Sunday, November 26, 2006

Judicial activism in the 19th century

In one of the Supreme Court's most notorious decisions, Chief Justice Roger B. Taney wrote the maority opinion that ruled that the laws of slave states applied to slave Dred Scott even after his master had moved him to a free state. As the WSJ wrote:
The opinion Taney wrote for the majority in Dred Scott not only guaranteed slaveholders' ability to move slavery into the territories but also tacked on the gratuitous announcement that blacks were incapable of rising to the level of citizenship and therefore had no rights, under the Constitution, that could be violated by enslavement.
Nothing in the constitution supported Taney's conclusions: his decision was simply judicial activism. His activism came from the same source as today's activists. Taney was appointed to the Supreme Court by Andrew Jackson, the US president from the newly formed Democratic party. Only two justices dissented from the Dred Scott decision: Benjamin Robbins Curtis and John McLean. Curtis was was appointed to the Court by President Fillmore of the Whig party, which was, for a while, the main opposition to the Democrats. Originally a Jackson Democrat, McLean's strong opposition to slavery lead him eventually to join the Republican Party where he was twice a candidate for the Republican nomination for president.

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