President Trump touts his Supreme Court nominee, Neil Gorsuch, as a strict constructionist, a highly valued quality in the eyes of conservative Republicans. Yet, it’s sort of like saying this fellow who will stick to his principles no matter how awful the outcome.

A classic example of taking it too far was the case of Dred Scott, a U.S. Supreme Court decision so awful it paved the way for Civil War.

OPINION

Roger Taney, chief justice of the U.S. Supreme Court, ruled that by carefully studying the U.S. Constitution and the debates of the founding fathers leading to its adoption, it had become clear to him that “negroes” imported as slaves, or free blacks whose ancestors had been slaves, could not be considered American citizens under the law. They were inferior to whites and could be treated as property.

That’s the way things stood when the Constitution was written, as Taney saw it, and so that’s the way it would remain in 1857 when he wrote his infamous Supreme Court decision.

Scott had sued his owners for his freedom in 1846 because they had taken him from Missouri, a slave state, to live in Illinois and then the Wisconsin Territory, which were free. The Missouri Supreme Court had routinely upheld the laws of northern states that slaves voluntarily transported by their owners into free states gained their freedom as a result.

For more than 10 years as Scott’s case worked its way through the courts, he and his wife remained slaves and were hired out to work by their owners. At any point during the court case, they could have been sold, separated and shipped anywhere in the country where slavery was legal.

Scott knew that. He understood the terrible intimidation involved whenever a black man fought for his inalienable rights, and yet he continued to seek justice through the legal system. That’s an act of courage and faith in the judicial process that is beyond my comprehension.

I believe the U.S. Constitution is a living document. That means it is a set of rules designed to be flexible enough to change with the times, address challenges our founding fathers could not have imagined, and create a foundation for a better future.

Taney, the strict constructionist, viewed the Constitution as rock solid and inalterable.

So in his written opinion the chief justice stated, “The words ‘people of the United States’ and ‘Citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions form the sovereignty and who hold the power and conduct the Government through their representatives.

“They are what we familiarly call the ‘sovereign people,’ and every citizen is one of the people, and a constituent member of their sovereignty.

“The question before us is whether the class of persons described in the plea…compose a portion of this people, and are constituent members of this sovereignty?

“We think they are not and that they are not included, under the word ‘citizens,’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

“On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

I see no greatness in a strict interpretation of the Constitution. Its glory comes not only from the wisdom of its words, but through the ability of the human heart to give them new life by applying common sense to their original intent.

There was a time when a strict reading of the Constitution was used to justify slavery, although its original purpose was clearly to guarantee freedom.

Email: philkadner@gmail.com

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