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Supreme Court Errors: Dred
Scott, Plessy, and Everson
By David W. Kirkpatrick (October 18, 2007)
Senior Education Fellow
U.S. Freedom Foundation www.freedomfoundation.us
The U.S. Supreme Court, like all of society's institutions, has seen its prestige diminished in recent years. Which is not to say it doesn't compare favorably with other agencies. The Court, and the judiciary branch of government in general, still holds up well when compared with the legislative and the executive.
One of the more common complaints today is that the Court if too often guilty of legislating the law rather than restricting itself to interpreting the Constitution when considering cases before it. The late New York City Mayor Fiorello LaGuardia was noted for saying "when I make a mistake, it's a beaut!" The same might be said of the Supreme Court except its mistakes are not just "beauts," they can have a serious impact on the entire nation.
Three such cases stand out. There is no question about the first two, while the third is still subject to debate. All have implications for schooling although only the third case was directly concerned with a school question.
The first was the Dred Scott decision in 1857. Scott was a slave who said he should be a free man because he had been taken to a free state. Today, 150 years later, it still seems unbelievable that the court not only ruled against him, but held that "people of African ancestry...are not included, and were not intended to included under the word ‘citizens' in the Constitution." The Court could have let it go at that and Scott would have lost. But no, the Court went on to say that Scott and others in his circumstances "had no rights or privileges but such as those who held the power and the Government might choose to grant them." It took the Civil War and the 14th Amendment to rid the nation of this atrocious ruling.
In 1896 it was Plessy v. Ferguson in which the Court ruled that separate but equal facilities were constitutional. There is a double issue here. The first, of course, is the ruling that separate facilities, in this instance transportation, are no problem. The Court had the audacity to say that no sense of inferiority was implied and it only existed if the black race chose to so regard it. Of course it was the white race that so decided. But, even if for the moment it can be accepted that separate facilities are okay, at no time, then or after, were they ever remotely equal yet the Court, until the Brown decision of 1953, never saw the need to enforce its ruling. Brown finally overturned.Plessy.
The third decision is still on the books, causing difficulties to this day. The Everson decision of 1947, concerned public funding for busing students to religious schools. The majority opinion clearly made new law. The Court combined an interpretation of the 1st Amendment, from 1791, and the 14th Amendment from 1868 to discover a hitherto unknown principle. The two amendments had jointly existed for 79 years with no one, earlier Courts included, being aware that such a connection was there.
The Court's argument, by Justice Hugo Black, could hardly have been stronger. It concluded by quoting Thomas Jefferson, and saying "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."
Jefferson, of course, did not take part in writing the Constitution, having been in France at the time. His "separation" comment was made in 1801 in a letter to the Baptist congregation in Danbury Connecticut.
The irony is that Black, and the Court, after a forceful argument to the contrary, ruled that using public money to transport students to a religious school was not a "breach" in the Constitution.
The decision was correct. The reasoning behind it, to many minds, is a bit strained.
The consequence has been a 60-year struggle over the "separation" issue, what it does and doesn't mean, and what it may mean. The courts themselves have witnessed a seemingly never-ending succession of cases trying to see how many laws can dance on the head of this judicial pinhead.
Unlike Scott and Plessy, the end result of Everson is not yet.
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"Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." Alexis de Tocqueville, Vol. 1, Ch. 16, Democracy in America (p 280?) Vintage Edition, 1945, 1990
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Copyright 2007 David W. Kirkpatrick
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