Early in its history, the U.S. Supreme Court applied judicial review to acts of Congress. First here was Hylton v. United States (1796) and there was Marbury v. Madison (1803); with these cases the Court’s power to decide the constitutionality of a law was established – constitutional in the first case, unconstitutional in the second. But it would take over 50 years for the Court again to declare a law passed by Congress and signed by the President to be unconstitutional. Moreover, this fateful decision would push the North and South apart to the point of no return. From the time of the Declaration of Independence, the leadership of the country had navigated carefully to maintain a union of free and slave states; steering this course was delicate and full of cynical calculations. How did these orchestrated compromises keep the peace between North and South? Mystère.

During the Constitutional Convention (1787), to deal with states’ rights and with “the peculiar institution” of chattel slavery, two key arrangements were worked out. The Connecticut Compromise favored small states by according them the same number of Senators as the larger states; the Three-Fifths Compromise included 3/5ths of enslaved African Americans in a state’s population count for determining representation in the House of Representatives and, thus, in the Electoral College as well. The Electoral College itself was a compromise between those who wanted direct election of the President and those, like Madison and Hamilton, who wanted a buffer between the office and the people – it has worked well in that 5 times the system has put someone in the office of President who did not win the popular vote.

The compromise juggernaut began anew in 1820 with an act of Congress known as the Missouri Compromise which provided for Maine to enter the union as a free state and for Missouri to enter as a slave state. It also set the southern boundary of Missouri, 36° 30′, as the northern boundary for any further expansion of slavery; at this point in time, the only U.S. land west of the Mississippi River was the Louisiana Territory and so the act designated only areas of today’s Arkansas and Oklahoma as potential slave states; click HERE . (This landscape would change dramatically with the annexation of Texas in 1845 and the Mexican War of 1848.)

Then there was the Compromise Tariff of 1833 that staved off a threat to the Union known as the Nullification Crisis, a drama staged by John C. Calhoun of South Carolina, Andrew Jackson’s Vice-President at the time. The South wanted lower tariffs on finished goods and the North wanted lower tariffs on raw materials. Calhoun was a formidable and radical political thinker and is known as the “Marx of the Master Class.” His considerable fortune went to his daughter and then to his son-in-law Thomas Green Clemson, who in turn in 1888 left most of this estate to found Clemson University, which makes one wonder why Clemson did not name the university for his illustrious father-in-law.

As a result of the Mexican War, in 1848, Alta California became a U.S. territory. The area was already well developed with roads (e.g. El Camino Real), with cities (e.g. El Pueblo de la Reina de Los Angeles), with Jesuit prep schools (e.g. Santa Clara) and with a long pacified Native American population, herded together by the Spanish mission system. With the Gold Rush of 1849, the push for statehood became unstoppable. This led to the Great Compromise (1850) which admitted California as a free state and which instituted a strict fugitive slave law designed to thwart Abolitionists and the Underground Railroad. Henry Clay of Kentucky was instrumental in all three of these nineteenth century compromises which earned him the titles “the Great Compromiser” and “the Great Pacificator,” both of which school textbooks like to perpetuate. Clay, who ran for President three times, is also known for stating “I would rather be right than be President” which sounds so quaint in today’s world where “truth is not truth” and where facts can yield to “alternative facts.”

In 1854, the Missouri Compromise was modified by the Kansas-Nebraska Act that was championed by Lincoln’s opponent for Senator Stephen Douglas; this act applied “squatter sovereignty” to the territories of Kansas and Nebraska which were north of 36° 30′ – this meant that the settlers there themselves would decide whether to outlaw slavery or not. Violence soon broke out pitting free-staters (John Brown and his sons among them) against pro-slavery militias from neighboring Missouri, all of which led to the atrocities of “bleeding Kansas.”

But even the atrocities in Kansas did not overthrow the balance of power between North and South. So how did a Supreme Court decision in 1857 undo over 80 years of carefully orchestrated compromises between the North and South? Mystère.

In 1831, Dred Scott, a slave in Missouri, was sold to Dr. John Emerson, a surgeon in the U.S. army. Emerson took Scott with him as he spent several years in the free state of Illinois and in the Wisconsin Territory where slavery was outlawed by Northwest Ordinance of 1787 and by the Missouri Compromise itself. When in the Wisconsin Territory, Scott married Harriet Robinson, also a slave; the ceremony was performed by a Justice of the Peace. Logically, this meant that they were not considered slaves anymore because in the U.S. at that time, slaves were prohibited from marrying because they could not enter into a legal contract; legal marriage, on the other hand, has been the basis of transmission of property and accumulation of wealth and capital since ancient Rome.

Some years later, back in Missouri, with help from an abolitionist pastor and others, Scott sued for his freedom on the grounds that his stay in free territory was tantamount to manumission; this long process began in 1846. For an image of Dred Scott, the plaintiff and the individual, click HERE .

Previous cases of this kind had been decided in the petitioner’s favor; but, due to legal technicalities and such, this case reached the Missouri Supreme Court where the ruling went against Scott; from there it went to the U.S. Supreme Court.

John Marshall was the fourth Chief Justice and served in that capacity from 1801 to 1835. His successor, appointed by Andrew Jackson, was Roger Taney (pronounced “Tawny”) of Maryland. Taney was a Jackson loyalist and also a Roman Catholic, the first but far from the last Catholic to serve on the Court.

In 1857, the Court declared the Missouri Compromise to be flat-out unconstitutional in the most egregious ruling in its history, the Dred Scott Decision. This was the first time since Marbury that a federal law was declared unconstitutional: in the 7-2 decision penned by Taney himself, the Chief Justice asserted that the federal government had no authority to control slavery in territories acquired after the creation of the U.S. as a nation, meaning all the land west of the Mississippi. Though not a matter before the Court, Taney ruled that even free African Americans could not be U.S. citizens and drove his point home with painful racist rhetoric that former slaves and their descendants “had no rights which the white man was bound to respect.” The Dred Scott Decision drove the country straight towards civil war.

Scott himself soon gained his freedom thanks to a member of a family who had supported his case. But sadly he died from tuberculosis in 1858 in St. Louis. Scott and his wife Harriet have been honored with a plaque on the St. Louis Walk of Fame along with Charles Lindbergh, Chuck Berry and Stan Musial; in Jefferson City, there is a bronze bust of Scott in the Hall of Famous Missourians, along with Scott Joplin, Walt Disney, Walter Cronkite, and Rush Limbaugh making for some strange bedfellows.

President James Buchanan did approve of the Taney decision, however, thinking it put the slavery question to rest. This is certainly part of the reason Buchanan used to be rated as the worst president in U.S. history. It is also thought by historians that Buchanan illegally consulted with Taney before the decision came down, perhaps securing Buchanan’s place in the rankings for the near future despite potential new competition in this arena.

The Dred Scott Decision wrecked the reputation of the Court for years – how blinded by legalisms could justices be as not to realize what their rulings actually said! Charles Evans Hughes, Chief Justice from 1930 to 1941 and foe of FDR and his New Deal, lamented how the Dred Scott Decision was the worst example of the Court’s “self-inflicted wounds.” The Court did recover in time, however, to return to the practice of debatable, controversial decisions.

To start, in 1873, it gutted the 14th Amendment’s protection of civil rights by its 5-4 decision in the Slaughterhouse Cases, a combined case from New Orleans where a monopoly over slaughter houses had been set up by the State Legislature. The decision seriously weakened the “privileges and immunities” clause of the Amendment:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

There is a subtlety here: the U.S. Constitution’s Bill of Rights protects the citizen from abuse by the Federal Government; it is left to each state to have and to enforce its own protections of its citizens from abuse by the state itself. This clause was designed to protect the civil liberties of the nation’s new African-American citizens in the former slave states. The damage done by this decision would not be undone until the great civil rights cases of the next century.

 In the Civil Rights Cases of 1883, the Supreme Court declared the Civil Rights Act of 1875 to be unconstitutional, thereby authorizing racial discrimination by businesses setting the stage for Jim Crow legislation in former Confederate states and border states such as Maryland, Missouri and Kentucky – thus undoing the whole point of Reconstruction.

On the other hand, sandwiched around the Civil Rights Cases, were some notable decisions that supported civil rights such as Strauder v. West Virginia (1880), Boyd v. United States (1886) and Yick Wo v. Hopkins (1886). The first case was brought to the Court by an African American and the third of these was brought by a Chinese American.

Somewhat later, during the “Gay Nineties,” the Supreme Court laid down some fresh controversial decisions to usher the U.S. into the new century. In 1894 there was in Re Debs, where the court allowed the government to obtain an injunction and use federal troops to end a strike against the Pullman Company. As a practical matter, this unanimous decision curbed the growing power of labor unions and for the next forty years, “big business” would use court injunctions to suppress strikes. The “Debs” in this case was Eugene Debs, then the head of the American Railway Union; later the Court would uphold the Sedition Act of 1918 to rule against Debs in a case involving his speaking out against American entry into WWI.

It is interesting to note that this time with in Re Debs the Court did not follow papal guidelines as it had with the Discovery Doctrine in Johnson v. McIntosh and other cases under John Marshall. This despite the fact that it had been handed an opportunity to do so. In his 1891 encyclical De Rerum Novarum (“On Revolution”), Pope Leo XIII had come out in favor of labor unions; this was done at the urging of American cardinals and bishops who, at that time, were a progressive force in the Catholic Church. Without the urging of U.S. hierarchy, the pope would likely have condemned unions as secret societies lumped in with the Masons and Rosicrucians.

As the turn of the century approached, the Court’s ruling in Plesssy v. Ferguson (1896) upheld racial segregation on railroads, in schools and in other public facilities with the tag line “separate but equal.” Considered one of the very worst of the Court’s decisions, it legalized racial segregation for another seventy years. In fact, it has never actually been overturned. The celebrated 1954 case Brown v. Board of Education only ruled against it in the case of schools and educational institutions – one of the clever legal arguments the NAACP made was that for Law Schools and Medical Schools, “separate but equal” was impossible to implement. Subsequent decisions weakened Plesssy further but technically it is still “on the books.” The case itself dealt with “separate but equal” cars for railway passengers; one of the contributions of the Civil Rights movement to the economy of the New South is that it obviated the need for “separate but equal” subway cars and made modern transportation systems possible in Atlanta and other cities.

The number and range of landmark Supreme Court decisions expanded greatly in the twentieth century and that momentum continues to this day. We have drifted further and further from the view of Montesquieu and Hamilton that the Judiciary should be a junior partner next to the legislative and executive branches of government. The feared gouvernement des juges is upon us.