A Scam is Born


Every few seconds someone gets a phone call from a place the cops call a "boiler room."  There's no boiler there, just desks and telephones.  Con men are using the telephones to call up folks looking for victims.  When they find one, they try to sell him a thousand shares of phony stock or five acres in the middle of a swamp.  The con men need to make a lot of calls because they usually have a very low hit rate.  Most of their targets refuse to listen to their pitch much less be victimized.

There's another confidence racket that's much more sophisticated than the average boiler room pitch.  Hustlers have long worked this racket in courtrooms all over America.  And it's had a very big impact on all our lives.  Lawyers call it the "substantive due process doctrine."  In this article we're simply going to call it the "substantive due process scam."

The substantive due process scam is a big, nasty mutant.  The Supreme Court "evolved" it just before the Civil War.  In fact, one could make a case that it caused the Civil War.  It has continued to grow bigger and nastier ever since.  And it's still devouring your rights [1].

In 1857 the Court decided the case of Dred Scott v. Sandford; the Chief Justice at the time was a fellow named Roger Taney.  The Taney Court did what the Supreme Court often does.  It first picked the outcome it wanted, then found a few scraps of evidence to support that outcome, ignoring or distorting a larger volume of evidence to the contrary.  It then issued a decision claiming that its desired outcome was demanded by the clear voice of the Constitution.

History books say the main issue in the Dred Scott case was Congress's power, under the Constitution, to restrict slavery in the territories.  Most of the founders viewed slavery as morally repugnant.  And they thought it would die out, given enough time.  They relied on political give and take to end it in a peaceful way [2].

As part of the give and take, Congress had enacted the Missouri Compromise in 1820.  Among other things, it forbade slavery in the Wisconsin Territory.  Dred Scott was an elderly slave who sued his owner, named Sandford, for his freedom.  A former master had taken Scott into the Wisconsin Territory, stayed there for a while, then brought him back to Missouri, a state that permitted slavery.  Scott's lawyer claimed that living in Wisconsin had made him free by virtue of the Missouri Compromise.

Mr. Sandford's lawyer needed a way to deal with that claim.  So he asked the Court to suddenly discover that the thirty-seven-year-old Missouri Compromise was unconstitutional.  The Supreme Court went along with that.  The record shows that Roger Taney and the other judges who voted with him were hopelessly biased in favor of Southern slave owners.

At that time it looked like slavery's days were numbered.  Public opinion against it in the North was growing.  And the North was gaining people and wealth faster than the South.  The justices were looking for a way to put their thumbs on the scale of justice and tip the political balance back in favor of the slave owners.  In searching for an excuse to justify what they wanted to do, they focused on the idea of slaves as property.  The Fifth Amendment said that nobody could be deprived of "life, liberty, or property, without due process of law."

The Court said that the Constitution hadn't spelled out, in so many words, that Congress had a right to control "property" in the U. S. territories.  Therefore, the Missouri Compromise lacked a foundation in "due process of law."  So it violated the Fifth Amendment.

This ruling was a big surprise to most educated Americans at the time.  They knew that the Constitution said, "Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" [3].

They also knew about the Northwest Ordinance, first enacted by the Continental Congress in 1787.  The Northwest Ordinance laid down rules for the governing of a large territory northwest of the Ohio River, land that subsequently became five states.  Among other things, the Ordinance provided that:

"There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted:  PROVIDED ALWAYS, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid" [3].

During the same year congressional representatives of the thirteen original states wrote the above language, other representatives (in some cases the same men) wrote our new Constitution in Philadelphia.  Most of the Southern delegates regarded slavery as essential to their way of life, and they weren't willing to accept a Constitution which placed that way of life in immediate danger.  Compromising, in order to get a deal, the founders wrote a Constitution which afforded limited protection to slave owners.  However, that protection would start to phase out in 1808.  The language is in Article I, Section 9 and Article IV, Section 2.

The Constitution was ratified by the states and took effect the following year.  And the Continental Congress went out of business to make way for the new U. S. Congress, which promptly reaffirmed the Northwest Ordinance in 1789.  That was the same year it proposed the Fifth Amendment to the states for ratification.

Educated Northerners in 1857, therefore, thought it obvious that the Missouri Compromise couldn't possibly be unconstitutional.  It had basically the same effect on "property" in the territories as did the Northwest Ordinance which representatives of "We the People" had passed and then reaffirmed at essentially the same time they ratified the Constitution.  So the Dred Scott decision was clearly a fraud.

Educated Northerners also knew that the founders intended the term "due process" to control the acts of judges, not legislators.  Even the great Federalist authority, Alexander Hamilton, had said, on the record, "The words due process have a precise technical import, and are only applicable to the process and proceedings of the courts of justice, they can never be referred to an act of the legislature."  Legislatures had control over the substance of laws and courts controlled only the processes by which the laws were applied to individual cases.  Nobody ever accused Hamilton of being biased against broad powers for judges.  He liked broad powers for judges.  He was biased against any real power for the people.  The intended meaning of "due process," therefore, was completely settled among our founders [4].

The justices on the Taney Court had thought their deception was fairly safe.  The common people had a lot of respect for the Supreme Court.  They didn't know much history.  And they didn't have a clue what "due process" was supposed to mean.  All they knew was that it sounded important.  So the Court just made up a new meaning.

However, Republican newspapers explained what a fraud the Dred Scott ruling was.  They also exposed the fact that the judges were biased.  Abraham Lincoln, and others, charged that members of the Supreme Court were working a plot to force slavery on the entire nation [5].

In a speech in Cincinnati, Ohio, in September of 1859, Lincoln suggested what he thought should be done about a renegade Supreme Court.  "The people of these United States are the rightful masters of both congresses and courts, not to overthrow the Constitution, but to overthrow the men who would pervert the Constitution" [6].

The people responded to judicial usurpation by electing, in 1860, Abe Lincoln and other folks who had promised to "overthrow the men who would pervert the Constitution."  Southern slave owners saw political defeat staring them in the face.  So they went to war to obtain the justice that the Court had said was theirs.  To that end they took on a much larger and richer power.  The North had more than twice the Southern (white) population and six times Southern manufacturing capacity.  It had much greater naval strength and manufactured almost all the nation's firearms.  Only in agriculture, morale, and in the quality of their military officers could the Southern States compete.  Their morale and the quality of their officers kept them in the game for a while.  But they lacked resources and they lacked bench strength.  The Northern States were guaranteed to win, given a little time.  For the South, the Civil War was insane [7].

The majority of white Southerners didn't own any slaves and had nothing to gain from the war.  In fact, the institution of slavery was damaging to their interests.  How does one compete in the labor market against four-million people who work for room and board?  But poor Southerners were conned by their wealthier neighbors into believing that the Constitution was on their side.  Truth and justice were on their side.  The high priests of the Supreme Court had told them so.  Fraudulent action by those high priests thus led to a Civil War which caused a million casualties [8].

We were taught in school that the Civil War resolved the issue of slavery.  We learned that the Dred Scott case was a milestone in the sequence of events which led to that war.  We also learned that history judged the decision to be wrong.  However, our teachers never told us that a bogus Supreme Court decision caused the Civil War.  That would be in poor taste.  You are not supposed to learn that a fraudulent Supreme Court decision caused a million casualties.  Modern writers occasionally hint that it did.  But the idea is not popular among journalists, politicians, and educators.  They prefer that you keep your illusions about our Secular Papacy [9].

Northern Americans in the Civil War era had no such illusions.  In 1861, The New York Tribune wrote that "The present rebellion ... is due quite as much to an unsound and unwise decision of the Supreme Court as to any other single cause" [10].

During an 1865 debate in Congress, Massachusetts Senator Charles Sumner said that the "wicked opinion of (Chief Justice Taney)" in the Dred Scott case was the "incident of our history," prior to the Civil War, "most deadly in its consequences" [11].

During the same debate, Senator Henry Wilson, also of Massachusetts, said that Taney had done more to plunge the nation into "this bloody revolution" than any other person, and that the Dred Scott decision was "the greatest crime in the judicial annals of the Republic" [11].

Three years later "We the People" adopted the 14th Amendment, at least in part to consign the Dred Scott opinion to the junk bin of history.  But we neglected to punish "the men who would pervert the Constitution."  So the substantive due process scam, the monster to which the Dred Scott Decision gave birth, lives on.  It  claims new victims every year.


1.  See the online essay, Our Evolving Constitution.

2.  See D'Souza, 1995, for a discussion of the founders' attitudes toward slavery.  The Dred Scott ruling is described in many places.  See, for example, Berger, Swisher, Fairman (1970), and Fehrenbacher.

3.  The Constitutional language quoted is in Article IV, Section 3.  The text of the Northwest Ordinance can be found online at  http://www.ohiohistory.org/onlinedoc/northwest/ordinance/index.html.

4.  The Alexander Hamilton quote can be found in Berger, 1977, page 196.  Hamilton was speaking to the New York Assembly in February 1787.  Hamilton's mistrust of "the people" is well documented.  He reportedly said, in a debate with Thomas Jefferson, "the people, sir, is nothing but a great beast."  See Platt, page 251.  For other reviews of the historical meaning of "due process," see Black, 1968, Chapter II, Berger, 1977, pages 193-200, or Rodell, 1957, pages 56-58.  As of this writing, an interesting review of this subject could be found on the Internet at http://www.andrewhyman.com/due.html.

5.  See Fehrenbacher, Chapters 21-23, for an account of the history of the Dred Scott decision.  The bias of the Taney Court majority is described in Swisher, Chapters 23 and 24; Berger, 1977, pages 222-3; and McCloskey, pages 59-66.  See also Heckman, pages 74 and 85.

6.  Lincoln is quoted by Senator Jenner during the August 20, 1958 debates on the Jenner- Butler Bill.  See the 1958 Congressional Record Senate, page 18645.

7.  See Phillips, page 384.

8.  See, for example, Abbott, page 4.  Casualty statistics were taken from Price, 1961.  The use of the term "high priests" to describe the members of the Court is explained in the online essay Edicts of the Secular Papacy.

9.  The notion that the Dred Scott decision helped cause the Civil War is mentioned in a few places.  See, for example, Bork, 1990, Fehrenbacher, 1978, and especially, Acheson, 1961.  Fehrenbacher (page 573) has a quote from Acheson (page 120) saying that the Dred Scott decision "practically started a war."  I have not seen the point made any stronger than that.  The term "Secular Papacy" is explained in Edicts of the Secular Papacy.

10. See Silver, page 47.

11. See Silver, pages 225-6.  See also Warren (Charles, Vol.3) page 117.


To review works cited in this article, check the Bibliography.


Continue to the next chapter, Evolution of a Scam.

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This article is excerpted from Chapter 4 in Grand Larceny: an Unexpurgated History of the Supreme Court.See also Chapter 5 in The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.

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D. J. Connolly