Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 31

Taney was about to stray from established court procedures unexpected in a decision at law but clearly within the orbit of political decisions. Taney claimed that the lower court erred in accepting the abatement and causing great injury that needed remedy, although the lower court was still waiting for the SCOTUS decision and could simply have ordered a dismissal for lack of jurisdiction. The abatement agreement hurt no one, save in Taney’s effort to justify what he was doing in this case. He even averred that his reviews were quite typical of appeals court proceedings. The problem was that he has already adjudged the lower court had no jurisdiction. He used the writ of error as a fishing expedition. Taney did not want these “errors” repeated by future courts, even though the initial judgment was for the defendant that Taney also supported. This case was poorly reasoned, a stretch well beyond normal practice, and of course an excuse to undue decades of Congressional legislation.

Taney would have us believe that returning the case for dismissal, even though the circuit court suspended its activities while Scott filed his writ of error, would leave the judgment for Sanford on the record, used as precedent, and lead to mischief and injustice when drawn into some future suit. It is unclear what type of barrister would use a dismissed case for precedent, but it is rather clear that Taney’s protests here are a very weak justification for what he does next. Scott’s journey as a slave through free territories included free states and territories designated free by Congress north of the 36th parallel. Scott married another slave, with their owners’ permission, in free territory. The couple had two children, one born on a steamboat on the Mississippi River and the second in the state of Missouri. Sanford bought the entire family in Missouri, where Scott filed his bill for freedom.

Taney asked whether the entire family be free consequent to their stay in free territory and, if not, whether Scott was free because of his stay in a free state. Taney then took a turn to whether Congress had the power to declare the Louisiana Purchase above the 36th parallel, excluding Missouri, free of slavery. The Constitution gives Congress the power to dispose of and make the necessary regulations for territories or other property belonging to the United States. Taney argued that this Constitutional provision applies only to lands within the treaty with Great Britain ending the Revolutionary War. The resulting states ceded their unoccupied lands to the central government under the Articles of Confederation. Taney argues that the Constitutional provision and any consequences simply apply only to territories already owned. The Ordinance of 1787, prohibiting slavery, derived from the sovereignty of the states ceding it, not from any powers in the Articles of Confederation. Adopting the new Constitution rendered the Northwest Ordinance null and void. The Constitutional provision for the regulation and disposal of territories applied only to the lands of the Northwest Ordinance. Taney relied on what he considered unusual wording in this clause and its location in the Constitution to limit it to the westward lands surrendered or surrenderable by the various states. The new Congress under the Constitution reauthorized the Northwest Ordinance.

Taney insisted that the second clause, denying any construction of the Constitution to prejudice claims of the United States or the states, had no relation to the previous clause of the provision granting Congress full powers. The relevant part of the Constitution is Article IV, second paragraph in Section 3:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Here we have a single sentence with two parts separated by a semicolon. Taney’s claim was that the two parts of the same sentence had no relation to one another. Taney’s trivial word game here is important to set the foundations for his next ruling. He argues that the use of needful rules and regulations were not the normal words of statesmen and not used that way in other parts of the Constitution. He concluded with two conditionals: if the latter part of the sentence means a general and unlimited grant of sovereignty over territories afterwards acquired, then it uses its words differently than used elsewhere in the Constitution; if construed narrowly to territory already acquired, then the words are applicable and appropriate. Adding the clause assuming debts from the states, Taney somehow concluded that the new government can be neither enlarged nor diminished. He maintained that the powers granted to the new nation over existing territories cannot extend to territories acquired afterward. With this claim Taney wipes away the judicial importance of any precedents.

Whether national power over territories derived from its own sovereignty or the Constitution would appear consistent, save for Taney’s effort to use the Constitution to limit this natural part of national sovereignty. Taney treaded dangerous territory: what are the limits of a sovereign nation over the rights of persons and property in gotten territories? Taney wished to limit these powers to those authorized over citizens of the United States about persons or property. Taney also concluded that the nation may exercise powers over territories treated as if they were already a nation or a state. Having limited Congressional power over new territories, Taney held that the federal government had greater flexibility in establishing judicial procedures because other clauses in the Constitution empowered them.

Taney concluded that the Constitution gave no power to the federal government to enlarge its territory except admission of new states. Taney also wanted to limit the types of powers the central government could exercise over persons and property in these territories, the latter of course focusing on slaves. Taney reversed part of his own argument that the construction of the power to add new states now included the acquisition of territory not yet ready for admission as a state. The national government got it solely to become a state, not held as a colony. He left to the political branch the admission of states and the acquiring of territory but reserved to the judicial branch the rules governing persons and property. Territorial acquisitions must be for the benefit of the people of the several states. The national government held the territory in trust for the American people and had the power to preserve it. Taney drew the line at persons and property; neither Congress nor the executive could exercise discretionary powers. The Constitution is the guardian of persons and property.