pennsylvania.

Two days later the Senate confirmed all six. The Supreme Court of the United States sat for the first time in the Royal Exchange Building on New York City’s Broad Street on February 1, 1790.

Twelve years later, the presidency of John Adams was coming to an end. As a Federalist, Adams was pleased to throw a speed bump in the path of incoming Democratic-Republican, Thomas Jefferson. To that end, Adams appointed the infamous “midnight judges” in the last hours of his administration: 16 Federalist Circuit Court judges and 42 Federalist Justices of the Peace.

The case advanced all the way to the Supreme Court which ruled in Marbury v. Madison, the provision of the Judiciary Act enabling Marbury to bring his claim, was unconstitutional. Marbury lost his case but the principle of judicial review, the idea that the court would preside God-like over laws passed by their co-equal branch, remains the law of the land from that day to this.

Over time, SCOTUS has proven itself to be as imperfect as any other institution.

In the early days of the Great Depression, Federal agricultural officials conceived the hare brained idea that artificially introducing scarcity would increase prices and therefore wages, in the agricultural sector. Six million hogs were destroyed in 1933. Not harvested, just destroyed and burned or plowed into the ground. 470,000 cattle were shot in Nebraska alone. Vast quantities of milk were poured down sewers, all at a time of national depression and widespread malnutrition.

Article 1, Section 8 of the Constitution permits Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. That’s it but, on this flimsy basis, the Federal Government took Roscoe Filburne to court.

The farmer argued the federal government had nothing to say as any “surplus” stayed on his farm, feeding the Filburne family and their chickens. Lower Courts sided with the farmer. The government appealed all the way to the Supreme Court arguing that, by withholding his surplus from the market, Filburne was effecting interstate market conditions, thereby putting him under federal government jurisdiction.

Intimidated by the Roosevelt administration’s aggressive and illegal “court packing scheme“, SCOTUS decided the Wickard v. Filburne case, against the farmer. Ever since that time, what you don’t do can be held against you by the government, in a court of law. Get it? Neither do I.

Kelo v. City of New London ruled one private party’s judicial theft of another’s was a valid use of the takings clause. Two dozen Connecticut families were evicted and forced out of their homes. Their houses were bulldozed, neatly kept yards overgrown with weeds and left a dumping ground and home, for feral cats. Small matter to those homeowners the proposed “redevelopment” of their neighborhood, never happened.

In the entire history of the court there have only been 115 justices.

Some among those 115 have been magnificent human beings. Some of them were cranks. There have been instances of diminished capacity ranging from confusion to outright insanity. One justice spent part of his term in a debtor’s prison. Another killed a man. There have been open racists and anti-Semites.

There is no official portrait of the 1924 court because Justice James C. McReynolds wouldn’t stand next to Louis Brandeis, the court’s first Jewish Justice. One Justice was known to chase flight attendants around his quarters while another spent his time in chambers, watching soap operas.

There’s the former Klan lawyer turned Justice who took a single phrase from a private letter of Thomas Jefferson, “separation of church and state”, and transformed the constitutional freedom OF religion into an entirely made up freedom FROM religion.

The Supreme Court reinforced chattel slavery with the Dred Scott decision. The Korematsu ruling gave us the forced incarceration of Americans of Japanese descent. Buck v. Bell gave Americans the “gift” of forced sterilization and Stenberg v. Carhartt enshrined the constitutional “right” to the unthinkable “procedure” known as partial birth abortion. Hammer v. Dagenhart supported the practice of children, put to work in the nation’s mines and factories.

From “Separate but Equal” to the “rights” of terrorists, SCOTUS’ rulings are final, infallible and sometimes, imbecilic.

Chief Justice John Roberts once said “remember that it’s my job to call balls and strikes, and not to pitch or bat.”

He who invented a new definition of taxation enshrining the “Affordable Care Act” as the law of the land.

The constitution invests state legislatures with sole authority to determine state voting regulations. Yet recently, we had election officials and state courts changing key states’ voting rules while SCOTUS declined to intervene. Is there any wonder why half a nation questions the validity of that election?

Just don’t say it out loud or you’ll be de-platformed, or worse.

Today a man barely a week in office convenes a commission to recommend Supreme Court “reforms”, up to and including exhuming Roosevelt’s court packing scheme. It’s not hard to guess how that will turn out. Because it never really was about transparency, fairness or even democracy, was it. Just the raw exercise of power.

March 6, 1857 A Simple Man Who Wanted To Be Free

“We are now told, in tones of lofty exultation, that the day is lost all lost and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater”. – Frederick Douglass

Dred Scott. His given name may have been “Etheldred”. He was born into slavery in Southampton County, Virginia sometime in the late 1790s, home of Nat Turner’s rebelion, some 70 years before.. In 1818, Scott belonged to Peter Blow, who moved his family and six slaves to Alabama, to attempt a life of farming. The farm near Huntsville was unsuccessful and the Blow family gave up the effort, moving to St. Louis Missouri in 1830 to run a boarding house.

Blow died in 1832 and Dred Scott was sold to Dr. John Emerson, a surgeon serving in the United States Army.

dred__harriet_scott_quarters — Dred & Harriet Scott’s restored quarters, at Ft. Snelling

Taliaferro, who presided over the ceremony, transferred Harriet to Emerson, who continued to regard the couple as his slaves. Emerson moved away later that year, leaving the Scotts behind to be leased by other officers.

The following year, Dr. Emerson married Eliza Irene Sanford, and sent for the Scotts to rejoin him in Fort Jesup, in Louisiana. Harriett gave birth to a daughter while on a steamboat on the Mississippi, between the free state of Illinois and the Iowa district of the Wisconsin Territory.

Dr. Emerson died in 1842, leaving his estate to his wife Eliza, who continued to lease the Scotts out as hired slaves.

Four years later, Scott attempted to buy his freedom for the sum of $300, equivalent to about $10,000 in 2020. Mrs. Emerson declined the offer and Scott took legal recourse. By this time, Dred and Harriett Scott had two daughters who were approaching an age where their value would be greatly increased, should they be sold as slaves. Wanting to keep his family together, Scott sued.

Ironically, Dred Scott’s suit in state court, Scott v. Emerson, was financially backed by three now-adult Blow children, who had since become abolitionists.

The legal position stood on solid ground, based on the doctrine “Once free, always free”. The Scott family had resided in free states and territories for two years and their eldest daughter was born on the Mississippi River, between a free state and a free territory.

The verdict went against Scott but the judge ordered a retrial, which was held in January, 1850. This time, the jury ruled in favor of Dred Scott’s freedom. Emerson appealed and the Missouri supreme court struck down the lower court ruling, along with 28 years of Missouri precedent.

By 1853, Eliza Emerson had remarried and moved to Massachusetts, transferring ownership of the Scott family to her brother, John Sanford. Scott sued in federal district court, on the legal theory that the federal courts held “diversity jurisdiction”, since Sanford lived in one state (New York), and Scott in another (Missouri). Dred Scott lost once again and appealed to the United States Supreme Court, a clerical misspelling erroneously recording the case as Dred Scott v. Sandford.

On March 6, 1857, Chief Justice Roger B. Taney delivered the 7-2 majority opinion, enunciating one of the stupidest decisions, in the history of American jurisprudence:
“[Americans of African ancestry] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it”.

The highest court in the land had ruled that slaves were private property and not citizens, with no right to legal recourse. Furthermore, the United States Congress had erred in attempting to regulate slavery in the territories and had no right to revoke the property rights of a slave owner, based on his place of residence.

Response to the SCOTUS decision was immediate, and vehement. Rather than settle the issue once and for all, the ruling inflamed public opinion, further dividing an already fractured nation. Frederick Douglass assailed Chief Justice Taney’s opinion, noting that:

“We are now told, in tones of lofty exultation, that the day is lost all lost and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater”.

220px-Dred_Scott_photograph_(circa_1857) — Dred Scott, photograph circa 1857

The Supreme Court had spoken, but Dred Scott’s story was far from over. Eliza Irene Emerson’s new husband was Calvin C. Chaffee, an influential member of the United States Congress. And an abolitionist.

Dred Scott had lost at virtually every turn, only to win his freedom at the hands of the family who once held him enslaved.

For Harriett and the two Scott daughters, it was the best of all possible outcomes. For Scott himself, freedom was short-lived. Dred Scott died of tuberculosis, the following year.

Nationally, the Dred Scott decision had the affect of hardening enmities already nearing white-hot, increasing animosities within and between pro- and anti-slavery factions in North and South, alike. Politically, the Democratic party was broken into factions and severely weakened while the fledgling Republican party was strengthened, as the nation was inexorably drawn to Civil War.

The issue of Black citizenship was settled in 1868, via Section 1 of the 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside …”

Dred Scott is buried in the Calvary Cemetery in St. Louis, Missouri. The marker next to his headstone reads: “In Memory Of A Simple Man Who Wanted To Be Free.”

November 25, 1841 The Slave Ship Amistad

In arguing the case United States v. Schooner Amistad, former President John Quincy Adams took the position that no man, woman, or child in the United States could ever be sure of the “blessing of freedom”, if the President could hand over free men on the demand of a foreign government.

By 1839, the international slave trade was illegal in most countries while the “peculiar institution” of slavery, was not. In April of that year, five or six hundred Africans were illegally purchased by a Portuguese slave trader and shipped to Havana, aboard the slave ship Teçora.

Fifty-three members of the Mende people of West Africa, were sold to Joseph Ruiz and Pedro Montez, who planned to use them on their Cuban sugar plantation. The Mendians were given Spanish names and designated “black ladinos,” fraudulently documenting the 53 to have always lived as slaves, in Cuba. In June, Ruiz and Montez placed the Africans on board the schooner la Amistad, (“Friendship”), and set sail down the Cuban coast to Puerto del Principe.

jul-02-amistad — Replica of the slave ship, Amistad

The Africans were brought in chains to Teçora but chains were judged unnecessary for the short coastal trip, aboard Amistad. On the second day at sea, two Mendians were whipped for an unauthorized trip, to the water cask. One of them asked where they were being taken. The ship’s cook responded. They were to be killed, and eaten.

That mocking response would cost the cook, his life.

On the second night at sea, captives armed with cane knives seized control of the ship, led by Sengbe Pieh, also known as Joseph Cinqué. The Africans killed the ship’s Captain and the cook, losing two of their own, in the struggle. Montez was seriously injured while Ruiz and a cabin boy named Antonio, were captured and bound. The rest of the crew, escaped in a boat.

The mulatto cabin boy who really was a black ladino, would be used as translator.

Mendians forced the two to return to their homeland but the Africans, were betrayed. By day, the two would steer east, toward the African coast. By night when the position of the sun could mot be seen, the pair would turn north. Toward the United States.

After 60 days at sea, Amistad came aground off Montauk on Long Island Sound, when several Africans came ashore, for water. The ship was apprehended by a US Coastal Survey brig under the command of Thomas Gedney and Richard Meade. Meanwhile on shore, Henry Green and Pelatiah Fordham (the two had nothing to do with the Washington), captured the Africans who had come ashore.

Joseph_Cinque — This print depicting Joseph Cinqué appeared in The New York Sun newspaper, August 31, 1839

Amistad was piloted to New London Connecticut, still a slave state at that time. The Africans were placed under the custody of United States marshals.

Both the slave trade and slavery itself were legal according to Spanish law at this time, while the former was illegal, in the United States. The Spanish Ambassador demanded the return of Ruiz’ and Montez’ “property”, asserting the matter should be settled under Spanish law. American President Martin van Buren agreed but, by that time, the matter had fallen under court jurisdiction.

Gedney and Meade of the Washington sued under salvage laws for a portion of the Amistad’s cargo, as did Green and Fordham. Ruiz and Montez sued separately. The district court trial in Hartford determined the Mendians’ papers to be forged. These were now former slaves entitled to be returned, to Africa.

Antonio was ruled to have been a slave all along and ordered returned to the Cubans. He fled to New York with the help of white abolitionists and lived out the rest of his life, as a free man.

Fearing the loss of pro-slavery political support, President van Buren ordered government lawyers to appeal the case up to the United States Supreme Court. The government case depended on the anti-piracy provision of a treaty then in effect between the United States, and Spain.

A former President, son of a Founding Father and eloquent opponent of slavery, John Quincy Adams argued the case, in a trial beginning on George Washington’s birthday, 1841.

In United States v. Schooner Amistad, the Supreme Court upheld the decision of the lower court 8-1, ruling that the Africans had been detained illegally, and ordering them returned to their homeland.

John Tyler, a pro slavery Whig, was President by this time. Tyler refused to provide a ship or to fund the repatriation. Abolitionists and Christian missionaries did the work, 35 surviving Mendians departing for Sierra Leone on November 25, 1841 aboard the ship, Gentleman.

Back in Sierra Leone, some of the Africans helped establish a Christian mission. Most including Joseph Cinque himself, returned to homelands in the African interior. One survivor, a little girl when it all started by the name of Margru, returned to the United States where she studied at Ohio’s integrated Oberlin College, before returning to Sierra Leone as the Christian missionary, Sara Margru Kinson.

In arguing the case, President Adams took the position that no man, woman, or child in the United States could ever be sure of the “blessing of freedom”, if the President could hand over free men on the demand of a foreign government.

152 years later, President Bill Clinton, Deputy Attorney General Eric Holder and AG Janet Reno orchestrated the kidnap of six-year-old Elián González at gunpoint, returning him to Cuba over the body of the mother who drowned bringing the boy to freedom.

September 24, 1789 Supreme Court

From “Separate but Equal” to the “rights” of terrorists, SCOTUS’ rulings are final, inviolate, and sometimes imbecilic.

Article III of the United States Constitution establishes the Supreme Court of the United States (SCOTUS), and “such inferior Courts as the Congress may from time to time ordain and establish”.

There is no mention of the number of justices. The first Congress passed the Federal Judiciary Act on September 24, 1789, specifying a six-justice Supreme Court.

The framers gave us a Constitutional Republic with co-equal branches of government, with power diffused and limited by a comprehensive set of checks and balances.

They gave us two distinct means to amend that Constitution, should circumstances require it.

If you enjoyed this “Today in History”, please feel free to re-blog, “like” & share on social media, so that others may find and enjoy it as well. Please click the “follow” button on the right, to receive email updates on new articles. Thank you for your interest, in the history we all share.

July 22, 1937 Stacking the Deck

To Roosevelt, President Wilson’s age-70 provision was the answer to his problems, and the end to Supreme Court opposition to his policies.

Article III, Section 1 of the United States Constitution creates the highest court in the land. The relevant clause states that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish“. Nowhere does the document specify the number of justices.

The United States was in the midst of the “Great Depression” in 1932, when President Franklin Delano Roosevelt came to office. Roosevelt had promised a “New Deal” for America, and immediately began a series of sweeping legislative reforms designed to counter the devastating effects of the Depression. Roosevelt’s initiatives faced many challenges in the courts, with the Supreme Court striking down several New Deal provisions as unconstitutional in his first term.

The Supreme Court was divided along ideological lines in 1937, as it is today. “Judicial Realist” or “Liberal” legal scholars and judges argued that the constitution was a “living document”, allowing for judicial flexibility and legislative experimentation. Justice Oliver Wendell Holmes, Jr. first referred to a “living constitution” in 1920 in speaking of Missouri v. Holland, a case which overrode state concerns about abrogation of states’ rights arising under the Tenth Amendment. The “case before us” Holmes wrote, “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago”.

“Judicial Formalists”, today we call them “Conservatives” or “Originalists”, seek to discover the original meaning or intent of the framers, of the Constitution. Formalist legal scholars and judges argue that the judiciary is not supposed to create, amend or repeal law; that is for the legislative branch. The role of the court is to interpret and uphold any given law, or strike it down in light of the original intent of the framers and the ratifiers.

In 1937, SCOTUS was divided along ideological lines, with three Liberals, four Conservatives, and two swing votes.

a17ae32f36799df2bd0cc8aca6bef86477e1e703

Woodrow Wilson’s Attorney General, James Clark McReynolds, made a proposal in 1914 that: “(When) any judge of a federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law (at age 70), that the President be required, with the advice and consent of the Senate, to appoint another judge, who would preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court”.

To the President, this was the answer. The age 70 provision allowed Roosevelt to nominate 6 more handpicked justices, effectively ending Supreme Court opposition to his policies.

Roosevelt’s “Judiciary Reorganization Bill of 1937” immediately came under sharp criticism from legislators, bar associations, and the public. Senate Judiciary Committee began hearings on the bill on March 10, 1937, reporting it “adversely” by a committee vote of 10 to 8. The full senate took up the matter on July 2, 1937, with the Roosevelt administration suffering a disastrous setback when Senate Majority Leader Joseph T. Robinson, a powerful supporter of the legislation, died of a heart attack.

The full Senate voted on July 22, 1937, to send the bill back to the Senate Judiciary Committee, where provisions for additional justices were stripped from the bill. A modified version passed in August, but Roosevelt’s “Court Packing” scheme was dead.

In the end, the President would have the last word. Over the course of an unprecedented four terms, Roosevelt would eventually appoint eight out of the nine justices, serving on the Court.

If you enjoyed this “Today in History”, please feel free to re-blog, “like” & share on social media, so that others may find and enjoy it as well. Please click the “follow” button on the right, to receive email updates on new articles. Thank you for your interest, in the history we all share.

March 6, 1857 Dred Scott

Dred Scott had lost at virtually every turn, only to win his freedom at the hands of the family which had once held him enslaved.

Dred Scott, his full name may have been “Etheldred”, was born into slavery in Southampton County, Virginia, sometime in the late 1790s. In 1818, Scott belonged to Peter Blow, who moved his family and six slaves to Alabama, to attempt a life of farming. The farm near Huntsville was unsuccessful and the Blow family gave up the effort, moving to St. Louis Missouri in 1830, to run a boarding house. Around this time, Dred Scott was sold to Dr. John Emerson, a surgeon serving in the United States Army.

As an army officer, Dr. Emerson moved about frequently, bringing Scott with him. In 1837, Emerson moved to Fort Snelling in the free territory of Wisconsin, now Minnesota. There, Scott met and married Harriet Robinson, a slave belonging to fellow army doctor and Justice of the Peace, Lawrence Taliaferro. Taliaferro, who presided over the ceremony, transferred Harriet to Emerson, who continued to regard the couple as his slaves. Emerson moved away later that year, leaving the Scotts behind to be leased by other officers.

Dr. Emerson died in 1842, leaving his estate to his wife Eliza, who continued to lease the Scotts out as hired slaves.

Four years later, Scott attempted to buy his freedom for the sum of $300, equivalent to about $8,000 today. Mrs. Emerson declined the offer and Scott took legal recourse. By this time, Dred and Harriett Scott had two daughters, who were approaching an age where their value would be greatly increased, should they be sold as slaves. Wanting to keep his family together, Scott sued.

Ironically, Dred Scott’s suit in state court, Scott v. Emerson, was financially backed by three now-adult Blow children, who had since become abolitionists. The legal position stood on solid ground, based on the doctrine “Once free, always free”. The Scott family had resided in free states and territories for two years, and their eldest daughter was born on the Mississippi River, between a free state and a free territory.

By 1853, Eliza Emerson had remarried and moved to Massachusetts, transferring ownership of the Scott family to her brother, John Sanford. Scott sued in federal district court, on the legal basis that the federal courts held “diversity jurisdiction”, since Sanford lived in one state (New York), and Scott in another (Missouri). Dred Scott lost once again and appealed to the United States Supreme Court, a clerical misspelling erroneously recording the case as Dred Scott v. Sandford.

On March 6, 1857, Chief Justice Roger B. Taney delivered the 7-2 majority opinion, enunciating one of the stupidest decisions, in the history of American jurisprudence:
“[Americans of African ancestry] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it”.

The highest court in the land had ruled that slaves were private property and not citizens, with no right to legal recourse. Furthermore, the United States Congress had erred in attempting to regulate slavery in the territories, and had no right to revoke the property rights of a slave owner, based on his place of residence.

The response to the SCOTUS opinion was immediate, and vehement. Rather than settle the issue of slavery, the decision inflamed public opinion, dividing an already fractured country, further. Frederick Douglass assailed Chief Justice Taney’s opinion, noting that:

“We are now told, in tones of lofty exultation, that the day is lost all lost and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still . . . The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater”.

The Supreme Court had spoken, but the Dred Scott story was far from over. Eliza Irene Emerson’s new husband was Calvin C. Chaffee, a member of the United States Congress, and an abolitionist.

Following the Dred Scott decision, the Chaffees deeded the Scott family over to Henry Taylor Blow, now a member of the United States House of Representatives from Missouri’s 2nd Congressional district, who manumitted the family on May 26. Dred Scott had lost at virtually every turn, only to win his freedom at the hands of the family which had once held him enslaved.

For Harriett and the two Scott daughters, it was the best of all possible outcomes. For Scott himself, freedom was short-lived. Dred Scott died of tuberculosis, the following year.

Nationally, the Dred Scott decision had the effect of hardening enmities already nearing white-hot, increasing animosities within and between pro- and anti-slavery factions in North and South, alike. Politically, the Democratic party was broken into factions and severely weakened, while the fledgling Republican party was strengthened, as the nation was inexorably drawn to Civil War.

Dred Scott is buried in the Calvary Cemetery in St. Louis, Missouri. The marker next to his headstone reads: “In Memory Of A Simple Man Who Wanted To Be Free.”

If you enjoyed this “Today in History”, please feel free to re-blog, “like” & share on social media, so that others may find and enjoy it as well. Please click the “follow” button on the right, to receive email updates on new articles. Thank you for your interest, in the history we all share.

February 22, 2005 Not for Sale

“Something has gone seriously awry with this Court’s interpretation of the Constitution”, Thomas wrote. “Though citizens are safe from the government in their homes, the homes themselves are not”.

In 1775, Connecticut Governor Jonathan Trumbull proposed a fortification at the port of New London, situated on the Thames River and overlooking Long Island Sound. The fort was completed two years later and named for the Governor. During the Revolution, Fort Trumbull was attacked and occupied by British forces, for a time commanded by the turncoat American General, Benedict Arnold.

By the early 20th century, the Fort Trumbull neighborhood consisted of 90 or so single and multi-family working class homes, situated on a peninsula along the fringes of a mostly industrialized city center.

GZUCKER_030 — In 2000, Susette Kelo and her “little pink house” became the main plaintiff in the Supreme Court eminent domain case, “Kelo v. New London”

In 1996, chemists working at Pfizer Corporation’s research facility in England were studying compound UK-92, 480 or “Sildenafil Citrate”, synthesized for the treatment of a range of thoracic circulatory conditions. Study subjects were expected to return unused medication at the end of the trial. Women showed no objection to doing so but a significant number of male subjects refused to give it back. It didn’t take long to figure out what was happening. The chemical compound which would one day bear the name “Viagra”, had revealed itself to be useful in other ways.

For the newly divorced paramedic Susette Kelo, the house overlooking the Fort Trumbull waterfront was the home of her dreams. Long abandoned and overgrown with vines, the little Victorian cottage needed a lot of work, but where else was she going to find a waterfront view at such a price? It was 1997, about the time that Connecticut and New London politicians resurrected the long-dormant New London Development Corporation (NLDC), in an attempt to revitalize the city’s waterfront.

Susette Kelo sanded her floors on hands and knees as Pfizer Corporation, already occupying the largest office complex in the city, was looking at a cataract of new business based on their latest chemical compound. The company was recruited to become the principal tenant in a “World Class” multi-use waterfront campus, including high-income housing, hotels, shopping and restaurants, all centered around a 750,000 sq. ft. corporate research facility.

062405ED1 — Bill von Winkle stands in front of two properties he owns in the Fort Trumbull neighborhood of New London, CT

Connecticut College professor and NLDC President Dr. Claire Gaudiani liked to talk about her “hip” new development project. Fort Trumbull residents were convinced that stood for “High Income People”. With an average income of $22,500, that didn’t include themselves.

Most property owners agreed to sell, though not exactly “voluntarily”. There was considerable harassment of the reluctant ones, including late-night phone calls, waste dumped on properties, and tenants locked out of apartments during cold winter weather.

Seven homeowners holding fifteen properties refused to sell, at any price. Wilhelmina Dery was in her eighties. She was born in her house and she wanted to die there. The Cristofaro family had lost another New London home in the ’70s, taken by eminent domain during yet another “urban renewal” program. They didn’t want to lose this one, too.

Susette Kelo and her “little pink house”

In 2000, Susette Kelo came home from work the day before Thanksgiving, to find an eviction notice taped to her door.

Letters were written to editors and protest rallies were held, as NLDC and state officials literally began to bulldoze homes. Holdout property owners were left trying to prevent personal injury and property damage, from flying demolition debris.

Facing a prolonged legal battle which none of the homeowners could afford, the group got a boost when the Libertarian law firm Institute for Justice took their case pro bono. There was cause for hope. Retired homeowner Vera Coking had faced a similar fight against Now-President Donald Trump’s development corporation back in 1993, when the developer and Atlantic City New Jersey authorities attempted to get her house condemned to build a limo lot.

Eminent domain exists for a purpose, but the most extreme care should be taken in its use. Plaintiffs argued that this was not a “public use”, but rather a private corporation using the power of government to take their homes for economic development, a violation of both the takings clause of the 5th amendment and the due process clause of the 14th.

Vera Coking won her case against the developer and the municipality. The casino itself later failed and closed its doors. New London District Court, with Susette Kelo lead plaintiff, “split the baby”, ruling that 11 out of 15 takings were illegal and unconstitutional. At that point, the ruling wasn’t good enough for the seven homeowners. They had been through too much. All of them would stay, or they would all go.

Connecticut’s highest court reversed the decision, throwing out the baby AND the bathwater in a 3-4 decision. The United States Supreme Court agreed to hear the case, argued before the seven justices then in attendance on February 22, 2005.

SCOTUS ruled in favor of New London in a 5-4 decision, Justices Stevens, Kennedy, Souter, Ginsburg and Breyer concurring. Seeing the decision as a reverse Robin Hood scheme that would steal from the poor to give to the rich, Sandra Day O’Connor wrote “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms“.

Clarence Thomas took an originalist view, stating that the majority opinion had confused “Public Use” with “Public Purpose”. “Something has gone seriously awry with this Court’s interpretation of the Constitution“, Thomas wrote. “Though citizens are safe from the government in their homes, the homes themselves are not“. Antonin Scalia concurred, seeing any tax advantage to the municipality as secondary to the taking itself.

In the end, most of the homes were destroyed or relocated. State and city governments spent $78 million and bulldozed 70 acres. The 3,169 new jobs and the $1.2 million in new tax revenue anticipated from the waterfront development, never materialized. Pfizer backed out of the project, moving 1,400 existing jobs to a campus it owns in nearby Groton. The move was completed around the time when tax breaks were set to expire, raising the company’s tax bill by 500%.

Susette Kelo sold her home for a dollar to Avner Gregory, a preservationist who dismantled the little pink house and moved it across town. A monument to what Ambrose Bierce once called “The conduct of public affairs for private advantage”.

Movie Trailer and feature image above from the film “Little Pink House”, scheduled for release in April, 2018.

In 2011, the now-closed redevelopment area became a dumping ground for debris left by Hurricane Irene. The only residents, were feral cats.

September 24, 1789 SCOTUS

Over time, SCOTUS has proven itself to be as imperfect as any other institution. There have only been 112 justices in the history of the court. Some of them have been magnificent human beings, and some of them cranks.

Article III of the Constitution establishes the Supreme Court of the United States (SCOTUS), and “such inferior Courts as the Congress may from time to time ordain and establish”.

There’s no mention of the number of justices. The first Congress passed the Federal Judiciary Act on September 24, 1789, creating a six-justice Supreme Court.

The case advanced all the way to the Supreme Court, which ruled in Marbury v. Madison that the provision of the Judiciary Act enabling Marbury to bring his claim, was unconstitutional. Marbury had lost his case, but the principle of judicial review, the idea that the court could preside, Godlike, over laws passed by their co-equal branch of government, has been the law of the land, ever since.

With the Agricultural Adjustment Act of 1938, Washington began to impose production quotas on the nation’s farmers. Ohio farmer Roscoe Filburne was ordered to grow 223 bushels of wheat in the 1941 season. Filburne grew 462.

Article 1, Section 8 of the Constitution permits Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. On this flimsy basis, the Federal Government took Roscoe Filburne to court.

Intimidated by the Roosevelt administration’s aggressive and illegal “court packing scheme“, SCOTUS ruled against the farmer. Ever since, what you don’t do can be held against you in a court of law. Get it? Neither do I.

Some of them have been magnificent human beings, and some of them cranks. There have been instances of diminished capacity ranging from confusion to outright insanity. One justice spent part of his term in a debtor’s prison. Another killed a man. There have been open racists and anti-Semites.

The Supreme Court reinforced chattel slavery with the Dred Scott decision. The Korematsu ruling gave us the forced incarceration of Americans of Japanese descent. Buck v. Bell gave American women the gift of forced sterilization, and Stenberg v. Carhartt enshrined the constitutional “right” to the hideous and detestable “procedure” known as partial birth abortion. From “Separate but Equal” to the “rights” of terrorists, SCOTUS’ rulings are final, inviolate, and sometimes imbecilic.

The framers gave us a Constitutional Republic with co-equal branches of government, with power diffused and limited by a comprehensive set of checks and balances.

They gave us two distinct means to amend that Constitution, should circumstances require it.

July 22, 1937 Packing the Court

Article III, Section 1 of the United States Constitution creates the highest court in the land. The relevant clause states that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”. Nowhere does the document specify the number of justices.

The United States was in the midst of the “Great Depression” when President Franklin Delano Roosevelt came to office in 1932. He had promised a “New Deal” for America, immediately beginning a series of sweeping legislative reforms designed to counter the devastating effects of the Depression. His initiatives faced many challenges in the courts, with the Supreme Court striking down as unconstitutional several New Deal provisions in his first term.

The Supreme Court was divided along ideological lines in 1937, as it is today. “Judicial Realist” or “Liberal” legal scholars and judges argued that the constitution was a “living document”, allowing for judicial flexibility and legislative experimentation. Supreme Court justice Oliver Wendell Holmes, Jr., a leading proponent of the Realist philosophy, said of Missouri v. Holland that the “case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago”.

“Judicial Formalists”, today we call them “Conservatives” or “Originalists”, seek to discover the original meaning or intent of the constitution. Formalist legal scholars and judges argue that the judiciary is not supposed to create, amend or repeal law; that is for the legislative branch. The role of the court is to interpret and uphold law, or strike them down in light of the original intent of the framers, and the ratifiers, of the constitution.

In 1937, SCOTUS was divided along ideological lines, with three Liberals, four Conservatives, and two swing votes.

President Woodrow Wilson’s Attorney General, James Clark McReynolds, made a proposal in 1914 that: “(When) any judge of a federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law (at age 70), that the President be required, with the advice and consent of the Senate, to appoint another judge, who would preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court”.

To Roosevelt, that was the answer. The age 70 provision allowed him 6 more handpicked justices, effectively ending Supreme Court opposition to his policies.

Roosevelt’s “Judiciary Reorganization Bill of 1937” immediately came under sharp criticism from legislators, bar associations, and the public. The Senate Judiciary Committee began hearings on the bill on March 10, 1937, reporting it “adversely” by a committee vote of 10 to 8. The full senate took up the matter on July 2, with the Roosevelt administration suffering a disastrous setback when Senate Majority Leader Joseph T. Robinson, a powerful supporter of the legislation, died of a heart attack.

The full Senate voted on July 22, 1937, to send the bill back to the Judiciary Committee, where provisions for additional justices were stripped from the bill. A modified version passed in August, but Roosevelt’s “court packing” scheme was dead.

In the end, the President had the last word. After an unprecedented four terms, Roosevelt would eventually appoint eight of nine justices to the Court.

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Movie Trailer and feature image above from the film “Little Pink House”, scheduled for release in April, 2018.

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