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The US Supreme Court’s 1990 Dread Scott Decision

Dread Scott. "What is the Proper Way to Display a U.S. Flag?," 1988. Installation for audience participation: Silver gelatin print, books, pens, shelf, active audience, US flag; 80 x 28 x 12 inches. Courtesy of the artist.

No, that's not a typo in the headline. Dread Scott is an artist who creates provocative art, and his 1988 work, "What Is the Proper Way to Display the US Flag?" led to a Supreme Court decision (US v. Eichman et al; 496 U.S. 310 (1990)) that ruled his use of the Stars 'n Stripes, even to the extent of burning the flag, was protected free-speech conduct under the First Amendment.

The exhibit placed a large US flag on the floor in front of a photomontage showing the flag and expressions of anti-American sentiment. A blank journal was below the photo, inviting gallery visitors to write comments—but to do so, one would have to stand on the flag.

Of course, this upset many people, and the following year Congress passed an act outlawing desecration of "Old Glory." Scott and others, in protest, burned the flag on the steps of the Capitol Building. And that was the issue that led to the Supreme Court case. 

Dread Scott likes to ask hard questions—about racism, capitalism, war, mass incarceration, and more—and his artwork is intended make people think about how to answer them:

    • After the 1999 police shooting and killing of Amadou Diallo, Scott created a screen print reminiscent of yellow-and-black traffic signs, with the text "Danger: Police in Area." It depicted silhouette figures of a cop shooting a man. The sign has been displayed at various locations. 
    • After the September 11, 2001, attacks on the World Trade Center and other sites, a performance was choreographed in Times Square, consisting of more than 100 artists all wearing facemasks and signs with the slogan "Our Grief Is Not a Cry for War."
    • 2000 – 2004, "Lockdown," an installation series of photographs and taped interviews with youths in prison was publicly on display.
    • In 2010, during election time, "Poll Dance" presented a set of graphs and charts based on polling information divorced from the question that was asked. For example a pie chart with data: very worried 10%; not too worried 36%; what the respondents were concerned about remained unknown.
    • In 2012, again in advance of elections, Scott read out loud the 1857 Dred Scott decision. Simultaneously, four naked black men stood in a line guarded by two barking German shepherd dogs and their handlers. Finally, the audience was asked to walk through a line to a polling booth, where they could "vote" on moral questions such as, "Would you vote in the upcoming US presidential election if your vote implied acceptance of continuing the legacy of slavery within US society?"

This Labor Day weekend, Dread Scott has a retrospective exhibit of some of his works that explore civil rights issues and the criminal justice system in particular. "A Sharp Divide" will be hosted by the Rowan University Art Gallery in Glassboro, New Jersey.

I won't be there, but I hope to hear more about this show and about Scott's ongoing work. He is certainly a man who speaks right on.

America was forged by genocide and slavery and carries out profound exploitation and oppressions of whole peoples and vast regions of the planet to maintain this lopsided relationship.  It doesn't have to be this way and I personally look forward to the day when America and its flag are in the dustbin of history and people are striving to build a world of freely associating human beings, free of exploitation.  In this spirit I created a conceptual artwork where people could engage the question of what US patriotism and the US flag represents.

Dread Scott
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What might Dred say?

Dred Scott has been mentioned in the news again, in connection to the Louisiana legislature last month. A bill introduced by state Rep. Valarie Hodges (R) would have required school students to recite a passage from the preamble to the Declaration of Independence on a daily basis. It was withdrawn and tabled after opposition from two state representatives.

I was curious to know who objected to the words all men are created equal—and why. The leading voice of dissent was Rep. Barbara Norton (D), and I had to read several reports before finding some answers to my questions.

First I read a Forbes article, which laid out the who, what, where, and when—but not the why. As quoted, Norton's complaint and argument were hard to understand:

One thing I do know is, all men are not created equal. . . . When I think back in 1776, July the 4th, African-Americans were slaves, and for you to bring a bill to request that our children will recite the Declaration, I think is a little bit unfair to us to ask those children to recite something that's not the truth.

Barbara Norton

The Declaration of Independence is not the truth? Surely a state representative knows the difference between an ideal and a reality—right? Possibly, I thought, her real intent was obscured by her confusing syntax and weak delivery.

Clicking on links within the article, I learned more at the website of the Independent Journal, which added this part of Norton's argument:

In 1776, Dr. King was not even born. African-Americans were in slavery, so since they were in slavery, the Declaration of Independence say we are 'all created equal,' we were not created equal because in 1776, July the 4th, I nor you nor any of us were born, nor was Dr. King born, so we were in slavery, and to have our children repeat again and again documents that were not even validated, I don't think that that's fair.

Barbara Norton

This was singularly unenlightening, only adding to my confusion. What had Dr. Martin Luther King Jr. to do with this? I later learned that Rep. Hodges had invoked Dr. King's praise of the Declaration of Independence, but still, it's unclear why his birth is tangled up with 18th-century slavery. Besides, being enslaved doesn't establish that we aren't created equally, just that we aren't treated equally. And documents not being validated—what does that mean?

I was leaning toward the conclusion that Rep. Norton lacked the ability to make a cogent argument; whether or not she actually had one still intrigued me. It seemed plausible that the reporting on Norton's argument was biased, especially since the article's wrap-up merely added a vague and belligerent call to action, quoting from "Fox and Friends":

For her [Norton] to be attacking the Declaration of Independence, that is attacking liberty, that is attacking freedom. People should not let her get away with this.

Deneen Borelli
Deneen Borelli

This notion that we cannot criticize our Constitution or government without being unpatriotic is another red herring, adding nothing but vitriol.

Still seeking clarification about Norton's position on this matter, I wound up at the Breitbart website, whose article interpreted Norton's statements as an argument "that school children should not be required to recite words that were written during a time in history when slavery was prevalent." That's clear, but I'm not sure that's what the Representative was actually saying, or trying to say. If indeed that was part of her argument, why didn't someone point out the illogic of abandoning ideals simply because we fail to live up to them?

Illumination was finally shed by Rep. Pat Smith (D), who sided with Norton and described how the Declaration of Independence was used against millions of black citizens in so-called "voter eligibility" tests:

They [blacks registering to vote] had to recite this [the Declaration] at a poll place in order to be able to vote. That was unconscionable that individuals could not vote without having to repeat parts of the Constitution and the Declaration of Independence. That was a requirement by the southern states. It was used against them.

Pat Smith

Now, that's an argument I can make sense of. Up until reading this paragraph, I was not taking into account this unsavory piece of our history. But I could see Rep. Smith's point, that for some people, reciting the Declaration of Independence carried this taint from a time in history when the words of the Declaration were used to disenfranchise citizens. Moreover, I read on at The Times Picayune and learned that Norton offered an amendment to this bill that proposed students recite instead from the 14th Amendment to the Constitution, which grants citizenship and equal protection to those born in this country—a seemingly reasonable and justifiable alternative.

Yet Rep. Hodges chose to withdraw the bill and table it, without hearing argument on Rep. Norton's amendment (or anyone else's). So my final question became: are these people who are interested in educating students in history and civics, or are they using the education of children for a perverted aim?

This episode is a terrible example of democracy in action, reflecting badly on our elected representatives and our journalists. Maybe I shouldn't be spending time trying to parse this poorly argued debate, but I'm motivated by something disturbing: the prevalence of rhetoric that is purely reactionary, steeped in ignorance, expressed in politics, with real consequences that are usually detrimental to citizens.

The take-away lesson for me is that we Americans need better education. We need to learn to think more comprehensively and critically, and we need to learn to articulate our positions in a clear and unambiguous manner. 

We don't need to be eloquent; we just need to be honest. As Dred Scott said in Speak Right On

Sure 'nough, freedom's skinny. Skinny and sickly and weak. But I reckon there may yet be ways to feed it and fatten it and make it grow strong.

Dred Scott, Speak Right On (p. 230)
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Aggrieved

I read a lot of editorial pieces that express resentment because of a perceived injustice. Here are just a few:

  • Heterosexuals offended because same-sex couples' right to marry has been recognized
  • Jews affronted when a rabbi advocates justice for Palestinians (she advocated for several other wrongs to be righted as well)
  • Trump-ettes blaring about denying asylum, no less citizenship, to foreign workers and refugees
  • And of course, whites indignant that blacks affirm that their lives matter

In all of these issues, Dred Scott invariably gets mentioned, typically as a symbol of a man treated unjustly by an errant Supreme Court ruling.

Let's be clear: no one today suggests that Dred Scott should not have been freed. They reference the Supreme Court decision declaring him a piece of property to be unjust—to him and all enslaved persons of the day—because he had an innate, fundamental right to be free. That is not debated. What is debated is the role of the Supreme Court in deciding what rights are granted under the Constitution.

So here are my questions to those feeling aggrieved when the rights of others are affirmed:

  • Your rights are not abridged under Obergefell—why can't everyone enjoy religious and civil liberties?
  • Are your values so fragile that you cannot embrace justice for all people, even those outside your "group"?
  • Should your fears and prejudices trump everything else? Have you no tenderness toward or generosity for individuals impoverished, oppressed, and threatened?
  • Does your ignorance of the history of blacks in this country blind you so that you cannot understand that Black Lives Matter is a civil rights movement as legitimate as any this country has ever seen—and benefitted from?

We all do better when we help others do better. We all live more freely when we support others living freely.

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Silence the Guns for Christmas!

I am pleased to be part of Rhonda Parrish's Giftmas Blog Tour. She has brought together a couple of dozen bloggers, and today I'm hosting a blog from Rebecca Gibson, an author of a novel set during the First World War. I know you'll enjoy what she has to share . . . and be sure to check out the links below, because Rhonda has lined up some great raffle prizes!


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Necessary first steps

Painting by H. L. Stephens

Among all the other things going on this time of year, there's an anniversary date you might be missing: December 6, 2015 will be the 150th anniversary of the ratification of the 13th Amendment, which abolished slavery. By doing so, the amendment effectively righted the wrong imposed by the controversial US Supreme Court decision in Dred Scott v. John Sanford, in which Dred Scott and his family were declared slaves who "had no rights which the white man was bound to consider."

The Emancipation Proclamation, which was passed 2 years earlier, freed only Confederate slaves. The 13th Amendment, ratified in 1865, freed all slaves, estimated to be 4 million people. While there was a great deal of work still to be done in order to move our country toward an equal society with freedom and civil rights for all—work that is still ongoing—this Constitutional Amendment was a necessary first step.

In recognition of this often overlooked day, the Dred Scott Heritage Foundation (St. Louis) is hosting the first Freedom Awards Dinner tomorrow, a fundraising event honoring fourteen individuals and organizations that have contributed to civil rights and to the improvement of society in their chosen fields.  

Many readers will remember that Lynne Jackson is the founder of the Dred Scott Heritage Foundation and the great-great-granddaughter of Harriet and Dred Scott, who recently wrote the foreword for the re-release of Speak Right On: Conjuring the Slave Narrative of Dred ScottBoth Lynne and I, in our respective paths, focus on raising awareness and stimulating informed, respectful conversations about race and politics today. There are many ills in society, but each of us can do some good simply by speaking up and affirming the values of equality and justice that should be enjoyed by all.


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Birthright wrongs

Donald Trump wants to deny the right of citizenship to some folks born here in the USA, chiefly—at least to begin with—the children of illegal immigrants from Mexico and South America. Trump doesn't stand alone in this view. With the exception of Kasich and Perry, the entire slate of GOP candidates has asserted this belief.

Two questions:

1.Do they care about history and fact?

2.Whom do they represent?

In answer to question #1, I highly recommend an article on this topic written by Damon Root, senior editor of Reason magazine and the author of Overruled: The Long War for Control of the U.S. Supreme Court (Palgrave Macmillan). Titled "Trump vs. the Constitution," the essay delivers a brief history of the 14th Amendment to the US Constitution, anchoring its origins with the infamous Dred Scott decision by the Supreme Court, in which Chief Justice Taney asserted that neither the Declaration of Independence nor the Constitution considered Negroes citizens, and since they had no rights then, they have no rights "which the white man is bound to respect."

Well, the 13th and 14th Amendments went a very long way toward righting some of the wrongs of the Dred Scott decision. The 13th abolished slavery, and the 14th conferred the rights of citizenship:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Root goes on to describe how this principal has been upheld through the centuries—applied to those of Chinese and Arabic descent, among others—and it leaves little room for the likes of Trump's views.

So, in my opinion, those advocating stripping citizenship rights from those born here of illegal parents haven't got a leg to stand on.

As to question #2, I don't know the answer. Many people on the right and left of politics have been wondering how Trump has lasted this long. I lean toward the speculation that he voices ("trumpets") anger and outrage, which as we all know, typically operate in a vacuum without the benefit of history, facts, or reason.

But I'm the same: when I feel a sense of outrage or when I feel I've been unjustly treated, I too raise my voice and rev into overdrive, without benefit of calm and reason. After all, isn't  part of our birthright the freedom to speak out against the wrongs we perceive? 

Thankfully, I am not a political leader, and the only ones who hear my rants are my friends and family. That's where it's different with an office holder, and I expect of political leaders the ability to resist pandering to a base emotional frustration, the integrity to deal with history honestly, and the courage to seek and embrace facts that may not support their views.

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We are not the same

Blacks and whites in this country live very different lives in many regards. Some aspects of this difference are reported in the news every day. Others barely see the light of day and go unrecognized.

Here's just one example: As a white woman of European descent, I can trace my family history back to the Dutch founding of New Amsterdam. It's really cool to view my ancestors' intersections with important milestones in the country's development. I've learned about geography, history, art, and culture throughout five centuries.

But many—probably the majority—of blacks in America can't do this, and the cause is obvious, even if the effect isn't: centuries of enslavement eradicated family and kinship ties. An enslaved child typically was alienated at birth, without record or documentation, separated from his mother, and often without a father present in his life. Here are just some of the ways slavery could disrupt a black family:

  • Women were raped
  • Women were forced to bear children
  • Marriage was not permitted
  • Adult couples could be sold apart
  • Parents couldn't name their own children
  • Parents might be sold away from their children
  • Children might be sold away from their parents
  • Children might rarely see their parents if they were assigned work in different areas of the plantation
  • The systematic attempts to dehumanize slaves left many so emotionally and physically drained, what an adult could offer a child was diminished
  • If family history was retained, it was shared orally; fewer than 250 slave narratives have ever been published.
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The Coming of the Civil War: Sean Wilentz Strays Off-Course Here Too

He and his fellow Republicans complained that the court's Dred Scott decision undermined the antislavery aspirations of the Founding Fathers and ...
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Why does Dred Scott remain relevant today?

Hardly a day goes by without someone invoking the name of Dred Scott. Take a look at the news feed scrolling at the top of this blog page, and you'll notice that people of all stripes and beliefs use his name in a host of social justice issues, from abortion to incarceration, from citizenship to marriage equality, from Black Lives Matter to judicial overreach. 

Dred Scott's name is tossed about so frequently that I'd like to state some facts. Dred Scott was

  • a 19th-century American, born into slavery in Virginia
  • held as the slave of Peter Blow until 1832, then held in slavery by John Emerson
  • held as the slave of Emerson's widow, Irene, all through the historic court case, Dred Scott v. John Sanford, which ultimately reached the US Supreme Court
  • officially declared by the Supreme Court to be a slave without any rights of citizenship

Why does Dred Scott remain relevant today? Excuse my cynicism, but I believe the answer lies with our typical ignorance of our own history. When I moved in 1996 to St. Louis—where Dred Scott's legal case began—I saw a plaque in the pavement dedicated to Dred and Harriet Scott. I recognized the names, but I couldn't remember whether they had won or lost that case, and I guessed wrong. Having talked to others through the years, I know my failure is shared by many.

Within a few months, I was learning more history at the Gateway Arch at Jefferson National Expansion Memorial, where I read that the sons of Peter Blow manumitted Dred Scott after the Supreme Court decision declared him a piece of property. Intrigued, I embarked on a fruitless search for a biography on Dred Scott.

Within another few months, I was standing in the rotunda of the Old St. Louis Courthouse, where papers in the case were first filed on April 6, 1846. The courthouse is now a National Parks museum, and a ranger held up a single sheet of paper with print on both sides—perhaps five hundred words, at most. She said, "This is all that is known about Dred Scott."

You could have knocked me over with that sheet of paper.

I spent the next three years researching everything I could find about Dred Scott, including contacting his descendants who lived in the St. Louis vicinity. Of course, there was nothing I uncovered that would extend that single-sheet biography, but the Dred Scott story—the Dred Scott mystery—wholly captivated me.

In this blog I will share what I learned. And I will comment on current news items relating to Dred Scott from the perspective that he remains relevant today as an enduring symbol of social injustice and racial discrimination.

I think it's important that we find some way in this country to have reasoned, respectful conversations about race and politics.

Please comment on this blog—I'd like to know your thoughts. 

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Jody D. Armour's "Nigga Theory"

pottery shards

I recommend this interview to all who want to understand some cultural perspectives on using the n-word. Armour also advocates feeling uncomfortable about these issues. I agree: we need to grapple with what makes us uncomfortable. Our unease works like a wall, keeping us separate from what is different. 

Armour: As the US Supreme Court said in the Dred Scott decision, “Blacks have no rights that a white man has to respect.” It continued into Jim Crow, and then ...

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When Conservatives Cite Lincoln: From Dred Scott to Obergefell

young lincolnIf you're like me, you read about subjects from various sources. I've read numerous articles over recent months about how the Obergefell decision is like the Dred Scott decision. In many of the articles, the authors quote Lincoln and the Supreme Court and legal opinions from the day and legal opinions from today . . . and without researching all those quotes, all I can know is that all of these authors can't be correct.

I do know, from my own research on Dred Scott and his times, that to equate Obergefell to Dred Scott is to express ignorance about the issues represented by these cases. And now, from an excellent article by Corey Robin, I understand more about the nuances of some of those Lincoln's quotes. 

Read the article and let me know what you think. 

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HISTORY: A look at the Dred Scott case | PHOTOS

A statue of Dred and Harriett Scott stands outside the Old Courthouse in downtown St. Louis. The slaves sought their freedoms by filing a lawsuit, ...
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