The State Of Kansas Actually Cited Dred Scott In A Court Brief

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Kevin Daley Supreme Court correspondent
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Kansas Solicitor General Stephen McAllister, the state’s top legal advocate, filed a brief with the Kansas Supreme Court citing possibly the most notorious case in the history of the U.S. Supreme Court as support for his case, according to Slate’s Mark Joseph Stern.

The brief has since been withdrawn.

In Dred Scott v. Sanford, the high court ruled in 1857 that a slave, Dred Scott, could not sue for his freedom after his master moved from a slave state (Missouri) to a free state (Illinois.) A 7-justice majority led by Chief Justice Roger Taney reasoned that Scott was not a citizen (indeed, that no person descended from a slave was a citizen) and therefore, that the Court had no jurisdiction to hear the case (Article III of the Constitution empowers the courts to hear cases and controversies “between Citizens of different States.”) Taney drew extensively from the history of Anglo-American slave law to solidify this conclusion, penning such passages as:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

The Dred Scott decision was stripped of its precedential power by the Fourteenth Amendment, depriving it of practically all relevance to future cases. What’s more, the deep racism which pervades the opinion have removed Dred Scott from the canon of law. It is instead installed in the so-called “anti-canon,” the opposite of law, what Professor Jamal Greene of Columbia Law School describes as “a set of propositions that all legitimate constitutional decisions must be prepared to refute.” The anti-canon is no mere compendium of legal theories which are no longer fashionable; it is essential to a constitutional order. Writes Greene: “Together, they map out the land mines of the American constitutional order, and thereby help to constitute that order: we are what we are not.” (RELATED: The Post-Scalia Supreme Court Is Much Less Funny)

The Kansas SG did not cite Dred Scott in a racial context. The case he was briefing concerns a state law restricting the lawful use of a medical technique frequently employed in second trimester abortions. In challenging the law, the ACLU of Kansas argues that the Fourteenth Amendment and section 1 of the Kansas Constitution’s Bill of Rights must be read coextensively as protecting the “substantive fundamental rights in line with the Declaration of Independence,” together creating a significant repository of rights and freedoms, including a right to abortion.

In rebutting this argument, McAllister notes in passing that the Declaration of Independence is not currently being read as a statement of law by courts across the country, citing among other cases Dred Scott. McAllister writes that Dred Scott describes “the Declaration’s description of unalienable rights as merely ‘general words used in that memorable instrument’ and holding that the Declaration did not have a legally binding effect.”

Late Wednesday, Kansas Attorney General Derek Schmidt announced his office would retract the brief, but insisted the unfortunate citation should not detract from the merit of the state’s legal arguments.

“Yesterday’s reference to Dred Scott in a State’s response brief does not accurately reflect the State’s position, is not necessary for the State’s legal argument, and should not have been made,” he said. “Neither the State nor its attorneys believe or were arguing that Dred Scott was correctly decided. Nonetheless, the reference to that case was obviously inappropriate, and as soon as I became aware of it today, I ordered the State’s brief withdrawn.”

“The unfortunate use of this citation should not distract from the important question the Kansas Supreme Court faces in this case,” he added.

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