Posted on 03/06/2007 11:54:14 AM PST by Borges
A century and a half ago today, on March 6, 1857, the U.S. Supreme Court delivered its decision in the case of Dred Scott v. John F. A. Sandford. Scott was a Missouri slave, and Sanford (whose last name was misspelled in the court papers) was a New York businessman who had custody of some family property, including Scott and his wife and two daughters. Back in 1846 Scott (along with his family) had sued for freedom on the grounds that his previous owner, an Army surgeon, had lived in the state of Illinois and the territory of Wisconsin for several years. Slavery was illegal in both places.
The case had been decided in Scott’s favor in 1850, but two years later Missouri’s supreme court had reversed the decision. If the matter had rested there, the result, however unfair, would have caused little controversy. Since the suit’s filing, however, the Mexican War and its aftermath had brought slavery to the forefront of the national debate, and the wealthy abolitionists who were financing Scott’s suit decided to pursue an appeal in federal court. They could easily have bought Scott and his family and emancipated them, but, like many present-day activists, they were hoping for a judicial solution to a political problem.
The Supreme Court tried to sidestep the controversy by resorting to a Catch-22. Scott had filed his claim as a citizen of Missouri, but since he was a slave, he was not entitled to that status. The suit would not be valid unless he first gained citizenship. In other words, to sue for freedom in federal court, he had to be free already. Dodging the central issue in this way would buy the Supreme Court some time and perhaps allow the issues to be solved by other means.
However, the two strongest antislavery justices declined to go along with the ruling and insisted on writing dissents calling for Scott to be freed. Once they had made their intentions clear, the other justices decided they had to refute them. Stubbornness on both sides opened up an enormous can of worms, as a case that could have been dismissed on technical grounds turned into an excuse for all the justices to air their views of property, slavery, freedom, and the federal government’s role in it all.
The court’s decision was as splintered as any in its history, with each justice writing his own opinion. Six of the nine agreed that a slave could not be a citizen. Three went on, unnecessarily, to say that even a freed slave could not be a citizen, while two dissented and the rest were silent on this question. Yet the feuding justices did not stop even there.
The decision of the chief justice, Roger Taney, which was considered that of the court, sweepingly declared Congress’s prohibition of slavery in territories north of 36° 30’, enacted in 1820 as part of the Missouri Compromise, to be unconstitutional. The federal government, wrote Taney, had no such jurisdiction; it could not prohibit any citizen from bringing his property, including slaves, into any federal territories or enjoying its use there. Only a properly constituted state government could ban slavery. Scott v. Sandford was the first time since Marbury v. Madison (1803) that the Supreme Court had struck down a federal law.
In fairness to Taney, it should be noted that the phrase most often quoted from his decision is usually misunderstood. In seeking to interpret the Constitution according to what its framers had in mind, Taney said that they had considered Africans 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 which the white man was bound to respect.” Taney did not mean that in 1857 the black man still had no rights, just that the Constitution had been written 70 years earlier with that understanding. Nonetheless, “no rights which the white man was bound to respect” was the sound bite that got repeated across the country in the decision’s aftermath and is still repeated to this day.
The concurring justices hoped that their decision would settle the vexing question of slavery in the territories once and for all. It didn’t. Most Northerners greeted the decision with outrage. Bad enough, they thought, that the court had rejected Scott’s claim, but by denying Congress any right to regulate slavery in the territories, it had swept away the carefully crafted compromises that were holding the nation together, however tenuously. Some felt it was only a matter of time before the court went further and imposed a similar restriction on state governments.
Ever since the Revolution, the free states and slave states had tried to coexist peacefully, accepting their differences and respecting each other’s laws. While it was an appealing idea, the two systems could not be kept completely separate, and where they overlapped there was friction. Free black seamen landing in Southern ports were subject to arrest if they left their ships, despite federal maritime laws to the contrary. Many Northerners were dismayed that Congress allowed slavery in the District of Columbia, a federal territory (though slave sales were prohibited there in 1850 as a bone tossed to unappreciative slavery opponents).
Most troublesome of all had been the issue of slaves who escaped into free states, often with the help of abolitionists. Slave owners considered the practice no better than thievery, while most Northerners resented the forcible use of their police and courts to restore human beings to bondage. Yet even fugitive slaves would not have brought the union down by themselves; there simply weren’t enough of them to cause such a drastic step.
When it came to slavery in the territories, however, the live-and-let-live principle was stretched past its breaking point. It’s hard to draw a direct connection between the Dred Scott decision and the outbreak of war four years later, but by encouraging Southerners to assert their power and preventing Congress from finessing this extremely contentious issue, the Dred Scott decision hardened positions pro and con and made a sectional conflict much more difficult to avoid. For example, Stephen Douglas’s doctrine of popular sovereignty—letting settlers decide whether to permit slavery in a territory—might or might not have defused the issue, but the Dred Scott decision made it moot.
For all the upheaval it created nationally, the decision made little difference to Scott, who since 1854 had been living in St. Louis as virtually a free man. His owner, Irene Sanford Emerson (John Sanford’s sister, and the Army surgeon’s widow), had married an abolitionist who maintained ownership of Scott only so the suit could be pursued. (Sanford was given nominal custody so that the plaintiff and defendant would be residents of different states, a necessity for the federal suit.) In any event, Scott and his family were emancipated shortly after the decision was announced. Dred Scott become something of a local celebrity but did not enjoy his status for long, dying of tuberculosis on September 17, 1858. No one knows for sure what became of his wife and daughters.
Blacks, if they were citizens, were citizens of the State and not the United States. That was the purpose of the citizenship clause of the 14th, to make all citizens of the states a citizen of the United States. There was nothing wrong with my remarks, you just misunderstood me.
Wrong. Justice Curtis correctly notes that TWO of those states had revoked the right of black suffrage.
Aside from ignoring the Constitution, ignoring the clear intent of the Framers, and ignoring well documented history,
Wrong again. What Taney and the court pointed out is that the first congress specifically rejected extending naturalization to blacks, and that states could not grant FEDERAL citizenship to them.
The WORST case ever was Roe v Wade, followed closely by PGA Tour v Martin 532 U.S. 661 (2001).
What is with the human obsession with "ranking" everything? Dred Scott was bad. So was Roe. Who cares?
The title of the article is just rhetoric. He doesn't try to rank it with others just discuss it on what is a round anniversary.
You ignored the phrase 'for the time period'.
Slavery was accepted and not exclusive to African Blacks. There were plenty of indentured white slaves as well.
It's easy to make judgements about history with 20-20 hindsight. Put yourself in that time period with the struggle for life and survival as they were, it would not be surprising to see you thinking slaves as a fact of life. Most people behave that way.
The 14th was written specifically to overturn the Dred Scott decision. Once the Court makes a ruling, it stands until overturned either by the Court or by Amendment.
If we had to rate them (we don't have to rate them), I'd say Dred was worst, followed by Roe, then Plessy. Also questionable, though by no means as bad, Korematsu v. United States which found the wartime internment of Japanese constitutional, and Engel v. Vitale and Abington School District v. Schempp, which did away with prayer in the public schools.
Good post. Yep. Many of the freed slaves, especially those who served in the Union Army, were well armed after the war and not the lest bit shy about defending themselves which is why the Democrat political machines in the South started enacting the nation's first gun laws.
Then we'd all be complaining about the power of state legislatures or about the impossibility of even the most necessary federal regulation of interstate commerce.
Maybe I don't understand the case, but as a sometime Jerseyite, I don't see why New York state should be able to grant monopolies in shipping between New York and New Jersey.
bttt
Rarely is such a bad legal decision also responsible for a major economic dislocation as well.
That's an interesting theory. If you're right, it's really something. The first page of your paper is on line at JSTOR. Is the rest of it to be found on the web?
I get this off the Internet, though:
August 24, 1857: Embezzlement in the home office of the Ohio Life Insurance & Trust Company coupled with the wreck of the Central America, a merchant marine carrying a shipment of gold bullion, caused a panic in the New York Stock Market.
Also, could early stirrings of conflict on the ground in Kansas caused by the Kansas-Nebraska Act have played a bigger role in the sell-off than Dred Scott? Or do you see such stirrings as related to the decision?
You miss a key word here --- NATURALIZATION! The Naturalization Act was specifically addressing immigration issues. I will grant you that they did not want immigration from Africa, which could have been a dodge around the Constitutional restriction on the slave trade) but that said nothing about the 700,000 blacks who were already in the US at the time the Constitution was ratified and the nearly 4 million of their decendents by 1857.
Under the Constitution, it was entirely up to the states to deal with Citizenship issues of native born persons (white or black) and at that time, 5 states granted full citizenship rights to free blacks.
You are correct that two states had revoked voting privileges for blacks between 1790 and 1857, but blacks did have other rights of citizenship in those two states. At the time of the Constitution, women were granted suffrage in at least one state that I am aware of -- (New Jersey). That right to sufferage was at some point in time rescinded. Did that mean women were not citizens?
>>>Marbury vs. Madison said the USSC has the power to write opinions on what laws are constitutional and which are unconstitutional. Marbury noted that the arbitration of governmental 'legislative law', -- at all levels - fed/state/local, was subject to Constitutional restraints [as per the 10th].<<<
Thomas Jefferson believed that opinion by Marshall promoted extra-constitutional jurisdiction. Jefferson beleived that if there was any conflicting opinion on the Constitution between the legislative, executive, and judicial branches of the federal government the people themselves should be the final arbiters -- that is, the state legislatures should determine which opinion to be correct. That makes far more sense than allowing any particular branch of the federal government to be the final arbiter (to allow all power to be consolidated into a single branch of the federal government). The state legislatures are also the final arbiters on Amendments to the Constitution.
If you want to send me an address privately, I'll run off a copy and have it sent to you. LS
Comparing slavery with indenture is absolutely ridiculous. Intentures were for a period of time, slavery was forever. Indentures were not property, slaves were. Indentures had rights, according to Chief Justice Taney blacks did not. The children of intentured servants were free, the children of slaves were slaves. Their grandchildren were slaves. And had the Southern leadership had its way that is how it would have remained.
It's easy to make judgements about history with 20-20 hindsight. Put yourself in that time period with the struggle for life and survival as they were, it would not be surprising to see you thinking slaves as a fact of life. Most people behave that way.
Even trying to put myself in the time period I cannot fathom how Chief Justice Taney could come to the conclusion that blacks, free and slave, were not citizens and could never be citizens. That they had no rights at all that a white man was bound to recognize. How anyone can not consider Dred Scott to be the worst decision every handed down by the Courth is beyond me.
"-- Marbury vs. Madison because it gave the USSC the self-proclaimed right to decide what is constitutional and what is not. It took the arbitration of government away from the people and their legislatures and placed it with the courts.
Nope; -- Marbury vs. Madison said the USSC has the power to write opinions on what laws are constitutional and which are unconstitutional.
Marbury noted that the arbitration of governmental 'legislative law', -- at all levels - fed/state/local, was subject to Constitutional restraints [as per the 10th].
The people [juries] are the laws final arbiters.
Phillip Freneau:
Thomas Jefferson believed that opinion by Marshall promoted extra-constitutional jurisdiction. Jefferson beleived that if there was any conflicting opinion on the Constitution between the legislative, executive, and judicial branches of the federal government the people themselves should be the final arbiters --
As do I, -- but I'm convinced that our trial by jury was to be the 'final say' on Constitutionality. -- It worked with booze prohibition. -- Juries refused to convict bootleggers. -- Prohibition was repealed.
that is, the state legislatures should determine which opinion to be correct.
Therein lies the death of the republic, as we now see with CA, ILL, & NY State 'laws' that infringe on our rights to own & carry arms.
That makes far more sense than allowing any particular branch of the federal government to be the final arbiter (to allow all power to be consolidated into a single branch of the federal government). The state legislatures are also the final arbiters on Amendments to the Constitution.
Do you approve of how the State of CA 'arbites' the 2nd?
Not according to the Chief Justice.
"The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country or who might afterwards be imported, who had then or should afterwards be made free in any State, and to put it in the power of a single State to make him a citizen of the United States and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts? The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts."
Amen
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