Dred Scott v Sanford (1857)
Gordon Lloyd, Ph.D.
The opinions expressed by the five southern and four northern Justices in the 1857 Dred Scott v. Sandford case fill over 200 pages of the official record, and the decision is arguably among the most problematic, and the most downright embarrassing, of all Supreme Court decisions. It goes to the heart of the very nature of the American regime and not because it is deemed to be only the second time that the Supreme Court has overturned an act of Congress. No other decision has generated as much public policy controversy and certainly no other decision has been as instrumental in bringing the country to the brink of civil war and securing three amendments to overturn a Supreme Court decision. A decision that was supposed to put the slavery question to rest actually led to the greatest challenge to the American experiment in representative government.
Despite the centrality of the case to the very nature of the American regime, there is a remarkable absence of coverage of Dred Scott in constitutional law texts. Moreover, whatever coverage does occur is mostly confined to excerpts from Roger Taney’s majority opinion. And, according to the constitutional texts, if we must read these snippets from Taney’s opinion, then we should draw the following lesson: Taney’s relied on the doctrine of original intent—reliance on the views of the American Founders as the authoritative guide to constitutional interpretation—and such reliance leads to unacceptable outcomes. Taney is deemed by a majority of constitutional scholars to have correctly understood the intent of the framers.
Readers will be surprised to learn, then, that two justices wrote extensive and profound dissenting opinions and relied on a contrary understanding of the intent of the American Founders. Why this selective non-recognition by constitutional scholars? The answer, I suggest, is that constitutional scholars claim we don’t need to read Dred Scott because Amendments Thirteen through Fifteen of the United States have superseded it. But I also suggest that is the very reason why we should read and reread the decision in its entirety because the case raises two vital issues: 1) Can the Supreme Court make a mistake and what can we do, constitutionally, to rectify the error? 2) Does Dred Scott undermine the case for reliance on original intent?
As we saw in Marbury, there is much contradictory folklore and mysterious accounts behind and beyond the Dred Scott case. We will probably never know the “true story” of Dred Scott because the record is permanently incomplete.
Dr. John Emerson, a surgeon in the United States Army residing in Missouri, bought Scott probably from Peter Blow, a member of an abolitionist family who had moved to St. Louis in 1834. Emerson took Scott to 1) Illinois, where slavery was prohibited, 2) the territory of Wisconsin—where the 1787 Northwest Ordinance prohibited slavery—and 3) Minnesota—where the 1820 Missouri Compromise prohibited slavery north of 36-30 latitudinal line. Emerson was reassigned to St. Louis after three years of military service, and they both returned, along with Scott’s new wife Harriet Robinson, to the slave state of Missouri in 1838.
Sometime during this resettling in Missouri, Emerson married Irene Sanford. Emerson died in 1843 and Scott became the property of Mrs. Emerson. Dred and Harriet Scott won their freedom from Mrs. Emerson in Missouri state court in 1846, in a case prosecuted by abolitionist Henry Taylor Blow, the son of Peter Blow. The argument was based on 1) the Missouri 1824 Supreme Court precedent of “once free, always free,” and 2) their extended residence where slavery was prohibited. Accordingly, the Scotts had a “presumption” of emancipation upon their return to a slave state.
Mrs. Emerson appealed the decision and, after numerous delays, the Missouri Supreme Court finally heard the case in 1850-1851. The 1846 decision was overturned by the Missouri Supreme Court in 1852, by a 2-1 decision, where, for the first time, 1) Congressional prohibition of slavery in the territories was challenged and where 2) the traditional “once free, always free,” precedent was officially abandoned by the state.
Also in 1850, Emerson wed abolitionist Congressman Calvin Chafee from Massachusetts, who, it seems, was unaware that he was marrying into a slave owning family! Apparently, she had turned her affairs over to her brother, John Sanford, of New York who, again apparently, was determined to resist the attempt of the Scotts to be free.
In 1853, abolitionist lawyers, including the brother of Justice of the Supreme Court Curtis, filed suit for Dred Scott’s freedom in federal court, asking for a definitive ruling on the “once free, always free” doctrine. By contrast, Sanford’s lawyers suggested that the Court should dismiss the case for lack of jurisdiction: Scott, a “negro of African decent,” was not a citizen, and thus did not have the right to sue in federal court. After four years of hearings and postponements, the Supreme Court handed down its decision in favor of Sanford in 1857. Just before the decision was handed down, Chafee transferred ownership of the Scotts back to the Blows, who as residents of Missouri had the right to emancipate them. They did so two months later.
It is perhaps unfortunate, but nevertheless true, that this case far transcends the personal human interest stories connected with Scott and Sanford as individuals. The decision contributed to the famous Lincoln-Douglas debates over the meaning of the Declaration of Independence, the powers of Congress over against the states, a re-examination of the right of a state to secede from the union, the relative importance and independence of the three branches of the federal government, and whether or not the framers intended to place slavery in the course of ultimate distinction.
There are two parts to Taney’s decision, based on two questions, which not only raised further questions about the meaning and status of the Declaration of Independence, and other documents of the American Founding such as the Northwest Ordinance, but also challenged existing interpretations of the following clauses of the Constitution: the standing to sue clause, the territories clause, the due process clause, the importation and migration clause, the privilege and immunities clause, the fugitive slave clause, the assumption of debts clause, and the new states clause. The two questions are: 1) Does Dred Scott have standing to sue in federal court? 2) Is the “once free, always free,” doctrine constitutional?
According to Article III of the Constitution, the federal “judicial power” shall extend to “citizens of different States.” Taney acknowledged that Sanford was a citizen of New York, but provided a long explanation as to why Scott was not a citizen of Missouri and, thus, could not sue in federal court. He claimed that “it is too plain for argument,” that 1) slaves and decedents of slaves were not part of we the people of 1787 and could never become citizens, 2) the authors of the Declaration of Independence excluded Africans form the phrase, “all men are created equal,” 3) the plain language of the Constitution and the universal opinion of the times show that the framers pledged themselves to a pro-slavery America, and 4) interracial marriage was deemed in the 1787 era to be “unnatural and immoral.” In short, Scott was not a citizen and could not sue in federal court.
But Taney didn’t stop there; he declared the “bigger issue” of “once free, always free,” doctrine to be unconstitutional. He thus moved the case beyond the particular situation of Scott to the general issue of slavery in the United States. Taney raised the following question: Is the Missouri Compromise permitting Missouri to enter as a slave state but prohibiting slavery from the territories north of 36-30 in the Louisiana Purchase constitutional? And while we are at it, is the Northwest Ordinance of 1787, that explicitly prohibited slavery from the northern territory, constitutional? His answer is a resounding “no.” 1) The Northwest Ordinance was signed before the Constitution was adopted and is thus superseded by that document, 2) The Fifth Amendment to the Constitution prohibits Congress from violating the right to due process with respect to travelling with property, 3) the Constitution does give Congress control over United States territory but that means only territory owned by the United States in 1787 and doesn’t cover the Louisiana Purchase of 1803, and 4) the right to property in a slave is explicitly endorsed by the Constitution. In short, the Missouri Compromise and the “once free, always free” doctrine are unconstitutional.
Taney’s decision is not a legitimate and conclusive refutation of reliance on framer intent because the decision rests on a distorted view of the founding. Interestingly, Taney does not cite any of the debates surrounding the creation and adoption of the slavery clauses of the Constitution although they were available to him. Debates don’t matter to Taney; it is all about “context,” and for him the context is that the founders were racist to the core. It is important to note that Justices McLean, a Democrat from Ohio who joined the newly found Republican Party in 1854, and Curtis, a Whig from Massachusetts, wrote scathing dissenting opinions. In particular, they disputed Taney’s brand of original intent. Even more interesting, these dissents are rarely read.
McLean pointed out that the 1852 decision of the Missouri Supreme Court overturning Missouri’s traditional acceptance of “once free, always free,” was unprecedented. No state entertained this doctrine before this decision. The accepted moral and constitutional doctrine in America is that people are presumed to be free unless otherwise provided for by local law. Thus if Scott were free at any time, that made him presumably free always and, thus, a citizen by definition. And he points out that in accordance with what I will call a Madisonian understanding of original intent, the meaning of the Constitution is revealed by a) the language of the document, b) the contemporaneous discussions, and the c) acceptance of public policy decisions by numerous deliberative institutions over an extended time. Applying these tests, the Missouri Compromise was clearly constitutional. In particular, since the Compromise followed the language of the Northwest Ordinance, we have a constitutional presumption extending over sixty years.
Justice Curtis, whose dissent exceeds fifty pages, shows that Africans can be citizens and were citizens at the time of the founding, and by 1787 Africans could vote in five states and you can’t vote if you are not a citizen! Even North Carolina granted citizenship to free blacks. He also says the whole American experiment rests on the premise that slavery is unnatural and thus requires specific laws to establish it. In fact, in addition to the Northwest Ordinance and the Missouri Compromise, Congress between 1791 and 1848 prohibited slavery on six occasions from the territories.
Madison’s Notes of the original convention debates in 1787 validate the dissenting opinion as well as Lincoln’s claim that the Framers placed slavery in the course of ultimate extinction. Moreover, the language of the slave trade clause and the fugitive slave clause in the Constitution verify these dissenting opinions. Article 1, Section 9, clause 1 forbids Congress from prohibiting the slave trade to those states then existing that think it appropriate to import slaves prior to 1808. It does not ban Congress from prohibiting the trade to future territories and states nor into states that think in appropriate to import slaves. And a comparison of the language of the fugitive slave clause and the extradition clause in Article IV demonstrate a remarkable attempt by the Framers to distinguish between the legality of the former and the justice of the latter.
In the Lincoln-Douglas Debates, Lincoln disputed Taney’s argument that 1) the Declaration and the Constitution were pro-slavery documents and 2) that the Northwest Ordinance and the Missouri Compromise did not bestow on Congress legitimate authority over slavery in the territories. He considered Taney’s decision to be so dangerous, and unprecedented, that he dubbed it Dred Scott I: today Taney, by way of a creative interpretation of the Fifth Amendment, permitted slavery into free territories, tomorrow he will use the same Amendment to permit it into free states.
In his First Inaugural, Lincoln raised the banner of constitutional resistance against such unprincipled jurisprudence: “if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” That is an important message that should be remembered by all students of important Court decisions that affect the well-being of the regime. Is the Constitution whatever the Court says it is? Can the Court be wrong, as it was in the Dred Scott case, and can we the people do something about their error?