Tagged: citizenship

“A further painful outcome of the Dred Scott decision was that it declared the Missouri Compromise unconstitutional, thus permitting slavery in territory where it was formerly prohibited and holding that Congress could not prohibit slavery in the newly emerging states. The Court believed that ‘the right of property in a slave is distinctly and expressly affirmed in the Constitution’ and, thus, the slaveholders’ rights must be protected. Accordingly, the Court held that the Compromise, which in effect sought to deprive slaveholders of their property ‘could hardly be dignified with the name of due process of law.’ With the demise of the Compromise, the southerners who desired a national system of slavery were granted a substantial step toward having their dream actualized. The Court seemed to function as an extension of the southern slaveholding regime, lending legal support and credence to the institution of slavery. “

Source: Charles J. Ogletree, Jr. From Dred Scott to Barack Obama: The Ebb and Flow of Race Jurisprudence. 25 Harvard Blackletter L. J. 11. 2009.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

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Source: Declaration of Independence, 1776.

“As early as 1806, the Supreme Court in Wise v. Withers, [7 U.S. (3 Cranch) 331 (1806)] had recognized a right to sue a judge for exercising authority beyond the jurisdiction authorized by statute. In 1869, one year after passage of the Fourteenth Amendment and long before due process had assumed its modern contours, the Supreme Court made its first effort to define the limits imposed on state judges. The Court held that state judges possessing general powers were not liable ‘unless perhaps when the acts … are done maliciously or corruptly.’ Then in 1872, one year after the civil rights laws were passed, the Supreme Court overruled its earlier dictum and announced that judges would not be liable even for malicious or corrupt acts.”

Not surprising that the majority all-white Court changed its mind on judicial immunity a year after the Ku Klux Klan Act of 1871 was passed….

The article also goes on to state:

One fact is clear about the 1866 Act: it unquestionably had abolished judicial immunity from criminal prosecution, in effect overruling the precedent in Floyd. Partly because of this feature, President Andrew Johnson had vetoed the bill, and Congress promptly had overridden the veto amid indignant cries about the tyranny of local Southern officials. During the vote to override, one representative had sharply responded to the President’s concern:

I answer it is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded. … And if an officer shall intentionally deprive a citizen of a right, knowing him to be entitled to it, then he is guilty of a willful wrong which deserves punishment.

Others declaimed that immunity for any state official must be abolished because immunity “is the very doctrine out of which the rebellion was hatched.”

Source: Robert Craig Waters, “Judicial Immunity v. Due Process: When Should A Judge Be Subject To A Suit?” Cato Journal, Vol.7, No.2 (Fall 1987). pg. 466-467.