Dred Scott: Constitutional Or Political? Essay, Research Paper
Dred Scott v. Sanford, which Abraham Lincoln called “an astonisher in legal history” remains to this day the most famous of all American judicial decisions. It was a landmark in the history of judicial review because it was the Supreme Court’s first invalidation of a major federal law. The decision, in fact, provided an early indication of the vast judicial power that could be generated if political issues were converted, by definition into constitutional questions. It could be maintained that Dred Scott v. Sanford was used to parlay into a larger issue [the Missouri Compromise] for political effect. I believe that this was definitely the case and judging by the evidence, will seek to show that Chief Justice Taney was the instrument for this political conveyance, and dissenting opinions were overlooked in favor of the political scheme at hand. Furthermore, the case of Dred Scott v. Sanford would have remained small but innocuous except for the political machinations of Taney and other prominent figures.Taney used the United States Constitution for the political benefit of the current party and ironically, to bring peace to the issue of slavery. Taney hoped the court’s decision would settle once and for all the question of slavery in the territories. Seldom in history has one man made a more dangerous miscalculation. For twenty-five years, the rights and wrongs of slavery had been debated both in and out of Congress with steadily growing bitterness. Instead of settling the question, the Supreme Court’s decision on Dred Scott aroused the people’s bitterness that slavery’s fate could be settled only by war. The Dred Scott decision of the Supreme Court in March 1857 was one of the major steps on the road to secession. Dred Scott was a slave who was taken to Missouri from Virginia and sold. His new master then moved to Illinois (a free state) and then to the free territory of Wisconsin. He lived on free soil for a long period of time, but moved back to Missouri when his master was transferred back by the Army. Upon his master’s death, Scott claimed that since he had resided in a free state, he was consequentially a free man. The case eventually made it to the Supreme Court. Although Scott is the plaintiff in several cases or continuances, for the purposes of this essay we will assume that it is recognized that it is the Supreme Court’s ruling on Scott v. Sanford which claimed controversial fame as this was the final ruling by the Supreme Court. The original questions that faced the Court were: 1) Was the plea in abatement before the Court? 2) Was Dred Scott a citizen of Missouri and thus capable of bringing a suit in a federal court? 3) Was Scott free as a consequence of his residence in Illinois? 4) Was Scott free as a consequence of his residence at Fort Snelling? There were two relatively simple solutions that would have avoided the thornier questions of the Missouri Compromise. One would have been to answer the first question in the affirmative and the second question in the negative, thereby reversing the lower court’s ruling against the plea in abatement, and causing the case to be dismissed for want of jurisdiction. Excluding free Negroes from citizenship would no doubt have aroused anger in abolitionist circles, but not among the great majority of Northerners who equated black skins with natural inferiority. The Court, however, was so evenly divided on the status of the plea in abatement that an effective decision probably could not be reached in this manner. The other solution, equally simple and even less controversial, was that the Court could simply uphold the decision of the lower court. The Strader doctrine, in which Taney himself had added a proslavery dictum to a ruling that the Court lacked jurisdiction, could have provided a basis for returning negative answers to both the third and fourth questions. It should be recognized that when the Supreme Court first adjourned to discuss the case on February 14, 1857, it did favor a moderate decision that ruled in favor of Sanford, but did not consider the larger issues of Negro citizenship and the constitutionality of the Missouri Compromise. It is documented that Justice Catron, an old friend of President Buchanan, was in correspondence with the President. President Buchanan was seeking an instrument for peace within the nation and believed that the Dred Scott case could be the key if used for larger measures. On February 3, Buchanan wrote to Catron ostensibly to know only if the Court would hand down a decision before Inauguration Day, so that he could take it into account. Catron replied that as yet no decision had been made, but he thought Buchanan was entitled to the information and would keep him informed. The implications of this exchange were plain enough: only a decision on the constitutionality of the Missouri Compromise restriction could be of any importance to Buchanan in preparing his inaugural. In what must have been disappointing news for Buchanan on February 10, Catron wrote to him revealing that the Court would probably not pass judgment on the power of Congress over slavery in the territories. Instead, the majority had chosen Justice Nelson as the writer of the decision. Nelson carefully avoided these important but highly controversial issues, and “this the Dred Scott decision that almost was, began with an equitable summary of the opposing views on the plea in abatement.” Tactfully, as the spokesman of the Court, Nelson left the issues open, saying only, “In the view we have taken of the case, it will not be necessary to pass on this question.” He wrote a short opinion of about five thousand words, which included that “the laws of each [state], have no extraterritorial operation within the jurisdiction of another, except such as may be voluntarily conceded by her laws or courts of justice.” When Nelson presented his opinion to the majority, however, he found that his “majority” opinion turned out to be the opinion of only himself. The Court elected to throw out Nelson’s decision and instead chose Chief Justice Taney as the writer of the true majority opinion for the court. This opinion would include everything heretofore mentioned in regards to the larger controversial issues at hand and would be the one that remained forever in history. Catron wrote again to Buchanan, indicating the reversal of the Court and that the Court would render a decision on the constitutionality of the Missouri Compromise restriction. The inaugural address, he added, might therefore include a passage leaving the whole matter with the “appropriate tribunal” and declining to “express any opinion on the subject.” Also included in his letter to Buchanan was his reasoning for the Court’s turnaround. The Court majority, he asserted, had been “forced up” to its change of plan by the determination of Justice Curtis and Justice McLean to present extensive dissenting opinions discussing all aspects of the case. Chief Taney then took matters into his own hands and began writing the opinion that would be forever be documented as the final analysis of the Dred Scott case. It contained several points that I feel need to be examined separately in order to understand where his reasoning might have been founded. He looked towards both the textual and historical modalities of the United States Constitution to base his opinion in addition to his own bias. To begin with, Taney basically took up the Negro citizenship issue largely on his own initiative. There was no significant political or public clamor for its resolution, and yet Taney devoted some forty percent of his entire opinion to it. Unlike the territorial issue, it was not a storm center for controversy. According to several texts, one reason for his persistence in this strategy was to utilize the opportunity to reaffirm what he had written twenty-five years earlier about the status of Negroes in American society. As Jackson’s attorney general, he had prepared an official (but unpublished) opinion declaring that the African race was “a degraded class” not intended to be embraced in any provisions of the Constitution except those dealing with slavery. This doctrine went far beyond the issue raised by the Dred Scott case; for it excluded Negroes, whether free or slave, from all rights guaranteed in the Constitution. Yet Taney found that he could use the Dred Scott case to vindicate his extreme views at length and graft them authoritatively into American constitutional law. It is unsure whether Taney considered that the ruling in circuit court by Judge Wells that upheld Scott’s right to bring suit in a federal court posed a potential threat to the Fugitive Slave Law. However, he was determined to meet every threat to southern stability by separating the Negro race absolutely from the federal Constitution and all the rights that it bestowed, thus leaving the states in complete control of black men, whether free or slave. The breadth with which he treated the issue of Negro citizenship reveals the true purpose of Judge Taney’s Dred Scott opinion- to use his Court as an opportunity to launch a sweeping counterattack on the antislavery movement and settle the larger issues at hand within the political arena.The question before the Court, it should be remembered, was whether Dred Scott, if he were a free Negro, could be regarded as a citizen of Missouri, at least to the extent of being eligible to bring suit in a federal court under the diverse-citizenship clause. However, Taney did not return to the diverse-citizenship clause until much later in his opinion. For Taney, it was not enough to settle such a limited issue, and his opening paragraph of his opinion redefined the whole problem:The question is simply this: Can a Negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen. One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution. The difference between the two approaches is startling. Taney in this passage shifted the ground of inquiry from state citizenship to federal citizenship, and he made the right to bring suit in federal courts dependent upon the confirmation of all rights enjoyed under the federal Constitution. The effect was to prejudice Scott’s cause and at the same time clear the way for the broad conclusions that Taney seemed determined to reach. However, in this introduction, Taney’s argument is a little muddles as in the next paragraph he appears to be interpreting it again as a question of state rather than federal citizenship. Having asserted that the question was whether a Negro of slave ancestry could be a member of the “political community” created by the federal Constitution, Taney continues with the following restatement. The issue before the Court, he wrote, was “whether the descendents of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of the State, in the sense in which the word ‘citizen’ is used in the Constitution of the United States.” After this somewhat contradictory beginning, Taney apparently felt an obligation to explain a troublesome parallel. The American Indians, though not generally included in the “political community” of the United States and, indeed, “under subjection to the white race” had nevertheless in some instances been admitted to federal citizenship. Why, then, would this not apply to freed slaves and their descendants? Chief Taney explained that the Indian tribes were in law equivalent to foreign nations and as such, were by virtue of the federal constitution’s authority to naturalize foreigners. The paradox of why this should apply to Indian tribes and not American aborigines thoroughly escaped Taney. Chief Justice Taney then announced that he was ready to examine the case as presented by the pleadings. What came next illustrates his tendency towards repetition for emphasis:The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The gross inaccuracy of the final clause is readily apparent. A large majority of American citizens-namely, women and children-were not members of the sovereign people in the sense of holding power and conducting the government through their representatives. Moreover, when the Constitution was put first into effect, many adult male citizens had been barred from constituent membership by property and religious qualifications for voting. Citizenship and sovereign power were far from synonymous. For the third time in two pages, Taney stated the question under consideration, returning to his original emphasis on national citizenship:The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty. We think they are not, and that they are not included, and were not intended to be included under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
Here we are introduced to one of the fundamental assumptions underlying Judge Taney’s argument. All blacks, according to Taney, stood on the same ground. Emancipation made no difference. By Taney’s judgment, all Negroes were forever fixed in their status by the fact that he or his ancestors had once been enslaved. Notably, his tendency to depend upon the historical modality of the Constitution to lend his opinion weight is inherent throughout. Taney spends much time considering what the intent behind the authors of the original draft of the Constitution had in mind. The troublesome part is that this involved quite a bit of liberal interpretation on Taney’s part, allowing for political satisfaction regarding the Dred Scott case. In the midst of discussing how Negroes were inferior, and therefore not entitled to state or federal citizenship, Taney cited both the Declaration of Independence and the Constitution in an effort to bolster his position. The language of the Declaration of Independence, said Taney, was “conclusive” on the subject of Negroes as citizens. Then he proceeded to argue that the language did not really mean what it plainly said. Jefferson’s self-evident truths “would seem to embrace the whole human family,” but it was “too clear for dispute that the enslave African race were not intended to be included.” Otherwise, “the conduct of the distinguished men who framed the Declaration of the Independence would have been utterly and flagrantly inconsistent with the principles they asserted.” The framers, Taney continued, were in fact honorable men whose language was neither intended nor understood by contemporaries to embrace the black race, “which was never thought of or spoken of except as property.” The result of Taney’s assertion was that slaves could not have been embraced in the philosophy of the Declaration because all slaves were Negroes; therefore, all Negroes were excluded from the rights enumerated in the Declaration. This is patently false; however, Taney was determined to find historical and textual premises within the law to uphold his opinion.Continuing, Taney wrote of the privileges-and-immunities clause of the Constitution as though it were something new. He had forgotten that the clause was actually derived from the fourth Article of Confederation, which declared: “The free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several states.” He did this determined to associate this clause and other interstate guarantees with United States citizenship. His intent was to find a way to convert the question of whether Dred Scott was a citizen of Missouri into the question of whether he was a citizen of the United States. This would in effect, settle his own personal mission and create the tie into which the Missouri Compromise was a pertinent issue within the case. In doing so, Taney arbitrarily amended both the privileges-and-immunities clause and the diverse-citizenship clause to read as follows:Who are also citizens of the United StatesThe citizens of each state ^shall be entitled to all the privileges and immunities of citizens in the several states. The judicial power shall extend to controversies between citizens of different statesthe Unites States residing in different states. He also took care to point out that historically, the only time Negroes are mentioned in the Constitution are in the two clauses which refer to the slave trade and recovery of fugitive slaves. Taney naturally interpreted this to mean that the framers of the Constitution supposed that Negroes were to be regarded as little more than property.Taney began the conclusion of this part of his opinion with a repetition of his pronouncement excluding Negroes, free and slave, from all rights and protections guaranteed in the Constitution:The only two provisions which point to them and include them, treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Government of special, delegated power, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society require. The States evidently intended to reserve this power exclusively to themselves. In holding that free Negroes had no rights under the Constitution, Taney denied them status not only as citizens but as persons and illustrated that Taney proposed to settle the issue of Dred Scott simply by condemning Negroes as property. This was one more manifestation of his resolve to plug every loophole in the southern defense.Summing up, Taney cited “the language of the Declaration of Independence and the Articles of Confederation” and “the plain words of the Constitution” and finished with the following paragraph.And upon a full and careful consideration of the subject, the court is of the opinion that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous. This was the overturning of the lower court’s ruling against the plea in abatement-that is, sustaining the contention that Negroes were not citizens. He then moved on to the issue of slavery in the territories which according to some sources is the point at which the Chief Justice should have acted accordingly, and remanded the case to the lower court with instructions to dismiss it for want of jurisdiction. He proceeded to justify his proceeding, with the substantive issue of whether Dred Scott had become free by virtue of his residence at Fort Snelling in a four page passage which was in fact, a rebuttal to Justice Curtis after the early publication of Curtis’ dissenting opinion. Justice Curtis held that the Court majority, by sustaining the plea in abatement, had held that this was a case to which the judicial power of the United States did not extend. In his opinion, the Court had no power to consider any other jurisdictional question not raised by the plea in abatement. In examining the merits of the case after having denied federal jurisdiction, the Court had exceeded its authority. Unfortunately, Chief Justice Taney was resolute in his decision to rule on the constitutionality of the Missouri Compromise, which was after all, one of the reasons that he had made such an issue of federal citizenship and, the lack thereof among Negroes. Taney’s justification was that the plea in abatement was a plea to the jurisdiction of the federal circuit court, not the jurisdiction of the Supreme Court. It was the duty of the Supreme Court to correct any and all errors made in the lower tribunal. If according to the ruling on the plea in abatement, Scott was and had always been a slave, then he obviously had never been a citizen with the right to sue in a federal court. Thus, Taney’s further reasoned that the lower court had made two errors and both needed to be corrected: First, it should have dismissed the case for lack of jurisdiction on the grounds presented in the plea of abatement. Second, having at the end of the trial found Scott a slave, it should have dismissed the suit for lack of jurisdiction. And therefore Taney, in pursuing the question of whether Scott had become free in Illinois or Wisconsin Territory, was technically not going to the merits but offering a second reason for dismissal on jurisdictional grounds. Taney began his discussion of the territorial question by dismissing as irrelevant the one clause of the Constitution in which the word “territory” appears-the part of Article Four, Section Three, authorizing Congress “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” His interpretation was that the territory clause referred only to the ownership and disposal of public land and that it conferred no power to govern the territories. Taney deduced that this clause was to be interpreted in its literal sense and that the word “territory” meant land; the words “other property” meant movable property. This explication can be seen as bizarre, to say the very least. Of course the framers of the Constitution had the existing western territory particularly in mind when they approved Article Four. It might also be said that they had existing states specifically in mind when they approved the interstate commerce clause, and they had no notion of encompassing railroad transportation across the continent, airplane flights, or radio transmission-all of which cross state lines. To say that future acquisitions of territory could not be regulated under the territory clause because the framers were thinking only of territory already acquired was absurd. Taney’s habit of arduously repeating and restating in order to strengthen his argument continued in the same vein in regards to the territorial question and he spent some effort in order to constitute the whole of his proof that the Missouri Compromise was in fact unconstitutional. By delineating between the language of the Constitution and the intent of the framers, Taney is able to put together a somewhat cohesive, if not comprehensible, opinion and ends with this historic pronouncement:Upon these considerations, it is the opinion of the court that the Act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident. In response to what some of Taney’s critics noted as “emphatic ignorance” of what might weaken credibility, it should be noted that this final clause was Taney’s only reference to the important question of whether Dred Scott’s half dozen years in free territory constituted temporary or permanent. By implication, the Chief Justice took the view that it was temporary, ignoring a long-standing precedent to the contrary. It is obvious with the preceding evidence that Scott v. Sanford was an instrument of personal bias and politics. While criticism has dogged the history of the Supreme Court through the years, the diverse criticism has always found a common ground within the consequences of Dred Scott. This case persists as a constant reminder of the limits imposed on judicial power by political realities. Every member of the Court filed a separate opinion or comment, yet Roger B. Taney while ostensible writing the majority opinion parlayed, what should have been a simple case, into a major tool of controversy and political conveyance. With the backing of Buchanan, it was believed that the case presented an opportunity for settling the constitutional issue and restoring sectional harmony. However, while it quite decidedly did not do this, it did raise interesting issues regarding constitutional interpretation. While it can be assumed that there are articles within the Constitution that are clear, the majority of the document is contrarily ambiguous. It is dependent upon our judicial and congressional members to decipher not only the historical intent of the framers of the Constitution, but the flexibility of what can only reasonably be a living document. Because, as mentioned, it would be ridiculous to assume that the legacy left from our founding fathers was not expected to grow with our country. In this, we as a nation need to be careful not to overstep the boundaries and guidelines established by our Constitution and unlike Taney, forego our own personal politics for “justice for all.” Bibliography Thomas H. Benton, Examination of the Dred Scott Case (New York: D. Appleton & Company, 1858) 193. Loren P. Beth, Politics, The Constitution & The Supreme Court (New York: Harper & Row Publishers, 1962) pp. 88-139. Philip Bobbit, Constitutional Interpretation (Cambridge: Blackwell Ltd., 1991) pp. 11-28. Buchanan Papers, Historical Society of Pennsylvania, published in Philip Auchampaugh, “James Buchanan, the Court and the Dred Scott Case,” Tennessee Historical Magazine, IX (1926) Edward S. Corwin, The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays (London: Princeton University Press, 1914) pp. 129-157. Edward S. Corwin and Jack W. Peltason, Understanding the Constitution (New York: Holt, Rinehart & Winston, Inc., 1949) pp. 92-148. Ambrose Doskow, Historic Opinions of the United States Supreme Court (New York: The Vanguard Press, 1935) pp. 188-190. Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law & Politics (New York: Oxford University Press, 1978) 739. Paul Finkelman, ed., Slavery & the Law (Madison: Madison House, 1997) 465. Vincent C. Hopkins,S.J., Dred Scott’s Case (New York: Fordham University Press, 1951) 204. Stanley I. Kutler, ed., The Dred Scott Decision: Law or Politics? (Boston: Houghlin Mifflin Company, 1967) 188. Dred Scott v. John F.A. Sanford, 19 Howard (1857) 393, 400-432, 436-437, 446-502.