• Andrew P. Napolitano. Dred Scott’s Revenge: A Legal History of Race and Freedom in America, Nashville: Thomas Nelson, 2009, 288 pages, $25.99.
Last year my family and I toured the old Supreme Court chambers in the Capitol in Washington. The courtroom is lined with busts immortalizing the first complains that by allowing states to desegregate at their four chief justices. The tour guide pointed out in passing that the fifth, Roger Taney, doesn’t stand next to the greats like John Jay and John Marshall; he lurks in the robing room like an abandoned raincoat.
Taney (pronounced TAW-ney) wrote what may be the most destructive of all Supreme Court rulings, the Dred Scott decision which stated that black Americans had no standing to sue, because they weren’t really persons to begin with.
Judge Andrew Napolitano’s Dred Scott’s Revenge traces America’s heritage of racial discrimination and tension from its earliest days as a settlement. It’s not a pleasant story, and the book can be an uncomfortable experience. Napolitano doesn’t pull any punches or gloss over any cruelty or injustice.
Unfortunately, the book suffers from odd twists of logic caused by the judge’s approach to the question — as a matter of natural versus positive law — and a broad-brush tarring of everyone from Lincoln to Reagan with the charge of outright racism or complicity with the race hatred of others.
The book is about race, but Napolitano sees the underlying conflict as not between black and white or even slavery and freedom, but between theories of law. Any rule or right which is universally inherent comes from what John Locke called the state of nature, a natural law preceding and superceding all others.
Any right depending on the voter or the government is positivistic. And through the centuries, American judges and lawmakers have argued on both sides when it suited their purposes.
Napolitano says that law rightly comes from both sources — positive enactments which criminalize an action because the state declares it illegal, and natural law which may be a common understanding or supported by legislation as well. One is a case of speed limits, another forbids murder. There is a place for both.
The difficulty for Napolitano’s argument is how to resolve the tension between them. “[Where] positivism is limited to laws passed by governments, natural law is not. Natural law knows only one authority: Our human nature
that is created by God,” he writes. “Therefore, natural law allows judges to strike down properly passed laws that infringe on our freedom of speech, worship, or assembly even if the Constitution did not protect those freedoms.
So far, so good. However, Napolitano acknowledges that it is entirely possible for a law to be just and also unconstitutional, or be perfectly in line with the Constitution and fly in the face of natural law. How, then, should judges rule? Should a jurist rule strictly on the letter of the positive law — and any constitution is a positive enactment by definition — or should he use his position and power to pull the enacted laws into alignment with the natural? Should we praise the liberal judge who follows a strict construction, or the activist conservative?
The tension is real, and a reality Napolitano doesn’t quite resolve. Take the case of Brown v. Board of Education. After several pages arguing that the Supreme Court acted unconstitutionally in the decision — though it was morally right and a conclusion driven by natural law — he then complains that by allowing states to desegregate at their own pace, “the Court identified unconstitutional behavior by a state and permitted it to continue.”
It highlights a particular stress in the debate: The very authority of a justice rests on the positive law of the Constitution. If a Supreme Court justice takes exception to the Constitution on grounds of natural law, whence comes his authority to act? If he resigned from the bench and worked to change the Constitution by the normal political process, fine, but trying to rewrite the document empowering his position saws off the branch on which he sits. Napolitano never addresses this paradox.
Like a prosecuting attorney, the judge opens closets and drags out skeletons to rattle at politicians and jurists of every stripe. He reserves special criticism for an unlikely target: Abraham Lincoln. Most of two chapters are devoted to the racial politics of the 16th president, whom Napolitano almost dismisses as “cynical.”
Napolitano quotes Lincoln’s statement that slavery was not his primary issue, but preservation of the Union. “Lincoln places the freedom of blacks on a low priority compared to his desire to unify the nation, and his words here seem more becoming of a Confederate Army officer than the so-called Great Emancipator. Yet it is the latter title that we’ve all been taught to attribute to Abraham Lincoln.”
Napolitano explains how the progressive Democrat Woodrow Wilson took positive steps to ensure total segregation in the Army, dismissing qualified black officers in favor of whites. Even the Great Communicator is accused of crypto-racist messaging. “Reagan himself was no racist,” Napolitano writes, but Reagan’s efforts at welfare reform were racially polarizing appeals to his working- and middle-class white supporters.
Reagan began his 1980 presidential run in the Mississippi town where three civil-rights workers were murdered in 1964 by the Ku Klux Klan.To open a presidential campaign with a speech about states’ rights in a place with such a loaded history was hardly an accident,” Napolitano says.
Napolitano’s account brings to light numerous buried facts from history, and by clearly showing the racial overtones of governmental actions, whether intentional or inadvertent, underscores the truth that both parties are at fault. For a conservative commentator and a jurist to question the justice of our criminal courts does command attention. But for all that, the “revenge” of the title — the inauguration of our first black president — is proving to be less of a satisfaction than even Napolitano probably hoped for, and by raising so many questions anew, this book does not give an adequate solution to them in the end.