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155 Years Ago Today

In the Supreme Court building, there are many portraits of Justices of the Court throughout its history.  In the Justices' private dining room, though, the portraits are not of Justices but of litigants -- Marbury and Madison.  They were the parties to the case that established that the Supreme Court could declare an Act of Congress void if the Court found it conflicted with the Constitution.

There should be a third litigant's portrait hanging there, in my opinion.  His picture should constantly remind the Justices of the danger of overreach, of striking down a valid act on a fabricated conflict with the Constitution because they think it is better policy to do so, i.e., of judicial activism.  His case was decided 155 years ago today.

And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
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Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident.
Both the conclusion and the reasoning are preposterous.  Even if we place ourselves into an antebellum mindset and accept the proposition that a person can be property, still the right to property does not include the right to bring that property into a place where it is banned.  You have no right to take your California-legal medical marijuana into Utah.  If you do, and they confiscate it, you have no right to get it back.  Congress's clear authority to legislate for the territories included the power to abolish slavery in a territory, as the dissent explains.

The Court twisted the Constitution out of shape to achieve a result a majority of its members thought was desirable, contrary to the decision of the elected representatives of the people.  It would not be the last time.  We should be vigilant against such misuse of the judicial authority, and we should not hesitate to denounce it when it occurs, however much we may be criticized for attacking the independence of the judiciary.

A few years after the decision noted above, a presidential candidate made opposition to the decision a major part of his campaign.  He won, fortunately.

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