Digging Deeper: Justice Scalia, No Fear of His Own Horror

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It’s not the 4th of  July, but I’m having flashbacks to two century-old Supreme Court cases involving liberty: Plessy v. Ferguson and Dred Scott.

Dred Scott was a slave who sued for his freedom on the grounds he moved from a state that chartered slavery to federal territory that didn’t recognize slavery as a legal institution, and did recognize a number of citizenship rights for blacks including marriage. Therefore as a resident in a free land with no provision for slavery, he should be free. The Supreme Court’s decision, by seven to two, abrogated his right, but also states’ rights. When it came to slavery, the court ruled the slave had no standing to bring a legal case against his or her status. The court also firmly declared slaves were property, chattel, having “no rights any white man was bound to respect.” Despite state laws, a slave transported to Massachusetts remained in bondage.

The Dred Scott decision was only the second time an act passed by Congress was ruled unconstitutional. Chief Justice Roger Taney’s written decision struck down the Missouri Compromise, passed in 1820, which limited the expansion of slavery into federal territories.

The 14th Amendment removed Dred Scott as a legal precedent, but it remains important in history, as example of how US law is interpreted and rights altered through the institutions of the courts, states, and federal government. For often, law is about ends and means, what it affirms and what it denies.

I’m an American-born, free black. Supreme Court Associate Justice Antonin Scalia wants to return to the days when my state, South Carolina, could come to my door and demand that I leave. By state law, South Carolina authorities before 1865 before could compel me by force to leave the state. The state could prohibit my return. Not because of crimes, but merely due to my status—as free and black. The basis of such state laws, among others, was the Dred Scott case.

On Monday, Justice Scalia referred to such an egregious use of force by the state to compel forced removal as “travel restrictions.” The dislocation of free people—a violation of common sense, morality, ethics, human rights and settled law—was one of the examples Scalia chose to cite in his 22-page dissent on Arizona v. the United States, which tells why he sees Arizona having the historic and absolute right to expel residents at will.

Scalia, in his independent, after-the-fact dissent on Arizona v. the United States, desperately wants states to have the same expired right to ban or expel undocumented workers. He goes a step further and sees the constitution and legal precedent as granting—no, more—guaranteeing this right of sovereignty to states, with the federal function to protect the entitled state authority above its own.

The removal of a person from a state may be a matter of policy and civil law, but against the person, it is a high crime and a declaration and act of war. Some have already taken Scalia’s fantasy-filled illogic to call for secession—again. The desire to truncate all federal activities burns in their hearts.

From a blog:

“Message to Arizona- Start forming Infantry Regiments wholly under the control of the Arizona Governor and state legislature. It is impossible to see any other alternative for states and citizens wishing to protect their Constitutional rights in the face of a runaway Federal Government of the United States, and its various organs, that has all but suspended the founding intent of the original Constitutional Convention.

LET FREEDOM RING!!!”

The American tradition of jurisprudence is giving every lying, crazy white man a pass, through what Jeffery Tobin called a “loss of perspective.” There is freedom of speech but no freedom to reside, if the state decrees so by law. If Scalia is right, by extension, we are all naked, unprotected—as free blacks once were! We can all sing “Kumbaya” on the bus.

And with his dissent, Justice Scalia became the first justice ever to use a dissent as a blog.

Careful reading of Justice Scalia reveals he uses established principles of international law on sovereignty. As a strict constitutionalist, wedded to original meanings, his far afield examination of international precedents outside US law seems to go against his own logic and prescriptions. The decisions and principles he cites are about national sovereignty, not the sovereignty of states or entities within a nation. He is treating the constitution as a contract whose purpose is to establish a federal government to provide services as the states collectively require, but with limited authority of its own. In fact, Mr. Scalia at one point cites the Articles of Confederation—written before the constitution, when the colonies were independent, as relevant. He sees no prudent limitation on the authority of states.

He does not see the state’s action as poaching on federal authority: “The state’s detention does not represent the commencement of the removal process unless the Federal government makes it so.” “The most important point is Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—as long as it does not conflict with federal law.” “There is no reason Arizona can not make it a state crime for any removable alien to remain in present in Arizona.” And then: “What I fear is that federal policies of “non enforcement” will leave the states helpless before those evil effects of illegal immigration that the Court dutifully recites in its prologue but leaves unremedied in its disposition.”

This last statement is a clear call to action: the assertion that the Court is to provide a remedy that goes beyond legal merits and attacks “evil effects.” As a free black (once removed!) I cringe that the scales of Scalia’s justice now weigh evil effects. Especially without concern for the justifying excesses of unrestrained authority. It seems Justice Scalia protects, as one of the original states’ rights, the right to discriminate without regard to liberty, due process, human rights, or national policy, calling himself an originalist, not an activist.

Plessy v. Ferguson, heard in 1896, involved segregated, race-based seating on street cars in Louisiana. The Supreme Court ruled that the 14th amendment was not intended to eliminate or abolish differences of social privilege based on race or color, and states had a right to reflect custom, tradition and use in their laws. Discrimination as a custom could be legally maintained. Plessy by law must sit in the colored section during his public journey.

Justice Scalia replaces this doctrine of Jim Crow, once legally valid, and rewrites it with a new criteria for activism for modern times: When the federal government does not act in accord with the desire or intent of the states, it defaults in its obligations, and by international and pre-US custom and default, the states, singular and sovereign, can exercise those powers on their own. He writes: “The Court opinion’s looming specter of unutterable horror—every State could give itself independent authority to prosecute federal registration violations—seems to me not so horrible and even less looming.” And: “the dry legalities that are the proper object of our attention suppresses the very human realities that give rise to the suit.”

As a free black, once removed, and a frequent rider of public transportation’s buses, subways and street cars, knowing that the earliest international codes legalized slavery by national origin and color and were adapted into colonial law, later state law, I know slavery was once supported by federal laws and court rulings that hid discrimination, restrictions and limits on liberty and its opportunities. I know taking away the federal right to set immigration policy and to allow courts to determine when and where it is being adequately enforced, and to grant states powers to set their own policy will lead to a return of horrors–and not the upside-down headstands of “evil effects” proffered by Judge Scalia.

Justice Scalia’s journey is mapped by a constitution and attending law that represented specific interests and institutions embedded within our history. Then, law was the mirror to conceal those shadows—and make noble its horrors. Law concealed real consequences and intent, but occasionally showed its naked power. Ask Dred Scott. Ask Homer A. Plessy.

Discrimination should not return through the constitution’s built-in backdoor, installed from the beginning to support practices now abhorrent. But not to Judge Scalia, who suggested in oral arguments over the ACA individual mandate that people could simply be left to die.

Me, I want to ride the bus of liberty. Long ago having taken first steps to move away from the constitution’s original intent—a willingness to use fear and greed in the name of law and order to justify stripping rights and binding me by law and custom—my eyes are still on the prize.