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.
Here is a brief online description of Federalists and their policitcal loyalties in context:
"...indeed, it is not a strained construction of the times to regard the entire Federalist period from the American point of view as reactionary - a reaction against the doctrines of natural rights, individualism, and states' rights, and the financial looseness of the period of the War of Independence and the succeeding years of the Confederation. The Federalists were charged by the Republicans with being aristocrats and monarchists, and it is certain that their leaders... (who were really a very remarkable body of men) distrusted democratic government; that their Sedition Law was outrageous in itself, and (as well as the Alien Law) bad as a party measure; that in disputes with Great Britain they were true English Tories when contrasted with the friendly attitude toward America held by many English Liberals; and that they persisted in New England as a pro-British, aristocratic social-cult long after they lost effective political influence. In short, the country was already thoroughly democratic in spirit, while Federalism stood for obsolescent social ideas and was infected with political "Toryism" fatally against the times."
In the first instance, and how you stated it in your original post -- "Did you know many Federalists were former Tories?"
To say "former Tories" indicates they they either fought for or sided with King George and the British during the Revolution. Tories were the American Loyalists in that context. To say that Adams, who worked harder and sacrificed so much for Independence, or Hamilton who lead bayonet charges against the British were "former Torries" is absolutely ridiculous.
In the latter context of the alignment of Federalist and Republicans (nee - Anti-Federalists) in the period after the Revolution up through the creation of the Constitution and the first 20-30 years of America under that document, the description of the Federalists as "Tories" is perhaps valid, (albeit a political slander used by the Jeffersonian Republicans of that time) in that it meant the more conservative of the two political parties, which the Federalists were. (In England, the Torries were the Conservative party and the Whigs, the more Liberal party.)
Please understand the difference. Yes, the Federalists were much more Conservative than the Republicans, and they did not trust the direct democracy (mob rule as they saw it) tendencies of the Jeffersonians. (Neither do I BTW) But they were loyal to the Republic and were the driving force behind the creation of the Constitution. If it had been up to the Jeffersonian factions, we would not have had a Constitution, would have remained fractured states involved in constant intrigues and destructive inter-state rivalries, and IMHO, we would not have remained independent for very long. We would have bankrupted ourselves and the British would have easily walked in and picked up the pieces. It was the Federalists who prevented that.
But you seem to think that the Federalists were tied to the British monarchy which is simply not true.
Who do you think former Tories voted for and elected following the Revolution?
"Consequently, Alexander Hamilton and James Madison [Federalists], assuming leadership of the nationalists, made an end run around the Articles and called for a special convention to meet in Philadelphia. Assisting them was a growing antidemocratic mood throughout the country. Many Tories had returned to political life, and although they had bitterly opposed independence, they still shared the political vision of the nationalists."
As Federalists' political power declined they sought to achieve through the federal courts what they could not secure through the various legislatures; hence, Marbury v. Madison.
Even before Marbury, way back in 1796, the Supreme Court (which then included 4 signers of the Constitution), decided Hylton v. United States, a constitutional challenge to a federal tax law. The Court upheld the law's constitutionality, but not one of the justices doubted that the Court had the power to decide if the law was constitutional.
I don't know... some dude up in Nova Scotia (over 100,000 American Loyalists fled there alone) or out in Bermuda? There weren't a hell of a lot of "former Tories" left in the US after the Revolution. The Brits took most with them when they left.
Look at who was in office after the Revolution --- virtually all men who fought in one way or another in the Revolution. Do you consider Washington, Adams, Jefferson, Jay, Hamilton and the rest to be "Tories"? That's just insane. They all quite literally put their lives on the line to defeat the British.
Again... you are grossly confusing the period and confounding the very real Tories (Loyalists) who existed in cities like New York, Charleston and Savannah and the political slurs hurled at the Federalists more than a decade later by the Jeffersonians.
Jefferson's attack dogs even called George Washington a "Royalist" seeking to enrich himself because he followed Federalist policies. Yes, politics was every bit as nasty then as it is now. Calling the Federalists Tories back then is about the same as the Democrats calling Republicans fascists today. It was just raw, rotten politics.
Justa, from your "obscure" reference --- out of curiosity, do you know what that special convention in Philadelphia was about?
A ridiculous standard that was at best, indicative of the logic, laws, and conflict of those times.
Dred Scott was absurd, but more bad was the Roe v. Wade, and of course the Campaign Finance idiocy of just the other day.
In the end, the Campaign Finance may likely do the most damage to our Nation.
Interesting, thanks.
What's the point of debate if there's no integrity in the discussion?
You've wasted my time.
None, I suppose if you want to take a comic book view of history. From your Libertarian standpoint, the problem seems to be the Constitution itself.
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