There seem to be three camps of people in this country when it comes to reliving U.S. history:
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Those on the side of embracing our history — even when it’s discriminatory — remembering and teaching from it.
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Those who believe we should bulldoze racist history: Change street and building names, and knock down statues of slave owners and racist leaders.
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And those who don’t care about any of it and want to move on with their lives.
I thought I was firmly in the first camp: Our history happened. Slavery happened. Japanese incarceration in the U.S. during World War II happened. Racist practices in America happened. Let’s remember and learn from these failures, I thought. Maybe I still do think this way.
But why should we be able to use overturned racist laws and try to resurrect them, legally?
Supreme Court cases
I asked myself this question when Atlanta defense attorney and pundit Andrew Fleischman raised the question on X about a resolution from the National Federation of Republican Assemblies to prevent Vice President Kamala Harris from holding the office of president, citing “precedent-setting U.S. Supreme Court cases.”
Among the six cases in the document attributed to the NFRA was the Dred Scott v. Sandford decision of 1857.
Dred Scott? Are you kidding me? Dred Scott is widely regarded as one of the worst Supreme Court decisions of all time. It’s so bad, I wish we called it something else, as to not disparage the Black man whose name it uses.
At the Supreme Court Historical Society Annual Lecture in 2009, Justice Stephen Breyer said the title “worst” reflects “the immorality of the decision.”
If you don’t remember your U.S. history, this decision ruled that enslaved people aren’t protected citizens. According to archives.gov: “In 1846, an enslaved Black man named Dred Scott and his wife, Harriet, sued for their freedom in St. Louis Circuit Court. They claimed that they were free due to their residence in a free territory where slavery was prohibited.”
From Oyez.org, a free law project from Cornell’s Legal Information Institute, the legal reference website Justia and the Chicago-Kent College of Law: “The majority held that ‘a negro, whose ancestors were imported into (the U.S.), and sold as slaves,’ whether enslaved or free, could not be an American citizen and therefore did not have standing to sue in federal court.”
The document argues that candidates Nikki Haley, Vivek Ramaswamy and Harris (“whose parents were not American citizens at the time of their birth”) are ignoring this old, fallacious and unsound law.
You know why its unsound? Constitutional amendments overturned Dred Scott. The 13th (abolishing slavery), 14th (all those born here become citizens) and 15th (the right to vote can’t be denied based on race, color or previous condition of servitude) said so.
But here we are. Because this old ruling still appears in the legal books, a political group can attempt to deploy it like a weapon.
Discriminatory laws
Here is my problem: Dred Scott happened, and kids today should learn about it. But why can’t we say, “Nope, that ruling and many other discriminatory laws like it technically don’t exist. And you can’t use it in a legal argument.”
Why can’t we do that?
There are many state laws that have been overturned by Supreme Court rulings here in Kansas and Missouri, but look at the ones here in Missouri that the state itself repealed:
Racial covenants limiting Black people’s property rights were still on the books as of 2021. But in 2022, Gov. Mike Parson signed the Missouri Human Rights Act into law that dictates old housing restrictions based on race, national origin or religion be removed in all newly-recorded deeds.
Missouri repealed a ban on interracial marriage in 1969, two years after the 1967 Loving v. Virginia Supreme Court case allowed people of different ethnicities to marry. Kansas repealed its ban early, in 1859 before reaching statehood in 1861.
Missouri repealed a ban on interracial adoptions that lasted between 1865 and 1952.
Repealing these laws takes it a step further, even if history still bears their name.
This argument attributed to the NFRA is a waste of time, brain cells and taxpayer money if it goes any further. I say let’s make any laws overturned by the 13th, 14th and 15th amendments invisible to legal arguments.
And let’s go further: Let’s add the 19th Amendment (women have the right to vote). And don’t get me started on the First Amendment.
Are we done?
