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The Political Perils Of Citing America's Peculiar Institution

Rep. Ed Markey, D-Mass., speaks to supporters in Malden, Mass, on Feb. 2.
Josh Reynolds
Rep. Ed Markey, D-Mass., speaks to supporters in Malden, Mass, on Feb. 2.

Citing American slavery to make a point about contemporary politics can be downright tricky business, as some public figures have recently learned firsthand.

Take Rep. Ed Markey, a Massachusetts Democrat who's running for the Senate seat previously held by Secretary of State John Kerry. He caused a kerfuffle by citing, in the same breath, the Supreme Court's 2010 Citizens United campaign-finance decision and the opinion of a much earlier court, the infamous 1857 Dred Scott decision. In that case, the court told a black man seeking to be freed from slavery that he had no constitutional right to sue for his freedom.

Markey's remarks at a Tuesday campaign stop were first reported on BuzzFeed and captured on video and uploaded, of course, to YouTube:


"I want to go to the United States Senate in order to fight for a constitutional amendment to repeal Citizens United. The whole idea that the Koch brothers, that Karl Rove can sa, 'We're coming to Massachusetts, we're coming to any state of the union with undisclosed amounts of money,' is a pollution that must be changed. And the Constitution must be amended. The Dred Scott decision had to be repealed -- we have to repeal Citizens United."

Outside the liberal precincts of Pittsfield, Mass., where Markey was speaking, his words didn't go over so well. Some Republicans quickly unloaded outrage on Markey, who is serving a 19th term in the House.

In a blog post on the site of Citizens United, the organization that filed the eponymous lawsuit, David Bossie, a conservative activist, wrote:

"Congressman Markey who is a lawyer by trade should be ashamed of himself for spewing vitriolic lies. The Citizens United case was about free speech, a film, and our right to participate in the political process. Our right to free speech was being infringed and the Supreme Court recognized that. To compare the two cases is just plain absurd. If elected to the United States Senate, Congressman Markey will not be taken seriously by using this kind of senseless rhetoric."

Markey's challenger for the Democratic nomination for the Massachusetts Senate seat, Rep. Stephen Lynch, also criticized the comment. In a statement, he said:


"I don't think it's right to compare Citizens United to the Dred Scott decision. Dred Scott kept an entire race of people in bondage and perpetuated the horror of slavery in America. I'm not sure there are any Supreme Court decisions that rival Dred Scott in infamy."

Of course, Markey never said that Citizens United equaled Dred Scott in infamy or in the harm they caused the nation.

That appeared to be the point of a clarifying statement from Markey, which his office issued Thursday.

"The Supreme Court had the horrific judgment to issue the Dred Scott decision, and people rose up to challenge it. Today we're faced with another egregious decision that needs overturning -- Citizens United. The damage the Court unleashed by allowing outside money to control elections constitutes a legitimate Constitutional crisis ..."

Markey could have made an additional point. There aren't many examples to choose from of a well-known Supreme Court case that was later universally held to have been wrongly decided and that took constitutional amendments to erase. The Dred Scott decision is really it.

The situation is a little different with a statement by Emory University president Jim Wagner. He recently drew ire by citing in an essay in the university magazine -- as a prime example of the kind of compromise modern-day politicians should emulate -- the Constitution's clause which held that "all other persons" i.e. black slaves, would count as three-fifths of a person for apportionment purposes.

That set off a predictable firestorm. That the Constitution, the nation's most sacred document, arguably enshrined the concept that African-Americans were 60 percent of other humans, rankles millions of people still.

Wagner quickly apologized, which didn't stop some people from calling for his firing. At last check, Wagner still had his job, though he was censured by the Emory faculty for his statement.

Wagner was correct that the three-fifths clause was a compromise between regional interests. Southern states wanted each slave counted as one person since that would have increased their states' political power in Congress. Northern states opposed enhancing the slave power to that degree. They could live with three-fifths.

Wagner could have avoided the whole three-fifths controversy, however, since other examples of Constitutional Convention compromise were readily available to him.

He could have used the large-state small state-fight at the Constitutional Convention. Delegates at that convention argued over how many seats small states should get in the upper house compared with large states.

As Stanford University historian Jack Rakove wrote in "Revolutionaries: A New History of the Invention of America," discussions got heated. Delegates from the small states threatened to bolt the convention and break their vow of secrecy concerning the deliberations to tell the people back home of the large states' chicanery.

They insisted on an equal vote in one of the legislative houses to protect their interests against the large states. Backers of a plan that would have given large states more voting power in both houses, including James Madison, eventually compromised on this, which is how we got a Senate where every state, regardless of size, has two votes.

If Emory's president had used this example of political compromise, he could have spared himself much headache.

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