Robbins: A look at some of our seminal legal decisions
How did we get here?
And, as importantly, may knowing how we got here help inform where we may be heading?
In the immortal words of the Grateful Dead, the least that can be said is, “What a long strange trip it’s been.”
To be sure, there have been trips and stumbles and outright offenses along the way — the Dred Scott and Scopes decisions are two that swiftly come to mind — but there have also been shining examples of judicial wisdom: Gideon and Miranda are but two of a long, distinguished line.
So what, exactly, am I talking about?
Glad you asked.
I have been penning this column weekly for what is now 24 years. For several years, I produced two columns a week. By my reckoning, that’s a lot of columns and an almost unimaginable cascade of words. By my ciphering, roughly 1.5 million of my words have seen ink in this column. Yikes!
That’s enough ink to float a small flotilla of legal theorems, theories, and perhaps, now and then, even a bit of insight into how the machinery of law grinds faithfully away.
I have written about process, procedure, legal thinking, the philosophy of law, current legal events, and more. What I have, however, not heretofore addressed is something simple — how we got here. What are some of the seminal cases in American law that have shaped our thinking, altered or amended our institutions, and made our legal system what it is today?
Time to start
I have been considering for a while that it is high time that I put my pen to that task. And so, on occasion, and from time to time, I will devote a column to some of the seminal cases in American legal history. What are the Caesars, the Alexander the Greats, the Hammurabis, Attilas and Napoleons of the law as it has blossomed and developed in this nation over the roughly 240 years of this great experiment in democracy?
The list will neither be exhaustive nor particularly scientific. Instead, this occasional series will be more in the nature of grasping at shiny objects. While there are clear cases in American legal history that must be mentioned — the Mount Rushmore, if you will — that stand head and shoulders above the rest in the igneous granite of law, there are also more subtle brothers, sisters and cousins that are worth at least a passing mention.
I hope to make it informative and at the same time to keep it entertaining. Oh, two more things: First, I have no intention of making this column contiguous. I will jump around like a flea on a warm pooch, picking this and that, and bending time like an astrophysicist explicating the inherent weirdness of the universe. Second, unless I raise a flag to let you know otherwise, all of the decisions mentioned will emanate from the United States Supreme Court thus having the imprimatur of the supreme law of the land.
On, then, with the first.
Let’s start with discrimination, with an immortalized bad one that got it all wrong.
In a nutshell, what the 1857 Dred Scott decision held (more formally Dred Scott v. Sandford), was that the U.S. Constitution was not meant to include American citizenship for black people, regardless of whether they were enslaved or free. Therefore, the rights and privileges the Constitution confers upon citizens could never — and would never — apply to them.
Bear in mind, that while the slavery issue had been festering since the very beginnings of the nation, the Dred Scott decision preceded the outbreak of the Civil War by four years and was yet another straw piled on the camel’s back of abolition.
The plaintiff in the case was Dred Scott, an enslaved black man whose owners had taken him from Missouri, which was a slave-holding state, into the Missouri Territory, most of which had been designated “free” territory by the Missouri Compromise of 1820.
When his owners later brought him back to Missouri, Scott sued in court for his freedom, claiming that because he had been taken into “free” U.S. territory, he had automatically been freed, and was legally no longer a slave. Sandford was the man to whom his prior owner sold Scott on his return to Missouri. Scott sued first in Missouri state court, which ruled that he was still a slave under its law. He then sued in U.S. federal court, which ruled against him by deciding that it was bound to apply Missouri law to the case. He then appealed to the Supremes.
In March 1857, the Supreme Court issued a 7–2 decision against Dred Scott. In an opinion written by Chief Justice Roger Taney, the Court ruled that black people “are not included, and were not intended to be 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.”
Taney advanced that from the time of the Constitution’s drafting in 1787 forward, a “perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery.” Because, the Court reasoned, Scott was not a citizen, he could not meet the standard to bring a case before the federal courts.
Taney went on to conclude that the Missouri Compromise itself was unconstitutional in that Congress was prohibited by the Fifth Amendment from depriving individuals of private property (that is, slaves) without due process of law.
After the Civil War, enactment of the 14th Amendment overrode the Dred Scott decision, considered by many legal scholars to be the greatest blunder in Supreme Court history. The 14th Amendment, ratified in 1868, granted citizenship to “all persons born or naturalized in the United States,” including former slaves.
In holding as they did, Taney and the Supremes stubbed their race-tainted toes. Only Justices John McLean and Benjamin Robbins Curtis dissented. In so dissenting, though, they placed the footholds — along with passage of the 14th Amendment — for future cases by which the rights of peoples of all creeds and colors were eventually secured.
The law is sometimes like a lurching ship. Now and then it founders but most times, it ultimately rights itself. When it goes astray, injustice may for a time prevail but most times, anyway, it is nudged until at last it finds its proper footing.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.