A QUESTION OF JUDGEMENT

I have received comment concerning the piece A QUESTION OF FREEDOM OF SPEECH (10^th May 2021):

“ (I) Prefer the ECtHR (European Convention on Human Rights) concept of a balancing exercise. Better than religious worship of Constitution stretched to unreal rigidity by Supreme  Court - and don’t even get started on Scalia's purist perversion of 2nd amendment.

x

Dred Scott.”

A view with which I must concur. I am reminded that The Rule of Law, which is without doubt (in my view) what holds any society together, is quite distinct from the Rule of Lawyers. There have been over the years, some very distasteful and horrific decisions rendered by some of the highest courts. The rules have at times been, unfortunately, interpreted by allegedly learned men, who have been unable to hide their deep held prejudices and bigotry.  They make very great mistakes. As a result of those mistakes, it has been necessary for legislators to correct those errors of interpretation by passing laws which override the misinformed judgements of the judiciary. In general, those mistakes had caused such alarm and disturbance amongst the citizenry, that their representatives were forced to act, particularly if they wished to continue to be representatives.

Gross mistakes made by the rule of Lawyers are, generally, corrected by The Rule of Law, which maintains (a) that we do not cause harm to each other as human beings, and (b) those mistakes which cause harm must be rectified. It can sometimes take quite some time to rectify those mistakes, and it can also take some time to recognise that a mistake has been made. It all depends upon the minds of men and the prevailing attitudes in a civilised society. The more civilised we become, the stronger we become. At least I hope so.

Looking back to the above comment, some of you may know that the name Dred Scott, refers to the case of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The Supreme Court of the United States, rendered its decision on the 6^th March 1857. It was one of the most shameful opinions ever given by the court.

The Court held that the US Constitution was not meant to include American Citizenship for black people, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them.

Dred Scott

Dred Scott was an enslaved black man whose owners had taken him from Missouri, which was a slave-holding state, into Illinois and the Wisconsin Territory, which were free areas where slavery was illegal. When his owners later brought him back to Missouri, Scott sued in court for his freedom and claimed that because he had been taken into "free" U.S. territory, he had automatically been freed and was legally no longer a slave. Scott sued first in Missouri state court, which ruled that he was still a slave under its law. He then sued in US Federal court, which ruled against him by deciding that it had to apply Missouri law to the case. He then appealed to the US Supreme Court 

Chief justice Roger Taney stated, amongst other matters:

Justice Taney

“The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all of the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?”

 

“We think ... that [black people] are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [of America's founding] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

“Now, ... the right of property in a slave is distinctly and expressly affirmed in the Constitution. ... Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the [36°N 36' latitude] line therein mentioned, is not warranted by the Constitution, and is therefore void.”

You will note that the tone and line of thought is completely impersonal and barely refers to ‘black people’ as human being. This line of thought had been prevalent in the minds of Lawyers for a more than a century.  Some 70 years earlier, before the Court of Kings Bench in Westminster Hall, the case of Gregson V. Gilbert (1783) 3 Doug. KB 232 was heard on the 21^st to 22^nd May 1783 before The Lord Chief Justice, The Earl of Mansfield, Mr Justice Buller and Mr Justice Willes. 

 

The Slave Ship (1840), J. M. W. Turner's

representation of the mass killing of enslaved people,

 inspired by the Zong killings

 

The case arose out of the mass killing of more than 130 enslaved Africans by the crew of the British slave ship Zong, on and in the days following the 29 November 1781. The Gregson slave-trading syndicate, based in Liverpool, owned the ship and sailed her in the Atlantic slave trade. As was common business practice, they had taken out insurance on the lives of the enslaved people as cargo. According to the crew, when the ship ran low on drinking water following navigational mistakes, the crew threw enslaved people overboard into the sea.

After the slave ship reached port in Jamaica, Zong's owners made a claim to their insurers for the loss of the enslaved people. When the insurers refused to pay, the resulting court cases (Gregson v Gilbert (1783) 3 Doug. KB 232) held that in some circumstances, the murder of enslaved people was legal and that insurers could be required to pay for those who had died. The jury found for the slavers, but at a subsequent appeal hearing the judges, led by Lord Chief Justice, The Earl of Mansfield, ruled against the syndicate owners, due to new evidence that suggested the captain and crew were at fault. 

Earl of Mansfield

Summing up the verdict reached in the first trial, Mansfield said that the jury:

“had no doubt (though it shocks one very much) that the Case of Slaves was the same as if Horses had been thrown over board ... The Question was, whether there was not an Absolute Necessity for throwing them over board to save the rest? The Jury were of opinion there was.”

 

The Solicitor General at the time, John Lee, appeared on behalf of the owners. He argued:

John Lee

“What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder. They acted out of necessity and in the most appropriate manner for the cause. The late Captain Collingwood acted in the interest of his ship to protect the safety of his crew. To question the judgement of an experienced well-travelled captain held in the highest regard is one of folly, especially when talking of slaves. The case is the same as if wood had been thrown overboard”.

Given the prevailing attitudes and reasoning of the public and the Judiciary for the past 500 years, is it any wonder it takes so long to rectify these gross and inhuman judgements.

In the aftermath of Dred Scott, the abolitionist cause grew in strength and numbers, which led to the Civil War just four years later, and the eventual passing of the thirteenth amendment. That of course did not completely rectify the situation. Seventy years on, in 1927 the 11^th Chief Justice, Charles Evans Hughes described the Dred Scott case as “a self inflicted wound” from which the court would not recover for many years.

As to the Zong massacre, the impression on the then 24 year old William Wilberforce, only three years before elected as Member of Parliament for Kingston upon Hull, was without question what spurred him on. His efforts led to the Slavery Abolition Act of 1833. That was 50 years after the case. Wilberforce died in 1833. He struggled for half a century to change the thoughts and attitudes of those around him.

Turning to the mention of Scalia (don’t even get started on Scalia's purist perversion of 2nd amendment), this is Justice of the Supreme Court Antonin Scalia (who by the way referred to the Dred Scott case in an effort to overturn Roe-v-Wade, a women’s rights case – he claimed it rested upon the concept of ‘substantive due process’, but that’s another story).

Antonin Scalia

Scalia who died four years ago in February 2016, was appointed to the Court by President Ronald Reagan. It was his death that caused controversy in relation to President Obama’s appointing a replacement so close to the end of his term of Office. This was opposed by the Republican Party most vociferously, by Mitch McConnel and Lindsey Graham. This led to the Trump appointment of Justice Neil Gorsuch. The controversy over a President appointing Judges in the last year of his term led to the Trump appointment of Justice Amy Coney Barrett, in complete contradiction of Republican claims in 2016.

As to Scalia, he espoused a conservative jurisprudence and ideology, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He peppered his colleagues with "Ninograms" (memos named for his nickname, "Nino") which sought to persuade them to agree with his point of view. He was a strong defender of the powers of the executive branch. He believed that the Constitution permitted the death penalty and did not guarantee the right to abortion or same-sex marriage. Furthermore, Scalia viewed affirmative action and other policies that afforded special protected status to minority groups as unconstitutional. These positions earned him a reputation as one of the most conservative justices on the Court. He filed separate opinions in many cases, often castigating the Court's majority using scathing language. Scalia's most significant opinions include his lone dissent in Morrison -v- Olson (arguing against the constitutionality of an Independent-Counsel law)), his majority opinion in Crawford -v- Washington (defining a criminal defendant's confrontation right under the 6^th Amendment), and his majority opinion in District of Columbia -v- Heller (holding that the 2^nd Amendment to the U.S. Constitution guarantees a right to individual handgun ownership). In my view, the appointment of Justice Scalia, was a self inflicted wound. 

 

District of Columbia v. Heller, 554 U.S. 570 (2008), was a landmark decision ruling that the Second Amendment to the United States Constitution protects an individual's right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defence within the home, and that the District of Columbia's handgun ban and requirement that lawfully owned rifles and shotguns be kept "unloaded and disassembled or bound by a ‘trigger lock" violated this guarantee. It also stated that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defence or if the right was intended for state militias.

 

So we now the gunsels run riot all over America. One wonders how long it will take to rectify the insanity of that decision. Yes, the Rule of Lawyers is unfortunately the result of the rule of politicians. The prevailing winds of the time is what informs their thinking. The religious worship of the United States Constitution can indeed be stretched to unreal rigidity by some members of the Supreme Court of the United States. Religious adherence of any kind can be disturbing. It depends on whether one truly believes in the Rule of Law over Lawyers, Politicians and the Clergy, and the way they read.

 

How people think reflects how people read, more so than what they write. The framers of the United States Constitution, the chroniclers who wrote the scrolls and the numerous writers of constitutions, manifestos, pamphlets, publicity and advertising copywriters put down the words they thought in whatever language was in their heads. It is the reader who makes those words work. How the reader thinks will give the words their meaning. How we think is how we understand. How we think makes us react. 

 

Do we learn how to think, or are we taught what to think? Education and experience should teach us how to think, not what to think. Too many try to control what we think because what we think is of some importance. It affects the whole of our lives.

We therefore have to be careful when we elect our representatives or appoint our judges and keepers of the peace. How and what they think may cause harm that may take years to correct. Blind and religious adherence to certain lines of thought can cause disruption and does cause serious conflict throughout the world.

 

As examples of perfidy, certain representatives of the United States Senate are prime candidates. The choice of Justice for the Supreme Court of the United States is crucial to maintaining what semblance of independence remains in the Court. That is clearly no longer the case. Conservative politics in the United States has sought to impose its will on the American People and like a terminator it is out to destroy democracy in that country. Lindsey Graham and Ted Cruz are still in Office. Conservative “Right to Life’, anti-Affordable Health Care Act Judge Barrett has been appointed. How she thinks will have a dramatic effect on the future of Constitutional law in the United States for many years to come, if it survives that long.

I have to thank HHJ Michael Horowitz for his comments which lead me to this train of thought.