You Don't See Dred Scott Cited Approvingly Everyday
Most folks don't cite embarrassing, racist precedent, but...
UPDATE (10/19/16 5:38 p.m.): Big news! Read more below.
Sometimes there’s that one case. That case that makes you double check just to make sure your eyes aren’t deceiving you and… nope, it’s still good law. But something stays your hand before dropping that pincite on the end of your ever growing block of citations. It’s that quick perusal of the facts that makes it abundantly clear that you don’t want your position within 100 miles of this precedent.
It’s why no one cites Bowers for the proposition that exigent circumstances allow police to enter a domain without a warrant.
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Yesterday, Kansas Solicitor General Stephen McAllister filed a brief — signed by Shon D. Qualseth of Thompson Ramsdell Qualseth & Warner (where McAllister serves Of Counsel) — citing the Supreme Court opinion in Dred Scott v. Sanford… approvingly. Huh? That’s something you don’t see everyday.
Pro practice point: cases described as “an act of supreme folly” and a “shadow [that] will ever rest on [the author’s] memory” are best left out of any filing.
There it is, right there on page 4:
See also Dred Scott v. Sandford, 60 U.S. 393, 407 (1856) (describing 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).
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Yep. That is what Dred Scott said. But I’ll let you in on a little secret: Justice Taney is the bad guy. Yeah. See, these quotes were expressly intended to justify the enslavement of human beings. If anything, this citation makes reasonable people think, “hmmm… maybe unalienable rights shouldn’t be mere puffery!”
This cite comes to us from Hodes & Nauser v. Schmidt, an appeal to the Supreme Court of Kansas seeking to revive a Kansas law that effectively bans second-trimester abortions in Kansas. What makes the case unusual is that it rests the protection of reproductive rights upon the Kansas Constitution and that has the Sam Brownback administration terrified because he’s been praying for that Trump-packed Court to come along and sweep away Roe so he can wallow in his own crapulence. A state constitutional right would put the kibosh on that.
An interesting side story here is that an anti-abortion stance would choose to cite Dred Scott approvingly since it’s a shibboleth in those circles to reject Dred Scott as a proxy for Roe. Seems like Brownback’s people got some wires crossed when it comes to anti-abortion etiquette.
McAllister’s filing specifically responds to an amicus brief authored by the ACLU and Constitutional Accountability Center positing that the Kansas Constitution’s guarantee of equal rights is coextensive with the Fourteenth Amendment’s provisions because both were enacted for the express purpose of enshrining the rights outlined in the Declaration of Independence.
Hence McAllister cites Dred Scott to say that the Declaration isn’t legally binding and to also argue that the due process clause of the Fourteenth gives it teeth that a recitation of the Declaration wouldn’t have. The Kansas Framers wrote their provision to just, I guess, mimic the rhetorical flourish of the Declaration without any legal effect. Kansas courts have repeatedly declined to support that read, but here’s where we are.
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The case forges ahead toward the inevitable Kansas Supreme Court rejection of this ridiculous Dred Scott argument, followed by Governor Brownback taking all their money away in an authoritarian power grab. It’s the circle of life in Kansas.
Meanwhile, stay tuned for McAllister’s next gem. I’m guessing it’s a three strikes law appeal, Buck v. Bell, 274 U.S. 200 (1927) (three is a reasonable limit for a government regulation).
UPDATE: Constitutional Accountability Center President Elizabeth Wydra just Tweeted that Kansas has moved to withdraw this motion.
But the real winner here is the immediate responder to my Retweet of Wydra’s news:
Boom.
(If you’re looking to read the whole brief for context, it’s on the next page…)
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.
