Taney v. others (“Dred Scott” and American Civil War)

Taney v. others (“Dred Scott” and American Civil War)

TransConflict is pleased to present extracts from Dražen Pehar’s book, ‘Dediscoursification – how discursive attitudes cause wars’, the key contention of which is that the attitude to language should be theorized as one of the major causes of war.

 Suggested Reading Collaborate GCCT

By Dražen Pehar

On March 6 1857, US Supreme Court Chief Justice, Roger Brooke Taney issued judgment of historic impact under the title “Dred Scott, Plaintiff in Error, v. John F.A. Sandford” (see the brief excerpts in Urofsky 1994).1 Dred Scott, an African-American slave, pleaded before the court to declare him free. His submission was based on his stay in northern states of the USA as well as on US Congress Missouri 1820 Compromise which confirmed the status of “free ones” to those states in the sense of “not allowing slavery.” Taney made a decision that was to shake the US and that is, by now, considered as the worst ever decision by the US Supreme Court; according to the famous and oft-quoted words by another Supreme Court Justice, Charles Evans Hughes, the decision was “a self-inflicted wound that almost destroyed the Supreme Court.” What are the main points of Taney’s decision that was backed by a majority of seven Supreme Court justices, with only two dissenting opinions?

First, “the question whether the federal courts had jurisdiction over the Scott lawsuit was indeed properly presented for review by the Supreme Court.” Secondly, “neither a slave nor a free black man could be a citizen of the United States entitled to bring a lawsuit to federal court.” Thirdly, “the provisions of the Missouri Compromise…that barred slavery in the western territories of the United States north of Missouri were unconstitutional and void; Congress had no power to bar slavery from any territory or state.” Fourthly, “Dred Scott’s status was governed by the law of Missouri–where he lived and brought suit–and not by Illinois law or Wisconsin’s territorial law. Under Missouri law, Scott remained a slave.” Fifthly, “Scott’s federal lawsuit was an improper attempt to re-litigate the prior decision of Missouri’s highest state court, which had already finally determined that Scott was not emancipated by virtue of having lived in Illinois and the Wisconsin territory. Accordingly, the federal courts should never have entertained Scott’s lawsuit in the first place.” (Greenberg 2009, 104-105)

The five points embody a chain of legal reasoning based on the interpretation of the US Constitution, a document from which the US Supreme Court itself derives its legitimacy (see Weber 1995). One should, for a start, notice that Taney’s reasoning, enunciated in the very long document, centers on two issues: first, are colored people, both free and not free, a part of the category of “US citizen”? In other words, should they enjoy the entitlements that derive from the category of “US citizen?” Taney answered those questions in the negative. Simply due to the fact that African-Americans are descendants of slaves, they are not a part of the category of “US citizen.” As they do not belong to the relevant legal category, Dred Scott cannot legally submit his case to any court of the US. Taney draws such a conclusion from an interpretation of the US Constitution as well as from the Declaration of Independence, and a number of laws that were in force in several states during the formative era of USA. There is no doubt that some provisions of the US constitution do tolerate the slave-holding relationship, but whether they effectively prevent the change of one’s status from a slave to a “freed black man who is also a US citizen,” is at least an open question. Despite the fact that the US Constitution does not give an unequivocal answer to such a question, Taney decided that the change of the status was, as a matter of the law, impossible.

The second important aspect of Taney’s decision concerns the property rights according to a provision of the Bill of Rights, the Fifth Amendment to the US Constitution that guarantees the right to “life, liberty, and property” in the sense that such rights cannot be abrogated except by a “due process of law.” Taney considered the “slave-slave holder” relationship as fully defined by the amendment. Slave is a property, something that fully belongs to the free owner and that, strictly speaking, cannot be distinguished from other commodities that may be offered for purchase, like cattle or immobile property (such as house, land, and similar). As the right to property is protected by Fifth Amendment, nobody can deprive an owner of his or her slave. Regardless of the different laws that may apply at different territories, the slave cannot be recognized as a distinct legal category; s/he is an inalienable part of the owner, simply an instrument of which the owner disposes according to his or her will. That is why the Missouri 1820 Compromise, a legal decree by the US Congress, is deemed invalid, unconstitutional and legally void–the states cannot, by decree, deprive the owner of his slave, which the 1820 Compromise seems to imply.

In a nutshell, Taney’s deductions point to two fundamental conclusions. First, the rights of African-American population are fully unprotected–a “black” US resident cannot be or become an USA citizen; in contrast, the right of the slave-owner is fully protected–his property is his own forever and cannot be taken away from him. Secondly, there is no legal way to change the status of a “black slave” (which, in Taney’s view, is not a relevant legal category anyway) to the status of “a free USA citizen.” In other words, when it comes to the second issue, Taney clearly implied that the very institution of “emancipated slave” made no sense; slaves cannot be emancipated simply because emancipation cannot have a crucial legal effect–it cannot change their status into one of “USA citizen.” According to Taney’s logic, “a free black man” is a legal oxymoron, which is why so-called “emancipation of slaves,” including the purchase of their freedom, cannot produce a legal effect. Or, when one said to his slave “now you are free to go,” it meant nothing because it could not mean “now you are a free citizen of USA protected by USA laws and accountable under those laws.”

So, in Taney’s reasoning, we see two categories: the category of “black people” and the category of “slaves.” Taney needs to maintain the distinction between the two categories because, in 1857, de facto many US citizens (for instance, in northern states) believe that there were and remain some “freed black people.” Taney needs the former category primarily because of northern states for which this decision served as a kind of “stick” carrying the following message: “black people cannot become citizens; your emancipation of black people is purposeless and has no legal effect.” As to the second category, Taney’s decision is intended as a kind of “carrot” for southern, slave-holding states; through the decision he conveys to the southern states an important message as follows: “your laws are valid as they are in accord with the Fifth Amendment, and as they in particular protect those who ought to be protected simply in their role of the property holders.” It seems therefore that Taney’s legal tactic was of a dual kind: he supported the existing rights of the southern states, and decided to immortalize their laws closing effectively the road to emancipation for the slaves; secondly, he denied the rights of the northern states, and also decided to forever render their practice of emancipation illegal by effectively closing the road to a legal transformation of “black people” into “USA citizens.”

Both implications were extremely counter-intuitive and legally-politically disruptive. The first aimed at the question “Is a slave-owner really free if he cannot dispose of his own property, transfer or give it up, according to his own will?”; the second aimed at the question “Can a black person be deemed free if s/he is not accepted as a USA citizens in the full sense of the word?” Despite the fact that the answers to those two questions were then as now nearly self-evident, Taney, and some states, simply declined to accept them, and held fast onto the belief that, to both questions, they are free to give their own, non-generalizable, idiosyncratic, and fully arbitrary kind of answer.

Let us now turn to two crucial themes: the relevant elements of the context of the ruling, and the question of the quality of the ruling itself as a rational, or reason-based, discourse. Taney indeed ruled under the influence of politics, which does not mean that the ruling was fully determined by politics. Today we know that a communication took place between, on the one hand, President Buchanan, whose inauguration coincided with the time of the writing of the decision, and, on the other, some members of the Supreme Court. It is also clear that Buchanan learned about the contents of the decision before it was actually pronounced. The comments in the press clearly indicated that Buchanan’s ideas about desirable developments coincided with Taney’s. A few weeks after the election, in his letter to Grier, one of the Supreme Court members, Buchanan put it as follows: “The great object of my administration will be if possible to destroy the dangerous slavery agitation and thus restore peace to our distracted country” (Greenberg 2009, 68). Furthermore, in his inaugural address (March 4 1957), Buchanan refers directly to the forthcoming Dred Scott decision, and points out that he “shall cheerfully submit, whatever this may be” (Greenberg 2009, 75).

It is also interesting to note that a change in the course the Court was taking with regard to the decision can be, in an important part, explained by Buchanan’s influence. In February 1857, the Court was considering a more neutral decision, one that did not touch on the issue of the Missouri Compromise; it was a draft decision intended simply to declare that Scott was not in a position to submit a legally valid case, hence, that he could not be emancipated either. The draft was being prepared by Justice Samuel Nelson, a Democrat from New York, and was later published as his concurring opinion. However, the draft was not adopted as a final text of the decision since the Court opted for a more comprehensive and more detailed approach. The latter option, and the very final text, is the only one that was compatible with the intention of both President Buchanan and the Court to, as put by Justice James Moore Wayne, “settle the national controversy about slavery once and for all, and thereby restore and preserve the peace and harmony of the country” (Greenberg 2009, 243). In other words, the Court majority believed that the Dred Scott decision would be widely recognized as one drafted by peace-makers, a group who intended to restore harmony and bring stability to the USA. As I show later in the section, the subsequent developments showed that the course of action they took did not result in the intended outcome.

Another element of the context of the ruling is important. The ruling had almost no real or practical impact in the sense of its immediate political-legal implementation. In other words, one can here hardly speak of the implementation of the decision which was, however, intended as extremely authoritative and weighty. First, it caused no change in legislation of the northern states. Furthermore, it failed to determine the legal status of Kansas as a new territory, which at the time was at the center of the conflict between the proponents of slavery and the proponents of emancipation. Second, though in theory there was a possibility of imposition of the ruling, perhaps by military or police means, the means of imposition were not available, at least not to the advocates or the proponents of the ruling. Third, and most interestingly, a few months after the ruling, Dred Scott was emancipated in Missouri in May 1857 through a series of strange transactions–first, it was discovered that the true owner of Dred Scott was a sister of John Sandford, his alleged owner, and Ms Sandford was at the time married to a republican congressman Chaffee who “handed in” Scott to Taylor Blow who then manumitted Scott together with his whole family (Fehrenbacher 2009, 231).

Now it is necessary to discuss briefly the very quality of the decision as a reason-based discourse which, being a discourse of legal and argumentative kind, needs to adhere to some epistemic and empirical standards and norms. Measured by such standards and norms, Taney’s decision is terribly lacking and is founded on poor reasoning, which, however, is not a key flaw, as I explain later. Its key problem, or flaw, lies in another fact which is only indirectly related to the explicit wording of its arguments. In his decision, Taney, first and foremost, offers a legal interpretation of the US Constitution according to which the slave-holding is legitimized and approved by the Constitution, and according to which the African-American population is left outside the scope of the category of “USA citizen.” However, we need to keep in mind that Taney explicitly stated that his ruling did not delve into the issue of fairness or injustice, but only focused on the explicit contents of the text of the Constitution. In other words, it was not Taney’s concern whether the US Constitution could be considered as an embodiment of injustice.

But, in fact, the US Constitution is simply a document that opened some room for interpretive conflict (see Graber 2006, esp. 106-109). As to such a kind of document, one who aspires to offer an authoritative interpretation should also be able to demonstrate that his interpretation, when measured by the same set of elements as all other competing interpretations, is more plausible. This simply means that, when, for the purpose of interpreting, one takes into account only one cluster of elements, and neglects the others, this procedure violates both epistemic and hermeneutical standards of proper interpretive procedure. We need to take into account all the elements and then, based on all, explain how and why our interpretation should be considered more plausible than the competing ones. This is exactly the standard that Taney very visibly violates. He does not compare the competing interpretations, nor measures all interpretations by a common set of elements. He simply ignores the elements that sit uneasily with, or do not fit, his own interpretation. This is of course a major flaw, but still not the key one.

Legal elements irreconcilable to the contents of Taney’s decision may be put as follows: there is no doubt that the original US Constitution contained what was called a “fugitive slave clause.” However, the clause does not refer explicitly to slaves, but to “persons held in labor or service.” Also, one clause of the original US Constitution counted a “slave,” for the purpose of elections and representation in national/federal bodies, as “three fifths of a person” (which put the southern states at a considerable advantage in the sense of national representation); but again, the clause refers not to “slaves,” but to “other persons.” There is no doubt that such clauses may be explained by a relatively tolerant attitude of the US Constitution to the practice of slavery; however, it is also very clear that they may be taken as indication of the will of the founding fathers, the drafters of the original US Constitution, to refuse to admit the legal standing of the practice of slavery in the US Constitution–how, otherwise, to explain the fact of a systematic avoidance of the terms “slave” or “slavery”? Secondly, many scholars have already emphasized that Taney’s interpretation of the Fifth Amendment is flawed and illogical (Finkelman 1997, 40-43). It is obvious that the amendment could not mean that the right to property was absolute; and it could not mean that such a right always overrules the right to life, or liberty, either. The clause explicitly protects the right to property, as well as the right to life or liberty, but a properly conducted procedure of law is one vehicle for placing limits on enjoyment of these rights.

Additionally, some historical considerations are simply irreconcilable to the tenor of Taney’s verdict. Taney failed to consider the fact that the founding fathers obviously had no problem with the concept of a “free black man” who is also an “USA citizen.” As Justice Curtis pointed out in his dissenting opinion, at the time of adoption of the US Constitution, the African-Americans were considered free in at least four or five states of the union; and in those states they also enjoyed the right of casting electoral ballot. Also, Taney’s historical thesis, that the whole generation of American revolutionaries and founding fathers undoubtedly supported slavery, is a flawed kind of history–for instance, Madison, Washington, Jay, Hamilton, and Franklin condemned slavery and hoped that, one day, their state will be freed from the moral and political evil (Greenberg 2009, 113-115 and 200-203).

Thirdly, simple logical considerations are as well violated by the Dred Scott ruling. It implies or involves a metabasis eis allo genos–an illegitimate trespass to a different type of issue: consideration of a single case, without an additional clarification, becomes a consideration of all the cases that may lie at the foundation of the case. Many commentators have argued that the Dred Scott could have been solved much more elegantly in two ways: since it was a legal submission by an individual, against another individual, the decision could have remained within the limits of the case thus conceived; hence the case was soluble following the precedent Strader v. Graham, as proposed by Justice Nelson, which the Supreme Court actually declined (Finkelman 1997, 31-33); or, secondly and even more elegantly, following the principle “res iudicata”: one party should not be allowed to transfer an identical case simply from a lower to a higher judicial level; if the party decides to do so, its case should be modified and put in the form of a complaint against the previous verdict by a lower level court (in this case this was the Missouri Supreme Court). However, in such a case the Dred Scott decision would not be longer than five to seven paragraphs. All Taney’s considerations concerning the US Constitution, the founding fathers, the “free black persons,” the rights of Congress etc., had to be excluded from such a brief and concise adjudication (that would still be unfair and arbitrary) (Greenberg 2009, 146-147).

In Taney’s mind, however, the Dred Scott case is just an opportunity, which he indeed takes to expand his own vision of many other matters, to propose a grand theory of the values of the American Constitution, an ultimate interpretation that would, once and for all, resolve the most central conflict in the USA, and present a moral-political framework by which all future generations of Americans will be bound. Of course, this was a very ambitious project, a grand idea, and the hope that the project might have been realized, as nurtured by Taney and his Supreme Court majority, indicated that those justices were so shortsighted that they were unable to predict an otherwise highly predictable outcome–the ruling was to be met with full contempt and animosity in the large part of USA, which was bound to aggravate the conflict and make it even more intractable, potentially even lethal.

This brings us to consideration of the key flaw. It is often claimed that the decision was one of the causes of American Civil War (Wallance 2006). In such a sense, it may be a perfect example of dediscoursification–it is a discursive delivery that motivates a group of people to give up discourse as a medium of problem-solving. It is a discourse that considerably reduces, in at least one party to a political conflict, the will and readiness to tackle political problems through negotiation, that is, by the use of discourse. But, how can we explain the function, or power, of dediscoursifying in the Dred Scott decision? One may hope to answer the question only by focusing on the character of the dialogue, or public discourse more generally, as an effect of the decision. Hence, we pose the following question: how did American public discourse evolve in the aftermath of the decision, leading to discourse-related obstacles as an effect of the Dred Scott ruling?

First, we need to highlight that this question cannot be answered in the way that Fehrenbacher and Greenberg attempted. Greenberg tried to answer the question by simply noticing the fact that the ruling reduced the will to compromise (Greenberg 2009, 319)–however, he offers no explanation as to why such reduction took place. Fehrenbacher, on the other hand, formulates the question as one of the immediate political effects of the ruling in the sense of a party politics and voter behavior–for instance, should we claim that Taney’s decision “elected” Lincoln as the US President, or more precisely, has the decision exerted a decisive influence on the behavior of voters who voted for Lincoln (Fehrenbacher 1981, 289-294)? But, the question on the causal powers cannot be answered in the way proposed by Fehrenbacher–today it is indeed impossible to go into full detail, and one cannot know the full detail simply because one cannot determine the exact motivational structure of the 1860 pro-Lincoln voter. One needs to take a different attitude and try explaining the relationships through a more general mechanism that can be applied to relevantly similar cases. With such a purpose in mind, I believe that the idea of dediscoursification is of major relevance.

When we address discursive effects of the Dred Scott decision, with a focus on the American public discursive space, we cannot avoid addressing responses by the press, by public institutions such as the church, by politicians such as Senator Douglas, Lincoln himself, and a leading abolitionist, Frederick Douglass. All the responses indicate that something of key importance took place. As is to be expected by an impartial eye, the Taney ruling produced within the American public discourse an atmosphere of war, or a war-prone mentality. The “Dred Scott” decision was interpreted and presented as a use of discursive political weapon that some viewed as an irreversible victory and others as a humiliating injury. Frequent reference to “conspiracy” by Lincoln, for instance, or to a fear from arrival at Boston of a slave-holder with his slave, based on the decision, is just one kind of such reaction (Finkelman 1997, 46). In sum, all such responses are highly saturated with three types of metaphors: the decision as “a military movement;” decision as “a weapon,” and decision as a “declaration of war.” For example, Frederick Douglass relates the decision directly to the physical assault on Senator Sumner, and points out that “even the crushed worm may turn under the tyrant’s feet.” (Finkelman 1997, 176) A southern journal speaks of “the defeat of enemy” and adds that, through the Taney ruling, the enemies of the union are now driven off their “point d’appui” (the main military assembly point, in French) (Finkelman 1997, 130). Another southern, but pro-republican journal depicts the decision in the following terms: “it is dictum prescribed by the stump to the bench–the Bowie-knife sticking in the stump ready for instant use if needed” (Finkelman 1997, 145).

Those are all typical and representative examples. In addition to such types of metaphors, the use of negative moral attributes becomes more prominent and frequent–free northerners and abolitionists consider the decision “wicked” or “blasphemous,” whereas the South describes the northern response as “treason,” “disobedience,” “revolution,” or “unpatriotic.” After having contrasted the decision with divine laws/reasons, Frederick Douglass marks it as “incarnation of wolfishness” (Finkelman 1997, 174). In other words, in addition to the expressions of the view that a pattern of discourse was used as a weapon that generated a war-like atmosphere, we also find expressions of the view that the other side has become in a moral sense so degraded that it is literally beyond the possibility of repair; the other side is depicted as a kind of animal, a non-human life with whom one could not communicate nor cooperate on the basis of trust and equality. To the northerners, the decision exemplifies an attempt to turn them all into slaves. In contrast, the southerners describe the decision as morality incarnate, as a sign of supreme knowledge and competence, as a message from the very summit of political-legal world (though Taney himself emphasized that he has not dealt with the issue of justice); and they treat those negative reactions by the northerners as manifestations of a disrespectful attitude toward the Constitution, and as a direct, even revolutionary, threat to the foundations of the USA. Northerners, in congregations, reply to this that “being obedient to the decision” means “being disobedient to God” (Finkelman 1997, 149-154). In other words, one can clearly see that, following the ruling, dialogue becomes futile and starts sounding more and more like an exchange of gunfire.

A fitting illustration can also be found in a reply by the Washington press Union (an unofficial voice of President Buchanan and a wing of northern part of Democratic Party that advocated slavery) to a piece published by the editor of a libertarian press Tribune from New York. The reply is brutal, offensive, and framed as a threatening call to a specific individual to come to senses; briefly, the Union puts it as follows: obey the decision, and cease addressing the issue of “abstract human rights that do not differentiate between different skin colors”–the US Constitution as well as the USA itself are such as framed by Taney in his decision; hence you need to consider only your own skin color, i.e. the fact that you are not a black person but a white one! Quote:

“We congratulate [this as well is an offensive tone by which the Union itself implies that the Tribune is of a ‘black skin color’] the Tribune upon its full appreciation of its own color, but whether ‘the rights of human nature’ recognize any distinction founded on color was not, it ought to remember, the question before the court. The question before the court was, whether any such distinction was recognized by the constitution and laws of this Union; and if the editor of the Tribune ever gets before the court on a question like that, we advise him to stick fast to his own color, and not presume too much upon ‘the rights of human nature.’” (Finkelman 1997, 166-167)

Now, what aspect of the Dred Scott decision does explain the war-like atmosphere, or what aspect of it should we take as a rational cause of all the above presented discursive effects? The answer to the question is as follows: the decision was taken both by Taney and by a majority of his supporters as “the ultimate word,” “the ultimate interpretation of the Constitution;” the key authority of the decision was placed not into the reasons that were offered as a part of the decision, but into the Court’s institutional position as the Court itself viewed it. The proponents of the decision took it as a vehicle for closing the space for dialogue not only with the advocates of the opposing view, but also with any other user of political discourse that ever dealt with the issue of slavery. In other words, one discursive agent communicated to all other discursive agents the message as follows: “there cannot be more questions why; now you need to cease talking and do as I say; no further dialogue is possible regardless of the strength of your counterarguments.”

Here we see a striking parallel with the case of the police officer from Toch’s Violent Men discussed in section 1.1. Taney views himself as an “a priori embodiment of the right word,” as a final voice of the ultimate law. Hence, a further dialogue with him is impossible, he dediscoursifies himself and at the same time he also dediscoursifies the recipient of the message, which dediscoursifies both by presenting a “non-reason” as a reason. The message attempts to force the listener/conversant to accept as reason something that is not one, and also to accept the violent, inhuman, and unjustifiable cessation of debate and communication.

It was already noticed that Taney of the Dred Scott decision is a justice standing for the idea of so-called “judicial supremacy” (Fehrenbacher 1981, 241-243). According to Taney, the Supreme Court is the one who decides on the meaning of the US Constitution in the way that is binding on all branches of government. This, however, is a controversial thesis that natural born democrats, such as Jefferson, President Andrew Jackson, or Abraham Lincoln, were never able to swallow. The thesis was and remains irreconcilable with the US system of “checks and balances” because it opens the door widely to judicial despotism, which is a rule by an unelected minority. One can witness such Taney’s defense of judicial supremacy in a comment on the decision he gave two years after the Dred Scott (Fehrenbacher 1981, 243). Also, it is clear from the way in which Buchanan welcomed the decision, and called for it, that it was indeed intended as an ultimate word binding on all US citizens and on all branches of government equally.

One should here also note that Taney did not defend such a view in earlier cases. It may sound incredible, but Taney was the justice who, in one of the Passenger Cases, emphasized “that it be regarded hereafter as the law of this court [US Supreme Court], that its opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported” (quoted by Wechsler 1999, 311). Taney of the Dred Scott ruling actually defends a sophism that is incompatible with the preceding sentence, and that a Supreme Court justice, Jackson, in a 1953 case formulated in the following fashion: “We [the Supreme Court] are not final because we are infallible, but we are infallible only because we are final” (quote in Weinreb 2005, 151).

Lincoln started to oppose the decision very early through the venue of famous Lincoln-Douglas debates. The attack on the idea of “judicial supremacy” was clearly the key premise of his public statements at the time. He claimed approximately as follows: “had the decision really resolved an issue, I would have obeyed it, and called to others to obey it; however, as this is not a case, I don’t yield; in Congress, if the decision would come to a vote, I would vote against it.” Lincoln then adds that a number of previous Supreme Court rulings were later overturned or revised. The case he referred to frequently was the case of President Jackson who refused to sign the decision on Central US Bank that Jackson deemed inconsistent with the US Constitution. Lincoln, like Jackson, viewed himself primarily as a free discursive agent who, just like the Supreme Court, acted as a free and equal interpreter of the Constitution, as one who enjoys an inalienable right of presenting his own reasons in support of his own interpretations (Finkelman 1997, 201-204).

The southerners, however, viewed Lincoln’s counterarguments not as rationally motivated, but as expressions of disobedience, of the will to dismantle existing arrangements, or simply as an “unpatriotic act.” In fact, Taney’s decision itself, which explicitly called for the cessation of dialogue within a system in which the need for dialogue can never cease, can be characterized as an unpatriotic act that directly assaulted the existing arrangements. By blocking a further use of discourse, it undermined the system and brought it to the point where the opposite party necessarily started to consider “a war for a preamble,” (Finkelman 199, 164) a use of violence that would perhaps regenerate a discourse of free, equal, and rationally discoursing beings.

Of all the opponents of the Dred Scott decision, Frederick Douglas, an abolitionist of African-American origin, expressed the atmosphere of dediscoursification in the most unmistakable terms in his 11 May 1857 speech (Finkelman 1997, 169-182). In the speech that is eloquent, calm, precise, and strong, Douglass depicts the road from a discourse to dediscoursification, and thus to an expected eruption of violence, as clearly as one can. He went as far as welcoming the decision because it made both the colored people and slaves realize that the struggle would have to continue, that “national conscience” could not be silenced, and that such a struggle was likely to be fought both by discursive and non-discursive means. He clearly recognized that the key message of the Supreme Court was “peace, be still,” and it was a message conveyed to every single US citizen (Finkelman 1997, 174). Of course, Douglass added that the citizens’ lips cannot be closed just like that, and that the US citizens cannot be discursively treated as slaves. The Supreme Court can try to cease their dialogue with the people, but the people will continue their dialogue with other peoples. As Douglass put it, “You may close your Supreme Court against the black man’s cry for justice, but you cannot, thank God, close against him the ear of a sympathizing world….all that is merciful and just, on earth and in Heaven, will execrate and despise the edict of Taney” (Finkelman 1997, 175).

Since discursive space is closed through a quasi-reason and violently, it is perfectly clear to Douglass that violence may break out between those who are no longer involved in dialogue with each other. When somebody closes to me the space of discourse, and thereby induces me to form the belief that words have become ineffective, I must be prepared to seek, or expect, a solution through a non-discursive medium, and put my own body and life into the service of my own discourse. Douglass very clearly verbalized such a move towards violence as an effect of the discursive constellation embodied by Taney’s attitude toward discourse: “The world is full of violence and fraud, and it would be strange if the slave, the constant victim of both fraud and violence, should escape the contagion. He, too, may learn to fight the devil with fire, and for one, I am in no frame of mind to pray that this may be long deferred” (Finkelman 1997, 176).

Finally, it is now obvious that at least three dialogues discussed in this chapter (Toch’s dialogues, Milošević and USA at the time of Rambouillet negotiations, and now Taney v. Others) are very closely related; they manifest some similarities and regularities which allow some theses concerning discourse, slavery, and war, to be tentatively proposed in this section. First, the dialogues clearly indicate that discourse, slavery, and war are connected through the phenomenon of dediscoursification. Slavery, for example, can be defined primarily as a discursive relationship in which the state of war is first preserved, and then transformed into a relationship between two human beings one of which does not recognize the discursive status of the other; the slave-holder must not treat the slave as a person capable of rational discussion in which arguments are exchanged to chart jointly a common ground. This means that the slave-holder’s attitude toward discourse, when discoursing with the slave, in fact boils down to continuation of the use of weapons in a different medium; he can use his discourse in relation to the slave only as a tool or weapon, for instance, as a threat or order.

Aristotle (1959, 1253b30-33) famously defined the slave as “a living tool”–the slave understands words and can pronounce words; but the slave cannot supply argument or convey truths to teach his master. The slave’s discourse is not marked by moral attributes and does not figure as a medium through which the slave could, or should, demonstrate his/her own rationality. This means that the discourse of the slave-holder, or master, constantly dediscoursifies the slave; it constantly reminds the latter that s/he is not a discursive being in the real sense of the word–s/he is nothing but a reward that the war brought to his or her master who won the war. So, here we can see clearly the following sequence: war, slavery, a specific discursive relationship, dediscoursification, preservation of the state of war.

This further means that all it takes for one to produce in someone else the belief that the latter is treated as a slave is to assume a specific discursive attitude toward her or him; that is, to assume an attitude toward discourse that brings the slave into a position in which s/he is forced to accept one’s discursive product without a reason, or due to a pseudo-reason. This will in him, or her, necessarily produce a justified impression that s/he cannot talk to the master, and that the dialogue will not pay off simply because the master may, by an arbitrary fiat, terminate the dialogue even when everything speaks in favor of its continuation. In other words, if you fail to offer reasons, or if you refuse to partake in dialogue about reasons that you yourself described as “ultimate, final and irrevocable,” it is nearly certain that your interlocutor will form the belief that s/he, in your eyes, is deemed a slave; s/he will take such a refusal to indicate that you consider him, or her, incapable of a discussion concerning reasons. Consequently, s/he will start considering you a pertinent instance of the concept of “slaveholder.” It is also important to emphasize here that, within such a discursive relationship, the very words “slave” and “slaveholder” need not be explicitly used; such relationship will nonetheless be an example of the relationship of a slaveholder to a slave.

Another discomforting effect follows from this: if, in one’s eyes and for compelling reasons, you assume the status of a slaveholder, it is nearly certain that one will want to wage a war against you, or will come to the rational idea that s/he may have to declare a war against you. You turn one both into a slave, with whom you do not discourse in the language of reasons, and into a bellicose party, because you have generated in one the conviction that the discourse with you would not pay off, that the problems you two share cannot be solved with the medium of language, and will thus have to be tackled possibly by the use of force. This is why the triad of discourse, slavery, and war, is so intimately grouped together. Taney’s ruling is useful because it offers an example of the kind of discourse that is used in relation to a slave as well as of the effects of such discourse. Hence, by saying something crucial about the series “war, slavery, discourse,” this example conveys a critically important message about the series “discourse, slavery, war” too. In the former as well as in the latter, dediscoursification is the key factor.

Dražen Pehar has a PhD in politics and international relations from Keele University (SPIRE 2006), holds an assistant professorship (BiH) in the philosophy of law and in politics with sociology. Dražen is a DiploFoundation Associate, and previously served as Chief of Staff to the BiH Federation President (1996) and as a media analyst to the OHR (1999/2000). Dražen is also part of the Institute for Social and Political Research (IDPI), a member of the Global Coalition for Conflict Transformation

The views expressed in this article do not necessarily reflect the views of TransConflict.


  1. Or here: https://supreme.justia.com/cases/federal/us/60/393/case.html (Accessed July 28, 2015).

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