(This post is a continuation of yesterday’s theme of “Dissent.”)
When considering the ongoing struggle in this country to genuinely achieve peace, liberty, and justice for all (not merely for some), it is vital to remember that in the beginning of our nation, the deep injustice of slavery was inked into our Constitution. Article I, Section 2 calculates membership in the U.S. House of Representatives based on counting enslaved human beings as “three-fifths” of a person. And Article I, Section 9 explicitly says that slavery could not be ended prior to 1808 (Chemerinsky 21). We now know in retrospect that slavery did not end in the U.S. until the mid-1860s, and only after so many lives were lost in the Civil War.
As a point of comparison, “England, by act of Parliament, abolished slavery throughout its empire in 1833” (Chemerinsky 27). The United States Congress (and large parts of our populace) made that impossible in our country because of too many people dissenting on the wrong side of history. (Along those lines, if you haven’t already, be sure to read Mayor Mitch Landrieu’s speech on removing New Orleans’ Confederate monuments.)
In the lead-up to the Civil War, the 1857 case of Dred Scott v. Sanford ruled against the rights of people whose ancestors had been enslaved. This decision is almost universally regarded as the single most reprehensible decision ever made by the U.S. Supreme Court. It was decided 7-2, and the majority opinion was written by Roger Taney (TAW-ney) (1777-1864), the fifth Chief Justice of the Supreme Court, who is buried a few hundred feet from my house in downtown Frederick, Maryland. There has been a long saga of removing a bust of Taney from in front of Frederick City Hall, which finally happened in March.
From the perspective of dissent, I invite you to consider that it is perhaps equally significant not only to know why Taney—and the six other justices who voted with him—were wrong, but also to know why the two dissenters to the Dred Scott decision were right. Writing in opposition to the majority opinion in Dred Scott, Associate justices John McLean and Benjamin Curtis wrote what most scholars consider “the most important dissents handed down in the Supreme Court up to that time” (69). President Lincoln famously refused to comment on Taney’s opinion because he could not “improve on McLean and Curtis” (Urofsky 76). And here is why dissent can be vital: McLean and Curtis’s view lost the day, but they planted seeds that came to fruition years later when the tide of history finally turned against the heinous Dred Scott decision.
Likewise, we could fruitfully trace how the many dissents favoring racial justice written by Justice John Harlan (1833-1911) were largely ignored for decades, until his more progressive views finally gained traction during the mid-twentieth century Civil Rights Movement. Harlan died in 1911 at the age of 78, so he did not live to enjoy the full fruits of his labors.
There are multiple ironies as well. Prior to the Civil War, Harlan himself had been a slave holder (106). And there were many other ways in which he was far from the perfect ally in the struggle for racial justice. But in 1896, he was the sole dissenting voice in Plessy v. Ferguson, in which the eight other justices ruled in favor of racial segregation laws on the basis of “separate but equal” (Urofsky 117-119). Here’s another irony: Harlan’s famous dissent that “our Constitution is color-blind” began to be vindicated with the 1954 Supreme Court decision of Brown v. Board of Education. But that same logic, that “our Constitution is color-blind,” has, in recent decades, been turned against racial justice programs like Affirmative Action—as if there were no difference between using race to discriminate against people of color and using race as a factor in advancing racial equality (120-125).
There is so much more I would like to say about the history of dissent in general, and at the Supreme Court in particular, but for now I will begin moving toward my conclusion by inviting you to consider the following two dissents as being particularly worthy of keeping track of. Earlier, I quoted the recently-retired Justice Stevens. He wrote a powerful dissent against the 2010 case of Citizens United v. Federal Election Commission, a ruling which argued that since “corporations are people” their campaign contributions are protected as “freedom of speech.” Justice Stevens’ dissent may one day help overturn that 5-4 ruling, which was along partisan lines. I’ll limit myself to quoting one crucial line:
the Court’s opinion is…a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt… (Chemerinsky 254-256)
Hopefully Justice Stevens’ dissent can lead the common sense of the American people to again become the law of the land.
A second crucial dissent that may come to be vindicated is William Brennan’s 1987 dissent in McCleskey vs. Kemp. Michele Alexander’s important book, The New Jim Crow: Mass Incarceration in an Age of Colorblindness, shows how racial bias in our country’s criminal justice system has led to there being “more African-American adults under correctional control—in prison or jail, on probation or parole—than were enslaved in 1850, a decade before the Civil War began.” This raises the question: did we end enslavement in the mid-nineteenth century, or did White Supremacists merely reinvent a more insidious version of slavery through a racially-biased criminal justice system—invoking an urgent need for a “Third Reconstruction” in our country. (A powerful film along these lines is the powerful documentary 13th by Ava DuVernay.) Tragically:
Since McCleskey, the Court has refused to accept statistical evidence of discrimination against groups, and insist…that proof of individual impact must be shown. If, and when, changes on the Court lead to accepting the [growing number of studies about systemic bias], then Justice Brennan’s dissent will guide them in how they use these materials. (Urofsky 416-418)
Relatedly, it was moving and meaningful last term to see Justice Sonia Sotomayor’s including in her dissents quotes from W. E. B. Du Bois’s The Souls of Black Folk, James Baldwin’s The Fire Next Time, Michelle Alexander’s The New Jim Crow, and Ta-Nehisi Coates’s Between the World and Me. It matters who our Supreme Court justices read and quote. In many cases, whether we end up advancing the cause of peace, liberty, and justice for all—or whether we end up merely protecting the peace, liberty, and justice of a select few—turns on whether we are experiencing the world mostly from the perspective of the powerful or whether we are a part of and in solidarity with groups who have been historically oppressed.
In the congregation where I serve as minister, we voted at our recent Annual Meeting to approve for at least the next year, the following banner:
There are, of course, many other worthy causes from “Healthcare Is a Human Right” to Disability Justice, and more. For such a time as this, in what emerging moral arena do you feel called to dissent? Where do you feel called to say that the way things are is not the way things have to be?
In that spirit of dissent, I will conclude for now with a quote from James Baldwin:
For nothing is fixed, forever and forever and forever, it is not fixed; the earth is always shifting, the light is always changing, the sea does not cease to grind down rock. Generations do not cease to be born, and we are responsible to them because we are the only witnesses they have. The sea rises, the light fails, lovers cling to each other, and children cling to us. The moment we cease to hold each other, the moment we break faith with one another, the sea engulfs us and the light goes out.
May our choices in the days to come lead us to be ones about whom it will be said, “They kept the faith. They kept the candles burning when the light threatened to go out.
The Rev. Dr. Carl Gregg is a certified spiritual director, a D.Min. graduate of San Francisco Theological Seminary, and the minister of the Unitarian Universalist Congregation of Frederick, Maryland. Follow him on Facebook (facebook.com/carlgregg) and Twitter (@carlgregg).
Learn more about Unitarian Universalism: http://www.uua.org/beliefs/principles