Revisiting Dred Scott

Modern Lessons from the worst Supreme Court ruling in history

 In 1857, the US Supreme Court issued what has been universally panned as the worst ruling in the history of the Union. In Dred Scott vs. Sanford, Scott sued for his freedom, arguing that, as he had been brought to the Minnesota territory, where slavery was illegal, he was a free man. Chief Justice Roger Taney dismissed the case without ruling on its merits, holding that a slave was not a citizen, and therefore had no right to sue in US courts. But Taney broke with precedent, and did not decide the case on the narrowest grounds. Instead, he ruled that no "negro or mulatto" could be a citizen of the United States. This is the very definition of "judicial activism," and "legislating from the bench," this seeking to rule on matters not before the court. There was no need for Taney to rule whether Scott could be a US citizen, because he was not a citizen of Missouri under Missouri law. The question of whether a black man who was a citizen in Massachusetts could file a suit was not before the court. But Taney falsely insisted that it was.

The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State... We think they are not... and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

 

One could just dismiss the whole thing as abhorrent and wrong, and perhaps that is best. But it poses a timely question. How did Justice Taney look at laws that made no mention of race, but explicitly asserted the equality of all people, and conclude that they supported racial inequality?

 

The foundation of the ruling is that the inferior status of "that unhappy race" was so universally acknowledged as to need no mention. This much is not a ridiculous assertion. Because the Constitution does contain specific references to slavery, there clearly was a class of persons not included in all its freedoms.

 

Taney also makes extensive references to state laws in Massachusetts and Connecticut that make racial distinctions, including especially laws against interracial marriages. His case is, again, that because these states had laws assigning an inferior status to blacks, that they recognized the "universal judgment" that blacks were not equal to whites. It is a valid point: there is an essential hypocrisy in asserting the humanity of blacks while denying their equality before the law.

 

But over against this implication of intent, there is the direct, literal rulings of the law. Taney's argument is founded on the idea that only the federal government can grant citizenship in the United States, and that, since at the time of adoption of the Constitution all states recognized the legitimacy of slavery, therefore blacks were universally excluded from citizenship, and no state could choose to reverse this.

 

This, however, is simply untrue. Massachusetts outlawed slavery in 1783, following the cases of Brom and Bett v. Ashley, and Jennison v. Walker. The US Constitution was not ratified until 1788. Moreover, in the Walker case, the Massachusetts Chief Justice William Cushing explicitly rejects Taney's argument: 

 

[T]hese sentiments [that are favorable to the natural rights of mankind] led the framers of our constitution of government... to declare - that all men are born free and equal; and that every subject is entitled to liberty, and to have it guarded by the laws as well as his life and property. In short... slavery is in my judgment as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence.

 

While the laws against miscegenation do not seem compatible with this ruling, by no legal principle does such an "implied intent" overrule an explicit statement of constitutional law. If a law is incompatible with a constitutional right, it is the law that is invalidated, not the constitution. Any high schooler who passed a basic civics class understands that.

Teney argues that slavery was outlawed in some states because it was "unsuited." Specifically, he says: 

 

in that portion of the Union where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, [slavery] had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race; but because it was discovered, from experience, that slave labor was unsuited to the climate and productions of these States.

 

This, again, is simply incorrect. Cushing found that the Constitution of Massachusetts was "repugnant to [the] existence" of slavery. To say that this was not a difference "of opinion in relation to this race," but a merely a judgment that slavery was "unsuited to the climate" was, at best, delusional. It's also nonsensical. I defy Taney to find a single case in American law in which legislatures have found it necessary to outlaw something because it was unprofitable.

In furtherance of this delusion, Taney argues that the involvement of citizens of northern states in the Atlantic slave trade--during the brief period the US Constitution allowed before it was to be banned--proves that these states did not intend to confer rights upon Africans. This is a thin argument. Certainly, it makes sense that if Connecticut found slavery immoral and reprehensible, they should have enacted comprehensive laws against it. But the absence of additional laws against slavery does not invalidate the laws that were passed. Given that the Constitution spelled out a timetable for ending the importation of slaves, the failure of states to accelerate that timetable cannot signify anything. But regardless of the weakness of the argument, it is not even true. Connecticut enacted stiff penalties for participation in the slave trade before the US Constitution took effect. So Taney is simply wrong.

Finally, Taney had the fundamental problem of Article IV, Section 2, which states quite plainly, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." In other words, if a black man is a citizen in Massachusetts, he is entitled to the rights of a citizen in South Carolina. So he constructs a legal principle in which each state can declare who is a citizen of their state, but that only the federal government can recognize a citizen of the federation. This would seem to be an explicit contradiction of Article IV, Section 2. Taney dodges it, by imagining that when the Constitution says "Citizen" it means "Citizen of the United States." Even in this case where it specifically says "Citizens of each State," it does not mean "citizens of each state" but rather "US citizens residing in each state." It's a tortured logic, and contradictory to the plain meaning of the text.

 

That Dred Scott was a bad piece of jurisprudence is no news. Is there any purpose, beyond entertainment, in digging up just how bad it is? It is, perhaps, a warning. The protections of Constitutional Law are only as good as we insist that they be. If the Supreme Court can read "We, the People," to mean "We, the white People," "All men are created equal" to mean "All white men are created equal," "the Citizens of each State" to mean "the Citizens the federal government chooses within each state," "wholly incompatible and repugnant" to mean "unsuited to the climate," then no phrasing of principle, no matter how specific and clear, can protect us from abuse. It's a disturbing thought. It's a warning. If we will countenance leaders who will throw principles and traditions aside, will the structures of American democracy protect us?

 

The result of the Dred Scott decision was war. A civil war, that resulted in the largest loss of life of US citizens in any war, ever. That's what's at stake.