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New York Times
3 days ago
- Politics
- New York Times
The Dred Scott Dissent Lincoln Loved
A few weeks ago, I wrote a column that included a brief discussion of the Supreme Court's decision in Dred Scott v. Sandford, the 1857 case that both invalidated the Missouri Compromise and closed the door to Black citizenship in the United States — until it was effectively overturned by the outcome of the Civil War and officially overturned by the 14th Amendment to the Constitution. To write about Dred Scott meant I had to read — that is, reread — Chief Justice Roger Taney's infamous opinion for the court, in which he tried to root his anti-Black constitutional vision in the nation's history. And while I did not write about it in the column, I also read the major dissent in the case, written by Justice Benjamin Curtis. Curtis had a tumultuous time on the court. Nominated by President Millard Fillmore in 1851 to replace Levi Woodbury, the 41-year-old Curtis was the first and only Whig appointee to the court. A Boston-based litigator and one-time state legislator, Curtis came to Washington with a stamp of approval from none other than Daniel Webster. Curtis made an immediate mark on the court with his majority opinion in Cooley v. Board of Wardens, in which he charted a middle course between two opposing views of the Commerce Clause. The case, which concerned a Pennsylvania law that levied a fine on vessels entering the Philadelphia harbor without a local pilot, asked whether the Commerce Clause gave Congress exclusive authority over interstate commerce — precluding any state action whatsoever — or whether states could pass laws affecting interstate commerce as long as they did not conflict with existing federal statutes. Curtis's solution was to split the difference. 'Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress,' he wrote. But when the subject is 'local and not national' regulation, it 'should be left to the legislation of the states' until 'Congress should find it necessary to exert its power.' Although, as the legal scholar Alison LaCroix notes in 'The Interbellum Constitution,' it would prove difficult to draw the line between the local and the national on questions of commerce, Curtis's opinion would stand with John Marshall's in Gibbons v. Ogden (1824) as one of the defining Commerce Clause decisions of the 19th century. It was with this success to his name that Curtis leaped into the dispute over Dred Scott's status as a free man and citizen. He was one of two justices, along with John McLean of Ohio, who wanted to resolve the case in favor of Scott's claim to citizenship and in support of the idea that Congress had the power to regulate slavery in the territories. The majority of the court joined Taney's opinion rejecting Scott's claim to freedom, writing Black Americans out of the national community and invalidating the Missouri Compromise of 1820 because of its attempt to limit the introduction of slavery to the territories. But Curtis's dissent was not some stray afterthought. Just the opposite: It was a comprehensive attack on Taney's theory of the case, and it moved the public debate in the wake of its publication. Both the Republican Party and the antislavery press seized on Curtis's opinion in its attacks on Taney, and Abraham Lincoln, in a speech that summer in Springfield, Ill., relied on the dissent to rebuff Stephen Douglas's view that the Declaration of Independence 'referred to the white race alone.' Curtis begins by taking aim at Taney's decision to rule on Scott's claim to citizenship and the question of the Missouri Compromise. Neither issue, he argued, was 'legitimately' before the court and neither was 'within the scope of the judicial power of the majority of the court' to decide. In Curtis's view, the sole judgment of the court was that 'the case is to be dismissed for want of jurisdiction' because Scott was not a citizen of Missouri. Everything beyond this was not relevant to the case itself and, in Curtis's view, not binding law. You'll note that other political actors picked up on this move. Lincoln, for instance, insisted that the court had not actually settled the question. 'We think the Dred Scott decision is erroneous,' he said in Springfield. 'We know the court that made it has often overruled its own decisions, and we shall do what we can to have it to overrule this.' Having criticized Taney and the majority's decision to decide extraneous questions of constitutional law, Curtis makes the most important argument of his dissent: that Taney is wrong on the facts of citizenship. Asking 'whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States,' Curtis answered in the affirmative. He pointed out that five states — New Hampshire, Massachusetts, New York, New Jersey and North Carolina — recognized free Black Americans as citizens under the Articles of Confederation. He noted that these states also permitted free Blacks to vote, which he viewed as 'decisive evidence of citizenship.' Curtis then asks whether the federal Constitution, which superseded the Articles, deprived either those free Blacks or their descendants of citizenship. He notes that the language, 'a citizen of the United States at the time of the adoption of the Constitution,' would appear to be inclusive of free Backs. And so, he concludes, I can find nothing in the Constitution which, proprio vigore [on its own], deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption, nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States. The idea that the Constitution was somehow made 'exclusively for the white race,' Curtis writes, was 'not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity.' As for Taney's claim that the founders did not mean to include Black Americans in the Declaration of Independence, Curtis thought this was wrong as well. My own opinion is that a calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts. Now, Curtis did not hold the expansive view of American citizenship that Republicans would codify into the Constitution after the Civil War with the 14th Amendment. He did not think that birth automatically made one a citizen of the United States; like many jurists of his generation, he thought that state citizenship governed national citizenship. It was his view that 'it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and thereby be citizens of the United States.' States could deny citizenship to whomever they liked, Curtis argued. States could also determine what rights a person had within their borders. In his view, the only thing the Constitution required, with its 'privileges and immunities' clause, was that states treat the citizens of other states no worse than their own. And yet, even with its highly limited vision of citizenship — one that still allowed for a great deal of exclusion and disenfranchisement — Curtis's dissent still stood out for his strong and explicit repudiation of both racial qualifications for citizenship and racial distinctions in citizenship. 'Color,' he wrote, 'is not a necessary qualification for citizenship under the Constitution of the United States.' I mentioned earlier that Curtis had a tumultuous time on the Supreme Court, and it had everything to do with this dissent. Soon after the court announced its decision according to one source, Curtis sent a copy of his dissent to a Boston newspaper, where it was read and published before the release of the other opinions, including Taney's. The chief justice was infuriated by this and went on to revise his opinion in response to Curtis's dissent. This also began a period of bitter antagonism between the two men, which led to Curtis leaving the court later that year, in September. Benjamin Curtis was neither an abolitionist nor a great egalitarian. He was, in most respects, a man of his time, which makes it all the more striking that he could see a truth that some Americans, in our time, are eager to deny: Our Constitution, and our political community, includes nothing less than the whole people. What I Wrote I haven't sent a newsletter in a few weeks, so here are my two most recent columns. I closed out July with a piece on the antebellum echoes of Vice President JD Vance's vision of American citizenship and American identity: Vance sees the egalitarian ideals of our founding documents but says, as Taney did, that we must look elsewhere for our vision of American citizenship. And that elsewhere is your heritage — your connection to the soil and to the dead. And this week, I wrote about the importance of the Voting Rights Act of 1965, whether or not it survives the machinations of this Supreme Court. If by American democracy we mean a pluralistic, multiracial society of political and social equals, then American democracy as we know it began with the signing of the Voting Rights Act of 1965, 60 years ago today. I also joined my colleagues on a few episodes of The Opinions podcast: one with Michelle Cottle and Michelle Goldberg, as well as one with Cottle and Steve Rattner. Now Reading Nicole Hemmer on the heterodox 'free speech' movement as a right-wing political project for Boston Review. Samantha Hancox-Li on hierarchy, conservative ideology and sexual abuse for Liberal Currents. Marisa Kabas on the starvation in Gaza for The Handbasket. M.Z. Adnan on Sakir Khader's photos of the Israeli occupation of the West Bank for The New Yorker. Jackson Lears on the legacy of the war on terror for The London Review of Books. Photos of the Week I have two for you this weekend. First, a photo of a derelict hotel on Afton Mountain outside Waynesboro, Va. And second, a photo of the Brooklyn Bridge that I took during a brief stay in New York. Now Eating: Sweet and Spicy Summer Fruit Salad I have no comment other than that this is delicious. A perfect showcase for summer fruit and produce. The recipe comes from New York Times Cooking. Ingredients 2 tablespoons mild-tasting olive oil 1 ½ tablespoons store-bought or homemade chile crisp 1 tablespoon red wine vinegar 1 tablespoon sugar 1 ½ pounds stone fruit, such as plums, pluots, cherries, nectarines or peaches, or a combination 10 ounces cherry tomatoes Salt ¾ cup basil leaves, lightly packed Directions In a large bowl, whisk together the oil, chile crisp, vinegar and sugar. Pit the stone fruit and cut the larger fruit into ½-inch wedges, then cut each wedge into ½-inch pieces. Halve the cherries, if using. Place the fruit in the vinaigrette bowl. Cut the tomatoes in half, add to the bowl, season with salt and toss very well. Taste and adjust vinaigrette seasonings as desired. (This salad can be made up to a day ahead and stored in an airtight container in the fridge.) When ready to serve, cut or tear the basil into small pieces, add to the bowl and toss everything well to combine.
Atlantic
08-07-2025
- Politics
- Atlantic
The Inscrutable Supreme Court
In the American system, courts don't make law; they interpret it. The act of interpreting the law requires, well, interpretation—not mere pronouncement, but an explanation for that pronouncement, backed up by law, evidence, and logic. That's why the Supreme Court's failure to offer any sort of reasoning to justify its order in Department of Homeland Security v. D. V. D is a threat to the rule of law, a reward for defiance, and a horrific example of a judicial process off the rails. The order is, unfortunately, only one of a recent spate of unexplained orders by this Court. The case involved the efforts by DHS (where I worked from 2005 to 2009 as a George W. Bush appointee) to deport aliens who are allegedly illegally present in the United States to third countries (that is, to countries other than the one from which they came) without affording them notice or due process. At issue was Donald Trump's efforts to send several individuals to South Sudan, where, they said, they would be subject to torture. Trump's process denied them the opportunity to prove that they had a 'credible fear' of harm and to argue that sending them there violates the Convention Against Torture (to which the United States is a signatory). A district court in Massachusetts had provided a preliminary-injunction order that prohibited sending the individuals to South Sudan without a hearing, leaving them stuck in limbo en route in Djibouti. The Supreme Court order lifted that injunction. Paul Rosenzweig: American corruption The order is so problematic that two commentators have dubbed it ' the worst Supreme Court decision of Trump's second term.' But even that is, in a way, too generous. Calling the order a 'decision' suggests that the Court offered reasons for its judgment. In D. V. D., in what could be, quite literally, a matter of life or death, the Court simply ordered the injunction lifted. This disregard for explanation is destructive to the idea that law matters. Reason and persuasion are a court's stock in trade; as Aristotle said, 'the law is reason.' Reason is all that stands between a court's claim that it is doing 'law' and the challenge that it is doing 'politics.' At least one of the conservative justices, Amy Coney Barrett, has said that she understands the importance of justification. Three years ago, she gave a speech at the Ronald Reagan Presidential Foundation & Institute, in which she movingly spoke about what she viewed as the Court's defining characteristic —the commitment to explaining its decisions in public. To those who criticized the Court (this was in the immediate aftermath of the Dobbs abortion decision) for imposing a political-policy position, she had a simple response: 'Read the opinion.' Even the most odious of the Court's decisions, such as the fugitive-slave case, Dred Scott, and the Japanese-internment case, Korematsu, offered reasons for their analysis—reasons that could be read and understood then and today, however unconvincing and repulsive they were. But at least one could be repulsed and unconvinced by them! Even poor reasoning in controversial decisions, such as in the transgender-health-care decision this term, shows how the Court reached its decision and allows for the possibility of a counterargument. One can't argue with a void. The complete absence of any attempt to explain (especially in controversial 6–3 cases such as D. V. D.) turns the Court into a mere vote-tabulation machine, accumulating political preferences by a 'yes' or 'no' accounting that is functionally indistinguishable from how Congress passes legislation. If Barrett wants us to read the opinion, she has to write it first. And perhaps in the act of writing, the Court might have recognized the error of its ways. In the D. V. D. case, a Massachusetts district judge had issued first a temporary restraining order (TRO) and then a preliminary injunction requiring immigration officials to tell immigrants where they were going to be deported to and allow them to object if they feared they would face torture at their intended destination. Whatever one may think of that requirement—and I think it is an eminently reasonable one—the Trump administration should follow court orders while a case is pending. If it disagrees with such a requirement—as it did—it should appeal the ruling, not ignore it. The administration did appeal the ruling; it did not, however, obey it in the meantime. This is a problem. To buttress the general requirement that rulings should be obeyed, the law has an overarching principle that courts should grant relief only to those who come before it with ' clean hands.' There should be no reward for bad behavior. No longer. In D. V. D., the Trump administration came before the Court with its hands as dirty as possible. As Justice Sonia Sotomayor recounted in her dissent, 'In violation of an unambiguous TRO, the Government flew four noncitizens to Guantanamo Bay, and from there deported them to El Salvador. Then, in violation of the very preliminary injunction from which it now seeks relief, the Government removed six class members to South Sudan with less than 16 hours' notice and no opportunity to be heard.' But far from punishing this executive defiance, the Court rewarded it, relieving the Trump administration of its obligations. As Sotomayor put it, 'This is not the first time the Court closes its eyes to noncompliance, nor, I fear, will it be the last. Yet each time this Court rewards noncompliance with discretionary relief, it further erodes respect for courts and for the rule of law.' All of this would likely not have been acceptable even if the majority had chosen to tell the nation why it did what it did. But as it is, Americans can infer only that the majority simply wanted what it wanted, and couldn't be bothered to explain its decision to the public, to the district-court judges below (who can only assume that the Court will no longer 'have their back' in the future), and to the individuals who have been deported to war-torn South Sudan, a country to which they have no apparent connection. Worse yet, by giving the Trump administration what it wanted, even though it openly defied the district court, the Court seems to be inviting yet more defiance of the sort. Certainly, that is how the administration will read the decision, especially in the absence of any limiting explanation. If it had chosen to write, the majority of the Court might also have explained how it analysed the balance of equities in its decision. One factor in injunctive relief is that a court is required to determine who would be harmed more in the interim and grant relief to try to prevent that greater injury. It would have been nice for the Court to have offered even a word or two about why it saw the possibility of being sent without notice to South Sudan as a less harmful result than the government being subject to restraint while a case is pending. One would love to 'read the opinion' about why the Court thinks thus. Conor Friedersdorf: Donald Trump's Cruel and Unusual Innovations The reasoning is anyone's guess, and that is at least part of why the district-court judge initially concluded that the Supreme Court's order didn't apply to a portion of the case pending before him. The Court had only itself to blame for his confusion and soon issued a clarification of its order, again without a word of substantive justification. As Sotomayor wrote in response to the Court's peremptory, cryptic order: 'The Court's continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to divine their import, is indefensible.' Finally, on the merits, the substantive result of this decision portends possible death for those who have now been sent to South Sudan and immigration chaos for the broader system, again without any explanation of why this result is mandated by law. In two earlier unexplained decisions, the Court allowed the Trump administration to withdraw 'temporary protected status' and 'humanitarian parole' status from individuals who had received those designations during the Biden administration. As the names imply, immigrants with those designations are allowed to stay in the country. Once rescinded (as the Court now says Trump may do), the aliens in question are required to leave the United States, and if they do not do so voluntarily, they may be deported. Taken together, these decisions mean that more than 500,000 immigrants who are lawfully present in the United States are now eligible for wholesale expulsion to parts unknown. Under the Court's orders, Trump could, in theory, send 100,000 Venezuelans to Bhutan if the Bhutanese would agree to take them, all without a word of explanation. This is not law and reason. Rather, it is power, plain and simple. The Court's actions look and feel like nothing so much as the authoritarian rule of six Platonic Guardians, who, without a hint of humility, are so convinced of their own rectitude that they offer their subjects not even the courtesy of justification.
LeMonde
27-06-2025
- Politics
- LeMonde
'Trump's attack on birthright citizenship serves to expand his authority by jeopardizing the status of all Americans'
"Birthright. That's a big one," President Donald Trump mused out loud as he signed an executive order purporting to end birthright citizenship in America. On that, at least, all Americans can agree. Although attacks on birthright citizenship are as old as the nation, President Trump's reasons for doing so break new ground. In the past, the primary goal was to exclude and deport disfavored immigrants. Today, the Trump administration is weaponizing citizenship not only to deport the unwanted, but also to control all those who remain. In 2025, the United States is one of only 33 countries that automatically grant citizenship to nearly every child born within its borders, almost all in the Western Hemisphere. European countries either never adopted birthright citizenship or abandoned it in recent decades. The Trump administration wants to add the US to that long list. But birthright citizenship is essential to American identity. In many ways, the story of birthright citizenship is the story of America. A fraught issue At its founding, the US was conflicted over citizenship – a fraught issue in a nation composed of indigenous tribes, European immigrants and their descendants, and the 20% of the population who were enslaved. In its infamous 1857 decision in Dred Scott v. Sandford, the Supreme Court heldthat no Black person, slave or free, could ever be a citizen of the US. That decision helped to precipitate the Civil War. Slavery was abolished by that war's end, but the question of who qualified as an American remained. In 1868, the US repudiated Dred Scott and the caste system it created by ratifying the Fourteenth Amendment to the US Constitution. The first sentence of that amendment declares: "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." The Fourteenth Amendment granted birthright citizenship to all, including the newly freed slaves and the children of immigrants. The only exceptions were a few discrete groups not "subject to the jurisdiction" of the US due to their unique legal status, such as the children of diplomats and those born members of Native American tribes. Senator Jacob Howard, who proposed this language, claimed it "settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States."
New York Times
27-06-2025
- Politics
- New York Times
How the Birthright Citizenship and Nationwide Injunctions Case Began
In mid-May, the Supreme Court took the bench for a rare emergency oral argument, which had been tacked on to the end of the term. The case focused on whether a single federal judge had the power to freeze a federal policy for the entire country, a long-simmering debate. Despite the dry-sounding legal issue, the case involved something urgent: an executive order signed by President Trump on his first day back in office. In fewer than 800 words, and with a signature scrawled in thick Sharpie, the president declared an end to birthright citizenship, the principle that children born in the United States are citizens. Birthright citizenship is rooted in English common law. It was enshrined in the U.S. Constitution in 1868 in the 14th Amendment, which reads: '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.' In one of its most notorious cases, Dred Scott, the Supreme Court in 1857 denied citizenship to the descendants of slaves, helping prompt the Civil War. The 14th Amendment erased that finding and expanded citizenship to almost anyone born in the United States. In 1898, the justices again considered birthright citizenship in the case of Wong Kim Ark. Mr. Wong was born in San Francisco's Chinatown, the child of parents who were part of a wave of Chinese laborers who came to the United States in the mid-1800s. Officials argued that birthright citizenship did not apply to him because he and his parents were not 'subject to the jurisdiction' of the United States when he was born. The Supreme Court disagreed. Want all of The Times? Subscribe.
CBS News
20-06-2025
- General
- CBS News
Minnesotans celebrate Juneteenth through food, music and history lessons
Across Minnesota, communities came together to celebrate a day that's more than a holiday, but the heartbeat of freedom. Juneteenth, now recognized as a federal holiday, is more than a day off; it's an important reminder of freedom delayed but never denied. It marks the day in 1865 when enslaved African Americans in Texas learned they were free. In south Minneapolis, people gathered for food and music as children jumped Double Dutch. In north Minneapolis, there was a parade full of excitement. But at Historic Fort Snelling, people took a different approach. More than 400 people took a guided tour on the grounds where slavery once existed. Dred and Harriet Scott lived and labored there in the 1830s. A man whose fight for freedom was one of the most infamous Supreme Court decisions, where the courts denied Black people freedom. For Loretta Kennedy and her family, it was crucial to book the tour. "Everybody needs to know their name and who they were," Kennedy said. "If it wasn't for them, we wouldn't be here." It's a day filled with love and rooted in history and hope.
