Dred Scott Lives

For the past couple of weeks, the internet has been obsessed with highly curated performances of Black masculinity (a la Ashton Hall). The obsession has been a mixture of awe and ridicule. These hyper-muscular, hyper-disciplined, hyper-manicured men, visually reminiscent of Joe Rogan and Andrew Tate without the overt political projects, seem to be solely dedicated to “locking in.” Sign up for their program to “reinvent your entire life in 1 year,” and you, too, can have a White woman picking your broken Saratoga Spring Water bottle up off of the floor of your high-rise condo with her bare hands. Or a private security detail tending to you as you race (obviously only against yourself because that’s what bosses do) down an open street. At its core, this demonstration of physical dominance isn’t about health or well-being. It’s about parlaying physique into social and economic dominance. The body is evidence of conquest and marketed as a worthy conduit for empire-building. The content seems absurd until it isn’t.

Last year, I wrote about the trend of Black men being increasingly persuaded by the promises of gender dominance offered by White nationalist politics. This year, the Right’s capture of other ostensibly liberal, and even progressive, entities continues. On the heels of Columbia University’s capitulation to the Trump Administration’s demand that it aggressively discipline students who engage in pro-Palestinian protests and reform its admissions policies, the Administration has begun conquering law firms. On March 14th, the President issued an executive order against the firm Paul Weiss for its work and association with his political opponents, and their internal diversity policies. Exactly one week later on March 21st, the firm cut a deal with the Administration, agreeing to abandon its diversity policies and provide $40 million worth of free legal work to support the President’s agenda. In so doing, it abandoned its own rights to free speech and association, as well as the broader right to counsel guaranteed by the Sixth Amendment.

What the public has found most shocking about these developments is the Administration’s wanton disregard for the “rule of law.” According to the Constitution, the Executive Branch isn’t supposed to be able to place conditions on federal money given to industries and institutions without Congressional approval. But it did. The Department of Justice isn’t supposed to be able to defy a federal judge’s explicit orders to pause migrant deportations. But it did. Department of Homeland Security agents aren’t supposed to grab people off of the streets, force them onto planes, and ship them to prisons without any legal process or determination. But they are. Liberal pundits and legal scholars alike are calling this circumvention of the legislature and judiciary’s ability to check executive power a constitutional crisis, and it likely is. But the real crisis is that the consolidation of the federal government under a unilateral vision of America is actually a return to the foundations of American law.

In Dred Scott v. Sandford (1857), the Supreme Court famously ruled that the rights and privileges conferred upon American citizens didn’t extend to Black people because Black people had “no rights which the White man was bound to respect.” Dred Scott was a slave whose owners had taken him from Missouri, a slave state, into Illinois and the Wisconsin Territory, where slavery was against the law. When his owners later brought him back to Missouri, Scott sued for his freedom, claiming that, because he had been taken into “free” U.S. territory, he was legally no longer a slave. Like many of the immigrants detained by the Government in recent weeks despite possessing student visas, being lawful permanent residents, or even naturalized U.S. citizens, Scott, too, appealed to the legal process to affirm that his liberated being could be legitimized. To his horror, the legal process was, instead, used to affirm the incurable fact of his Blackness in a White man’s government. The Court reasoned that, because Scott’s slave status meant he could never be an American citizen, it logically followed that he could also never be free in any state. Solidifying its point, the Court, then, struck down the very law (the Missouri Compromise) that prohibited slavery in the places where Scott sought refuge on the grounds that it interfered with slave owners’ property rights under the Fifth Amendment. Just as Scott had been re-made free by the transportation of his body across the proper lines, in an instant, he was re-made a slave.

Process is a poor substitute for principle. Even in a world where this Administration accomplishes its objectives with the blessing of legal procedure, the fact that there will still be a problem must be made legible. This isn’t a hypothetical scenario. During Trump’s first term, he achieved a generational transformation of the federal judiciary by appointing more than 200 judges and bolstering the conservative majority on the Supreme Court with three new justices. His plan to continue the takeover of the judiciary by utilizing the judicial appointment process is underway. The short-term goal may be to disregard the rule of law, but the long-term goal is to remake it in his image. And, at that point, there will have to be a more confrontational analysis of the structural arrangements perpetuated by the letter of the law instead of a simple fixation on the rule of it.