More than 150 years after the U.S. Supreme Court issued the notorious Dred Scott decision affirming slavery, Frederick marked the dedication Tuesday of a plaque to Dred and Harriet Scott in front of City Hall.

The plaque, which stands a few steps from the bust of Roger Brooke Taney, is the culmination of more than 2 1/2 years of painstaking deliberation and debate. It is a compromise between residents who wanted the Taney statue gone and those who consider him a great jurist whose racial views reflected the tenor of his times.

Referring to Taney's decision as "affirming slavery" isn't quite right. Abolition wasn't at issue. A little later, the story has a better description.

Taney, a Frederick lawyer and chief justice of the United States, is responsible for the Supreme Court's notorious 1857 decision that ruled black people, whether freed or slaves, were not considered U.S. citizens. The 7-2 decision also declared that Congress had no authority to prohibit slavery in any of the country's new territories.

Although the term "judicial activism" would not be coined until much later, that is exactly what the Dred Scott decision was.  The notion that Congress could not prohibit slavery in a territory flew in the face of both text and history. The Articles of Confederation Congress did exactly that as the Constitution was being drafted, and the Constitution was clearly intended to create a more robust federal government, not a weaker one. The last clause of Article I, Section 8 expressly gave Congress legislative authority over the territories. The infamous Article IV, §2 ¶3 prohibited a free state from declaring a slave free because he escaped into it, but there was no prohibition against making a slave free if his master voluntarily brought him to a place where slavery was illegal.

Taney and the majority gave the Constitution a meaning that was warranted by neither the text nor the history to strike down a statute for the purpose of achieving what they considered to be an important policy objective. That is the essence of judicial activism. Ironically, they achieved the opposite of their objective. They hastened the Civil War instead of preventing it.

At the Supreme Court, portraits of Marbury and Madison hang in the Justices' private dining room. I think they should hang a picture of Dred Scott right next to them as a constant reminder of the dangerous temptation of judicial activism.