Dred Scott and the Masks of the Law

Here is something I have been working on concerning the way the law uses legal masks to conceal persons:

One of the great constitutional law scholars of the past fifty years, Judge John T. Noonan, has observed that “[i]t is a propensity of professionals in the legal process to dehumanize by legal concepts those who the law affects harshly.”  

He calls this process of dehumanization the “masks of the law.” 

What Noonan meant by the masks of the law is the law’s ability to use rules and legal concepts to conceal persons who are treated harshly by the law. He puts it this way:

“By masks in this context I mean ways of classifying individual human beings so that their humanity is hidden and disavowed.” 

The mask that the legal system used to disavow the human dignity of slaves was the mask of “property.” The mask of “property” was what allowed champions of liberty, such as George Wythe and Thomas Jefferson, to own slaves and to accept the power of the law to treat slaves harshly. 

For example, as a judge in the state of Virginia, George Wythe, a signer of the Declaration of Independence and its embrace of all men being created equal, was able to preside over the sale and inheritance of slaves and to declare in one case that “The property of slaves, whatever be their number, may be transferred with as little judicial ceremony as a single quadruped or article of house or kitchen furniture.” 

As Noonan observes, Wyeth “could not have compassion for each of them as a person and still be a judge….  At the critical moment, the masks of the law covered the faces of the slaves.”

Montesquieu, with biting irony, explained even more clearly the need for the masks of the law in an age of slavery:

‘It is impossible,” said Montesquieu, “that we should suppose those people to be men, because if we should suppose them to be men, we would begin to believe that we ourselves are not Christians.”  

This mask of the law has a dual function—it hides the humanity of the slaves, so judges and the law can treat them like an animal or an inanimate chair, and it allows the white ruling classes to think well of themselves by masking the tyranny of the system they enforce. 

“We are not evil men! We are good men, lovers of liberty and equality, and protectors of private property and the pursuit of happiness!”

Do you see this point about the masks of the law, and how they permit good men to commit grave injustices while still feeling good about themselves?

Always try to peek behind the masks of the law and see clearly whatever or whoever is concealed by these masks.