James on Nussbaum on McClean on Taney on Dred Scott… Whew…

James Arrabito

In discussing the McClean dissent to the majority opinion in Dred Scott v. Sanford in relation to the philosophical precepts illustrated by Martha Nussbaum in her book, Hiding from Humanity, my gaze falls naturally upon one particular statement made during the oral arguments before the Supreme Court: “it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law.” See: Dred Scott v. Sanford 60 U.S. 393 (1857) at 533

This is a significant statement in terms of Nussbaum’s writings, as it provides further example of the unreliable nature of the use of emotions, particularly disgust, in the law. As can be observed by browsing through the transcripts of the oral arguments, the advocate for John Sanford appealed to popular denigration of non-whites as rationale for their exclusion, whether free or enslaved, as American citizens. This denigration can, according to Nussbaum, be classified as making the non-white an object of disgust. As is discussed, the aiming of disgust at humans has the often intentional effect of lowering and debasing those individuals; the effect, indeed, of classifying them within a hierarchy of social strata. This is exemplified through a discussion of the Latin word “fastidium,” which simultaneously implies disgust and hauteur. Naturally, disgust is not a natural attribute in human cognition, and is rather developed over time through socialization with parents and, more importantly according to Herbert Marcuse, with peers.

If we accept the aforementioned as the genesis of disgust’s development in human social interaction and attitudes, the unreliable nature of disgust as a basis of law can become apparent. As disgust is an attitude, or collection of attitudes, and attitudes are formed by a synthesis of one’s aggregate experiential perceptions and the socialization with parents and peers, then naturally the logical conclusion is that the objects of disgust will differ, if only slightly, from person to person. Nussbaum would seem to agree with this when she says that there are not universal objects of disgust; although, to be fair, she hedges her bet by saying that there are those objects of disgust that have the effect of being universalized – a semantic trick, in my opinion.

The earlier quoted statement from the McClean dissent seems, to me, to be an affirmation before the fact of Nussbaum’s consideration of this issue. The logical implication of his statement that the exclusion of non-whites is a matter of taste as opposed to a matter of law is a direct shot at the use of popular attitudes that denigrate an aggregate of individuals based merely upon the notion that one is better than them, and not, as is argued, a matter of precedent or Constitutional cannon. Much like the appeal to poplar disgust in the passed of Colorado’s anti-homosexual laws, McClean argues that these arguments are no more than a call to society’s base attitudes of social hierarchy and false sense of purity.




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