I’ve been seeing a lot of predictable chatter in the wake of this Mozilla business. I even put in my 50 cents (inflation-adjusted) below. But then I started reading the comments on some of those pieces….
Dudes: Is the left still comparing “gay marriage” to the civil rights protests of the early 1960s? And is the right still trying to “argue” with them on those terms?
This is the only “argument” you’ll ever need on that score. You can thank me later. Ready? Two words: Dred Scott.
Since “the Dred Scott decision” is part of the mantra of causes-of-the-civil-war that every schoolkid in America is still(?) required to memorize, it amazes me how few people actually know what it was. In brief, the Supreme Court argued that Dred Scott was not a citizen, and never could be a citizen, and therefore had no rights the US government was bound to respect.
To give Dred Scott the legal standing necessary to sue in federal court, Chief Justice Roger Taney argued, Missouri in effect made Scott a citizen of the state, and therefore by extension a citizen of the United States. But this is a power clearly delegated to Congress by the Constitution.
Therefore, Scott has no standing to sue.
Therefore, Scott is not free.
This is the point that all the leftists chirping about civil rights so consistently miss: The question at law concerned the legal status of one man. The end result was the nullification of the Northwest Ordinance, the overturn of the Missouri Compromise, and, by extension, the de facto legalization of slavery in the entire United States. And all because seven guys in black robes made a decision about “standing.”
What Our Betters fail to realize is that the only law that universally holds is the law of unintended consequences. Here’s Wikipedia:
It was expected that the Scotts would win their freedom with relative ease since Missouri courts had previously heard over ten other cases in which they had freed slaves who had been taken into free territory. But, in June 1847, Scott’s suit was dismissed on a technicality: Scott had failed to provide a witness to testify that Scott was in fact a slave belonging to Eliza Emerson.
So there was another trial, and another appeal, to the Missouri Supreme Court. Which resulted in an appeal to the US Supreme Court. Which was headed by Roger Taney, who took what he saw as a golden opportunity to resolve the slavery question in the United States once and for all.
Live by lawfare, die by lawfare. Dred Scott is widely considered the worst decision the Supreme Court ever made, but look what it took to overturn it: That whole “War Between the States” business you may have heard of, plus the 13th-15th Amendments to the Constitution, plus the 1866 Civil Rights Act.
The point is this: Every step of the process that ended in Dred Scott’s return to slavery, and the de facto legalization of slavery across the whole United States, hinged on the idiosyncrasies of, at most, seven people.
Do you like those odds?
The left, of course, likes to claim they’re waging lawfare because of the principle of the thing, and the right tends to engage them on those terms. It’s a mistake. The left doesn’t have principles, only prejudices. Right now, they feel the prejudices are all running in their favor, and that the likelihood of getting an activist judge is much greater than the likelihood of getting a stodgy old conservative judge. And recent precedent seems to be firmly on their side in this. So they sue.
Which is what Dred Scott thought, too.
It’s actually worse in the homosexualist case, since they’re arguing that their favored behaviors are actually rights. If you actually look at it, Taney’s logic was impeccable — Scott wasn’t a citizen, and therefore he didn’t have the right to sue, and Missouri’s de facto grant of United States citizenship to him for the purposes of suing was a violation of the Constitution’s separation of powers. It took — again — a Civil War, a few Constitutional amendments, and the enactment of positive law to render Taney’s legal reasoning moot.
The doctrine of “I can force you to bake me a cake against your religious beliefs” is, shall we say, a little murkier, Constitution-wise. To what extent does the Commerce Clause, as I guess the “reasoning” is, trump the First Amendment?
Either way, it’s going to come down to how some judge is feeling that morning. And those feelings can change. It never ceases to amaze me how “conservative,” indeed reactionary, the left is about its own peccadillos. Right now there seem to be more activist, pro-homosexualist judges than there are restrained judges. And besides, even if we get one of the hoarier ones, we can force him to give in through social pressure. It worked on John Roberts, right?
It never, ever occurs to them that this can go the other way. They don’t realize that even if Dred Scott was right, and every judge in Missouri would’ve freed him if they could, court cases can take on a life of their own. The technicality that voided Scott’s first trial — the one he, and all his friends, and the whole abolition movement, thought would be a slam dunk — ended up legalizing slavery in the whole United States once Roger Taney got his hands on it. And once you’ve established the principle that “behaviors we like” are now Constitutional rights because some judge got up on the right side of the bed that morning, what possible objection can you make when he gets up on the wrong side?