Guest Essayist: Joerg Knipprath

Dred Scott lost his appeal for a second reason, his status as a slave. The Court’s original, since-abandoned, plan had been to decide the whole suit on the basis of the Strader precedent that Scott was a slave because the Missouri Supreme Court had so found. That approach still could have been used to deal summarily with this issue in the eventual opinion. But Taney struck a bolder theme. He analyzed the effect of Scott’s residence in Illinois and Wisconsin Territory on his status. This allowed Taney to challenge more broadly the prevailing idea that the federal government could interfere with the movement of slavery throughout the nation.

Taney opined that the federal government’s power to regulate directly the status of slavery in the territories, including its abolition, was derived from Article IV, Section 3, of the Constitution, which authorized Congress to “make all needful Rules and Regulations respecting the Territory … belonging to the United States” and to admit new states. However, Taney claimed, this provision applied only to the land that had been ceded to the United States by the several states under the Articles of Confederation. Thus, Congress could abolish slavery in the Northwest Ordinance of 1787, reenacted in 1789, because it applied to such ceded land. Any territory acquired by the United States thereafter, such as through the Louisiana Purchase or the Treaty of Guadalupe Hidalgo after the Mexican War, was held by the United States in trust for the whole people of the United States. Thus, white citizens who settled in those territories did not lose the rights they had acquired residing within their previous states. They were not “mere colonists, … to be governed by any laws [the general government] may think proper.” These rights would include that to property and extended to the property in slaves.

Lastly, Taney explained, the Fifth Amendment expressly protected against federal laws that sought to deprive a person of his life, liberty, or property without due process. Due process guaranteed not only a fair trial, but protected generally against arbitrary laws. A law that deprived a person of property, including slaves, simply because he moved into a territory controlled by the federal government, “could hardly be dignified with the name of due process of law.” This was a founding example of the doctrine of substantive due process that has been invoked by the courts in more recent cases to strike down laws against abortion and same-sex marriage. Taney’s distinction between the constitutional rights of citizens and colonists and his postulate that the Constitution limited Congress’s power of administering the territories settled by Americans reappeared in modified form a half century later in cases dealing with Congress’s control over overseas territory acquired after the Spanish-American War.

Scott did not become free by residing in free territory, because the Missouri Compromise of 1820, which excluded slavery from Wisconsin Territory, was unconstitutional. That decision was radical because it upset a long constitutional custom of geographically dividing free from (potentially) slave territory, beginning with the Northwest Ordinance, but which had been undermined in the Compromise of 1850 and the Kansas-Nebraska Act of 1854. Nor could Wisconsin’s territorial legislature abolish slavery, in Taney’s analysis, through the newly-minted doctrine of “popular sovereignty.” That legislature was merely an agent of Congress, and had no more power to destroy constitutional rights than did its principal.

“Popular sovereignty” lay at the core of the Compromise of 1850 and the Kansas- Nebraska Act. That doctrine, championed by Senators Henry Clay and Stephen Douglas, allowed slave holders to bring their property into all parts of the politically unorganized territorial area. Under the Northern view, once organized as a territory, the people acting through a convention or through their territorial legislature might authorize or prohibit slavery. Under the Southern view, only states could abolish slavery, and any such prohibition had to await a decision of the people when seeking statehood or thereafter. The Court thus endorsed the Southern perspective, further inflaming sectional tensions because the two federal compromise laws had always been a bitter pill to swallow for many in the North.

Four of the concurring justices wrote opinions that reached the same result via various other doctrinal paths. Two dissented. The main dissent, by Benjamin Curtis—whose brother George Ticknor Curtis was one of Scott’s attorneys—relied on the theory that state citizenship was the source of national citizenship. Therefore, once someone resided in a state, and was not merely a sojourner, he acquired the rights of citizenship in that state. Scott, having resided in a free state, had shed his status as a slave and could not be reduced to that status merely by returning to Missouri. Once free, he was also entitled to all privileges and immunities of citizens, which included the right to travel freely to other states. Curtis’s theory, by focusing on states as the source of all citizenship, was even more inconsistent than Taney’s with the eventual language of the Fourteenth Amendment, which embodied a national supremacy approach.

From the beginning, the Dred Scott Case was received poorly by the public. Its controversial, and to us odious, result also tarnished the legacy of Roger Taney. Viewed from our more distant historical perspective, perhaps a more nuanced evaluation is possible. Judged by intellectual standards, Taney’s opinion showed considerable judicial craftsmanship. Taney himself was an accomplished and influential Chief Justice, whose Court addressed legal and constitutional matters significant for the country’s development.

Why then did Taney opt for an approach that destroyed the delicate balances worked out politically in the Congress, and would have nationalized the spread of slavery? After all, the narrower route of Strader lay open to the Court for the same result. Part of it was sympathy for the Southern cause, although Taney by then was not himself a slave owner. Indeed, while in law practice, Taney had vigorously denounced slavery when defending an abolitionist minister accused of inciting slave rebellions. Mostly, it was the perception that the political process was becoming unable to negotiate the hardening positions of both sides on the various facets of the slavery controversy. Those facets included protection of the “peculiar institution” in the existing slave states, expansion of slavery into new territory, and recapture of fugitive slaves from states hostile to such efforts.

The relatively successful compromises of the late 18th and early 19th centuries with their attendant comity among the states were in the distant past. Congressional efforts were increasingly strained and laborious, as experience with the convoluted process that led to the Compromise of 1850 had shown. Southerners’ paranoia about their section’s diminished political power and comparative industrial inadequacy, as well as Northerners’ moral self-righteousness and sense of political ascendancy eroded the mutual good will needed for compromise. Presidential leadership had proved counterproductive to sectional accommodation, as with James Polk and the controversy over potential expansion of slavery into territory from the Mexican War. Or, such executive efforts were ineffective, as with Franklin Pierce’s failed attempt to act while President like the compromise candidate that he had been at the Democratic convention. Worse yet, eventually such leadership was non-existent, as with James Buchanan.

There remained only the judicial solution to prevent the rupture of the political order that was looming. Legal decisions, unlike political ones, are binary and generally produce a basic clarity. One side wins, the other loses. Constitutional cases add to that the veneer of moral superiority. If the Constitution is seen as a collection of moral principles, not just a pragmatic collection of political compromises, the winner in a constitutional dispute has a moral legitimacy that the loser lacks. Hence, Taney decided to cut the Gordian knot and hope that the Court’s decision would be accepted even by those who opposed slavery. Certainly, President Buchanan, having received advance word of the impending decision, announced in his inaugural address that he would accept the Court’s decision and expected all good citizens to do likewise.

Unfortunately, matters turned out differently. At best, the decision had no impact on the country’s lurch toward violence. At worst, the decision hastened secession and war. Abraham Lincoln presented the moderate opposition to the decision. In a challenge to the Court, he defended the President’s independent powers to interpret the Constitution. In his first inaugural address, Lincoln disavowed any intention to overturn the decision and free Dred Scott. He then declared, “At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Scott and his family were freed by manumission in May, 1837, two months after the decision in his case. Scott died a year later.

In the eyes of many, the Court’s institutional legitimacy suffered from its attempt to solve undemocratically such a deep public controversy about a fundamental moral issue. A more recent analogue springs to mind readily. Many years after Dred Scott, partially dissenting in the influential abortion case Planned Parenthood v. Casey in 1992, Justice Antonin Scalia described a portrait of Taney painted in 1859: “There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation—burning on his mind.” Scalia’s linkage of Taney’s ill-fated undemocratic attempt to settle definitively the slavery question by judicial decree to the similar attempt by his own fellow justices to settle the equally morally fraught abortion issue was none- too-subtle. Lest someone miss the point, Scalia concluded: “[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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