When the court protects the elite
Dred Scott and his wife, Harriet, were slaves with two young daughters who filed suit for their freedom in 1846. Their master, an army surgeon, had brought them to Illinois, where slavery was banned. At the time, slaves who entered free territory were legally free.
The Scotts won their case. But their master appealed — all the way to the Supreme Court. The resulting ruling is widely considered to be the court’s worst: Dred Scott, the court found, was nothing but property, no matter where he went.
The case, which put us on the path to civil war, is so infamous that it caused a political stir last week, 155 years after Scott’s death.
In a campaign speech in Pittsfield, Mass., last Tuesday, Rep. Ed Markey of Massachusetts compared it to Citizens United, another widely criticized Supreme Court case. As a result of the 2010 ruling, corporations are free to pour as much money as they want into elections.
“The Dred Scott decision had to be repealed,” Markey said. “We have to repeal Citizens United.”
Obviously, there is a world of difference between the evils of slavery and the need for campaign finance reform, as Ed Markey knows. Not surprisingly, Republicans and Markey’s Democratic rival, Stephen Lynch, had a field day. And they had a point.
But does Markey have a point as well? The clumsiness of the comparison overshadowed his broader argument: The Supreme Court sometimes issues rulings that subvert democracy, and when that happens, we can’t let them stand.
David Konig, a law professor at Washington University in St. Louis, says that in both Dred Scott and Citizens United, the court inserted itself into the hot-button political issue of the day and overturned decades of legal precedent. And in both cases, the court put the interests of a tiny, powerful group above the interests of the nation.
“People at the time talked about the ‘slavocracy,’” he said. “Slave owners were rich. They were a minority. They were corrupting the political process.”
The slave system channeled the vast majority of wealth into the hands of fewer than 2,000 aristocratic families. Seventy-five percent of whites in the South did not own a single slave, and did not appreciate competing with unpaid labor. Yet, somehow, this tiny cabal of plantation owners convinced Congress and the Supreme Court to uphold slavery. Ultimately, they convinced the masses to fight and die for it.
We wonder now what Jedi mind trick they performed to get people to act against their own self-interest, just as future generations might wonder how so many of us got convinced that campaign finance reform — and health care, for that matter — was a threat to our freedom.
Citizens United makes it impossible for states to limit money’s influence over politics within their borders, just like the Dred Scott case made it impossible to forbid slavery on their soil.
When Citizens United came down in 2010, at least 24 states — including Massachusetts — had laws limiting corporate or union donations. Those laws are now unenforceable, as Montana learned last year when the Supreme Court threw out its century-old prohibition on corporate political spending.
The Supreme Court isn’t finished yet. Last week, it announced that it will hear the case of Shaun McCutcheon, an Alabama Republican who wants to donate more than the $123,000 limit allows in a two-year election cycle.
Millionaires coming to Massachusetts with campaign donations aren’t remotely the same as millionaires coming with slaves. But both cases raise fundamental questions about who we are — and want to be — as a nation.
At its core, Dred Scott was about whether the country could remain half-slave and half-free. The answer was no. Slavery would cross state borders and infect everyone. Citizens United was about whether half the country can curb the influence of money in politics.
The answer is no. Money crosses borders. It infects everyone. This is a point Markey’s critics missed.
The question before us is not whether money in politics is as great an evil as slavery. The question is: What can ordinary people do to fight against this disastrous court decision?
We’re not going to have a civil war about Citizens United, but that doesn’t mean we should let it stand.
Farah Stockman is a columnist for The Boston Globe.