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On Behalf of | Apr 23, 2021 | Firm News

Roger Taney, Chief Justice of the United States, wrote in Dred Scott that Black Americans were considered “subjugated by the dominant race…as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so inferior, that they had no rights which the white man was bound to respect.”  Dred Scott v. Sanford, 19 How. 393, 404-07, 15 L.Ed. 691(1857).  The Scott Court initially considered the jurisdictional question.  That question, the Chief Justice says, is whether “a negro, whose ancestors were imported into this country, and sold as slaves” is “entitled to sue as a citizen in the courts of the United States.”  The Chief Justice, and the majority, setting forth highly legalistic arguments, held that the answer to this question is “no.” Even if Dred Scott is a free man, he is not a “citizen.”   The court, Taney concludes, must not “give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted . . . . It must be construed now as it was understood then.”  Id.  Justice Benjamin Curtis, in a powerful dissent, strongly disagreed.  Justice Curtis did not care to enter “into an examination of the existing opinions of that period respecting the African race.”  Id.  Justice Curtis argued that a “calm comparison” of the assertion in the Declaration of Independence that “all men are created equal” with the “individual opinions and acts” of its authors “would not leave these men under a reproach of inconsistency.”  It would show that they “were ready and anxious to make” the “great natural rights which the Declaration of Independence asserts . . . . effectual wherever a necessary regard to circumstances would allow.”

As in the case of Dred Scott, America today has a question before it: are “all men are created equal” so that we are ready and anxious to make” the “great natural rights which the Declaration of Independence asserts effectual wherever a necessary regard to circumstances would allow”?

The principle of equality asserted in the Declaration of Independence was made the supreme law of America in the 13th, 14th and 15th Amendments.  In the words of the U.S. Supreme Court, “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”  United States v. United Mine Workers, 330 U.S. 258, 312 (1947) (Mr. Justice Frankfurter, concurring in the judgment).  This allows “[e]very act of government may be challenged by an appeal to law.”  Id. at 308.

Justice Frankfurter was telling us that no one, from the president to the police, has a right to determine for himself or herself what is the law.  When one person is allowed to determine what the law is, we are on the road to chaos and tyranny.

On a national scale, presidents, regardless of party, who were well-meaning but without understanding, have assaulted the rule of law. Franklin Roosevelt and the rounding-up of Japanese-Americans, Abraham Lincoln’s suspension of the writ of habeas corpus, Woodrow Wilson’s imprisonment of antiwar activists, and Richard Nixon’s many public crimes all immediately come to mind.  Most recently, in City and County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) the issue of whether “in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called “sanctuary” cities and counties.”  Id. at 1231.  The Court found that “under the principle of separation of powers and in consideration of the spending clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization.”  Id.  In other words, no one person, even a president, is entitled to say what the law is.  As Justice Sonia Sotomayor stated when she was nominated to the U.S. Supreme Court, “the rule of law [is] the foundation for all of our basic rights.”  Transcript of Obama-Sotomayor announcement.

Today, when a Black American is told by the actions of one man that he is not entitled to all legal protections, that one man stands with Roger Taney, Chief Justice of the United States, and tells the Black American he is so inferior that he has no rights which are bound to be respected.  As Justice Frankfurter told us, this is the road to chaos and tyranny.

Some people who are well-meaning but without understanding attempt to attack the verdict in Derek Chauvin as being anti-police.  They forget that standing for the rule of law is the same whether the rule is sought to be imposed against a president or a policeman.

The Hennepin County jury found former Minneapolis Police officer Derek Chauvin guilty on all counts in the death of George Floyd. In his closing argument, prosecutor Steven Schleicher focused not only on what the case was about, but also on what it was not about:

To be very clear, this case is called the ‘State of Minnesota vs. Derek Chauvin…. this case is not called the ‘State of Minnesota vs. the police.  This is not an anti-police prosecution, it’s a pro-police prosecution.”

In other words, the correct focus is that one man, who happened to be a police officer, did not follow the America’s supreme rule of law: “all men are created equal.”  The police have power when they follow the law.  The police do not have power when they do not follow the law.  If you fail to support that principle, America is on the way to chaos and tyranny.