Wonkette: So Now The New Yorker Is Doing Fox News's Job?

[Nevilledog]

Link to tweet

https://www.wonkette.com/so-now-the-new-yorker-is-doing-fox-newss-job

Wow, did you hear about those crazy libs who want law schools to stop teaching about the Supreme Court's 1857 Dred Scott decision because they're worried it'll trigger their snowflake students? It must be true, because it was covered by the New Yorker, not Ben Shapiro or OAN. This is where we point out that nothing of the sort has happened: Nobody's canceling Dred Scott v. Sandford in law schools, but the New Yorker did run a piece Tuesday suggesting it might be endangered. Problem is, the think piece was inspired not by a movement in law schools, but by a single Twitter discussion the author had seen, which suggested that the case might best be taught without reading much of the actual Supreme Court decision, because do you really need to wallow in all that racism?

The column, by Harvard Law prof and New Yorker contributor Jeannie Suk Gersen, makes a pretty strong argument for teaching Scott as an illustration of how norms of legal reasoning can result in a decision that's antithetical to human rights. It's actually a pretty good read, as long as you set aside the minor detail that it's all based on knocking down a straw man.

To be fair to Gersen, what might have been a pretty good think-piece on how to teach something as toxic as the Scott decision got lost in the New Yorker's own ham-handed framing of the story, as I'll discuss in a moment. First, though, I want to say that Gersen's discussion of the case's place in law school seems pretty spot-on (this is where I remind you I'm a rhetorician, not a lawyer). Gersen argues the decision by Chief Justice Roger B. Taney, who himself was an enslaver, isn't so much an impossibly bad legal argument on its face as it is a warning to "disabuse students of the impulse to approach the Constitution and the Supreme Court with uncritical worship."

I hadn't really read much about the decision itself, only the outcome, which was that Dred Scott, who freed himself from slavery and made it to Illinois and then to free territory, didn't have the right to sue to prevent being re-enslaved, because as a Black person, he could not be a US citizen. What I hadn't known about was Taney's awful reasoning about those "inalienable rights" in the Declaration of Independence:

If the Founding Fathers intended to include Black people in that declaration while personally enslaving them, Taney reasoned, that would mean that the Founding Fathers were hypocrites who "would have deserved and received universal rebuke and reprobation." But Taney found it impossible that these "great men" acted in a manner so "utterly and flagrantly inconsistent with the principles they asserted." So he concluded, instead, that their intent was to exclude Black people from the American political community. Of the two possibilities, grotesque hypocrisy or white supremacy, Taney found the latter far more plausible.

*snip*

[Jim__]

1. I don't think so.

The column is linked at the cited article. It doesn't sound anything like Fox News to me, but rather the type of discussion that we should have. The first few paragraphs:

In January, 2011, the House of Representatives undertook a recitation of the United States Constitution on the House floor. Lawmakers started with “We the People” and took turns reading the text aloud for the next hour and a half. Orchestrated by a new Republican majority to perform devotion to the Constitution, the exercise excluded some provisions, including ones that supported slavery: the three-fifths clause, which says that an enslaved person counts as “three-fifths” of a person for the purpose of apportioning congressional representatives and taxes, and the fugitive-slave clause, which commands that an enslaved person “escaping into another” state, regardless of its laws, “shall be delivered” back to the slave owner. The Thirteenth Amendment, which abolished slavery after the Civil War, was read aloud by Representative John Lewis. But Representative James Clyburn, the top-ranking Black congressman, refused to participate in the reading, calling the choice to omit provisions “revisionist history.” Representative Jesse Jackson, Jr., similarly objected that the “redacted constitutional reading gives little deference to the long history of improving the Constitution” through “the blood, sweat and tears of millions of Americans.”

A decade later, during the nationwide grappling with racial injustice that followed the murder of George Floyd, I saw a striking Twitter discussion among professors of constitutional law, a course that I also teach. They were debating whether much of the Supreme Court case of Dred Scott v. Sandford should be excised from constitutional-law courses. In the case, which Scott brought in federal court to assert his freedom from enslavement, the Supreme Court held, in 1857, that Scott did not have the privilege to bring the suit because, as a Black person, he could not be a “citizen” within the meaning of the Constitution. Matthew Steilen, a law professor at the University at Buffalo, launched the Twitter thread and advocated for editing the case down to a minimalistic page or so, to omit text that is “so gratuitously insulting and demeaning.” He wondered whether assigning that material is asking students “to relive the humiliation of Taney’s language as evidence of his doctrine of white supremacy.”

The Dred Scott case addressed the moral and political struggle that in those years was threatening to tear the United States apart: whether slavery would be allowed in newly acquired territories. The man who enslaved Scott had taken him from Missouri, a slave state, to live in Illinois, a free state, and in a federal territory (present-day Wisconsin, Minnesota, Iowa, and parts of the Dakotas) where Congress had made slavery unlawful. Scott claimed that his stay in Illinois and the territory had emancipated him; a common-law doctrine said slaveholders who intentionally transported enslaved people into free jurisdictions freed them, regardless of intent.

The problem, though, was that, under the Constitution, in order to bring the lawsuit in the first place, one had to be a “citizen.” To arrive at the conclusion that Scott was not one, Chief Justice Roger B. Taney zeroed in on the statement in the Declaration of Independence that it was “self-evident” “that all men are created equal” and “endowed by their Creator with certain unalienable Rights.” If the Founding Fathers intended to include Black people in that declaration while personally enslaving them, Taney reasoned, that would mean that the Founding Fathers were hypocrites who “would have deserved and received universal rebuke and reprobation.” But Taney found it impossible that these “great men” acted in a manner so “utterly and flagrantly inconsistent with the principles they asserted.” So he concluded, instead, that their intent was to exclude Black people from the American political community. Of the two possibilities, grotesque hypocrisy or white supremacy, Taney found the latter far more plausible.

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