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tv   American History TV  CSPAN  December 27, 2014 2:56am-3:43am EST

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you're part of one where we're trying to convince those high school students that they better understand this and they should understand its history and they should how it relates to democracy, human rights, et cetera, rule of law, because if they don't understand it, they won't have it. that's the connection between the courthouse, the judiciary committee, the judiciary itself and the document that you want to talk about which i'm delighted to let you talk about. >> one or two more questions that are always people ask, i assume you. when you got on the supreme court, appointed by president clinton, when you had your interview with him, famously you had been injured, unfortunately, in a bicycle accident and then you kind of get out of the hospital to go to the interview or -- wasn't that kind of awkward to go do an interview when you were not in such good shape, you had broken some bones? >> i don't know. i can't remember. >> all right. so you get on the court.
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you get on the supreme court and when you're on the court, how was the court when you got to be a justice different than when you were clerk. you had clerked from arthur goldberg when you got through with harvard law school. was it much different being a justice than a clerk. >> in some ways yes, in some ways no. >> are the most significant cases since you've been on the court -- you've been on the court 20 years -- would you say bush v. gore was the most significant in your tenure? >> yes. and do you think that that case would have been the one that decided the presidential election had it gone another way? in other words, suppose you hadn't made that decision or you hadn't taken up that case. do you think the presidential outcome would have been different? >> i don't actually. i mean you can debate that. but if you read through the statutes that the way the president would have been selected and can you look at the
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later efforts to count the votes that were cast in florida, which i think the press did in the different scenarios, i think i'd come down on the side of might have been the same. but the democratic processes that were working in a rather complicated way and not necessarily so perfectly. but that was not my job. my job was to decide that particular case. on that case i was in a dissent. i dissented in that case. but i think the most important thing about the case, most important -- the person who said this, the person who said this was harry reid. who i think would have thought that maybe my side was right. harry reid said something that's the most remarkable thing about that case, something that's been very, very remarked. that was, despite the case that it was so important -- and it was -- and despite the fact that is not popular -- and it was not popular with at least half the country. may a few more than half.
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but nonetheless, it was not popular particularly and it was, in my opinion, wrong. i think he thinks so, too. the remark animal thing is there were not people killed. there were not riots. there were not paving stones throw at people's heads in the street. there were no guns. people accepted it. when i say that to a student audience, i usually add the following. i know perfectly well that a good percentage of you and i say that are sitting there thinking, and too bad there weren't a few riots. too bad there weren't a few. for those people i would like you to turn on ot television set and i would like you to see how -- what happens in countries where people decide their major disagreements that way. we have decided to decide our major disagreements under a system of law, and that is a
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remarkable thing that people actually follow that. as a long history and that history does begin 800 years ago with the document that i see robert here -- its ai's his committee -- he's trying to say that document, king john and those hoofbeats or whatever it was, that that is where that began. >> there is the famous magna carta. but why do you think it is so famous in the sense that it was abrogated by sing john aking jo pope very shortly after it was agreed to. why did it become a big part of our actual history when it never went into effect? >> you know more about the history of the magna carta than do i. you have helped preserve the magna carta with the archives because you help the archives preserve that. that's the 1294, or 1297.
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and you're asking a very good question because i wouldn't have known the distinction which you would have known between 1297 and 1215. but as you pointed out, and others, lord cook blackstone, over a period of time, pointed to that document. habeas corpus developed afterwards so that people could take advantage of that document. now what part of it is the part they want to take advantage of and that's lasted? the part that says you will not be imprisoned or fined or disseized -- your land taken away -- except in accordance with the judgment of your pierce peers or rule of law. that's it. they pointed to that as the most basic thing. that's what adams and others, the founders, found so important. and it is a symbol of that which it contains.
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and indeed that's why our constitution has no person shall be deprived of life, liberty or property without due process of law. twice. once in 1787 and written again after the civil war so that it makes certain it applies to everybody in the united states of america. and that's what -- it is such a simple idea. but that's what people all over the world today are trying to see if they cannot embody in institutions. but go back for a second to bush v. gore. why is it so tough to embody it in an institution? why? because we mostly -- it's the same question as with free speech. when i'm talking to students, i say, you know, you're for free speech. everybody's for free speech. they're for the free speech and someone who agrees with them. when they hear someone that really disagrees with them, they
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say not that! oh, not that. truly not that. i hate to tell you this but that isn't free speech. so what harry reid is pointing out, that the remarkable thing about the rule of law in the united states is on matters that are important, unpopular, and maybe wrong. because judges are human beings and can get things wrong. and do. they'll follow it. they'll follow it. and it's so easy to do it when you like it. it's so easy to do it when you think it's really not going to affect me. it's so easy to do it when, you know, okay, great, it's wonderful, doesn't make any difference who cares. either case. but when you really think it's wrong and it is really going to affect you, it is pretty hard to do. and it's that tradition that's been built up and it's been built up over a long period of time. and the magna carta that we
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recognize is not the document of 1215, nor the document that you have over in the archives of 1297. it is those documents and those words, plus the fact that we have 800 years of practice in britain and in the united states and a few other places where, for some miracle, it's built into a habit. it's built into a habit, into a custom, into a way of behaving so that actually the people will do it when they don't like it. now, there we are. that is rule of law. and it is that to which blackstone and book were pointing and that's what we're pointing right now. >> so when our country was being created, the colonies were being put together, the charters for the colonies were being drafted by people like cook. they actually helped the virginia charter. in tlt chahe charters will say, virginia commonwealth will have the rights of english plmen -- e
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people will have the rights of englishmen. i think that's where the sense came in the colonies. when you are deciding a supreme court case, do you ever say to one of the other justices, well, let me go look it up in the magna carta or do you say, well, not really, we just kind of build on the magna carta. have you ever written an opinion where you actually used the frayed "magna carta." >> i've talked about the magna carta and the opinion i think was one of the more important ones that we wrote was when we had four cases involving guantanamo. and in eecach of those cases we had a plaintiff or a petitioner, probably, who was a prisoner in guantanamo. and the respondent or the defendant was the president of the united states or the equivalent. now you have a person like bin laden's driver. bin laden's driver was not the most popular person in the
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united states. against george w. bush, the president of the united states, a very powerful individual. in each of those four cases it was the person -- the prisoner who won. the last case, which i think was the most important, where the question was could congress suspend the writ of habeas corpus. it is the writ, not from the magna carta but soon thereafter over the years. and it means that if you get to a judge, anything -- i had a case where there was a rock thrown out the window of someone that was being detained, the husband of a woman from dominican republic was being detained by a customs officer in puerto rico. he threw a rock out the window, says bring me to the judge. the judge says bring me the body and let that jailer explain himself to see if that person is being held under the law or is being held arbitrarily. he explained himself.
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the judge then said that jailer was wrong, now release him. that writ of habeas corpus there was a question, did it extend to guantanamo. and we first said the statute does extend to guantanamo. congress passed a special law saying it doesn't. so the question was whether or not that writ extended allowing them to come into court, to a prisoner in guantanamo, where congress says tn doesn't. but there is a provision in the constitution that says congress may suspend the writ of habeas corpus at time of rebellion or insurrection. we said guantanamo is 90 miles away, we control it. we control it. it may say sovereignty in cuba but the cubans can't get it back unless we decide to use it as a culling station or what they now call it a naval base. so we said this is america and the writ does extend and in
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writing that, justice kennedy wrote the opinion for the court, wrote an opinion says let's trace the history of this thing. and right there is a whole paragraph that it the history begins with the magna carta and then fades into aered poo whe p it is going to be enforced and this is not a minor thing. we have a constitution than doesn't just guarantee democracy. it guarantees democracy, basic human rights, a degree of equality, it has separation of powers and so forth and it guarantees a rule of rule. with a document like that, this is a critical part and therefore congress cannot -- it cannot suspend this wrist habeas corps prus. t corpus. prisoners in guantanamo have a right to come into court and try to claim and prove that they are being held contrary to law. >> was that a unanimous -- >> no, it was not unanimous. there was a majority that was
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for it and i was on that side so i tend to think it was unanimous. >> let's suppose like on bush v. gore or anything where you are in the minority -- >> i have been in the minority. >> a few times maybe. >> you ever go to one of the justices say, i need a favor here, could you just switch your vote? maybe i could be on the majority then? you ever do a little trading like that? >> no. no. no. >> they just don't. >> no. there are two unwritten rules that i think are important in the court. they're not written anywhere. but after a case we met in the conference room, we discuss it. we're alone. we go around the table. and everyone says what he thinks of the case. and the rule is nobody speaks twice until everyone's spoken once. excellent. fabulous. not written anywhere. but that -- we have discussion after that but that's a very good system. the second unwritten rule is the cases are independent of each other. they aren't necessarily independent insofar as the principle of law has a relation
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one to the other, but the suggestion you do this here, i'll do that there -- no. zero. it's called tomorrow is another day. i mean you and i were great allies on case one, tremendous allies. we thought we were so right. and now we have case two and we're absolutely at odds. how can somebody who thought so sensibly in the last case have lost his mind? i mean that's is what it is. that is what it is. now you have brought up -- if you want me to go on -- >> yes. i do. >> the way i get your question often in and student audience is, they'll say something sort of like what you said. i say i know what you're actually thinking. what you're actually thinking is aren't weise junior league politicia politicians. that's it. there are three things people think. one, they think that we take cases just whatever we would like, what fun this case would be. that is not how the cases are
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chosen. i'll spare you that. then they think we just decide the cases with "like." i just do whatever i like. i say i never do what i like. are you kidding? is it's like being married. i don't just sit there and it -- but the third thing they think is that we are junior league politicians. i say, no. they say naturally you'd say that! i say, well, look. 50% of the cases are unanimous. close to 48% last year. the 5-4s were about 20% usually. in fact, there were ten 5-4 cases last year out of 73, 72. something in the 70s. and of those ten, six were what you'd call, the press view, the usual suspects, "liberal/conservative," et cetera. six. so, yes, i'm making a limit progress here with my audience because then they say, ah, well
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those were the important ones! i say well those were the ones that the press -- oh, well. so i say, okay, let's look at them. first of all often, because a person has a sort of basic judicial philosophy that leads them one way or another, isn't quite conservative/liberal either. but, look. the words "liberty" in the 14th and 5th amendment, the words even "the freedom of speech," they don't quite explain themselves. we're taking cases really on the criteria pretty much that lower court judges have come to different conclusions on the same question of law so they're open questions, they're very hard questions and right on the borderlines very often. and so, look. we're not going to be able to get the answer just by looking up some prior case. we're not computers either. you say, you're beating around the bush. no, i'm not. i'm not. i've been there 20 years. i've not seen a decision like that. and i can even explain bush v.
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gore for you decided on the basis of what i call politics. politics are, are you a democrat or a republican. where are the votes. no, zero. all right, you're going to say "bush v. gore." i say i need an hour on that one but i can bring you around. you say, no, i didn't mean politics like that. i meant ideology. free enterprise adam smith? am i maoist troublemaker? you mean like that? yeah, more like that. i say that's not right either. but there is something that's right. something that's right is this, that i grew up where i grew up. you say san francisco? yeah. i grew up in san francisco. i grew up in the 1950s. i went to public schools. i've had a long time in the law. i am the person i am. and by the time you're in any profession for a few years and a while and you practice is and have life experience, you'll have views. what kind of views? very basic philosophical views. if you're a lawyer,
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jurisprudence, what is this document about, how does it relate to people, what's the country like. that's who you are in your profession and you can not jump out of your own skin. and you shouldn't. and therefore, on that basis, you will find differences and you will find coalescing around certain basic things. but i don't think that's a terrible thing. it is a big country. you have 300-some-odd -- 20 million, 10 million, 20 million people and they think a lot of different things and it is not such a terrible thing. but on the supreme court of the united states, over long periods of time, you have people who think quite different basic views about how this document should be interpreted. it's okay. why not let the american people see justices when they're
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hearing cases? why not televise it? >> that's a good question which you may or may not like the answer. i haven't actually had to vote on that. and there are supreme courts that do let the television in. and there is a good argument for doing it. why should the television it be treated differently than the written press? the written press is there during the oral argument. you're less familiar with the arguments the other way because i think the press is less familiar with them. no one understands an argument when -- better than when it is in your back door. there are several reasons that are of some weight and some of real weight. of course, it's simple, it will be everywhere in the country,
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flakes won neighbors won't testify right. the oral argument is 5% of the argument. the process is mostly in writing. they won't understand. or people relate to people. good. when you see a person on television, you relate to that person. not necessarily in the press as much. but our job is not to decide the cases for these two people in the courtroom. it is to consider and write or explain a rule of law that is for 300 million people who aren't in the courtroom. that will not come across on television unless they make a real effort -- and some do, but not too many. all right? but then you want the real weighty reason. which i think? >> which is? >> i have an lot of friends in the press who say, you think you won't be affected by the camera in that courtroom. we have the press there already. you think people will not behave
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differently. you think you're used to it and you can just do exactly and say exactly what you want to do. which i do, by the way. sometimes to my disadvantage. but i do ask whatever -- you think you will? um-huh. you think you will? you wait until the first time you look at the television set and you see a total distortion of what you meant making you look like a terrible idiot. i mean some have claimed that the press, for example, keeps two pictures of each justice. you decide the way they want. you decide the way you don't want? how did he get in there? you've seen enough of television to think maybe, maybe. so the true answer to that is, i don't know. but i do know that we are gh this sense all a very conservative institution. and being a very conservative
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institution with a small sea, we've taken over an institution that works well from the american public -- pretty well. not perfectly. it's work fairly well for a long time and i'm there as a trustee. and there will be people before and people after. and the one thing the nine of us have all been united on, whoever they were for the last 20 years, is we do not want to take an action that will hurt that institution. it's not for us. it's not for us. as long as there's that big question mark over what would happen institutional, people will hesitate. i have no doubt, we will go, others will come, there will be people there who have grown up so much in a world of television and internet and so forth that it will be there and people will be used to it. you ask me about that issue during this period of time. i've tried to explain it as best i can. >> you did a very good job of it. let me just say about the magna
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carta itself, just an added note. there are actually 17 copies of the magna dar in existence. 15 are in british institutions. one is in the australian parliament and one is at the national archives. there are only four copies of the so-called 1215 version. there was a 1217, 1225 and 1297 version. then some others. there are. only 17 left and the reason is, it's 800 years. it is hard to file things away and keep them and lots of times they were burned and other things. but the library of congress now has on display 1 of the 4 1215 copies. it is very rarely in the united states. i encourage everybody to take a look at it and see it if they can, in part because, even though it didn't go into effect and was abrogated by king john and ultimately the pope, it was the basis for the subsequent magna cartas that did go into effect, the 1297 one did become the law of england and it is still on the books of england.
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so without the 1215 we probably would the not have had the 1297. if the magna carta had said that the courts of the united states should televise their proceedings, you would do it then. right? >> didn't king john say that? >> i thought he did. >> i do absolutely agree with you. you know, there would and lot-plus in the television. i wish people could -- if you'd seen the way in which cases are argued and people respond, i suspect, though it is self-serving, people take these much more seriously. there's often much more presented from the opposite side of the case. you hear it when you go in and people wrestle with these different problems. school children fix larparticul who i'm focusing on. they could see it and it would be a plus. no doubt there would be a plus. that's why people are divided on this issue.
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i'm saying there is too much uncertainty for a group of conservative to run a risk that the institution. but go back and one thing where i certainly agree with you is look at the exhibition here of the magna carta. it is fabulous. partly because you see the document. you can see it at the archives, you can see it here. partly because, as you go through that exhibition, it will force you to think about the time that is passed, people who have been involved, a few of the ups and downs. i mean think of this country. i mean think of -- we lived in a period, this country, of slavery. we had a terrible civil war. we had 80 years of government-backed racial segregation. we've had all kinds of things of ups and downs. and it's taken a very long time
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before those words in the magna carta have come to be accepted in the customs and habits of the people. and it's something they won't be. in my office, about two years ago i had a woman there who was president of the supreme court ever ghana. she is trying to bring into reality in that country more, what she believes, is a more democratic system and protection for human rights. she said how -- why do people do what you say? why do they do what the judges say? there's no answer to that question other than to go into a little history. and to say, look. it's not just judges and it's not just lawyers even who can get this done. the people have to believe in it. that's harry reid. or the people who do not believe it. of the 11 million people in this
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country, 310 million are not judges and they're not lawyers. they're the ones. it is the people in the villages you have to convince that this is in their interest. lawyers and judges might help you do that, we can talk about it, and they should. but they're the ones that have to be convinced. and go look at that history. and go look at the ups and downs. and that's what that exhibition would make you do. i think it is really a great opportunity to see the documents and to see them exhibited with other things and i'm glad to have the opportunity to be here, in part, because i could see that. >> the highest calling of mankind, i think it is fair to say, is public service. i want to thank you on behalf of my fellow citizens and your fellow citizens for the public service you've given to our country. thank you very much.
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you've been watching c-span's american history tv. we want to hear from you. follow us on twitte twitter @cspanhistory. facebook.com/cspanhistory. or check out c-span.org/history. we'd like to tell you about some of our other american history tv programs. be with us every saturday at 8:00 p.m. and midnight eastern for lectures in history. join students in the classroom to hear lectures on campuses across the country on topics ranging from the american revolution to the 9/11 terrorist attacks. again that's lectures in history every saturday at 8:00 p.m. ande court case of 1987. scott attempted to sue his
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owner, after being moved to a free state by their former master. the court ruled that slave or free blacks could not sue in federal court because they could not be u.s. vandervelt talks about a supreme court case of 1987. scott attempted to sue his owner, after being moved to a free state by their former master. the court ruled that slave or free blacks could not sue in federal court because they could not be u.s. citizens. professor vandervelde talks about the repurr cushiercussion decision. this is an hour long. >> good evening. i am glad to be here with you for the first lecture in the supreme court historical society's series, "this supreme
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court and the civil war revisited." the timing is just right, for this year marks the 150th anniversary of the war between the states. a bit about the society which i joined many years before i got this good job. and i remain among the legions of supporters of the society's many endeavors. some of them dorothy mentioned. this society has been a key player in improving public understanding of the court and its role in the constitutional framework of our government. regular attendees of these lectures know how engaging they have been. and i appreciate, too, something else dorothy mentioned.
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the society's preening program for high schoolteachers and the books produced by the society are works well conceived and good to read. among my favorites, claire cushman's court watches, eyewitness accounts in supreme court history. it is a collection of well-told anecdotes about people and events in the life of the court. also, the 2nd edition of supreme court decisions and women's rights, milestones to equality, a book designed for secondary school and college age readers. in 2012 the society updated the supreme court justices illustrated biographies so that now that volume includes four
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new entries, the chief justice, justices alito, sotomayor and kagan. last, i cannot resist again speaking of chef supreme. it is a collection of my late husband's recipes created with love and care by that amartha a alita with contributions from all of the current supreme court spouses. tonight's lecture, the dred scott family and the civil war, could not be presented by a better, informed lecturer, or of the mrs. dred scott, a life on slavery's frontier, printed in 2009 by hofstra university press. leah vandervelde has served on the faculty of the university of
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iowa college of school. she's published audibles by the score. she regularly lectures in the united states and abroad on topics drawn from her teaching specialties, employment law, property law, legal history, and constitutional law. she has served as visiting professor or scholar, a scholar in residence at the law faculties of yale, university of pennsylvania, nyu, and university of vienna. her current research centers on the law of the frontier 1800-1857. and she visits in her work the most modern electronic tools. her next book titled "redemption songs, suing for freedom," is based on a discovery in which she participated, the discovery
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of nearly 300 freedom suits brought by slaves in the st. louis court. professor vandervelde, was, as dorothy just announced, the awardee of the prestigious guggenheim fellowship in constitutional law in 2011. in the spring semesters of 2011 and 2012, she was a visiting scholar at the american bar foundation and during that time she convened a meeting of experts on the american law institute's propose restatement of employment law. her works and progress include the master narrative of 19th century american law, the significance of slavery, and its abolition for the law of employment. professor vandervelde is a graduate of the university of
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wisconsin law school where she had a near-perfect academic record. and before beginning her law teaching career, she served as senior law clerk to southern district of iowa, u.s. district judge harold d. vitor. i invite you now to join me in welcoming professor vandervelde and ask her to tell us about dred scott's family. [ applause >> i'm going to adjust there a little. i'm honored to be here in this eminent place.
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i want to thank justice ginsburg not only for her remarks today but for the inspiration that she's been to me for my entire professional life. i was telling her that she was one of only two women lawyers who i even knew the name of when i went to law school. i want to thank miss goldman for her devotion and compliment to preserving historical documents of the court and the constitution. i thank the supreme court historical society for the invitation. and, of course, jennifer low for her thoughtful assistance in organizing this event this evening. my topic today is dred scott in context. today the dred scott case is universally condemned by jurists, lawyers, historians and the american public. in preparation for this talk, i viewed some of my predecessors at this lectern and i noted how very often it came up in histories and lectures about the court's history. justice sandra day o'connor
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described it as "that terrible case," and other justices in this series have spoken about it similarly. dred scott is the archetypal case that symbolizes injustice. it is one of the cases most widely invoked in making comparisons about failures of justice. scholars count the ways that the decision went wrong. as you will recall, the case contained three rulings blocking dred scott's claim to be recognized as a free man. there were a pair of rulings about the legitimacy of the congressional power to prohibit slavery in the territories. and a third very clear holding that as a black person, dred scott was precluded from utilizing the federal courts. to assert his freedom regardless of the validity of his claim under diversity jurisdiction to be heard in federal court, he
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had to be the citizen of some state. or perhaps some foreign jurisdiction, such that the diversity of citizenship existed between the parties, thus justifying federal jurs digisdi. in a 7-2 decision, the supreme court decided that as a black men dred scott was not a citizen of missouri or any state. the decision faced dred scott's african aen vncestry. had that given him citizenship in some foreign state, he would have satisfied diversity jurisdiction as well. but the court ruled that dred scott was a man without citizenship anywhere. the scotts based their case on a fairly common rule at the time -- freedom by residence. this rule maintained that if a slave lived for a time on free soil, where the bonds of slavery were banned, that residence
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freed the slave and changed the person's status unalterably. such that if the slave entered a jurisdiction again where slavery was legal, the irreparably broken bonds would not re-attach. once free, forever free. freedom by residence was widespread in its acceptance particularly in the missouri courts for three decades until the missouri supreme court reversed itself in dred's very case. in 1852, the missouri supreme court declared that no longer would it follow the rule of freedom by residence and the scotts had only one option -- to file suit in federal court in st. louis. on appeal, the united states supreme court issued these three rulings that blocked dred scott out on every possible basis. even if he had had some valid claim to freedom, he had no standing to get into federal court to make such an argument. and although he had lived in two
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places purportedly free by congressional designation, neither designation was constitutional. congress had no power to outlaw slavery in the territories. now one might think that this is a case of only antikwarian interest, but then we would lose the lessons that this case offers us and perhaps be unaware of the consequences of the events that remain with us today. the 13th amendment will be 150 years old next year in 2015. the dred scott was was a catalyst in that constitutional reformation. the dred scott decision not only catapulted lincoln, but it also served as a springboard for the 13th and 14th amendments. they were necessary not only to validate the emancipation proclamation but also to
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repudiate the harm reepd by the dred scott decision and fix the flaws that our constitutional had revealed in the process of the decision. now my wish today is to set the case in context in order to more clearly understand some of its lessons. given the limitations of time with being i will not address how the case led to the civil war except to note that it not only further polarized the sides, the decision implied that any future congressional moves towards emancipation would be futile. because the court had signaled that congress had no such power you should the constitution, even in the territories. given this topic, i will not address the many divisions among the members of the court, although there were very many. given this topic, i will not address chief justice taney's views on slavery except to note that he was not completely unfamiliar with freedom suits.
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marylanders will know that his law partner was francis scott key. francis scott key took several freedom suits on behalf of slaves. each of us here tonight has some image of the contest in the dred scott case -- that it involves a slave suing his master who lost. yet even for very close readers of the 241-page opinion, the dimensions of that dispute are unclear. that a slave would lose does not seem surprising. that a slave would sue at all does. after all, what could slaves do anyway? they had no agency. they were born, died, had children, and worked for others' gain. but far more often they were persons who were acted upon. they were bought, sold, transported, sent, bequeathed and inherited. but they themselves did not buy, sell, contract, send or inherit
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themselves. and, most importantly, slaves did not sue. slaves inhabit their master's agendas during enslavement. the subject and quality of their lives was overtaken by their existence as objects and as objects that belong to someone else with a subject of life. slaves were often unnoticed and usually described in the passive voice as having the characteristics of objects. but in this case a, an enslaved man filed a lawsuit. one cannot overstate how rare this is in this species of cases, particularly in this court. this court decided other slavery cases but those cases took place between free persons suing over the heads of slaves. dred scott is the only case to reach the high court that pits a slave directly against his master. the case that comes

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