Part two of our look at the 1857 Dred Scott decision leads us to do a close reading of the words of its author, Chief Justice Roger Taney.  This close reading will show and focus on Taney’s thorough, driving citation of precedent in the question of slavery and race in United States law.

Taney’s citing of precedent serves, as we shall see, two purposes: first, it puts the burden of deciding whether enslaving black people is legal and/or morally justified onto previous generations, removing it from the shoulders or conscience of the Court; second, it makes the question of enslaving black Americans moot, removing the need for the Taney Court to make a decision on this controversial issue.

Let’s begin reading Taney’s majority decision. This is not the full text! It is excerpts taken in order. The full text is far too long for this format. All the italics are my own, to highlight meaning:

“The question is simply this: 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 of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution[?]”

—The seemingly meaningless, boilerplate starter “the question is simply this” is actually freighted with meaning. Taney will repeat it later. It serves to say, “We are facing a legal question, as a Court. This means that we must take the issue of slavery as a legal question that has been dealt with in courts before ours, and therefore a thorough examination of precedent—how those earlier courts decided the question—is not only necessary, but will likely answer the question for us.” In our justice system, precedent is very important. If 50 courts before you have decided one way on an issue, you have no legal footing to decide a different way, unless you are going to say the law is unconstitutional and needs to be changed.

The Supreme Court does just that from time to time, of course; there are occasions when it overturns precedent and says an existing law is unconstitutional and therefore all those previous judgments were wrong. But this is rare. So when Taney brings up the definition of “citizen” as specified in the Constitution, you know he is not likely to overturn that definition.

“The question before us is, whether [people of African ancestry] compose a portion of this people [described in the Constitution as citizens], and are constituent members of this sovereignty? We think they are not, and that they are not included, and 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.”

—Again, we have to read this as a description of precedent, not someone’s personal opinion. Yes, Taney says “We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution”, but what he is saying is, Because the writers of the Constitution did not intend to include black Americans as citizens, we are forced to think that they cannot now be citizens. Precedent—if the Founders did not specifically include black Americans in the definition of citizen, then that is an important piece of precedent for the Court today to take into consideration.

You may be asking at this point, Where in the Constitution does it say black Americans are not and cannot be U.S. citizens? The Constitution doesn’t say that anywhere. We will deal with that, as Taney does, in our next post. For Taney does, in the second half of his decision, provide and lengthily analyze proofs that the Founders did not include and could not ever have intended to include black Americans as citizens. So for now, let’s continue with his establishment of that precedent.

“On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”

—This is not a burst of personal-opinion racism, but again a description of legal precedent: if the Founders who created our Constitution saw black Americans as inferior, and wrote that into our law, and did not choose to grant them the right and privilege of citizenship because of that perceived inferiority, then we, the Court today in 1857, have to take that into consideration. It wasn’t just a private belief of the Founders; they wrote it into our law. Therefore, racial inequality must be seen as part of our law, and therefore difficult to overturn.

You see how Taney is moving here. He is painstakingly setting Dred Scott up to fail. If racism is not just personal, but legally incorporated into the law of the United States by our Constitution, Taney’s Court is likely going to have no choice but to decide against Scott without even having to think about it, without having to consider Scott’s case. In the eyes of precedent, Scott’s case was heard and decided against him 70 years ago, in 1787, when the Constitution was written and ratified.

“[Therefore Dred Scott] could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts.”

—This will be the eventual conclusion of this long decision. Since the Constitution says Scott is not a citizen, he has no right to even bring a case into a U.S. court. Again, precedent allows the Taney Court to dodge the controversial bullet of the slavery issue by refusing to even hear the case.

“It is true, every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body… And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members, according to the provisions of the Constitution and the principles on which it was founded…”

—So only those who were deliberately included in the definition of “U.S. citizen” when the Constitution was written in 1787 are citizens today in 1857. And, crucially, people who weren’t included in that definition (immigrants, for the most part) were only able to become citizens if doing so did not overturn the Constitution and “the principles on which it was founded”.

This is important. Taney sees that there are some people who have to become citizens of the U.S., and that they are allowed to do so.  How can you give a foreign-born person U.S. citizenship? And how can you give an immigrant citizenship but not a black American, native-born right here in the U.S.? What’s the difference?

Taney is going to answer this question in the second half of his decision, which we’ll look at next time. For now, we see that he has skillfully avoided even dealing with the issue of slavery by using precedent to show that a) you cannot rule against slavery without amending the Constitution; but b) no Court has ever done that, so it’s unlikely that it should be done, and c) the Court couldn’t overturn the Constitution even if it wanted to because Scott, as a non-citizen, can’t bring a case to trial in the U.S. and therefore the case before the Court must be dismissed.

Next time: Why some people could become citizens, but not black Americans