Scott v. Sandford (1857)
Introduction
Supreme Court decisions that fail the test of time typically are judged harshly for one of several reasons. Some exhibit moral failings that, with the benefit of hindsight, shock the modern conscience. Others reveal a political or attitudinal undercurrent manifested in questionable methodology or flawed legal reasoning. Then there are jurists who lead the Court to exceed its proper bounds as an anti-democratic institution embedded in a broader republican form of government. Dred Scott v. Sandford (1857) managed the trifecta, offending on all three grounds. The stilted formalism of the Court’s originalist opinion combined with a blinkered morality that spoke of the chief protagonist as an “ordinary article of merchandise” to reach a deeply unjust result for Mr. Scott. Moreover, it was the work of an activist court that, in thinking it could somehow stem the profound national conflict over slavery, instead put the country on an accelerated path toward a catastrophic civil war. Thus has it justifiably earned its reputation as perhaps the most egregious decision in the Court’s long history.
The Context: Slavery, Westward Expansion and Questions of Federalism
The lead up to the Dred Scott decision was decades in the making. A dominant story line during the first half of the 19th century in America was the deepening antagonism between north and south over the institution of slavery, particularly as the country rapidly expanded westward. Central to the battle over the future of slavery was the balance of power in the House of Representatives, and Congress more generally, and how the admission of new states to the union would impact the equilibrium in Congress between slave and free states. Since it was assumed that free and slave territories would gain admission to the Union as free and slave states, respectively, one of the most politically charged issues of the time was whether the central government was empowered to prohibit slavery in the American territories. Congress’s decision to either ban or allow slavery in the territories would be determinative in maintaining or tipping the weight of representation in Congress between slave and free states. In an effort to preserve parity in representation, Congress had enacted the Missouri Compromise of 1820, drawing a line west from the southern border of Missouri, above which slavery was prohibited in the territories and below which it was allowed. The underlying goal was to ensure that there would a northern free state added to the union with each southern slave state added. For a time, the Compromise worked to dampen the conflict of interests over the institution of slavery.
The Complicated Story of Dred Scott
When a court decision takes on the historical notoriety of Dred Scott, it is easy to give short shrift to the real people behind it. But Dred Scott’s long and circuitous path that brought him to the steps of the Supreme Court serves as a stark reminder of how his life was not his own. He was born into slavery in the 1790s to a Virginia plantation owner by the name of Peter Blow, who he accompanied to St. Louis when Blow moved there. When Blow passed away in 1832, Scott was sold to John Emerson, a surgeon in the U.S. Army. Emerson’s assignments to several military posts, bringing Scott with him, would ultimately provide the basis for Scott’s claims to freedom. Emerson first left the slave state of Missouri to settle at an army fort in the free state of Illinois, before moving on to Fort Snelling in the free territory of Wisconsin (present day Minnesota).
While in Wisconsin, Scott married Harriet Robinson, also a slave, with whom he had four daughters, two of whom lived into adulthood. They would eventually return to Missouri, when Emerson found the northern hardships more than he could bear. With Emerson’s death in 1843, Scott was transferred to Emerson’s widow, Irene Sanford Emerson. She would eventually remarry and relocate to Massachusetts, though she left Scott and his family behind in Missouri. In 1846, the Blow family would re-enter the picture, when Peter Blow’s son Henry sued for Scott’s freedom on his behalf in Missouri state court, contending that Scott’s time living in a free state and free territory meant he no longer had the status of a slave. After an initial victory for Scott at the trial court level, the Missouri state Supreme Court reversed and ruled against Scott in 1852.
At this point, Henry Blow arranged for the transfer of the ownership of Scott to John Sanford, the brother of Irene (formerly Emerson, now Chaffee). Sanford was a resident of New York, which allowed Blow and Scott to move his claims to federal court, based upon an assertion of diversity of citizenship jurisdiction over legal disputes between citizens of different states. The case would languish in the federal courts for several years before finally reaching the Supreme Court in 1856.
The Kansas-Nebraska Act and the Escalating Sectional Conflict Over Slavery
While Scott’s claims were drifting through the courts, the national political divisions between north and south over slavery were growing in intensity. The conflict came to a head with the southern states’ attack on the Missouri Compromise, which was overturned and replaced with the Kansas-Nebraska Act of 1854. That Act, in direct contradiction to the Missouri Compromise, sought to permit slavery in the Kansas and Nebraska territories. It advanced the principle southern pro-slavery apologists termed “popular sovereignty,” whereby citizens of the territories would decide for themselves the legality of slavery, not Congress. The Kansas-Nebraska Act inflamed the sectional hostilities over the question of slavery, sparking outrage in the north, where it was rightly seen as an aggressive expansionist effort by the pro-slavery forces to permanently tilt the national playing field in the favor of slavery. It also marked a new order in the party system, leading to the ultimate demise of the Whigs and birthing the new anti-slavery Republican Party.
The Taney Court Hears Dred Scott v. Sandford
By the time Dred Scott’s claims reached the Supreme Court, the Court itself had undergone a wholescale transformation and was far removed from the age of Marshall. With Marshall’s death in 1835, the Court’s leadership was assumed by Roger Taney, a Jacksonian Democrat who had served Jackson in multiple capacities, including attorney general. Of the justices who sat for the Dred Scott case, only Justice McClean was a genuine holdover from the Marshall Court (Justice Wayne had been nominated and confirmed months before Marshall’s death). Given the influence held by the pro-slavery south over the Senate during the 1830s and 1840, the appointment of justices to the High Court during the Taney tenure had a decidedly Southern bent. When the court convened to hear Scott’s case, five of its members were Southerners. Hence there were few who thought Scott had much chance of convincing the Court that he qualified as a citizen able to bring his case in federal court. But how far the Court might go beyond that remained to be seen.
Despite what appeared to be a foregone conclusion on the question of Dred Scott’s freedom, the case proved anything but simple for the Court. Oral arguments took place initially in February of 1856. Despite multiple conferences to discuss the case, the justices struggled to reach a consensus. Moreover the backdrop of intensifying sectional politics beyond the Court and a controversial presidential contest meant the Court and its deliberations were now under intense public scrutiny. In an attempt to avoid appearances of undue political influence, the Court set the case on for re-argument in December, once the presidential outcome had been determined. Following re-argument, the justices continued their labored deliberations for months, with multiple draft opinions circulating, shifting voting alliances, and the meddling of now President-elect Buchanan. When the result was finally announced, seven of the nine justices agreed that Scott had no standing to sue. But there were nine separate opinions running to some 234 pages, far and away the longest opinion from the Court to date.
Despite a muddled and badly fragmented decision, Chief Justice Taney’s fifty-five page opinion was taken as the voice of the majority, and received the most attention. The first question Taney confronted was whether Scott was a “Citizen” entitled to all of the rights, privileges and immunities to which citizens were guaranteed under the Constitution, one of which was the privilege of bringing suit in federal court. Taney concluded that blacks, whether slave or free, “were not intended to be included, under the word ‘citizens’ in the Constitution, and [could] therefore claim none of the rights and privileges which [the Constitution] provides for and secures to citizens of the United states.” Taney ignored the fact that some states had allowed free blacks to vote and exercise other rights both before and after the Constitution was ratified. Indeed, even some confederate states had conferred rights on free blacks, something Taney conveniently overlooked. Instead, he fell back on the racial attitudes of the time, relying on public sentiment and opining that blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights that the white man was bound to respect.” Space does not permit an exhaustive cataloguing of Taney’s selective and often blatantly false twisting of history to assert that all blacks – both free and slave – were thought of only as property, and could not achieve the status of persons with constitutional rights. To their credit, dissenters McLean and Curtis, whose opinions together ran about as long as Taney’s, provided a thorough and convincing refutation of Taney’s arguments.
One would have thought that, having found Scott to be nothing more than an “article of merchandise” without recourse to federal court, there was nothing more to decide. The determination that Scott failed the test of citizenship should have ended the inquiry, since there was no jurisdiction to hear the substantive question of whether Scott could be found to be free by virtue of having been brought by his owner to a free state and a free territory. Instead, Taney continued on to consider the constitutionality of the Missouri Compromise. Taney’s ultimate objective was to find a way to strike down the statute, thereby allowing for the extension of slavery into the territories and resolving the slavery issue by weighting the representation in Congress based on the addition of future states toward the pro-slavery south.
To realize his political objective, Taney had to deal with the clear language of the “territories” clause of Art. 1 sec. 8 which authorized Congress to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” His reading flew in the face of the provision’s text and history. First he found that Art. IV was confined only to that territory owned by the U.S. at the time of the Constitution’s adopting; it could have “no influence upon a territory afterwards acquired” and hence had no bearing on the question. Second, Taney argued that the word “dispose” allowed only for the sale of territorial land by Congress, and gave Congress no power to provide more generally for the governance of the territories. Such a reading, of course, defied logic by rendering the bulk of the provision utterly superfluous. But for Taney, Congress had no authority to enlarge the country’s territorial limits save through the admissions of new States to the union.
Taney’s crabbed conception of federalism was far removed from Marshall’s vision of national power. Returning to an outdated version of dual federalism, Taney emphasized that since states were “sovereign and independent within their own limits,” the General Government’s power to legislate over “colonies and dependent territories . . . [was] inconsistent with its own existence in its present form.” No U.S. citizen who migrated to a territory could be made subject to the federal government or any rules that it saw fit. Neither Dred Scott nor his family were made free by being taken into the territory, even if they have been taken there to reside permanently.
Even if Congress had such a power, Taney found any regulation of slavery an unconstitutional violation of the 5th amendment, which prohibited Congress from depriving any person of life, liberty, or property, without due process of law. The practical effect of the Missouri Compromise’s designation of the Wisconsin Territory as a “free soil” jurisdiction was to free any slave taken into a free territory. As such, Taney found it deprived slave owners of their property without due process of law, and hence was unconstitutional.
Lengthy dissenting opinions by Justices McLean and Curtis forcefully and thoroughly repudiated Taney’s arguments. Curtis’s dissent accused the majority of abandoning the clear strict construction of Congress’s power to regulate the territories by inserting into the clause an exception to the exclusion or allowance of slavery not found in it, “upon reasons purely political.” He decried that governance in accordance with the Constitution had been replaced with “the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean . . . [based upon] the individual political opinions of the members of this court.” The dissenters on a more basic level spoke to the moral revulsion of the majority opinion. On the central question of the rights of Scott, Curtis condemned the “repugnancy of slavery . . .” declaring that “a slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man.”
The Consequences of the Decision
It is difficult to overstate the significance of the Dred Scott decision. If Chief Justice Taney thought he could tamp down the tensions over the expansion of slavery, he was sorely mistaken. While southerners celebrated the result, it provoked widespread outrage in the north among abolitionists, who saw it as an effort to end debate over slavery. It hardened the positions on each side, making any further compromise on the regulation of slavery in the territories impossible. It also triggered a series of reactions that arguably made civil war inevitable. It unified and galvanized the anti-slavery Republican Party into a national force, elevating Abraham Lincoln in his 1858 debates with Steven Douglas and on to the presidency in 1860. As the Republican Party rose in prominence, so too did the fears of the South, stoking the momentum toward secession and civil war.
A Postscript
Chief Justice Taney’s reliance upon the due process clause without ever examining the process actually granted has led some to identify Taney as the progenitor of the (ultimately discredited) doctrine of substantive due process. The majority opinion did long standing damage to the prestige of the Court, and Taney’s reputation never recovered. Justice Curtis, on the other hand, was so disgusted by the outcome that he resigned his justiceship, becoming the first Supreme Court justice to step down in protest of a decision of the Court.
Dred Scott did ultimately gain his freedom, when Henry Taylor Blow regained control of him following the Supreme Court opinion and promptly freed him. Sadly, Scott’s enjoyment of his freedom was short-lived; he passed away in 1858. The case bearing his name would go down in infamy. It would take a calamitous civil war and the 13th and 14th amendments to the Constitution to undo its damage.
