Making Our Democracy Work (7 page)

In
Scott
, the Court was faced with an issue that the Constitution’s framers had postponed and that was reaching an explosive state. Aware that the South would not join a Union that prohibited slavery, the framers in effect postponed the question of slavery’s continued existence by writing into the Constitution a series of compromises. They
included language that said Congress, prior to 1808, could not prohibit the “Migration or Importation” of slaves into the United States. They prohibited any amendment affecting that bar. And they apportioned legislators (in the lower house of Congress) among the states according to population as determined by “adding to the whole Number of free Persons … three fifths of all other Persons,” that is, slaves. This method of counting (allowing the South additional representatives based on its slaves while understanding that the South would forbid its slaves to vote) meant that the South was overrepresented in the lower house of Congress and in the vote count for president. That overrepresentation initially gave the South sufficient political power to block abolitionist efforts.
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During the first half of the nineteenth century, however, population grew more rapidly in the newly acquired territories of the Northwest, rather than in the Southwest as the South had expected. That fact cost the South the political advantage it had been relying on to resist abolitionist legislation. Nonetheless, the North continued to fear that the South would use every political and legal device within reach to extend slavery into the new territories, thereby helping the South to maintain its political power once those territories became full states.
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In this atmosphere Congress had to decide how to treat new territories. In 1820, Congress had enacted the Missouri Compromise, forbidding slavery in territories north and west of Missouri. In 1845 it admitted Texas as a slave state, and in 1850 it admitted California as a free state. In 1854 it departed from the principles of the Missouri Compromise by permitting two territories north and west of Missouri—namely, Kansas and Nebraska—to choose for themselves whether to become slave states or free states.

In 1854, the year Dred Scott’s appeal reached the Supreme Court, the legal status of slaves in the territories was of enormous political importance. The South feared that new states, if free, would soon produce a Congress that abolished slavery. It wanted the Supreme Court to hold that individuals had a constitutional right to own slaves, even in the territories. The North, of course, wanted the Supreme Court to hold that Congress could prevent the spread of the South’s evil institution throughout the nation. The
Dred Scott
case would give the Court the
opportunity to justify the legal hopes of one region or the other by clarifying the legal status of slaves brought by their owners into free territory.

O
NCE BACK IN
St. Louis, Dred Scott initially brought his case against his then owner, Mrs. Emerson, in a Missouri state court. He pointed to earlier Missouri cases holding that a slave who resided for a time in free territory became a free man. The Missouri Supreme Court, however, rejected his claim, noting that “times are not now as they were when the former decisions on this subject were made.” Before the Missouri court’s decision was final, Scott brought the same suit (now against Sanford, his new owner and Mrs. Emerson’s brother) in a lower federal court. That court, stating that it must accept Missouri’s decision, rejected Scott’s claim. Scott then appealed to the U.S. Supreme Court.
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The case attracted considerable attention. A prominent attorney, later a member of President Lincoln’s cabinet, represented Scott. So did Benjamin Curtis’s brother. Two prominent lawyers, both U.S. senators, represented Sanford. The case presented two issues: First, a jurisdictional question concerning the Court’s authority to hear the case. The lawsuit was properly in federal court only if a “citizen” of one state was suing a “citizen” of another state. Sanford was a citizen of New York. Was Scott a citizen of a different state, namely, Missouri? Second, if Scott was a “citizen” and jurisdiction was proper, did the law make Scott a free man?
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The lawyers argued the case over the course of four days in February 1856. On May 12 the Court asked for reargument on the jurisdictional question. Court notes reveal that a majority had agreed to a compromise: Justice Samuel Nelson would write a short opinion rejecting Scott’s claim that he was free simply on the narrow ground that the Court, as a matter of comity, would follow the state courts. When two justices said they would write a dissent, however, that compromise unraveled. Chief Justice Taney reassigned the opinion to himself. On March 6, 1857, Taney read his lengthy opinion from the bench. The
next day Curtis read, and then released, his dissent. Taney then took the unusual step of rewriting his opinion, releasing his final version in May.
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T
HE
C
OURT INITIALLY
considered the first issue: Does the Court have the power to decide a case of this kind? If not—that is, if it lacks “jurisdiction”—then in principle Dred Scott must lose even if he is right about his other legal contentions, for the Court lacks the authority to help him. The chief justice, writing for the Court, described the jurisdictional question as whether “a negro, whose ancestors were imported into this country, and sold as slaves,” is “entitled to sue as a citizen in a court of the United States.” The chief justice, and the majority, held that the answer to this question was no. Even if Dred Scott was a free man, he was not a “citizen.”
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The Court’s reasoning was highly legalistic: The Constitution allows the suit only if the case arises “between Citizens of different States.” The word “citizens” was limited to “citizens of the several States when the Constitution was adopted.” And that group, said Taney, could not possibly have included freed slaves because public opinion would not have allowed it. Writing in language that has since become infamous, Taney explained that public opinion at that time considered Africans “so far inferior” to the “white race” that they had “no rights which the white man was bound to respect.” Even northern states where abolitionist sentiment was strong and slavery had been outlawed forbade slaves to serve in the state militia, limited their educational opportunities, and forbade interracial marriage. Moreover, many of the founders, themselves slaveholders, could not have intended the “equality” they preached to extend to slaves or former slaves. Furthermore, some contemporaneous federal statutes distinguished between “citizens” and “persons of color,” showing that the latter were not included among the former. Indeed, some attorneys general of the United States had expressed that view.
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Finally, Taney wrote that the Constitution guarantees to “citizens of
each State … all privileges and immunities of citizens in the several States.” In 1789, no one could have thought that the South would have granted “privileges and immunities” to former slaves whom the North considered free. The Court, Taney concluded, must not “give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.… [I]t must be construed now as it was understood” then.
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Curtis issued a powerful dissent. “[E]very free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States,” and consequently can sue a citizen of a different state in federal court. One reason Curtis thought this way was that at the time of the Constitution’s ratification, five states—New Hampshire, Massachusetts, New York, New Jersey, and North Carolina—included freed slaves among their citizens. Granted, these states may have imposed some disabilities on those freed slaves, but their laws permitted freed slaves to vote. Indeed, the North Carolina Supreme Court had explicitly held that slaves who were freed in North Carolina became North Carolina citizens if they had been born in the state. How can one understand the Constitution, which did not then define “citizen,” as excluding some of the very people who as citizens were allowed (in those states) to vote on the Constitution’s ratification? Moreover, the very purpose of allowing federal courts to hear “diversity of state citizenship” cases was to extend federal jurisdiction to cases where local feelings or interests might cloud the issues and “disturb the course of justice.” That purpose was the same whether a party to the case was of “white” or “African descent.”
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Saying that he would not “enter into an examination of the existing opinions of that period respecting the African race,” Curtis wrote that a “calm comparison” of the assertion in the Declaration of Independence that “all men are created equal” with the “individual opinions and acts” of its authors “would not leave these men under any reproach of inconsistency.” This comparison would show that the authors wanted to make the “great natural rights” asserted in the Declaration of Independence effectual wherever possible.
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Curtis also mercilessly destroyed the majority’s remaining arguments. Its statutory claim proved nothing, for, if the language of some
old federal statutes suggested that freed slaves were not “citizens,” the language of other old federal statutes suggested the precise opposite. Nor was its “privileges and immunities” argument convincing once one learned that that constitutional provision simply repeated an older guarantee in the Articles of Confederation that entitled “free inhabitants of each of these States … to all privileges and immunities of free citizens in the several States.” This language did not suggest that a freed slave was not a citizen. To the contrary, the drafters of the articles explicitly rejected by a vote of eight states to two (with one state divided) a South Carolina amendment that would have inserted the word “white” between the words “free” and “inhabitants.” This strongly suggested that the privileges and immunities clause protected
all
free citizens, not just white citizens.
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The Court, however, rejecting Curtis’s views, held that it had no power to hear the case or decide the merits of Scott’s claim (because Scott was not a citizen). Nonetheless, it went on to do just that. The Court majority held that Dred Scott’s three-year sojourn in the free territory of Wisconsin and in the free state of Illinois did not emancipate him. The majority might have reached this conclusion by simply relying on the fact that Missouri state courts had reached it and that federal courts should follow state courts on matters of state law. But in the 1850s that was not always so; federal courts often second-guessed state courts on state law matters, particularly where the matter concerned judge-made common law, not statutory law.
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In respect to slavery, both the common law and foreign law were uniform and clear. As Curtis pointed out in his dissent, when a master took a slave into free territory and lived there indefinitely, participating in the territory’s “civil or military affairs,” the slave became free. This was certainly the case when the slave married and had children in a free territory. Indeed, important federal statutes—the Missouri Compromise, for example—made this clear, by insisting that the law of the Wisconsin Territory, the jurisdiction in which Fort Snelling was located, did not permit slavery. It therefore gave Dred Scott his freedom.
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The Court majority countered that the laws of Congress, such as the Missouri Compromise, did not apply because, in its view, Congress lacked the power to make those laws. The Court had to concede that
the Constitution’s territories clause says that 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.” But, the majority said, the language, history, and structure of the Constitution made clear that this clause applied only to those territories that existed as territories in 1789, namely, certain land belonging then to Virginia, North Carolina, and a few other states, which those states intended to cede to the federal government. Congress, the majority conceded, had an implied power to hold territory for the sole purpose of turning it into new states. But it could not interfere with the rights of citizens entering or living within that territory—any more than if they were citizens of states. And were they such citizens, the Constitution would forbid the federal government to interfere with their rights to own slaves. This (and here lies the heart of the majority’s pro-slavery position) is because the Constitution forbids Congress to deprive a person of property without due process of law. The Constitution, wrote the majority, recognizes the “right of property of the master in a slave.” And nothing gives Congress “a greater power over slave property … than property of any other description.” The opposite is true: The fugitive-slave clause requires that slaves who escape into other states be returned to their owners. This clause, read together with the due process clause’s prohibition on the deprivation of property without due process of law, the majority reasoned, meant that the Constitution insisted that the federal government “guard” and “protect” the “[slave] owner in his rights.”
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Thus, the Court’s conclusion: “The act of Congress which prohibited a citizen from holding and owning property of this kind … is not warranted by the Constitution and is therefore void; and … neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.”
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