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<h1 id="reader-title">No Rights Which the White Man Is Bound to
Respect</h1>
<div id="reader-credits" class="credits">Walter Johnson - Sep
27, 2017</div>
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<p>The spectre of Dred Scott is haunting St. Louis.</p>
<p>In March of 1857, Chief Justice Roger Taney issued his
majority opinion in the case of <em>Scott v. Sanford</em>.
The case concerned the legal condition of Dred Scott,
who had been held as a slave in Missouri before
traveling with his owner to Wisconsin and then returning
to Missouri. Because slavery was outlawed in the
Northwest Territory, Scott claimed that his time in
Wisconsin had effectuated his legal emancipation: having
been free, he could no longer be held as a slave. When
he filed his case in the Missouri courts in 1846, he was
on good legal footing. Decades of legal precedent
suggested that erstwhile slaves conveyed to the
Northwest Territories by their owners would be held to
be legally free.</p>
<p>For Chief Justice Taney and the six other justices who
concurred with his decision to deny Scott’s petition,
the principal issue at stake was the question of whether
Dred Scott had any right to sue in the first place. The
chief justice’s opinion defined the right to seek
redress in federal court as the sole prerogative of
“citizens” of the United States. He argued that the
framers of the Constitution never intended that the
“class of persons . . . whose ancestors were Negroes of
the African race, and imported into this country, and
sold and held as slaves” could “become entitled to all
the rights and privileges and immunities” guaranteed to
citizens of the United States.</p>
<p>More than a century after the Dred Scott decision
argued that black people lived in Missouri by the grace
of white people, we are seeing the outline of an
actually existing police state.</p>
<p>And for Taney, who was an early exemplar of the school
of thought that would come to be known as constitutional
originalism, the question of the founders’ intentions in
writing the Constitution could be boiled down to the
question of how they would have thought about the role
of black people in politics and in public. Would the
founders have exempted members of the “African race”
from the “special laws” that regulated their behavior?
Would they have allowed them to travel from state to
state “without pass or passport,” and “go where they
please at every hour of the day or night without
molestation?” Would they have allowed them to “hold
meetings upon public affairs and to keep and carry arms
wherever they went?”</p>
<p>Of course not, he answered. Reasoning backwards from
the fact that African Americans had no political rights,
Taney concluded they had no rights at all. On the
contrary, he argued, they were “of an inferior order and
altogether unfit to associate with the white race,
either in social or political relations, and so far
inferior that they had no rights which the white man was
bound to respect.” No rights which the white man was
bound to respect: ten of the most notorious words in the
history of the United States.</p>
<p>Blocks from the courthouse in St. Louis where Dred
Scott filed suit 160 years ago, we can once again see
the malign logic of Justice Taney’s opinion expressed in
full martial array. As protestors took to the streets
this September, police officers indiscriminately
arrested crowds of people, including protestors,
journalists, spectators, and passersby. They responded
to peaceful protests with overwhelming force—deploying
riot police on the ground and snipers on the roofs,
tackling and body slamming protestors, and macing and
pepper-spraying people as they kneeled, awaiting arrest.
An elderly woman was trampled by an advancing line of
heavily armed, armored, and shield-baring police. A
grandmother was choked by an officer as she tried to
protect her grandson. Subsequently, she was charged with
felony assault under Missouri’s “Blue Lives Matter”
law by Robert McCulloch, the very same prosecutor who
refused to indict Darren Wilson for the killing of
Michael Brown. After making their arrests, the police
chanted “Whose streets? Our streets” in celebratory
mockery of the protestors whose constitutional rights
they were violating.</p>
<p>And yes, it is true, on one of these nine nights of
rage in the city of St. Louis, several shop windows were
shattered by protestors on the Delmar Loop.</p>
<p>The most recent round of protests against police
misconduct in St. Louis follows the acquittal of former
St. Louis PD Officer Jason Stockley, who was accused of
the 2011 murder of Anthony Lamar Smith. After an initial
confrontation with Stockley in a restaurant parking lot,
in which Stockley wielded his personal AK-47, Smith fled
in a car. During the car chase that followed, Stockley
was recorded by the dashcam in his police cruiser saying
he was “going to kill this motherfucker,” minutes before
he made good on his promise. Stockley fired five shots
into Smith’s vehicle after his partner had crashed into
it on the street. Stockley was then captured on film
searching through a personal duffel bag in the trunk of
his cruiser, entering the car where Anthony Lamar Smith
lay dead, and emerging seconds later with a handgun that
he claimed to have found in the car, but was later
revealed to have only the officer’s DNA upon its
handgrip.</p>
<p>‘No rights which the white man was bound to respect’:
ten of the most notorious words in United States
history.</p>
<p>In justifying his decision, the judge in the case noted
that Stockley’s promise to kill Smith was made in “the
heat of the moment,” and therefore could not be
considered evidence of intention. Moreover his thirty
years of experience on the bench made him certain that
the gun found in the car must belong to Smith, because
people like Smith, an “urban heroin dealer” in his
words, almost always have guns.</p>
<p>It was this bald-faced example of racist reasoning and
police impunity that spurred the protests that have
roiled St. Louis over the past week and a half, protests
which have revealed, well, more of the same.</p>
<p>After his officers chanted “Whose streets? Our
Streets!” on the night of September 18, St. Louis Police
Chief Lawrence O’Toole went on television to proclaim,
“The police owned tonight.” St. Louis Mayor Lyda
Krewson’s reaction to the out-of-control police has been
tepid at best. In response to the officers’ chant she
said, “I wish they wouldn’t have said that.” Asked about
O’Toole’s response, she observed what was empirically
true, that it was “inflammatory,” before reiterating her
“confidence” in the chief and cancelling town hall
events where she was scheduled to appear.</p>
<p>Missouri Governor Eric Greitens, for his part, has
cheered the cops on. On Twitter the governor <a
href="https://twitter.com/EricGreitens/status/909324446003007488">enthused</a>,
“Saturday, some criminals broke windows & thought
they'd get away. They were wrong. Officers caught ‘em,
cuffed ‘em, and threw ‘em in jail.” His tweet was
accompanied by a video showing four police officers
carrying a protestor handcuffed, face-down, and
suspended between them. Nevermind that the man in the
video turned out to be a college student who intervened
when he saw the police rushing at black protestors.</p>
<p>It goes without saying that those who seek to exercise
their constitutionally protected right to assemble in
the street and speak their minds will find no support
from Jefferson Beauregard Sessions’s Justice Department,
or from police brutality’s cheerleader-in-chief, Donald
Trump.</p>
<p>What we have seen in St. Louis over the last fortnight
is the outline of an actually existing police state.
There is no apparent check on the actions of police
officers but the limits of their own energy and the
dictates of their own conscience.</p>
<p>The Dred Scott decision effectively argued that black
people lived in Missouri by the grace of white people.
It made clear that there would be no legal limit to what
white people—either individually or constituted as the
local or state government—might do to them. For black
protestors, their white supporters, and anyone else
unlucky enough to be standing nearby, St. Louis today
represents a frightening image—part fulfillment, part
portent—of the world according to Chief Justice Roger
Taney.</p>
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