Given the way in which the lawyers had pleaded and tried the case, Chief Justice Roger Taney's majority might have easily dismissed Scott's appeal on the basis that, by virtue of Missouri law, when Scott voluntarily returned with his family to Missouri, his legal status reverted to that of a slave and, thus, he was not a citizen of Missouri with standing to sue in the federal courts.
The Court's majority certainly had the necessary factual underpinnings for this ruling plainly in its hands: Scott had admitted in the agreed statement of facts upon which the case had been tried, that he had been a slave when he left Missouri and traveled with Emerson to Minnesota Territory, and that he had voluntarily returned to Missouri. With this undisputed evidence in hand, The Court, led by Chief Justice Taney, could have simply pointed to the decision of the Missouri Supreme Court, in Emerson v. Scott (1852), which held that, despite his travels with Emerson to Illinois and Minesota Territory, Scott was still a slave. Since Missouri did not recognize slaves as citizens, Scott did not possess the necessary legal status to sue in federal courts.
This summary handling of Scott's appeal would have mirrored the way The Taney court had handled a similar case—Shrader v.Graham― just five years before, in 1851. But much had changed in the politics of the country since 1851, and it is obvious that this change induced Taney's majority to seize upon Scott's appeal, in 1855, as the instrument by which the Court might drive a dagger into the political heart of the emerging Republican Party.
Scott's Appeal From the Federal Circuit Court's Verdict
Scott's appeal from the circuit court's directed verdict finding in favor of the defendant reached the United States Supreme Court at the end of December 1854. The entire year of 1855 passed without the Court taking any action on the case. Finally, a briefing order was issued, and Scott's appellate lawyer, Montgomery Blair, a member of Congress from Missouri, filed Scott's opening brief in February 1856, followed by the defendant Sandford's. Oral argument was held over several days, with the focus being on the question whether Scott's return to Missouri trumped what technical legal status he may have gained while residing in Illinois and Wisconsin Territory.
It appears that Justice Nelson wrote a proposed majority opinion which reflected a summary disposition of the case for lack of jurisdiction. But then something happened in the inner-sanctum of the Court that resulted in the draft opinion being set aside and an order issued, requiring the parties to reargue the case with regard to specified issues—and the matter was put over until after the presidential election of November 1856. In March of 1857, the case was again argued and the Court, with Chief Justice Taney now writing the majority opinion, published its decision in the spring of 1857.
The Political Context In Which Scott's Case Was Decided
In early January 1854, Stephen Douglas, the leader of the Democratic Party, as chairman of the Senate Territories Committee, reported to the Senate the committee's proposed bill for the establishment of a government for the territory of Nebraska, which then included what is now Kansas. Douglas's report referred to the heated debate about slavery in the territories that had been going on in the country since 1850, and said this:
Under the 8th section of the act of 1820, known as the Missouri Compromise, it is a disputed point whether slavery is prohibited in the Nebraska country by valid enactment. The decision of this question involves the constitutional power of Congress to pass laws regulating the domestic institutions of the various territories of the Union. In the opinion of some the act of 1820 is void, because, they contend, the Constitution secures to every citizen the inalienable right to move into any of the territories with his property, of whatever kind and description under the sanction of law. So your committee is not prepared to recommend either the repeal or affirmation of the 8th section of the act of 1820, but to propose that Nebraska be constituted a Territory, to be afterward admitted as a State, with or without slavery, as their constitution may prescribe at the time of their admission.
Douglas's recommendation, here, was consistent with the intent of the congressional acts of 1850 which quelled the agitation in the country that resulted from the Union's acquisition by war of the northern territories of Mexico. These acts, known as the Compromise of 1850, were declared to be based on the policy that all questions concerning slavery in the territories, and in the new States to be formed from them, were to be left to the people residing therein. (In essence, the Congress of 1850 had implicitly repealed the Missouri Compromise of 1820. The Douglas bill, then, was simply another nail driven into its coffin, and the Supreme Court's Dred Scott decision was meant to make sure the nails could not be pulled out.)
Three days into the debate that began in the Senate over the proposed Nebraska bill, Senator Dixon, of Kentucky, proposed an amendment that, "the citizens of the States shall be at liberty to take and hold their slaves within any of the territories of the United States or the States to be formed thereform."
Charles Sumner, of Massachusetts, responded to Dixon's amendment with his own which provided that nothing in Douglas's bill should be construed as repealing the Missouri Compromise.
In response to these proposed amendments, Douglas returned the bill to his committee and, rewriting it to divide the Nebraska territory in two, giving the name of Kansas to that part of it that was west of Missouri, he added the statement—that the 8th section of the act of 1820 had been "superceded by the principles of the legislation of 1850 and is hereby declared inoperative."
On January 23, 1854, Douglas brought the bill back to the Senate floor for debate and, on February 15, 1854, the Senate accepted the amended bill on a vote of 35 to 10. The bill then passed the House of Representatives and was signed into law by President Franklin Pierce. Shortly after this, Dred Scott's trial for freedom occurred in the federal circuit court, in St. Louis, and, with the court's verdict, his notice of appeal wended its way to the United States Supreme Court.
Immediately upon the passage of the Nebraska-Kansas Act a great national uproar exploded, which caused the collapse of the Whig Party, the splintering of the Democratic Party, and the emergence of the Republican Party. And, by the time the Congress's new session began, in December 1854, and Scott's trial record was reaching the Supreme Court, war was all but raging in Kansas Territory―the warring factions holding different parts of the territory, each claiming to be in control of the legitimate territorial government.
During the whole year of 1855, Scott's appeal sat on the Supreme Court's docket without action. During this time Douglas reported from the Committee on Territories, a bill to authorize the "people of the Territory of Kansas to form a Constitution and State government, preparatory to their admission into the Union." Several of the Senators were now part of the new Republican Party and they assailed Douglas mercilessly in their speeches. On June 30th, Douglas reported to the Senate a bill for the pacification of Kansas. Senator William Seward, of New York―the emerging leader of the Republican Party—moved to strike out the whole of Douglas's bills, and insert instead, one admitting Kansas as a State under the Constitution framed by the antislavery faction. This motion was defeated, ayes 11, nays 36. Douglas's bill was then voted on and passed yeas 33, nays 12. Finally, on July 8, 1855, Douglas brought to the floor a bill to admit Kansas as a State, under the slavery faction's Constitution and it passed―yeas 32, nays 13. But the House of Representatives refused to act upon it and the session ended without passage.
Emergence Of The Republican Party
The Republican Party was formed in December 1855 at the Maryland plantation of Francis P. Blair, the owner of the Washington Globe. Frank P. Blair, a St. Louis politician, Nathaniel Banks and Charles Sumner, both of Massachusetts, Senator Salmon Chase, of Ohio, and others, met there to plan a national anti-slavery party, and to decide on a candidate to offer the country in the 1856 presidential election. In this meeting, and others held later in different parts of the country, it was decided to nominate John C. Fremont as the Republican Party's first presidential candidate. Six months later, in June 1856, the Republican convention, held in Philadelphia, voted Fremont the Party's candidate on a platform that upheld the Missouri Compromise, demanded the admission of Kansas as a free State, and denied the power of Congress to establish slavery within a territory. On July 9th, Fremont accepted the nomination with this public statement:
"It would be out of place here to pledge myself to any particular policy that has been suggested to determine the sectional controversy engendered by political animosities, operating on a powerful class banded together by common interest. A practical remedy is the admission of Kansas into the Union as a free state. The South should, in my judgment, desire such a consummation. It would vindicate its good faith. It would correct the mistake of the repeal of the Missouri Compromise; and the North, would be satisfied and good feeling be restored."
The strategic situation for the Republicans was simple: They could expect to gain for Fremont about 114 electoral votes—those of the New England states, New York, Ohio, Michigan, Wisconsin and Iowa. The Democrat's candidate, James Buchanan, could expect about 108 votes from the South and the border states. Since 149 votes were needed for election, the candidate would win who could gain the necessary remainder from the 70 votes left; these being from Pennsylvania, Indiana, Illinois, Maryland, New Jersey, and California. Complicating the calculation was the fact that a third party―the Know Nothings—had a candidate in the field, Millard Fillmore. In the course of the presidential campaign, Fremont's personal reputation was attacked hard, on the grounds of his alleged nefarious financial transactions, his suspected Catholic religion, and the claim that he had been born abroad, and, the Democracy still being strong, James Buchanan was elected President.
The Supreme Court Sets Scott's Case For Hearing
After the first session of oral argument in the Scott case, in the spring of 1856, Justice Nelson authored a draft majority opinion which held that the circuit court was without jurisdiction to hear Scott's case against Sandford, because Scott had admitted in the case that he was a slave and as a slave Missouri did not recognize him as a citizen. But then the case was set for reargument and, after the presidential election of 1856 was over, the parties filed new briefs which dealt with the three substantive issues the Court now intended to decide:
First, is the judgment of the circuit court in holding the plaintiff to be a "citizen" in such sense as to enable him to maintain an action in the courts of the United States, erroneous?
Second, do the facts stated in the agreed statement of fact entitle Scott and his family to freedom, supposing the 8th section of the act of 1820, known as the Missouri Compromise, to be constitutional?
Third, is the act of 1820 constitutional?
Suddenly, Scott's case was focused on the constitutionality of an Act of Congress that the Congress had already expressly repealed. Given the political circumstances of the times, it is easy to understand why Taney's majority seized upon the Scott case to declare the Missouri Compromise invalid at its inception. The majority meant to use Scott's case as the means of ruling that the Congress was without power, under the Constitution, to exclude the institution of slavery from the territories of the Union; and that, under the Constitution, Africans, whether free or not free, could never be recognized as citizens of the United States. Plainly, the Supreme Court was looking forward to the day when the Republicans were to seize control of the Government.
The Procedural History Of Scott's Case
Dred Scott was born a slave in Virginia, around 1800, on a farm owned by a man named Peter Blow. Blow had several sons and Dred grew up with them. When he was eighteen, the Blow family sold the farm and moved with their slaves to St. Louis, Missouri, where Blow opened a boardinghouse. Dred Scott worked as a servant for Blow in this business, until Blow died in 1832. At that time the ownership of Scott's labor fell to Blow's estate and, eventually to his children. In 1833, by some means, Scott was sold to Dr. Emerson, who, having joined the army, moved with Scott to Fort Armstrong, Illinois, and then, several years later, to Fort Snelling, in what was then known as Minnesota Territory. At Fort Snelling, Dred met and formally married, a slave named Harriet. Soon after this, Emerson was reassigned to a fort in Louisiana and he moved there with Dred and Harriet. Emerson then married Irene Sandford. Soon after this, Emerson was ordered back to Fort Snelling and on the river boat trip up the Mississippi, at a time when the steamer was within free territory, the Scotts' daughter, Eliza, was born. In 1840, Emerson returned to St. Louis with his wife, the Scotts and their daughter. In St. Louis a second daughter was born to the Scotts.
Dr. Emerson died in St. Louis, in 1840, and, under the terms of his will, the ownership of the Scotts passed to his wife. Mrs. Emerson hired the Scotts out to various people, until 1846, when Dred and Harriet filed suit against Mrs. Emerson in Missouri State court, seeking a declaration that they were free by virtue of the fact that Dr. Emerson had taken them into a free state and territory to reside. The Scotts' standing to sue in court was based on a statute of Missouri that permitted slaves to bring suits based on the claim some event had operated to make them free. The important thing to recognize, here, is that, at this time, Dred and Harriet were acting purely on their own, without the involvement of politicians.
The trial of the action occurred in 1847, in the St. Louis County Courthouse, a building that no longer exists, having been supplanted by the construction over its foundation of a new courthouse, built in 1861. The Scotts lost the case on a jury verdict, because they had failed to prove the foundational fact that Mrs. Emerson owned them (They had retained a negligent lawyer.). But the Court—apparently recognizing this―granted their motion for a new trial; and, after a delay caused by Mrs. Emerson's appeal, a second trial was held in 1850. In this trial the Scotts produced sufficient evidence showing Mrs. Emerson's ownership and, based on the trial judge's instructions, the jury of twelve white men found in favor of the Scotts and against Mrs. Emerson.
Mrs. Emerson appealed the verdict to the Missouri Supreme Court which published its decision reversing the verdict in favor of the Scotts, in 1852. At that time, a long line of precedents existed, both in Missouri and elsewhere, that held in similar circumstances that a slaveholder's intentional taking of a slave to free territory for the purpose of taking up residence, operated to free the slave. Among the precedent, when the Missouri Supreme Court took up Mrs. Emerson's appeal, was a case exactly on point; the case of Rachael v. Walker.
The Rachael Case
The Rachael case had been decided by the Missouri Supreme Court, in 1836, in favor of the slave. Like Dr. Emerson, a man named Stockton had been an army officer who was stationed at Fort Snelling. Through agents he had purchased Rachael in Missouri and caused her to be delivered to him at Fort Snelling. Several years later, Stockton took Rachael to St. Louis and sold her to the defendant Walker. Upon this evidence, the trial court instructed the jury that if Stockton was an army officer stationed at Fort Snelling, and if he employed Rachael during that time as his personal servant, that Rachael was not entitled to freedom. On the basis of this instruction the jury found in favor of Walker and against Rachael.
Rachael appealed the verdict to the Missouri Supreme Court, contending that the Missouri Compromise (congressional act of 1820) and the Ordinance of 1787 (for the Old Northwest Territory) forbade slavery in the territory where Fort Snelling was located, and thus she was legally entitled to be free. The Missouri Supreme Court agreed, reversing the trial court upon the reasoning that, because the Ordinance of 1787 and the Act of 1820 declares that neither slavery or involuntary servitude shall exist in the territory where Fort Snelling was located, Rachael was deemed to be free.
Walker had raised the argument that Stockton had been ordered by the Government to Fort Snelling and therefore, by necessity, he had been forced to take his slave. The Court rejected this, on the ground that though it was true Stockton was bound to remain at Fort Snelling, still no authority of law compelled him to keep Rachael there as a slave, and the evidence plainly showed that Stockton had not been merely passing through the territory but, in fact, had resided there. (Other courts had held that the intent of the slaveholder as to residence was immaterial, finding that the taking of a slave into free territory ipso facto makes the slave free. (See, e.g., Commonwealth v. Aves (1836) 35 Mass. 193.)
But in the fifteen years that passed between the Rachael decision and the arrival in the Missouri Supreme Court, of Mrs. Emerson's appeal from the jury verdict in favor of the Scotts, its attitude toward such suits had radically changed.
The Strader Case
As this change was occurring―brought on by the increasing hostility between the States generated by the political argument going on over the issue of slavery in the territories—the United States Supreme Court published a decision that rested on the presumption that a slave state's willingness to declare a slave in Rachael's shoes free, depended solely upon the willingness of the forum state to recognize another state's public policy of freedom. In 1851, just after the Congress had enacted the laws we label as the Compromise of 1850, the Supreme Court reviewed the appeal from a judgment entered in the state court of Kentucky. Graham, who had been found liable for damages because of the escape of two slaves into Canada, argued that, because the owner of the slaves in question, Strader, had allowed them to be taken into Ohio, the law deemed them to be free by virtue of the Ordinance of 1787.
Chief Justice Taney, writing for the majority, rejected this contention on the ground that,
"[The] regulation of Congress, under the old Confederation or the present Constitution, for the government of a particular territory, could have no force beyond its limits, and it certainly could not restrict the power of the states within their own respective territories; nor in any manner interfere with their laws and institutions; nor give this court any control over them.
. . .
Indeed, it is impossible to look at the [Ordinance] which [is] supposed, in the argument, to be still in force, without seeing at once that its provisions are inconsistent with the present Constitution. And if they could be regarded as yet in operation in the States formed within the limits of the Northwestern Territory, it would place them in an inferior condition as compared to the other States, and subject their domestic institutions and municipal regulations to the constant supervision and control of this court. But, once adopted, the Constitution became the supreme law. . . and the Ordinance was not made part of it and, thus, cannot confer power and jurisdiction upon this court."
Having rejected the appellant's argument for jurisdiction (an appeal from a state court must carry with it a question of constitutional violation), by ruling the Ordinance of 1787 was no longer operative, the Taney majority dismissed the appeal for lack of jurisdiction.
The Strader v. Graham decision left available to the Scotts, when they stepped up into Rachael's shoes, only the Missouri Compromise to hang their case for freedom on. (The Missouri Compromise related to the territory purchased from France which included within its limits the location of Fort Snelling, sited on the right bank of the Mississippi. The Ordinance of 1787 related to the territory ceded by Virginia to the United States. This territory extended as far west as the left bank of the Mississippi.)
The Rachael Case Overruled
Shortly after the publication of the Strader v. Graham decision, the Missouri Supreme Court issued its decision in the Scott case, reversing the verdict in favor of the Scotts and granting Mrs. Emerson a new trial. In contrast to its holding in Rachael v. Walker, the Court now wrote the following:
"The prohibition in the act, commonly called the Missouri Compromise, is absolute. That act prevails along our entire western boundary; if our courts take upon themselves the task of enforcing the laws of other States, it is reasonable that they should take them as they are understood where they are promulgated. If a slave passes our western boundary, by the order of his master, and goes into the territory subject to the Missouri Compromise, does he thereby become free? Most courts would say yes, if his freedom is sought to be recovered under the laws of that territory.
Now, are we prepared to say, that we shall suffer these laws to be enforced in our courts? If a master sends his slave to hunt his horses or cattle beyond the boundary, shall the slave be liberated? Laws operate only within the territory of the State for which they are made, and by enforcing them here, we, contrary to all principle, give them an extra-territorial effect. The sovereign power of a State cannot be permitted to operate beyond the limits of its territory.
It is conceived that there is no ground to presume or to impute consent to Dr. Emerson that Scott should be free. He was ordered by superior authority to the posts where his slave was detained in servitude. To construe this into an assent to his slave's freedom would be doing violence to his acts, and nothing but the foreign law can raise an implied assent.
An attempt has been made to show that the comity extended to the laws of the other states works freedom for the Scotts. But times now are not as they were when the former decisions on this subject were made. Since then States have been possessed with a dark and fell spirit in relation to slavery, whose inevitable consequence must be the overthrow and destruction of our government. Under such circumstance it does not behoove Missouri to show the least respect to the laws of other jurisdictions."
The Politicians Take Control Of The Scotts' Case
The Scott case was now remanded to the trial court for entry of judgment in favor of Mrs. Emerson; but, instead, it remained on the court docket for almost three years. At the time of the case's remand, the Scotts could have filed an appeal from the Missouri Supreme Court's decision to the United States Supreme Court. The Scotts could have argued a constitutional question was presented by the fact that the Missouri Compromise was still in force at the time they were residing at Fort Snelling, though a territorial government was being formed. Knowing an appeal probably would have dismissed on the basis of Strader v. Graham, Scott's lawyers chose not to appeal to the Supreme Court. Instead, after some delay, they filed a new action in the federal circuit court, though since the same result as in Strader could reasonably be expected, exactly what they were thinking this would gain Scott is unclear. But what it might gain for the politicians was an opportunity to argue in the United States Supreme Court what they were beginning to argue about in the country—the status of free Africans in the United States.
The Basis of Scott's Standing to Sue Now Changes
Dred Scott's standing to sue in the Missouri state courts came directly from a statute of the State that conferred standing upon a slave to sue for his freedom. When Scott turned to the federal courts the basis of his standing to sue became the United States Constitution which recognized standing for Scott, if, but only, there was diversity of citizenship between Scott and the person he sued.
Between the time the Missouri Supreme Court's decision became final and the time Scott filed his new action in federal court, Mrs. Emerson is alleged to have sold Scott to her brother, John Sandford. Sandford was a citizen of New York. The story goes that, her first husband having died, Mrs. Emerson remarried, and her new husband, an abolitionist, insisted she get rid of her slaves, and to do this she sold the Scotts to her brother.
Under these circumstances, the technical jurisdictional issue became whether, as a matter of law, Scott was a "citizen" of Missouri for purposes of establishing the diversity of citizenship required by the Constitution. And it had to be understood by Scott's new lawyers that establishing this would be an impossible task―for, how could they reasonably expect that, upon appeal from the trial court, the Taney Court, in these most virulent political times, would deem Scott to be a "citizen" of Missouri, much less a citizen of the United States?
Given this political reality, why would Scott spend his money on costs and attorney fees, when that money could be used to buy his freedom? (Scott's manumission was concluded within weeks of Chief Justice Taney's opinion being published.) The most probable explanation is that Scott's lawyers, knowing Scott would be eventually freed whatever happened in court, wanted to throw a bomb into the political fire raging over Congress's action regarding slavery in the territories. What could be more explosive than a Supreme Court decision, holding that, regardless of what party controlled it, Congress was without power to prohibit slavery in the territories; and why not throw into the fire the judicial pronouncement that Africans, whether free or not, indeed whether citizens of a State or not, can never gain the constitutional status of being citizens of the United States?
The Rulings In The Federal Trial Court
Scott's action against Sandford was assigned to the circuit courtroom of Judge Robert W. Wells. Sandford, the ostensible defendant, filed a plea in abatement, challenging the jurisdiction of the court, on the ground that Scott was descended from slaves of African blood and, thus, could not possibly be a citizen of Missouri (One must suppose that the defendant's lawyers were as intent on taking advantage of the Taney Court's proclivities as were the Scotts'. Dred Scott filed a demurrer to the plea, which admitted the facts stated in it, claiming that for purposes of diversity he was deemed a citizen of Missouri, because he resided in the State and, under its laws, was allowed access to its courts. (The constitutional question whether a free African could be deemed a citizen for diversity purposes had never been decided.) Judge Wells adopted Scott's point of view and sustained the demurrer
Now, in March 1854, just as the Congress is passing the act that expressly repeals the Missouri Compromise, the lawyers for the parties proceed to trial upon an agreed statement of facts; this means that no evidence was introduced and no witnesses testified at the trial. Based on the agreed statement of facts, Judge Well instructed the jury to find their verdict in favor of the defendant, John Sandford.
The Agreed Statement of Facts
The agreed statement of facts boils down to the simple statement that the Scotts were slaves when they left Missouri and took up a four year's residence in territory controlled by the congressional Act of 1820 (The "Missouri Compromise"), and that thereafter they were taken back to Missouri. From this statement—from Scott's point of view―the trial court was supposed to rule that, having been made free by virtue of the Missouri Compromise, when Scott returned to Missouri, he returned as a free person and, hence, as such he was a citizen of Missouri for purposes of federal diversity jurisdiction. But Scott's contention had already been rejected by the Missouri Supreme Court and, since the Court's decision constituted res judicata, Judge Wells followed it when he instructed the jury, and, accordingly, the jury returned its verdict for Sandford.
Scott's Appeal To The United States Supreme Court
Upon Scott's court file reaching the Supreme Court, the politician, Montgomery Blair, suddenly appeared as his appellate lawyer and, in response to the Court's order, dealt with two distinct issues in his brief:
First, how could an African be a "citizen, in such sense as to enable him to maintain an action in the courts of the United States;"
And, second, if the predicate for a finding of citizenship turned on the application of the Missouri Compromise, did the Congress possess the power to make it?
The Missouri Compromise: Why Does The Congress Not Have
the Power To Exclude Slavery in the Territories?
The language on this subject, Blair's brief claimed, is found in Article IV, section 3 of the Constitution:
"New States may be admitted by the Congress into this Union. . .
The Congress shall have power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States. . . "
Blair's brief, apparently referring to Sandford's brief, acknowledged that,
"it is contended that the founders, having used the word territory in the sense of land as indicated by the words dispose of, the words needful rules and regulations mean no more than rules and regulations relating to such disposition."
Countering this contention, Blair argued that the word territory includes both soil and sovereignty when used in respect to grants to or the possessions of governments, citing a number of charters and treaties reflecting this interpretation. As to the meaning of rules and regulations, Blair wrote,
"these words apply to all ordinary acts of legislation; thus, rules and regulations mean to express political jurisdiction."
And, therefore, in relation to slavery, Blair went on, the Congress has rightfully exercised the power to make rules and regulations for the governance of the territories for sixty years, citing the Ordinance of 1787; an act of 1789, to establish Mississippi Territory; an act of 1800, to divide the Old Northwest Territories; and the act of 1820 providing for state government in Missouri. Furthermore, Blair argued,
"Everyone admits that Congress has the power to govern the territories on the ground of necessity; . . . This concedes the whole question, at least for all judicial purposes. If it be lawful to legislate at all, the amount of legislation which may be necessary is certainly a purely legislative question. . . .
But it is alleged that the provision prohibiting slavery is violative of some part of the Constitution, which establishes the equality of the States and the rights of slaveholders to take that species of property into the Territories of the United States.
Scott admits that if a legitimate power of Congress be exercised in violation of any provision of the Constitution—as, for example, imposing a religious test―the act would be void. But where is it written in the Constitution that no law shall be passed prohibiting slavery in the Territories? Indeed, we have seen that, when the Mississippi Territory was ceded (by Georgia) in 1798, it was deemed necessary to stipulate that slavery should not be prohibited, in order to limit the discretion of Congress.
How the Missouri Compromise affects the States as States, either in their equality or their dignity, is not perceived. It is not pretended that any State has legislative rights in the Territory ceded by Virginia and the cession of the Louisiana Territory by France is exclusively to the Union."
The Supreme Court Rules
The members of the United States Supreme Court, today, can be divided into "Originalists"—these are justices such as Scalia, Thomas, Alioto, and, perhaps, Chief Justice Roberts―and "Evolutionists"―these are justices such as Ginsburg, Breyer, Sotomayor, and , perhaps, Kagan. Standing between these two groups like the pivot of a seesaw, is the chameleon Justice Kennedy. He steps into one group one moment, then into the other the next. Let us call him the seer Kennedy. These justices, in one combination or another, have seized the moment, as we shall see Chief Justice Taney and his cohorts did, more than once in our times; and have, like Taney's court, pronounced distinctly political decisions masquerading as law.
Who can forget Bush v. Gore where the Supreme Court ignored the candidate with the most votes and plopped the lesser vote-getter into the White House? Or the 2010 Citizens United case that gave artificial beings First Amendment rights; and who can forget the 2012 Arizona v. U.S. case (the "Obamacare" case), where Chief Justice Roberts—with a sideway glance at Taney's wrinkled face looming in the Court's dismal past—blinked, and slipped, for a moment, into the evolutionists' group?
Given the game the originalists play with the framers' "intent," it is no surprise that Chief Justice Taney, and the six southern justices that followed him, would find a great friend in Antoin Scalia and his pals; for, in deciding the issues framed by Blair's brief, Taney did no more, or less, than Scalia's crowd does time after time in the decisions handed down by today's Supreme Court. First, Taney waved off, as the writer of the Court's majority Dred Scott decision, the idea that by words granting express power to govern the territories, the framers gave Congress the power to enact the Missouri Compromise.
The Territory Clause
Why did Taney do this? Because if it was "found" that the framers intended the "make all needful rules and regulations" to apply to territory of the United States generally, then it was strictly a matter for the Congress to decide what rule or regulation was "needful" under the circumstances of the day, circumstances that were surely changing as the Republicans' antislavery party gained market share.
So Taney simply ruled the clause irrelevant. How? By interpreting the words of the Constitution to mean merely that the framers intended Congress to have power to regulate only the land that Virginia had ceded to the United States, in 1787. Taney divined the framers' intent, like the Orginialists claim they do, solely by his reading the words. No judicial canons of interpreting constitutional language were cited, nor did he cite case law or law book tomes.
The ulterior motive Taney obviously had for setting the Territory clause to the margin, was that this allowed him to avoid having to solve the problem of finding an express limitation of congressional power to neutralize an express grant of power. He thought it much better for the solution to the political puzzle, to use an express limitation of power against an implied grant of power.
Despite the criticism heaped upon him for this, Taney's explanation, why the framers intended the Territory clause to be limited to the Old Northwest Territory, makes some sense; the clause was merely a special provision intended as the means of transferring to the Federal Government the territory held by the United States in common at the time the Constitution was ratified. (The logical problem with this concept, though, is that, if the Northwest Territory was legally held "in common" by all the States, then those States not ratifying the Constitution could hardly be stripped of their ownership interest in that territory merely because the Constitution became operative upon nine States ratifying it.)
Having swept away the Territory clause as the source of Congress's power to govern the territory where Emerson and Scott had resided, Taney happily dropped his finger on the "Admit new States" clause and Viola! he finds hidden within the three words the unexpressed, but plausible implied power to acquire territory—and from that power it was a baby step for him to find the ancillary power, arising by necessity, to govern the territory so acquired. Brilliant! Now all he has to do is look about him for an express limitation to that power, and, not surprisingly, he found it quickly in the Bill of Rights.
Taney Creates The Concept Of Substantive Due Process
Running his fingers through the amendments, Taney knew he had to choose a limitation that he could construe as both a negative and a positive: on the one hand, the Congress must be found to be without power to prohibit slavery in the territories, but on the other it must be held to the standard of supporting slavery in the territories.
Taney was brilliant here: He knows he has to give Congress the power to regulate the territories, because he knows the United States will acquire territory by war or purchase. He knows he cannot use the Territory clause to do this, because, if he does, he knows the clause can be interpreted to include the power to regulate slavery. Congress, in its discretion, may deem it "needful" to exclude slavery. Now, having seized on the New States clause to provide the means by which Congress has power to regulate, Poof! he grabs the Due Process clause in the Fifth Amendment and infuses it with something new! Substantive Process. Having made an express power an implied one he then restricts the implied power with an implied substantive right he finds in what had been always viewed as a procedural right. Just a marvelous Evolutionist at work.
So, Taney wrote, persons migrating into federal territory retained all the rights guaranteed to them by the Constitution and were in this respect "on the same footing" with residents of the various States. For example, Taney wrote, no one would contend that Congress, in legislating for the people in the territory of Kansas, could abridge the personal liberties protected by the First Amendment, or deny the immigrants the right to bear arms, or the right to trial by jury. Now the great leap of faith and logic: Similarly, the rights of private property were guarded against congressional invasion by the due process clause. And it is here that Taney declares: "An act of Congress which deprives a citizen of the United States of his property, merely because he brought his property into Kansas can hardly be dignified with the name of due process of law." (The problem, of course, with Taney's logic is his assumption that it is a right of private property that, though the recognition of slavery depends exclusively upon the civil law of a state―law that has no force beyond the borders of that state—the owner of the property, despite its dependence on state law for its legality, may carry it into the territories of the United States.)
And now the doctrine of Popular Sovereignty, which underpins Stephen Douglas's Kansas-Nebraska Act takes the same hit:
"If Congress cannot do this (Enact the 8th section of the Act of 1820), it must be admitted that Congress cannot authorize a territorial government to do it (Douglas's Kansas-Nebraska Act.). Congress can confer no power on a local government, established by its authority, to violate the provisions of the Constitution."
Six of the nine justices of the Supreme Court of 1857 signed on to Chief Justice Taney's decision. But one of the dissenting two, Justice Curtis of Massachusetts, said this:
"When a strict interpretation of the Constitution, according to fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a constitution; we are under 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."
The originalists of our day certainly enjoy echoing Justice Curtis's platitude, but, just like the evolutionists as we have seen, they have done and will do again, exactly what Chief Justice Taney did here.
Why Can't Africans Be Citizens of the United States?
Because the Constitution did not allow it; plain and simple.
The procedural issue of whether Scott had standing to sue, turned on the substantive question of whether he was a citizen of the United States. The basic question before the Court should have been whether Scott, if he were in fact a free African, could be regarded as a citizen of the State of Missouri where the suit was brought. The Taney Court changed the question to whether Scott, if he were in fact free, could be regarded as a citizen of the United States, with the rights and privileges pertaining thereto.
The procedural issue had been preliminarily resolved by the District Court judge, presiding at the trial of Scott's case against Sandford, when he ruled that any resident of the State of Missouri capable of owning property, as Scott was, could be regarded as a citizen for purposes of standing to sue in Federal Court. Changing the nature of the question, Chief Justice Taney wrote twenty-four pages of text to establish that the two concepts of citizenship—on the one hand State citizenship, on the other Federal citizenship―do not depend upon each other, but are distinct and independent from each other. Taking this view of the matter, turned the analysis of Scott's status away from the issue of his status at the time the suit against Sandford was filed, to Scott's original status—the legal status that fell upon him the moment he was born in Virginia.
In doing this, Chief Justice Taney reverted to the role of originality and hung his analysis upon the obvious intent of the framers of the Constitution that Africans were excluded from the class of citizens of the United States. For this, he has been personally pilloried by historians, law professors and supreme court justices in every generation since the Dred Scott decision was handed down. But this fact does not mean he was objectively wrong when in fact he was objectively right. What his critics ignore, here, is that the white men of 1787 never for a moment thought the Constitution embraced Africans, whether free or not, as citizens of the United States. It was the new framers, the white men of 1861, those who amended the Constitution by force of arms, that turned alien Africans into citizens of the United States.
Chief Justice Taney framed the issue of Dred Scott's standing to sue in Federal Court this way:
"Can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution, and, as such, become entitled to all the rights, privileges, and immunities guaranteed by the Constitution to the citizen?"
In other words, as far as the Supreme Court was concerned, Scott could not be a citizen of the United States simply by showing he was a citizen of a State. There obviously was good reason for this view: for, if it were otherwise, nothing could prevent free Africans, enjoying the status as citizens of a State, from traveling to any other State and taking up residence there, carrying with them as they would all the rights, privileges and immunities of citizens generally, including the right to contract, the right to buy and sell property, the right to marry, the right to sit in court as jurors, and the right to vote.
However the radical Republicans might scream the contrary, the majority of white men, on both sides of the Mason-Dixon line, could be expected to violently reject such a notion; and Chief Justice Taney knew it. In 1857, there were over one hundred thousand free Africans residing in Maryland. Twenty thousand in Delaware. One hundred thousand in Virginia. If a free African were deemed to be a citizen of the United States, simply because he might be a citizen of a State, then what would prevent these hundreds of thousands of Africans from streaming across the Susquehanna River into Pennsylvania? Nothing! Here, the historians in their pillorying of Chief Justice Taney, conveniently ignore the reality that the people of Pennsylvania, in 1857, would never have allowed the Africans in.
To make the political problem plain, Chief Justice Taney restated the question this way:
Can the descendents of those slaves who were alive in 1789, when they shall be emancipated, or who are born of parents who become free before their birth, be citizens of a State, "in the sense the word citizen is used in the Constitution?"
That Chief Justice Taney's objective, in the midst of the political turmoil of the times, was to shut off all possible legal arguments, which, if relied upon by the courts, might result in the legal recognition that a free African might be a citizen of the United States, is seen in his injecting into Scott's case the fact that, under the Naturalization Clause of the Constitution, Indians had been made, by Congressional act, citizens of the United States.
Why could not the same clause work the same way for the Africans? Why could not Congress, under the Clause, recognize free Africans, descended from slaves, as citizens of the United States? Because, according to Taney's dark agenda, the Indian tribes were, in law, equivalent to foreign nations, and when the Federal Government extended citizenship to Indians, it do so by virtue of its constitutional power to naturalize foreigners.
The irony! Forcibly removed from their native land, the African came to America foreigners; but upon being shoved ashore that status disappeared into the legal dust bin? What Taney was doing there, as the justices continue to do to this day, was threading his way through the Constitution, closing doors.
Correctly divining the framers' intent, Chief Justice Taney wrote that Dred Scott's ancestors, who were in the United States at the time the Constitution came into operation, whether they were emancipated or not, "were not intended to be included under the word citizens in the Constitution, and can therefore claim none of the rights and privileges, which that instrument provides for and secures to citizens of the United States." Thus, in Taney's view of the Constitution, Scott's status was fixed forever by the fact that he or his ancestors had once been enslaved. This is a harsh result, isn't it? Not surprising that it made some men mad.
Through this reasoning, you can see that Chief Justice Taney has rejected the theory that what makes you a citizen of the United States, is your being able to prove you are a citizen of a State; that state citizenship under the Constitution is primary, and that Federal citizenship, as the original framers intended, derives from it. As Taney put the point again, "[Scott] may have all the rights and privileges of the citizen of [Missouri], and yet not be entitled to the rights and privileges of a citizen of any other State."
And, though the historians ridicule his view, his view was, in fact, the obvious view of the framers. So, as the proposed constitution made its rounds through the State conventions, in 1787-89, word came that the New England politicians claimed the Constitution recognized the right of a citizen of Massachusetts, of African descent, to travel to and take up residence in Virginia, as a citizen of the United States.
Who reading this, reasonably thinks that, in such circumstance, the people of the Slave States would have ratified the Constitution? Or, for that matter, the people of Pennsylvania or New Jersey? Just read the laws regarding Africans on the books in these states, in 1789.
As Chief Justice Taney put it yet again:
"[The Constitution] gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of persons and rights of property; it made him a citizen of the United States."
But not the Africans who lived at the time the Constitution became operative, and not their descendants whether free or not. Here, Taney, again, accurately understands the intent of the original framers, writing that the issue is whether a single state, by endowing an African with citizenship, can thereby "make him a citizen of the United States, and infuse him with full rights of citizenship in every other State without their consent."
Here we see the very real and crucial political problem that Dred Scott's state case for freedom―recast in the Federal Court as a case for United States citizenship—posed to the white men of 1857. Had Taney ruled otherwise, it is easy to understand the serious consequences of this to the Slave States, where a free African, with family and friends in tow, seeks to settle down alongside a plantation full of slaves. Or for that matter, seeks to settle down in Kansas alongside a farm operated by white people. Until this generation living now, such a circumstance brought with it―American history demonstrates time after time—the extreme danger of violent social convulsion on a huge scale. One need only count up the major conflagrations to recognize this: Springfield and Chicago, Illinois; Oklahoma City; Detroit; Los Angeles. Historians and law professors always have, it seems, a difficult time recognizing from their abstractions the real world we live in. Who but the historians cannot see this? This is a American reality that drove Chief Justice Taney to his decision in Dred Scott; as have many of the justices, in similar circumstances, followed him down to our day. Chief Justice Roger Taney was simply trying, as the Court did with Bush v. Gore, for example, to settle a volatile political question in order to prevent the people from solving it themselves.
In Taney's view of the social history of the United States, though, he plainly ignored the reality. Taney claimed that no possibility existed that free Africans possessed the rights of citizenship in the period from 1776 to 1787. Yet the reality demonstrates they did! Free Africans in the United States during this period could not be hunted down and reduced to slavery in the African manner. In fact, some States defined such conduct as kidnapping and made it a crime. In some States a free African might marry, enter into contracts, purchase real estate, bequeath property, and file lawsuits in court. This suggests reasonably that Africans were treated as citizens in some of the States. Taney ignored this history for the simple reason the reality of the times made it impossible to recognize the right of an African, residing in a Slave State, to possess the rights and privileges of citizens.
Chief Justice Taney, as many, many Supreme Court justices since, twisted words and turned them into meanings, however silly and artificial the meaning is, which supported a particular political outcome. One day the Supreme Court says one thing; the next day it says the exact opposite. What has changed during the night? Nothing, but the movement of the human tide of time.
Why Didn't Scott's Residence at Fort Snelling Make Him Free?
Having ruled out United States citizenship for the African, Chief Justice Taney could have closed the Court's opinion, but instead he went on to rule that Dred Scott was still a slave. Why? Because he wanted the Republicans to know, getting control of the Congress would bring with it no power to exclude slavery from the territories.
Taney wrote that persons migrating into the territories retained all the rights guaranteed to them by the Constitution, and were in this respect "on the same footing" with residents of the various States. "An act of Congress which deprives a citizen of the United States of his property, merely because he brought his property into Kansas," Taney's Majority opined, "can hardly be dignified with the name of due process of law." Thus, the opinion says, the Federal Government, contrary to having the power to exclude slavery, has the affirmative duty to protect it. Here's how Taney put it, quite correctly as a matter of fact:
"It may be safely assumed that citizens of the United States who migrate to a territory belonging to the people of the United States (Note―not the Federal Government), cannot be ruled as mere colonists, dependent upon the will of the general government. The principle upon which our governments rest and upon which alone they can continue to exist, is the Union of the States, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a general government, possessing certain enumerated and restricted powers delegated to it by the people of the several States.
A power, therefore, in the general government to obtain and hold territories over which it might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires (say through war with Mexico, or purchase from France), it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union.
The Territory in question was acquired from France. . . It was acquired by the government as trustee of the people of the United States, and it must be held therefore for their common and equal benefit, . . . and an act of Congress which deprives a citizen of the United States of his property, merely because he brought his property into a particular territory of the United States could hardly be dignified with the name of due process of law."
And, of course, Chief Justice Taney's makes a certain sense. The whole people of the Union paid for the territory. Therefore, as trustee of the whole people the Federal Government has not authority to exclude part of the people of sharing in the use of it. Therefore, Taney finds, the Missouri Compromise is unconstitutional, because it purports to do exactly that, and thus Dred Scott's residence at Fort Snelling cannot be the predicate which allows the law to deem him to be free.
Here, the historians and law professors whine, but, but. . . . No buts. They use the buts to distract the audience from the plain fact that the Union as the Constitution framed it, was a Union the Constitution recognized as containing States that depended for their economic livelihood on the oppression of Africans as slaves, and that the people of these States stood on an equal footing with the people of those States whose economic livelihood was based on the exploitation of free labor. As such, the Federal Government could not reasonably be recognized as being the constitutional instrument whereby one side was to be favored and one side not. Only the people, in their sovereign capacity, could change that, and that they would do by force of arms, giving rise from the fire the new constitution we live by today.
Out of the fire of the Civil War came the nullification of Chief Justice Taney's decision, in Dred Scott.
The 14th Amendment to the Constitution reads, in relevant part:
"Section I All persons born or naturalized in the United States. . . are citizens of the United States and the States wherein they reside. . . .
Section V The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
The framers of this constitutional change, along with the 13th and 15th Amendments, are Bingham and Wade of Ohio, Sumner and King of Massachusetts, and the people of the Union, some grudgingly, all acquiesced.
Dred Scott's supposed grave
Francis P. Blair appears to have made these handwritten notes after the case's first argument in the Supreme Court and before its reargument
Dred Scott Post Script
In his dissent in Arizona v. United States 2012 U.S. Lexis 4872, concurred in by Justices Alito and Thomas, Justice Antoin Scalia shows you a good example of the original understanding of the framers as to the sovereign power of the States to exclude unwanted persons from their territory, a power stripped from them by the adoption of the 14th Amendment after the Civil War. Scalia writes:
"The United States is an indivisible `Union of sovereign States.' Today's opinion deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.
As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress."
Later in his dissent, Scalia repeats this theme when he writes: "The Federal Government is a Union of Independent States, who have their own sovereign powers." Do you see the defect embedded in Justice Scalia's proposition? He says the United States is an indivisible Union of sovereign States. If a State is truly sovereign, then it necessarily must possess the legal right―in terms of the Law of Nations—to secede from any Union it may, solely by its own consent, be a member of. Of course, this conclusion is based on abstractions, i.e., on law. In the reality of the world, however, this conclusion can only be sustained if the State can muster the physical power to enforce its policy of secession from the "Union" it voluntarily had joined.
"There is no doubt," Scalia goes on, "that `before the adoption of the constitution of the United States,' each State had the authority to `prevent itself from being burdened by an influx of persons.' And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution's provisions were designed to enable the States to prevent `the intrusion of obnoxious aliens through other States.'
The Articles of Confederation had provided that `the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens of the several States.' This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another."
So, you can see that a native of Africa dragged to America in chains as an alien, if he gained his freedom as an inhabitant of a State before 1789, would be deemed, under the Articles, to be entitled to all privileges and immunities of a free citizen of any of the States. This is a conclusion, Chief Justice Taney's majority, in Dred Scott, refused to recognize.
"This meant that an unwelcome alien (A freed African, for example) could obtain all the rights of a citizen of one State simply by becoming an inhabitant of another. To remedy this, the Constitution's Privileges and Immunities Clause provided that, `the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.'"
Even with this change in language though, it remained possible in the abstract for a freed African, who resided in, say, Massachusetts, to be deemed by that State's law to be a "citizen," and thus be entitled to all the privileges and immunities of citizens of, say, Virginia. This is a conclusion that Taney's majority refused to recognize.
Scalia goes on: "But if one State had lax citizenship standards, it might serve as a gateway for the entry of `obnoxious aliens' into other States. This problem was solved (Scalia says) `by authorizing the Federal Government to establish a uniform rule of naturalization throughout the United States.'"
Scalia is admitting, here, that if Congress had been so inclined, in, say, 1861, to enact a law that all freed Africans residing in the territory of a State were deemed citizens of the United States, the law would pass constitutional scrutiny by virtue of the Uniform Rule of Naturalization Clause. Not so, Chief Justice Taney's majority was very careful to state.
In another aspect does Justice Scalia's ideas mirror those of the Taney majority, in Dred Scott. He asks the question―"Are the sovereign States at the mercy of the Federal Executive?"—and answers it with this: "A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the [majority's holding that Arizona has not power to regulate immigration into its territory)? The delegates to the Convention would have rushed to the exits."
Justice Scalia's view of the framers' intent is exactly the Taney majority's view of things in Dred Scott. Had the delegates to the Constitution Convention, in 1787, thought that the constitution they were framing would allow Africans to be deemed citizens of the United States, by virtue of their residence in a State that recognized them as citizens, the delegates would have rushed to the exits. So here we see clearly that the historians' pillorying of Taney, personally, is silliness; his written decision merely voiced what every single white man of his times knew to be true.
Justice Scalia acknowledges this when he writes, "As is often the case, discussion of the dry legalities that are the proper subject of our attention suppresses the very human realities that gave rise to the suit."
|The state of teaching the meaning of the Dred Scott case in American History
compared to a Lawyer's statement of the case.
|Dred Scott: The Sesquicentennial Edition