soldier with rifle american civil war THE
SESQUICENTENNIAL
EDITION

 

 

In Re Dred Scott Rexamined

THE HOLDING OF THE SUPREME COURT

IN, IN RE DRED SCOTT (1856-57)

I

Introduction

The four hundred and fifty years of the African race's history in America is a dismal case, if one confines her sight to the surface of the experience: the images the imagination conjures of black men and women crammed together in the low-ceiling decks of the Boston merchant ships that brought them bound in chains to America; to the centuries through which their progeny labored as slaves on the southern plantations and farms of America; to their travails of discrimination, segregation and murder as they dispersed throughout the country in the twentieth century; until, finally, a generation of Americans of African descent rose to social and legal equality in the Sixties, gained college degrees, became doctors and lawyers and such, and contributed to the nation their first president of the United States. But, if one looks closer, thinks about the process with cold reason instead of emotion, digs deeper into the human reality, a distinctly different understanding might emerge; that the experience was a matter of the natural evolution of the human race; that, but for the process that occurred, there would be no Africans dispersed across the world, that the race would be confined to its place of origin in the world, today—for what other country, during the course of this passage of time, has assimilated into its political and social community a race so foreign originally in habit, custom, and appearance from their own, as has America? Is the process done? Of course not, but it is substantially done, and the experience guides the way to the time when all the enthic enclaves which still exist in America will disappear and a homogenous population of Americans—more black than white—will inherit the American freedom of living in the greatest nation on earth.

The great turning point in the evolutionary process of assimilating the African race in America, came in 1861, when the whole white people of America went to war with themselves. The immediate effectual cause of the war was the fact that the white people in the states where the Africans were, felt severely threatened by the looming reality that the white people in the states where the Africans were not, meant, by their political control of the national govenment, to prevent the Africans' dispersal throughout the country, while, at the same time, using the national government's power to make the Africans free. Anticipating the natural consequences that would result from this—the great uncompensated loss of capital, the catastprohic disruption to their economies, the social disorder that would arise in their communities, and the competition between the races for political control of their state governments—the white people authorized their states to secede from the Union as the only means available of holding on the status quo. In doing this, they understood that secession meant they would be preceived, as now a foreign power, a dangerous threat to the Union's status as the dominant nation on the continent, a threat made more dangerous by the obvious incentive the seceded states had, to form alliance with France or Great Britain; both of whom at the time had active interests at work in Mexico and the Carribbean.

The crisis might not have been, had the whole white people of the Union been satisfied with the reach of their control of the continent ending at the Mississippi River. Had that been so, all their territory would have been conveniently shared between their two systems of labor without serious friction between them, divided as they then were by the Potomac and Ohio Rivers, each side to their own. But, after the Missouri Compromise was effected, and with Mexico gaining independence from the Spanish Empire in 1810, and its incapacity to either populate its northwestern territories, or control them, American politicians instigated a war with Mexico that resulted in the United States taking possession, by force of its arms, of a land mass almost thrice the area of its original boundaries. So, the political battle between the two systems of labor that had been resolved by the Missouri Compromise, was renewed and this resulted in The Compromise of 1850, which put the two systems of labor in immediate competition to occupy the territory.

With a new generation of politicians rising in place of the great men of the last, who, by 1850, were dead or dying—Calhoun, Clay, Webster, Benton—the Democratic Party nominated and elected Franklin Pierce as president, in 1852. During the course of Pierce's term of office, Illinois Senator Stephen Douglas, aspiring to succeed Pierce, introduced the Kansas/Nebraska Bill into the Senate in 1854, and it became a law which repealed the Missouri Compromise. Territory which had been assigned to "freedom," in 1820, was now subject to the bill's doctrine of Popular Sovereignty. The political consequence of this, was that the Whig Party, along with the old Republican wing of Jefferson's original Democractic-Republican party, coalesced into the new Republican Party and fielded John Fremont, The Pathfinder, as its first presidental nominee, its platform being to prevent Africans from migrating into the nation's territory. Fremont lost the election by a landslide to the Democrat candidate, James Buchanan, and the stage was set of civil war.

In his Inaugural Address, President Buchanan announced that a case presenting the question about the occupation of the Territories by the two systems, was pending in the United States Supreme Court, and that whatever the decision was, he expected the country to abide by it. The case was In, Re Dred Scott, and its decision was published the day after Buchanan's address. Of all the decisions of the Supreme Court—of which there are many disreputable, Dred Scott is recorded by the historians as the most embarassing, the most egregious in its conclusion that the Africans have no rights the white man is bound to respect. But, though they sting, the words are the product of their time, a natural conclusion for white men to reach in their effort to maintain the status quo at all cost.

This was certainly Chief Justice Roger Taney's purpose in using them. The nation had reached the point in the struggle between the two systems of labor, where the white majority was on the verge of breaking the soldarity of the Democratic Party and thereby substituting in its place, in control of the national government, a new party whose political objective was to bottle the Africans up in the South. Which meant that, in the natural course of things, the Africans would eventually become free where they were. and a social conflaguration would result; the likes of which only ancient history records. To forestall this, Taney's court—acting as the arbitrar between the two contending political forces—attempted, by Dred Scott, to settle the struggle by the judicial force of words.

Eight years after Taney's death, in 1864, a memoir of him was published by Samuel Tyler, a close, personal friend. In his book, which contains writings of Taney, Tyler states the objective basis of theTaney Court's case:

Roger Taney"The great question in the case was, whether it be competent for the Congress, directly or indirectly, to exclude slavery from the territories of the Union? The Supreme Court decided that it was not. This was the opinion of six justices out of the eight who composed the Court. Justice McLean and Justice Curtis dissented. The opinion of the Court was delivered by Chief-Justice Taney to which the six justices concurred, though each delivered separate opinions.

The opinion is based upon the doctrine that when the American colonies were settled, property in Africans was recognized by the public law of Europe; and that international trade in Africans as property was regulated by the Law of Nations. The European states vied with each other in getting control of the trade, because of its enormous profits. England, whose royal family was especially reaping its profits, obtained by the Treaty of Utrecht, in 1713, the almost entire control of the trade by supplying Africans to its American colonies. Eventually Parliament forced the monarchs to open the trade to all their subjects, by including Africans in the definition of "goods and merchandise" found in the Navigation Act which required all imports and exports between America and Europe to be moved in British ships. Thus, as a matter of the Law of Nations, at the time the American colonies revolted against British rule, Africans were recognized to be "property." And, consequently, Africans could not, when freed by their masters, thereby become citizens of the United States."

Tyler states the facts correctly; but the Taney Court's legal conclusion, which Tyler also correctly states, was merely an argument based on a cluster of abstractions which it could just as easily have assembled to support the opposite conclusion which the dissenting justices reached. Tyler admits this, when he writes that dissenting Justice Curtis "looked at the question through the pinhole of a provincial creed, which excluded all the light of history by which alone the question could be properly understood. One sentence embraces the pith of his dissenting doctrine: 'Slavery, being contrary to natural right, is created only by muncipal law' [i.e., by the domestic law of the State].'"

"From this contention," Tyler went on, "Justice Curtis argues that a citizen of the United States cannot take his slaves into a territory, and own them there, because the Constitution `has neither made nor provided for any [state's laws] which are essential to the existence of slavery.' Justice Curtis should have remembered that Plato based the lawfulness of slavery upon the ground of captivity in war, and that the Roman jurists, more then fifteen centuries ago, based it upon the same ground, and established it as a principle of the Law of Nations. And it became the common practice of European states down to the 19th Century, even down to and after the Declaration of Independence as shown by the fact that, at that time, Africans were being sold in Boston as slaves."

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"The law of nature, in the writings of jurists, is a very ambiguous thing. Cicero makes the consent of all nations in regard to anyting the law of nature. This idea was afterwards incorporated inot Justinian's Institutes which were published in 533 A.D: `The law of nature is that law which nature teaches to all animals. Hence the mating between sexes, procreation and education of off-spring.' Thus, it merely discribes relations in the order of nature. When, therefore, Justinian says that slavery is contrary to the law of nature, he means the notion in the sense explained. Slavery does not come by nature. It comes by the law of nations."

Note: There is a problem in logic with Tyler's explanation, as it relates to the judicial analysis at issue. It is true that, at as of 1783, when King George III recognized his former American colonies to be "free, independent and sovereign States," the new American States became members of the community of nations and subject to the law of nations. But, five years later, when the people of the several States ratified the Constitution they agreed among themselves, in essence, to make the Federal Government of the Union their exclusive agent in their intercourse with the other recognized States of the world—France, Britain, Russia etc. And yet, nowhere in the Constitution did they expressly identify the Union, as a political entity, recognizing slavery as the law of the land; but only by implication as the domestic law of those States which recognized it. Indeed, the people of the States recognized the Federal Government as controlling the matter of slavery in all the Union's intercourse with foreign States. And, thus, as slavery, according to Tyler's view of the majority's decision in Dred Scott, is based on the law of nations, the exercise of that law was in the Federal Government and not in the governments of the States.

"Many of the fundamental rules of the law of nations have no moral foundation. But the law of nations, the States of Europe claimed that, by the mere fact of discovery of America, as it was inhabited by savages, they acquired the absolute title and dominion in the soil, and that the savages had a mere right of occupation and use. This rule of law was recognized by Chief Justice Marshall, in Johnson v. McIntosh (1823), delivering the opinion of the Court, where it was decided that, because of the law of nations, the Indians had only the right of possession of their lands. They could not sell the lands except to the United States.

Each age fixes the standard of right and wrong, of legality and illegality, for itself; and all its rights of every kind, and the corresponding duties, descend to the next age, binding it just as they bound the previous age, which fixed the standard by which the duties were incurred."

Note: Each age certaintly does fix the standard, but no generation, even that of the framers who, it is claimed, established a compact in the form of a constitution between the States, can reasonably expect that its intent, manifested in the meaning of the words it chooses to adopt, cannot be revised by subsequent generations, through the selection of different meanings, to meet the exegencies of the times.

COMMENT

Tyler's version of events is not precisely accurate. The decisive issue in Re Dred Scott was the threshold question every litigant faces when he files a law suit in Federal Court: Does the Court have jurisdiction of the person? Scott claimed that, yes, the Court had jurisdiction because, as a matter of law he had been made free by the fact he had been taken as a slave from Missouri into Minnesota, and, therefore, he was a "citizen of the United States" suing a citizen of another State who was holding him as a slave illegally. The Supreme Court decided, contrary to the lower court, that the fact Scott had been taken from Missouri into Illinois and, later, into Minnesota, and then returned to Missouri, did not make him a citizen of Missouri, much less free, and hence the question whether he was a citizen of the United States was moot; i.e., not necessary to be reached and decided. However, one may reasonably argue, as the majority did, that to resolve the question of jurisdiction it was necessary to consider whether the Congress had the power to declare slavery prohibited in the Territory from which the State of Minnesota was formed. It is to the majority's argument on this point we turn in our conclusion.

II

The Citizenship Question

Supreme Court of the United States, December Term 1856

19 Howard 393

Dred Scott, Plaintiff in Error v. John Sanford

Mr. Chief Justice Taney delivered the opinion of the Court:

"Our duty is to decide whether from the facts stated that Scott is not entitled to sue as a citizen of the United States. This is certainly a very serious question, and one that now for the first time has been brought for decision before this Court."

Note: It appears that Scott's lawyer, Montgromery Blair, did not expect the Court to deal with this question, since Scott was appealing strictly from a jury verdict rendered against him on the stipulated facts litigated in the case below. What Tany actually means, is that the Court will interpret the legal meaning of the facts in light of the words and phrases of the Constitution.

"The question is simply this: Can an African, whose ancestors were imported into this country, and sold as slaves, [somehow] become a member of the political community formed and brought into existence by the Constitution of the United States? The only matter in issue before this Court, therefore, is whether the descendants of such slaves, when they shall be emancipated, are citizens of the United States. (Italics added.)

Note: What Taney is saying, to repeat, is that the constitutional question is whether an emancipated slave of african descent can somehow obtain the constitutional status of a "citizen of the United States." In the ordinary meaning of the Constitution, as it existed before the Civil War, to be a "citizen of the United States" you must be recognized as a citizen of one of the United States. Under the unamended Constitution of 1787, the fact you were a recognized citizen of a State, in the Union, annointed you with the constitutional status of a citizen of the United States and, as such, the Federal Courts had jurisdiction to hear your case against a citizen of another State. This is called diversity of citizenship.

The words, 'people of the United States,' and 'citizens,' are synomous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. The question is, whether the class of persons [to which Scott belongs] compose a portion of this people, and are constituent members of this sovereignty? We think they are not and that they were not intended [by the framers or the people of the states ratifying the Constitution] to be included under the word `citizens' in the Constitution."

Note: Of course, the answer to this question, as Taney framed it, is "No." At the time the Declaration of Independence was published, in 1776, the paramount Government of the colonies—the British Parliament—recognized slavery as lawful in the British king's empire, and, because of this, its main colonial commercial port at Boston was then unloading ships, whose cargos were Africans to be sold as slaves. Certainly we can admit that no white American colonist, in 1776, would reasonably think the African slaves moving through Boston's port for transportation into other colonies, was a "constituient member" of the political body he was a member of. Plainly, therefore, it is silly to say that, in 1776, Africans in America were "constituent members" of the "political body" who formed the "sovereignty."

Seven years later, however, in 1783, when King George recognized the American colonies as "free, independent and sovereign States," each State was free to prohibit or recognize slavery within its territory as it pleased; and five of the thirteen States—though none had any appreciable number of slaves in them—adopted policies of prohibition. So, as of 1783, Taney's definition of the "political body" makes no intelligent sense, given the fact that, at the time the colonies were recognized by the Law of Nations as sovereign "States," the only "political body" in legal existence, at that time, was the so-called thirteen "States" doing business together as "The United States of America," whose political views of the legal status of Africans in America were not monolithic. Still, it is objectively unreasonable to beleive the people of the five states which prohibited slavery intended, at the time they ratified the Constitution to include Africans as "constituent members" of their"political body."

But so what? The question is not whether an African, as a slave, was a constituent member of the political body who formed the sovereignty under which he lived, whether that place be Missouri or Massachusetts, but whether a free person of African descent, who resided in a State in the Union, is a constituent member of the political body of the State in which he lives. Putting the question this way, means that each State, unless prohibited by the Constitution, has the sovereign power to decide the question of the person's status in its political body, as it wishes; as each State, in fact, did. Put yet another way: the question becomes, did the States, when ratifiying the Constitution, in 1789, give up their sovereign power, to decide this question, to the new Federal Government and, if so, what power did the Constitution grant Congress to decide this question.

"In discussing this question"—Is Scott a Citizen of a State—"we must not confound thge rights of citizenship which a state may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because [Scott may have] all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other state."

Note: Though the Court's opinion stretches on for almost another one hundred pages, this is the point where the crux of the matter is reached. The Constituton, as the farmers wrote it, plainly states that what makes you a "citizen of the United States" is the fact that you are a "citizen of [a] State." ["The citizens of each state shall be entitled to the all privileges and immunities of citizens of the United States." (Art IV. Sec 2.)

Frederick DouglassBut how to find the answer to the question,what makes you a citizen of a state? You must obviously look to the domestic law of the State in which you live, to find the answer. Take the situation of Frederick Douglass, for example; in 1818 or so, Douglass apparently escaped from slavery in Maryland, and, by the 1840s, ended up in the State of New York where he lived in Rochester, in a home he owned, for twenty years. The Constitution of New York, in effective during this time, does not define expressly what makes you a citizen of the State,,but it does define the circumstances Douglass must establish in order to claim the right to vote in the state's elections.

New York Constitution

See the problem? The facts show indisputably that Douglass resided in Rochester for more than three years and that he possessed a freehold estate of the value of two hundred and fifty dollars, clear of debt. But, notwithstanding these facts, was he thereby a "citizen" of the state? Let's assume he was: does this mean that, as a citizen of New York, in 1840, Douglass was thus a "citizen of the United States" entitled to travel into the State of Missouri and enjoy all "the privileges and immunities" that citizens of Missouri enjoy? Ultimately, the whole point of the application of abstractions in the context of "citizenship" is to restrict the territory in which you are free to enter. Certainly, had Douglass landed from a steamboat at St. Louis, in 1840, the state's Constitution would have barred his way, as it reads: "The General Assembly shall have power to pass laws to prevent free negroes from coming to, and settling in this State, under any pretext whatsoever." (Mo.Const.Art III, Sec. 26.)

But, then, would not Douglass have gone to the Federal Court House, where Scott's case was to be tried, and sought an order injoining the State from barring his way, on the ground that the Constitution was the supreme law of the land and, under Art. IV, Sec. 2, it recognized his right to claim the privileges and immunities of a citizen of Missouri? Plainly, the Taney Majority foresaw the argument and blocked it by the device of sophistry.

"Each State may confer rights and privileges on any one it thinks proper [but] the rights he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization. Consequently, no state can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government. No State, therefore, can, by any act of its own, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family which the Constitution brought into existence, but were intended to be excluded from it." (Italics added.)

Note: Now that is a mouthful to digest, sentence by sentence. First, Taney states the obvious—that the "rights" you acquire as a citizen of Massachussets do not go with you into Missouri. So what? The point is, that, when you go into Missouri, whatever "rights" the citizens of that state enjoy, the Constitution mandates that you enjoy them, too. Second, Taney's next two sentences again state the obvious: Having given up to the Congress their sovereign right to make "aliens" in their territories, citizens, the States have no power left. Again, so what? Obviously, in 1854, an African, if characterized as an "alien," could not be a naturalized "citizen" because the Congress, in its Naturalization Act of 1790, had limited its operation to "white" persons. Thus, when, in the next sentence, Taney leaps to the "Therefore" conclusion, the predicates he bases the conclusion on are meaningless.

Notwithstanding this, if we freeze the picture in time, to 1789, and we ask ourselves—Honestly, do we think the framers, much less the people of the States who ratified the Constitution, intended to include within the meaning of We, the People of the United States of America, Africans whether free or slave? No, of course, not. It's a no-brainer. Though, at that time, Massachussets incorporated the preamble of the Declaration of Independence into its State Constitution, and, as the consequence, its Supreme Court ruled that slavery was prohibited in the State, thus making what Africans resided there, "free," this did not, ipso facto, make the Africans, citizens of the State, much less confer on them the status of being "citizens of the United States." However, if we assume a person is deemed a citizen of a State, if he fits the State law's definition of a voter, then a free African living in Massachusetts, in say 1820, qualifies.

Massachussets Constitution of 1820

Mass constitution

But, again: so what? The precise legal issue before the Dred Scott Court, was whether there was a diversity of citizenship between Scott, the plaintiff, and Sandford, the defendant. The answer turned on whether, as a matter of law, Scott was a citizen of Missouri, or of some other State or territory of the United States. And, if, we apply the Missouri Constitution of 1820, to resolve the question, we fiind that Scott was not a citizen of Missouri.

Missouri constitution

So, how do we find, as fact and law, that Scott was a citizen of some other State or territory of the United States? Keep in mind, that the fact Scott can claim he is a free person, because of some circumstance, does not, ipso facto, establish the ultimate fact that Scott is a citizen of a State or territory for purposes of Federal Court jurisdiction.

III

The Power of Congress to Prohibit Slavery

"Scott admits in his pleadings that he was born a slave, but claims to make out his title to freedom and citizenship by showing that he was taken by his owner to certain places, where slavery could not exist as a matter of law, and that therefore he became free, and upon his return to Missouri became a citizen of that State. If, on the other hand, the acts done by his owner did not make him a free person, he is still a slave, and certainly incapable of of suing in the character of a citizen.

Note: It is not objectively reasonable to say that a "slave" can be a "citizen." But, if a slave, recognized as such by the State in which he lives, is voluntarily taken by his master out of the State and into another whose public policy is that, in such circumstance the slave is deemed to be free, and then taken back, must the State to which he has been returned, recognize he is is now free,much less that he is its citizen? In Dred Scott's case, as his status as a free person, under the Law of Nations, the answeris plainly "No." As to his status as a citizen, Missouri's state constitution controls and it answers, "No."

While a sovereign State may, as a matter of comity between nations, enforce the public policy of another State, though the policy is contrary to its own, because it is sovereign in its own territory, it may refuse to recognize the other State's policy as trumping its own. This, to the chagrin of the dissenters, in Dred Scott, is what the Missouri Supreme Court ruled, in Dred Scott v. Emerson (1852) 15 Mo. 576. And it is here that the Taney Majority's opinion should have ended. But, the majority was interested in using Scott's case as the means of foreshadowing and ending the legal arguments that were to come, concerning the power of Congress to restrict slavery to the States where the Africans then were; indeed, to restrict the movement of Africans between the States where they were.

Scott sued, first, Emerson, and then Sandford, who had purchased him, for his freedom, based on the claim that Dr.Emerson had taken him from Missouri to Illinois and had held him there for two years as a slave,,contrary to the law of Illinois which prohibited slavery. The State trial court had instructed the jury that, if Emerson had done this, they were to find Scott to be free, which they did. Emerson appealed the verdict, and the Missouri Supreme Court reversed: on the ground that "Every State has the right of determining how far, in spirit of comity, it will respect the laws of other States. those laws have no intrinsic right to be enforced beyond the limits of the State for which they are enacted. No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws."

Missouri Chief Justice Gamble dissented from the majority view, writing: "We, here, are the citizens of one nation [Citizens of the United States, he means], composed of many different States which are all equal, and are each and all entitled to manage their own domestic interests and institutions, by their own law, except so far as the constitution of the United States interferes with that power. As the institutions of slavery in the State, is one over which the constitution gives no power to the Federal Government, it is left to be adopted or rejected by the several States, as they think best. . . . In this State, it has been recognized, from the beginning of government, that a master who takes his slave to reside in a State where slavery is prohibited, thereby emancipates his slave. (citing cases.)"

Both the Missouri Supreme Court's majority and C.J. Gamble, in Dred Scott's first try for freedom, based their view of the right decision, pro and con, on the ground of comity between nations, treating the States in the Union as the same as States unconnected to a Federal Government to whom they had transferred, in 1789, much of their sovereign powers. The question both sides passed over, in reaching their respective decisions, was whether the language of the Constitution might reasonably be intrepreted to mean the States, in ratifying the Constitution, had granted to Congress the power to recognize free persons as citizens of the United States. It is this queston the Taney majority raised as a straw man to knock down.

"Scott was a slave belonging to Dr. Emerson. In 1834, Emerson took Scott to the military post at Rock Island, Illinois and held him there as a slave until 1836, at which time Emerson took Scott to Fort Snelling in Minnesota Territory where he held Scott as a slave until 1838. In 1838, Emerson returned to Missouri with Scott where Scott has ever since resided."

Note: In 1849, Scott sued Dr. Emerson's wife in State court, under a statute which gave slaves standing to sue for their freedom. He won in the trial court and lost on appeal. Years later, after Emerson's wife sold him to her brother, a New York resident, Scott sued the brother in Federal Court on the same factual ground.

"The question is, then, did Scott's residence at the military posts, either in Illinois, or Minnesota Territory, make him a free person? The answer depends on whether the Constitution authorizes the Congress to pass a law that prohibits slavery in the Territory obtained from France in 1803."

Note: C.J. Taney has not yet stated the ultimate question: So what, if, as a matter of law, the Court holds that Scott's residence, whether in Illinois or Minnesota Territory, "make him a free person." The ultimate question is, Are all free persons living within a State, regardless of their ancestors' status as slaves, citizens of that State and, therefore, citizens of the United States? The Taney Majority avoids facing this question, obscuring it greatly, by writing a book-length opinion to support their rejection of the predicate—that Scott's residence in either place made him free.

Article IV, Section 3

"The Congress shall have power to. . . make all needful rules and regulations respecting the Territory belonging to the United States[.]"

"First, Scott argues that Congress has power to do so, under the Make all needful rules clause of the Constitution, but this clause has no bearing on the issue at controversy here, because the framers intended the clause to apply only to the Territory that the United States possessed and was within their boundaries as settled by treaty with Great Britian, in 1783."

Note: The majority spends ten pages of text to explain why this clause can not be deemed a constitutional basis for Congress passing the Missouri Admissions Bill with the restriction upon slavery in the Territory included. The majority easily could have answered the issue with one page of text that concluded, under the clause, Congress could pass the restriction. What drives the Court, here, is not the application of pure judicial rules of interpretation of a writing, to find the framers' intent, but a policy the court holds in view which it is determined to enforce. It is narrowly intrepreting the word "Territory" to mean merely, in the framers' minds, the territory Virginia, North Carolina and Georgia ceded to the "United States of America" in 1774-75, when the Constitution, ratified in 1787, was plainly intended to govern the Union to the eternity of time. It is not objectively reasonable for the Taney majority to seriously think the framers did not intend the meaning of the word—Territory"—in its broadest sense; i.e., whatever Territory the Union might acquire throughout its existence.

"The territory is acquired solely for the purpose of being formed into a new state, to be admitted on an equal footing with the existing states. Because there is no express provision in the Constitution which defines the power of the Federal Government may exercise over the person or property of a citizen in a territory thus acquired, we must look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which the Court's decision must be governed.

Note: Notwithstanding its narrow interpretation of the meaning of the word—"Territory"—the Taney Majority proceeds to consider the scope of powers the Constitution grants the Federal Government in regulating the territory obtained by purchase from France, in 1803.

Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrated to the [Missouri Territory], cannot be ruled as mere colonists (as the British Government might rule its American colonies?). The principle upon which our Governments rest, is the union of States. Whatever the Federal Government acquires, 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 promoting the interests of the whole people of the Union in the exercise of the powers specifically granted."

Note: The Court's language, here, states the political dilemma exactly. On the one hand, plainly, as the framers intended it, whatever the Federal Government acquires, it acquires for the benefit of the several states who created it. On the other, the framers charged the Federal Government with promoting the interests of the whole people of the Union, in their capacity as an indivisble "nation." Taney uses the phrase—"whole people"—in the sense that the Government cannot use power in making laws regarding the territory that discriminate against a part of the people. It is the tension between promoting a policy for the whole people versus promoting a policy that is neutral as to the several political communities into which the whole people are divided. By the evolutionary process of generational change, the tension smooths out as the parts are subsumed into the whole. It seems reasonably certain that this is what Washington intended, but the Taney majority ignores. Remember, however, that this is all about metaphysics, about abstractions; the problem is immediate, it is real, and abstractions are marshalled to support a policy decision the Taney majority is making; and, in the context of the times, not an unreasonable one.

"When the Federal Government enters into possession of Territory, it enters upon it with its powers over the citizen strictly defined and limited by the constitution, from which it derives its own existence. The powers over person and property of which we speak are not only not granted by the Constitution, but are in express terms denied. It is a total absence of power and places the citizen of a territory on the same footing with citizens of the states. And if Congress cannot do this, it cannot authorize a territorial government to do it. Upon these considerations, it is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning Africans as slaves in the territory of the United States is not warranted by the Constitution, and is therefore void; and that Scott was not made free by being carried into said territory."

Note: What the Court majority refused to recognize, in reasoning to its ruling, is the fact that the framers included an express clause in the Constitution which can be read to reflect their intent that the people of the several States give Congress the power to prohibit the migration of persons held as slaves from states to other states or territory of the United States, after the year 1808. (Art. I, Sec. 9.) In other words, that the framers intended the separate political communities to be governed, in the matter of interstate affairs by one uniform overarching national policy which would evolve in the ordinary passage of time.

Other clauses of the Constitution lead weight to the argument that the framers intended to grant power to Congress to decide the ultimate question, in the context of two opposing systems of labor sanctioned by the States, which system would be promoted as in the national interest. Somewhere the decision of Solomon is required. It is the difference between the political concept of "states" in a "union" in conflict with themselves, and the concept of "America" as a nation. The framers, certainly Washington, it can reasonably be argued, intended the Congress to use its power to promote America in contrast to promoting the interest of one group of states over the interest of the other.

Among the other clauses, for example, is the Naturalization Clause (Art. I, Sec. 8: "Congress shall have power to establish a uniform rule of Naturalization." In 1790, the Congress established the rule to be that only "free white persons" immigrating to America might be made "naturalized" citizens. The Taney Majority took the position that, thought the Congress might "authorize the naturalization of any one of any color," it had not power to so naturalize unless the person of color "was born under the allegiance to another government." Because, the majority said, the African race "was imported into this country or born in this country." But, since without question the African who was born in America and whose ancestors were imported into America, is, in fact, not a citizen, because, not being part of the political community, he is an alien in it, there is no intelligent reason why Congress does not have the power to naturalize him, and as a naturalized citizen of the United States, logic tells us he should be free to travel into any State.

But there is another point in the case which depends on State power and State law. It is contended on the part of Scott, that he is made free by being taken to Rock Island, in the State of Illinois; and being so made free, he was not again reduced to a state of slavery by being brought back to Missouri. But this question has been settled by the decision of the highest court in the state, after being fully argued. Scott might have appealed this decision, by writ of error, to the federal courts, but he elected not to do so. Yet, had he done so, the writ would have been dismissed on the ground that, under Strader v. Graham, the question was solely to be resolved by the law of Missouri where Scott was, and not the law of Illinois.

Note: The record does not make clear why Scott's several lawyers did not seek a writ in the federal courts, to review the decision of the Missouri Supreme Court, in 1849. Presumably, the answer is that they thought the effort fruitless, given the United States Supreme Court's ruling in Strader v. Graham. And, in this, they were probably correct. Scott's best chance to establish the fact of his freedom, was to bring suit in Illinois during the two years he was at Rock Island. The same can be said about the predicate of his being taken to Minnesota Territory.

Why, given the passage of years in which he was in these places, he waited until he was returned to Missouri, to bring suit, escapes comprehension—unless it was simply the fact that Dr. Emerson died and Scott's "ownership" was transferred to Emerson's wife. She then married a man who didn't want her owning slaves. Scott sued the wife at this point in state court, under a state law that gave him the right to bring a suit for freedom. After the Missouri Supreme Court ruled against him, the wife could have manumitted Scott and his family, or she could have sold them to someone in Missouri. Instead, she transferred her ownership in Scott to her brother, a resident of New York. It seems reasonable to conclude from her conduct, that she did this, in order to create the predicate to invoke the jurisdiction of the federal court. Therefore, the conclusion follows that Scott's suit was a suit brought to establish Scott's constitutional status as a "citizen of the United States, more than further his personal interest in freedom. The fact the wife's brother manumitted Scott after he lost the federal court case seems to confirm this conclusion.