Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

The Missouri Compromise

William C. Duncan, Director of the Marriage Law Foundation

In our day, it is common, indeed expected, for the United States Supreme Court to strike down laws passed by Congress as unconstitutional. In the first decades of the United States, however, this was an exceedingly rare practice. In fact, in 70 years, the Court struck down only two federal laws as unconstitutional. The second of these was the Missouri Compromise.

The Compromise was legislation that arose out of a controversy about extending slavery into the northern parts of the territory acquired during the Louisiana Purchase.  The legislation “admitted Missouri as slave state but otherwise prohibited slavery in the Louisiana Purchase territory north of 36°30’.” Forrest McDonald, States Rights and the Union 133 (2000). This was a “compromise” in that it prevented (1) the spread of slavery into the northern part of the territory, (2) ensured the possibility of slave states south of the line, and (3) prevented harsh and divisive debates over slavery in any states that would be part of the new territory. Its abolitionist critics noted that it was a compromise that allowed for an evil practice to spread.

The Compromise created a difficult balance not only because it tolerated slave-owning but because it inserted the national government into issues that had traditionally been only of state concern. As a result, as Forrest McDonald notes writing about how the Compromise was viewed decades later, some Southerners “had long felt, vaguely, that the Missouri Compromise line was unconstitutional” (p. 167).

This is where the Supreme Court comes in. The constitutionality of the Missouri Compromise became a central issue in the Supreme Court’s infamous decision in Dred Scott v. Sandford (1857). This case involved a petition by a slave for his freedom and for that of his wife and children. In deciding the case, the court engaged in an early instance of judicial activism, holding that black persons could not be citizens of the United States and that residence in a free state did not result in a slave’s being freed.

Additionally, the court went beyond the issues it was asked to address in the case by holding the Missouri Compromise unconstitutional. The Court invoked the Fifth Amendment’s due process clause (later to be used by Twentieth Century courts as the source for other unwritten rights). It said: “an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

The Dred Scott decision contributed to a financial panic and to the victory of Republican Party in the 1858 Congressional elections. With other factors, it contributed and, with other factors to Abraham Lincoln’s success in the 1860 presidential election, to secession and eventually to the Civil War. Ultimately the effort to buy temporary respite from controversy by acquiescing in existence of a serious wrong was doomed to fail.

The history of the Compromise can be a cautionary tale for us today. It teaches us that the Supreme Court is just another branch of government and has no particular monopoly on wisdom (which suggests that the practice of seeking to find new constitutional “rights” through Supreme Court decisions is bad policy). More importantly, it shows that moral compromises are always tenuous and can’t hold over the long term.

Read The Missouri Compromise here:

William C. Duncan is director of the Marriage Law Foundation ( He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

Thursday, April 25, 2013 – Essay #49

2 replies
  1. Ralph Howarth
    Ralph Howarth says:

    I am left wondering what the other law that was struck down as unconstitutional. I would like to say it was one of the central bank charter laws; but I am not sure at the moment as there were several attempts of establishing a central bank. Then there were attempts to dig canals and aiding failing industries that were blocked.

    • yguy
      yguy says:

      I am left wondering what the other law that was struck down as unconstitutional.

      Presumably the author refers to the mandamus provision of the Judiciary Act of 1789, struck down in Marbury v Madison.


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