Teaching Dred Scott in the Era of Trump

I taught Dred Scott v. Sanford this week. As a teacher and scholar of civil rights, it’s my job to teach the constitutional canon and how Dred Scott, and cases fairly called its progeny, misshaped our idea of equality. And while it is unsurprising to teach this canon in a course at Marquette Law on “Contemporary Perspectives on Civil Rights,” or in any civil rights or constitutional law course, what was different this time is that I taught Dred Scott for the first time in the Era of Trump.

Of course, I’ve taught the case before in first-year Property, in my Race Racism & American Law seminar, in public lectures at WVU Law, and in seminars on three different continents. I’ve written about Dred Scott in articulating my view of “tiered personhood” and blogged about its contemporary relevance. And it is fair to say that, after teaching for over 10 years, on some level, I was used to rehearsing the case often called “pure constitutional evil.”

But this time was different.

I walked into class, ready with my practiced confrontation of this intellectual monument to Chief Justice Roger Tawny. And after answering follow-up questions from last class about a case that enforced the racial classification system on which slavery depended, I began Dred Scott by reminding my students that we were studying the origin story of American white supremacy.

But before opening the casebook, I recalled that a student suggested we frame the conversation by watching a recent viral video of Univision News journalist Ilia Calderón. I had attempted to show the video in the class prior, but due to technical difficulties, this video prefaced our discussion of Dred Scott—which was not my original plan but proved more than appropriate for discussing the case in today’s political climate.

After the video ended, I found myself dumbstruck. This Klansman and his wife had the audacity to claim his superiority based purely on the color of his skin (which echoed the race classification cases from last class). He called her a “mongrel” and a “n**ger” and threatened to burn her out of his land. And despite their claims of racial superiority, religious exceptionalism, and entitled grievance, accompanied by threats of rebellion against a government that attacks their heritage and takes their stuff, the couple claimed they are not racist and the Klan is not a hate group.

In that moment, I remembered that Dred Scott is more than precedent. It is the anti-gospel of slavery, echoed anew by this Klansman, as an effort to tell Ms. Calderón (and all of us who can imagine her situation) to keep our place or be ready to burn. My own anger welled up, and my sadness too because that Klansman’s words reminded me of the times I had been called “n**ger” by white people, or told during an internship that “deliveries were around back,” or called “Big boy” by a white senior partner in front of my peers. Watching this Klan couple’s loathing reminded me that their hearts are full of twisted grievance and their minds are the heirs of the racial hierarchy enforced by Dred Scott.

To calm myself after the video ended, I had to let silence overcome the room. As far as I could tell, the students felt some mix of anger, pity, and shock. After this pause, I explained in both legal and moral terms that the structures of racism and the ideology of white supremacy cannot be thought of in isolation. The anti-gospel of the Klan and the words of Chief Justice Tawney must be thought of as parts of a whole.

Indeed, to read Dred Scott is to read a blueprint for structural racism. American citizenship is defined to exclude all black people. Slaves are a property that can be treated with near impunity. People of color do not belong in the American political community. A black person was “so far inferior that they had no rights which the white man was bound to respect.” These are the lessons of Dred Scott, which followed through on the seeds sown in the Constitution of 1789, and which took amendment and 160 years of activism, struggle, and needless death to reverse.

And though the law has changed, the reversal is incomplete. This era—these times we live in now—echo that evil. The boundaries of personhood continue to be drawn to exclude not only race, but also gender and sexual orientation. The borders of the political community are being redrawn to wall off children who live up to the egalitarian American creed but have imperfect immigration status. The Klan and Nazis march with the impunity offered through mealy-mouthed accommodation from the White House. The structures of mass incarceration, disenfranchisement, and police brutality were built according to the same blueprint of white supremacy as Dred Scott, yet there are those who defend these still-functional monuments to slavery and Jim Crow as “law and order.”

Dred Scott and its ideological and doctrinal progeny are still with us. As much as we have moved away from being an apartheid state, as much as we have asserted through the Constitution and laws that we believe in equality, there are those of us who, by their torches, their twisted ideologies, and their policies seek to bring us back to that time. Their fire and fury—both cultural and legal—still try to burn out equality in the name of nativism and racial superiority. This is the era in which we live.

On Overstating the Case for Confederate Monuments

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

The Robert Edward Lee statue in Emancipation Park
The Robert Edward Lee statue in Emancipation Park

It is overstatement to say that by removing monuments to Confederate generals one is erasing all history. Commentators have wondered aloud whether this will become a long-term movement towards total eradication of history of the South. The president even suggested this by asking when this will stop. He called the removal of Confederate monuments the destruction of culture. These claims incorrectly conflate crafting historical memory with the fact that honorific statuary in public places signals the values of the modern-day community.

Memory of the Civil War and its aftermath will not suddenly be completely erased forever because statues are torn down, street names changed, buildings renamed, and the like. Culture will not be destroyed. (And as an aside, one should ask, “Who’s culture is being protected by protecting these monuments?”) The consequences of the Civil War, for good and ill, linger. Moreover, history’s memory is a lot longer than the beginning and ending of a statue, and history will continue to be useful as long as scholars, schools, and society have open and honest conversations about the past.

History is dynamic. Honorary statues are not. Communities change and values evolve and those who are honored yesterday may be disfavored tomorrow. Think about it this way–when the American Revolution concluded, as my friend and Marquette colleague Edward Fallone points out, no one objected that the history of British rule over the colonies would be erased forever when the statues of George III were torn down. Two hundred forty one years later, we literally still sing songs to sold-out audiences about the American Revolution. And Hamilton the Musical! still gets the facts right.

The communal choice of determining who is and who is not to be honored in the present day is a completely different conversation than one about the state of history. We shouldn’t confuse the two.

Who gets honored in community space ought to be a democratic conversation for each generation. Before the revolution, George III was King. After the Revolution, George III did not represent what America means anymore to the majority of Americans, so statues to him had to go. Similarly, if the representatives of the public and private will in twenty-first century America have arrived at the decision that the twentieth century images of those who committed treason and insurrection to protect nineteenth century chattel slavery no longer deserve public places of honor because those communities see themselves as dedicated to egalitarian democratic values, then it does not follow that for some sense of static history the statues should not come down. That would privilege the ideology of the nineteenth century over the reality of the voices of the twenty-first. (And, as evidence is showing, the statues at issue now went up precisely to signal the ascendancy of white supremacy, both in the 1920s at the height of Jim Crow and 1950s in mass resistance to the racial integration demanded by Brown v. Board of Education.)

One may object that the judgments of history are cruel. The vicissitudes of the future may be such that one day, Martin Luther King, Jr. memorials and street names may be arbitrarily torn down, that today’s egalitarian heroes may end up tomorrow’s villains. The people who win this argument today and see the statues torn down, the argument goes, will end up losing the argument tomorrow. That slippery-slope reasoning misses the point. To quote Hamilton the Musical, once you and I are extinct, neither of us has control over “who tells our story.” That’s just the reality. All we can do is live our lives now in a way that makes our values clear and be content to let history be the judge of that.

It is that values question we should really be asking. As far as I can tell, those who object to the removal of the statutes seem to be saying that those Confederate generals who defended slavery, secession, and white supremacy represent the values of a twenty-first century America that is becoming more egalitarian and diverse.

As to that, all I can say is those folks have a lot of convincing to do. I think I have made clear that I’m not persuaded by this. But, in the spirit of free speech, those who support the statues get to make the argument. And short of turning the protest to violence—which they did—they even get to light their citronella tiki-torches and march in Charlottesville, Boston, and wherever else. And those of us who disagree should do so, and peacefully point out the error of their ways. (Remember: the First Amendment may protect your right to object from state sanction, but it doesn’t protect you from the consequences of disagreement.)

But as the supporters of letting the legacy of the Confederacy continue to be central to our twenty-first century places of honor make that argument, my advice is to not overstate the claim by saying the removal of the Confederate generals’ statues erases history. That argument will likely cost you a lot of your audience. And they won’t forget.