Dred Scott's Revenge

I spent a fair part of Saturday reading "Dred Scott's Revenge: A Legal History of Race and Freedom in America," by Andrew Napolitano, the judicial analyst for Fox News. It's a good read but really less a legal history than a retelling of the story of racism in North America, from colonial slave-trading days to the election of Obama.

Napolitano's basic argument is that the government (and its judges) erred through much of U.S. history by failing to follow natural law rather than "positivist" law created by men for their own ends. It isn't quite clear to me how things would have played out if the legal history had gone his way; I hope to get a chance to ask him. A couple of phone interviews I had scheduled with him had to be canceled because the book was so slow in arriving, and I am trying for a third.

Just for example: A lot of early Americans (and some still today) believe that intermarriage between the races violated natural law. Others, even some pretty progressive revolutionary thinkers, thought that blacks were naturally inferior to whites, and that gap could never be overcome without subjugation, deportation or extermination. How do these beliefs fit into Napolitano's conception of an America ruled by natural law?

Napolitano is right, though, at least judging from my reading, that quite a few revolutionary thinkers found it obvious that blacks were fully human and entitled to the same natural rights as any other human being. The failure of that kind of thinking to win the day in early America has cost us dearly. And the judge is particularly hard on Abe Lincoln -- the harshest assessment I believe I have ever seen of Lincoln's role in preserving the union above all else, including justice for slaves. Again, it isn't clear to me that things would have turned out better for blacks in the long run if Lincoln had been more interested in their welfare and less interested in saving the union.

If nothing else, Napolitano's book is a good corrective to nonsense like Limbaugh's claim that Sotomayor is a racist. You want to talk racism? Let's talk centuries of slavery, thousands of lynchings, a hundred years of Jim Crow, decades of segregation and an ongoing legacy of crime, poverty, and employment and legal discrimination.

Then, if Limbaugh still thinks it is in his best interest, we can compare all of that to what Sotomayor said.

Napolitano, by the way, is an admirable fellow in my book. KBUL's decision to drop his radio show in favor of Dennis Miller's was egregious. Napolitano leans right and like all talk show hosts has a tendency to bluster, but he is a bulldog on civil liberties issues and a reminder of what conservatism ought to be about.