dread scott and originalism, conservative Sheriff Joe Arpaio may win Taliban’s man of the year award

Engravings of Dred Scott, his wife, Harriet Robinson Scott, and their two daughters, Eliza and Lizzie

Even the full size is very difficult to read. That said if you could read it you might find some of the language offensive. The SCOTUS and the Dred Scott decision

The most important and controversial court case relating to slavery was Dred Scott v. John F. A. Sandford. Scott was an enslaved man whose owner, a military surgeon, took him to the free state of Illinois and into the northern part of the Louisiana Purchase territory where Congress by the Missouri Compromise of 1820 had declared that slavery could not exist. After twelve years Scott returned to St. Louis with his master, who died in 1843. In 1846 Scott sued his owner’s widow for his freedom arguing that the years he spent in the free territories made him free. Over the next decade the case made its way to the Supreme Court of the United States.

On March 6, 1857, the Supreme Court issued what was to become a landmark decision, Dred Scott v. John F.A. Sandford. Delivered by Chief Justice Roger B. Taney, a pro-slavery Marylander, the decision of the court contained three important elements: 1. Neither Scott nor any other slave could become free by virtue of residence in a free state or territory; 2. Negroes, slave or free, were not citizens, and therefore did not have the right to sue in federal court; and 3. Under the Constitution, Congress did not have the power to exclude slavery from the western territories, and therefore the Missouri Compromise was unconstitutional. Slaves were property, and the government could not violate a slave owner’s right to property by prohibiting slavery in the territories.

These engravings of Scott, his wife, Harriet Robinson Scott, and their two daughters, Eliza and Lizzie, were printed on the front page of Frank Leslie’s Illustrated Newspaper on June 27, 1857, accompanying an article about Scott and his life since the Supreme Court decision.

The Dred Scott decision by would remain the law of the land until the passage of the Fourteenth Amendment in July of 1868. Both the Scott decision and the necessity of passing the 14th amendment bring up a subject near and dear to the conservative movement. Scott was born in the USA. The only physical difference between him and any other American citizen was his ethnicity. Why would the court read into the Constitution the right to deny the full rights of citizenship to a person of color. The majority of those on the Court decided that since African-Americans were not considered citizens when the Constitutions and the original first ten amendments( the Bill of Rights) was written, thus black Americans were excluded from having equal rights. Since there was nothing explicitly written in that Bill of Rights to exclude certain groups – women for instance, obviously this was a court opinion based on interpretation, or what the court saw as implied provisions of the law. If not for some common cultural prejudices of the time the court could have seen that added together the Bill of Rights provided protection against slavery. So even going back to 1857, what some call constitutional originalism was an issue. How can one claim to have staked out the true original meaning of the constitution if those very close it its originators could not discern an intent to to include or exclude some people based on perception of intent. This comes up comes up as an issue in far Right conservative Jonah Goldberg’s new book “The Tyranny of Clichés”. Liberals are taken to task for believing in a “living” Constitution. Believing in a living Constitution is originalism in the sense that the Bill of Rights was flawed from the beginning in not being more specific. For years after the Constitution was instituted as the law, no court bothered to even enforce it. The property rights of women were largely ignored for instance. So if one takes a perverse originalist view of the Bill of Rights, one that says that any right not explicitly spelled out in the Constitution does not exist, than the general spirit of the document is ignored. It becomes a general guarantee for white male property owners to do as they see fit. Thus the constitution becomes not a legal declaration of freedom, but a rule book interpreted to the masses through the self interest bias of one group of people. There is no provision in the constitution about how to regulate the broadcast spectrum. So Goldberg’s and conservative’s originalism would provide no regulation what so ever for the airwaves. If a group of animistic anarchist billionaires wanted to buy up the entire spectrum and broadcast their agenda 24/7, than no interpretation of the constitution based on the conservative or libertarian ideal of originalism would allow for regulation to bust the monopoly. If one or two companies bought the major internet hubs in the U.S. and only allowed monitored traffic they approved of, nothing could stop them according to the originalist view because the Founders did not mention the internet. They also did not mention regulation of toxic chemicals in drinking water. Thus any attempt to regulate what went into your family’s water would be unconstitutional. Originalists cannot even win on their own terms. A fvaotite tack is to present what they are against, say health care reform ( which was based on a plan by the far Right Heritage Foundation) because nothing in the constitution explicitly states the government can do so. It is also true that there is nothing in the Constitution a that says you cannot have health care reform. Former judge Catherine Crier once wrote that conservatives do not look to the Constitution and form legal opinions. They form legal opinions and desperately search for rationales in the Constitution. That remains true. Conservatives like Goldberg even have to resort to thread bare straw man arguments to weasel out of that obvious tendency.

Conservative Republican Sheriff Joe Arpaio may have read the Bill of Rights at some point, but did he take a reading comprehension tests afterwards – It Looks as Though Conservative Republican Sheriff Joe Arpaio Got His Law Enforcement Training From a Taliban Training Qaeda Manual

Earlier today, the Department of Justice filed a formal legal complaint against Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office (MCSO) alleging widespread constitutional violations and lawless mistreatment of Latinos. According to the complaint, Arpaio and his staff engaged in widespread, violent and demeaning mistreatment of Latino residents of Maricopa County, often targeting individuals solely because of their race:

*Forcing Women To Sleep In Their Own Menstrual Blood: In Arpaio’s jails, “female Latina LEP prisoners have been denied basic sanitary items. In some instances, female Latina LEP prisoners have been forced to remain with sheets or pants soiled from menstruation because of MCSO’s failure to ensure that detention officers provide language assistance in such circumstances.”
*Assaulting Pregnant Women: “[A]n MCSO officer stopped a Latina woman – a citizen of the United States and five months pregnant at the time – as she pulled into her driveway. After she exited her car, the officer then insisted that she sit on the hood of the car. When she refused, the officer grabbed her arms, pulled them behind her back, and slammed her, stomach first, into the vehicle three times. He then dragged her to the patrol car and shoved her into the backseat. He left her in the patrol car for approximately 30 minutes without air conditioning. The MCSO officer ultimately issued a citation for failure to provide identification.”
*Stalking Latina Women: “In another instance, during a crime suppression operation, two MCSO officers followed a Latina woman, a citizen of the United States, for a quarter of a mile to her home. The officers did not turn on their emergency lights, but insisted that the woman remain in her car when she attempted to exit the car and enter her home. The officers’ stated reasons for approaching the woman was a non-functioning license plate light. When the woman attempted to enter her home, the officers used force to take her to the ground, kneed her in the back, and handcuffed her. The woman was then taken to an MCSO substation, cited for ‘disorderly conduct,’ and returned home. The disorderly conduct citation was subsequently dismissed.”
*Criminalizing Being A Latino: “During raids, [Arpaio’s Criminal Enforcement Squad] typically seizes all Latinos present, whether they are listed on the warrant or not. For example, in one raid CES had a search warrant for 67 people, yet 109 people were detained. Fifty-nine people were arrested and 50 held for several hours before they were released. Those detained, but not on the warrant, were seized because they were Latino and present at the time of the raid. No legal justification existed for their detention.”
*Criminalizing Living Next To The Wrong People: “[D]uring a raid of a house suspected of containing human smugglers and their victims . . . officers went to an adjacent house, which was occupied by a Latino family. The officers entered the adjacent house and searched it, without a warrant and without the residents’ knowing consent. Although they found no evidence of criminal activity, after the search was over, the officers zip-tied the residents, a Latino man, a legal permanent resident of the United States, and his 12-year-old Latino son, a citizen of the United States, and required them to sit on the sidewalk for more than one hour, along with approximately 10 persons who had been seized from the target house, before being released.”
*Ignoring Rape: Because of Arpaio’s obsessive focus on “low-level immigration offenses” his officers failed “to adequately respond to reports of sexual violence, including allegations of rape, sexual assault, and sexual abuse of girls.”

If Sheriff Joe and his deputies are trying to give law enforcement a bad reputation, to get average citizens to see law enforcement as the enemy or to see law enforcement as misogynists and ethnocentric jerks, they’re doing a heck of a job as someone once said.

A thoughtful take on bullying and that piece in the WaPo about Mitt Romney – THE WEEK IN GREED #6: To Behave Like the Fallen World

Janis Joplin – Me & Bobby McGee