> If Scott could spend several years in a free state and
> territory and still be a slave, what would prevent a
> slave owner from moving 50 slaves to Ohio and setting up
> a plantation?
“[T]he slaveholder [would have] the same [political] right to take his negroes to Kansas that a freeman has to take his hogs or his horses,” Abraham Lincoln informed his fellow citizens, “if negroes were property in the same sense that hogs and horses are.” As Lincoln’s statement indicates, the main bone of contention between Taney and most antebellum northerners was whether the generally understood right to bring property into the territories entailed a right to bring human property into the territories.”
http://hnn.us/articles/30419.html
So, the crux of the decision, as I understand it (note: neither a scholar nor lawyer, here) is whether there was a constitutional basis for distinguishing between human property and other property.
If you say that the federal government may, for whatever reasons seem apt at the moment, redefine the legal rights entailed in distinct types of property simply because it seems good to the federal government to do so, you would have sped up the post 1970 “innovations” in environmental law, for instance, that allow the government to take property without compensating the owner, wouldn’t you?
You misunderstood my question. In what sense could a State be said to prohibit slavery if a slaveowner could take up residence there for several years, with his slaves, then leave with them still in a stae of slavery?
This was the problem with Lincoln’s famous “house divided” speech. It expressed the view of northerners who thought the South was engaged in a conspiracy to force slavery on them in their own States, while southerners saw the wording as a threat to end slavery in southern States.
The "federal government" wasn't redefining anything. Prohibition of slavery in some territories preceded the Constitution and had been a continuous feature of territorial administration ever since the Constitution was implemented.
The innovation was Taney "finding" the new constitutional right that slavery could not be prohibited in a territory. Lincoln and his groups were actually the conservatives in this case, while Taney and the other southern extremists were the radicals and proponents of the expansion of federal powers. (As long as they controlled those powers.)