But that is false. Blacks could vote in five states.
Taney actually addressed this in his opinion:
So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States.
Bush v. Gore and the Dred Scott Decision: Which One's Worse?Bush v. Gore is quite demonstrably the least defensible Supreme Court decision in history. Many people do not want to believe that, and I earned a solid rebuke from the Wall Street Journal for making the point in print. Many conservatives clearly wish the title of "Worst Case" to belong for all time to the infamous Dred Scott decision. But Dred Scott was, by comparison to Bush v. Gore, a well-reasoned and logically coherent decision. It was, in fact, a masterpiece of "original intent" analysis that forcefully demonstrated that the original Constitution was designed as a white man's compact and that the Framers never contemplated that slaves or their descendants could sue in federal court.
Dred Scott was a jurisdictional decision, turning principally on whether an African American could be a federally recognized "citizen" of a state for the purpose of establishing diversity jurisdiction in federal court. Dred Scott, a slave in Missouri, brought suit in federal court against his owner, a New York citizen, asserting his legal emancipation when a prior owner brought him to Illinois and parts of the Louisiana Territory, which were free. Chief Justice Taney disposed of the suit by holding that there was no diversity jurisdiction in the case because no African American could ever be a "citizen" within the meaning of the Constitution. To support this proposition, Taney assembled a mountain of textual, statutory and historical evidence that neither the Framers nor the states ever considered "Africans" as potential citizens. "On the contrary," he wrote:
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.We like to pretend that the Court erred grievously in Dred Scott because we want to believe that the Civil War might have been averted by some other decision. But this is fooling ourselves. The Court engaged in unnecessary and unwarranted activism when it struck down the Missouri Compromise, but in interpreting the meaning of the word "citizen," it articulated well the social consensus about the meaning of the Constitution. It would take a Civil War, Reconstruction and the lives of hundreds of thousands of Americans to remake the Constitution. Of course, the type of originalism that Justice Taney practiced (and that is embraced by conservatives today) is not the only theory of constitutional interpretation. This decision was not necessarily "right." Indeed, there were even originalist-type argements on the other side, since the text of the Constitution did not foreclose the possibility of African-American freedmen becoming citizens of states. After all, several states had extended to freedmen their civil and political rights. This was essentially the position adopted by Justice Curtis in dissent. Yet, if we look at the original understanding of the Constitution and the traditions of the time of its writing, which is certainly Justice Scalia's methodology, it seems certain the majority was right. But whatever its final merits, at least the Dred Scott majority decision had a coherent theory rooted in the history and text of the Constitution.
By contrast, Bush v. Gore is an affront to rule-of-law principles. The majority decision has no grounding in textualism or originalism, the interpretive strategies normally celebrated by conservatives. Nor does it have any connection to a progressive constitutionalism, whose focus in politics is on the democratic will of the people and the intent of the voter. These are the very concepts defeated by the Court's reasoning. In order to stop the vote-counting, the majority briefly inflated to blimp-sized dimensions the Equal Protection Clause, the part of the Constitution these Justices have done everything in their power to shrink as it applies to the rights of racial minorities. All of the air has, of course, gone out of Equal Protection since the decision.
From A Practical Companion to the Constitution, Jethro K. Lieberman, 1999, p. 153-4
Dred Scott was a TEST CASE, its jurisdictional facts rigged to permit the Supreme Court to hear it. ...The Missouri Court held that under Missouri law, when Scott reentered the state he again became a slave. That question was not appealable to the Supreme Court, so the issue of Scott's status should have ended there. But fate intervened. Mrs. Emerson remarried and moved to Massachusetts. Under Missouri law, a married woman could not administer a trust, so administration of her late husband's estate passed to her brother, John F. A. Sanford of New York. Because Sanford was not a citizen of Missouri, he could be sued in federal court under DIVERSITY JURISDICTION, and any decision there could be appealed to the Supreme Court. So a new suit was born -- fabricated, more accurately, solely for the purpose of the appeal.
The lawyers alleged on Scott's behalf that Sanford had assaulted Scott and his family. In Scott's name they sued for nine thousand dollars in DAMAGES. The federal trial court in St. Louis ruled that for jurisdictional purposes Scott was a citizen. Sanford (whose name would be misspelled with a d in the Supreme Court Reports) defended on the grounds that he was entitled to lay his hands "gently" on his slaves. In 1854 the federal trial court upheld Sanford's defense, and the case was ready for its rendezvous with Chief Justice Roger Brooke Taney, slaveholder from Maryland.
The Court could have rested its decision on the narrow ground, consistent with its precedents, of the state to which he returned. Under that rule, Scott would have remained a slave, and the case would have been dismissed. But Taney thought to go beyond the question directly raised. ...
As for Dred Scott, now that his existence as a slave was no longer necessary to a lawsuit, his owners emancipated him. His taste of freedom proved short: he died fifteen months later of tuberculosis.