Dred Scott: Slavery as “doctrine and principle”

Part three of our look at the 1857 Dred Scott decision comes to the section of Chief Justice Taney’s majority opinion in which he switches from detailing precedent—the ways in which U.S. law has had slavery written into it—to explaining why the Founders did that, why they held racist beliefs about black people, why they had no choice but to respond by writing slavery into U.S. law, and why, therefore, Taney and his Court will have no choice but to uphold that law and to uphold slavery.

Let’s resume the text of the decision; again this is not the complete text, but excerpts taken in order. All italics are mine:

“…[T]he legislation and histories of the time [when the Declaration of Independence was written], and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

“It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted….

“They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery. . . He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”

—Here Taney is not saying, Look at how racist people were back then. He is not just describing a previous time and its beliefs. You have to remember that Taney is writing as the Chief Justice of the Supreme Court, and he is writing about the men who founded our government. This is a civics lesson. Just as we said in the last post, this is not mere private opinion. Because these opinions about black people are in the minds and mouths of the Founders, these opinions literally become the philosophical foundation of our system of government and code of law.

The line that is almost always pulled from this opinion and quoted is the line, “the negro has no rights which the white man is bound to respect”. But notice that this not not a judgment Taney makes; he is describing not his personal opinion or a universal principle but the opinions of the Founders. We know enough by now to recognize that this is citing precedent—Taney is not making a judgment of his own. It’s not Taney saying “the negro has no rights which the white man is bound to respect”, it is the Founders and all U.S. slave law since them. We’ve mentioned in the previous post that the Taney decision actually will be “this Court has no business even hearing the Dred Scott case because he is not a U.S. citizen, therefore we decline to give a ruling.”

Taney ends that quote by saying none of the Founders ever doubted that their low opinion of black people was correct; he will reiterate this in the next paragraph, in which he expands to say that England, our founding nation, shared the same opinion, and that no one seems to have doubted that it was correct. He then cites some of the slavery laws of the American colonies, and then says,

“[T]hese laws … show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power…

“We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted … in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them [black people], or to give to them or their posterity the benefit of any of its provisions.”

—The first lines give you hope: Taney describes slavery as despotic. He describes a barrier put between black and white and you think, for a moment, that he will describe that barrier as false and wrong. But it is not to be. Remember, the question is not whether slavery is right or wrong. The question is, Is slavery supported and enforced by U.S. law? You may hate slavery, Taney may hate it, but that is not the issue. Support it or hate it, if slavery is enforced by and enshrined in U.S. law, the Court must uphold it. The only alternative is to call slavery unconstitutional.

Why not do just that? Taney is getting to that. Is there an argument to be made that the line “All men are created equal” should now apply to black people? Notice how Taney adds “to black people or their posterity” to the last line above. It’s a quick little clause but it’s important. If the Constitution was not meant to give equal rights to black Americans living at the time of its ratification in 1787, could it possibly be changed to offer those rights to their children and grandchildren?

This is tricky because Taney is asking what the Founders intended for the future. Did they say anything that seems to open the door to freeing black people decades after 1787—i.e., 1857, the year of the Dred Scott case?

“But it is too clear for dispute, that the enslaved African race were not intended to be included… for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.”

—Why would including black Americans as equal citizens have exposed the Founders to “rebuke and reprobation”? Because you cannot designate one group of people as inferior, incapable of understanding or law, and then give them full rights of citizenship. That cheapens citizenship, and makes democracy  impossible. It’s like making people who can’t swim lifeguards. If you say black people are ignorant and incapable of law, you cannot include them without making your democracy a sham.

Yet the men who framed this declaration were great men… high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, no one misunderstood them. The unhappy black race were separate from white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.

—It was no accident, it was no oversight. The Founders deliberately excluded black Americans from the definition of citizen, based on the “established doctrine and principles” of the civilized world of their time. They had no choice but to do so—those doctrines and principles demanded it. As “great men”, the Founders could not cheapen and destroy their own democracy by including people who could not live up to it. They could not forsake the judgment of the civilized world (this will be important as we wait to see if Taney will forsake that judgment to overturn slavery). Taney adds,

“This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language…”

—So from 1776 to 1787 there was not change in established doctrine. What about after 1787?  Taney nixes the hope that since then there has been any change in doctrine:

“…It would be impossible to enumerate … the various laws, marking the condition of this race, which were passed from time to time after the Revolution, and before and since the adoption of the Constitution of the United States. …The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards… To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given…. ”

—Taney then broadens the scope:

“For if [black Americans were] entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.”

—This is complex. Taney is saying that if his Court overturned slavery to make black Americans citizen, two things would happen: a) this would overturn myriad slave laws already in place and serving as part of the precedent of upholding slavery, and b) those laws were put in place for the protection of black Americans. The latter is an example of the popular idea of the mid-19th century that slavery helped black people by protecting them from their own ignorance and other shortcomings.

So overturning slavery as unconstitutional is the only way to break from precedent, but that is hard to do when precedent seems so well-founded in the princples and doctrine of the wisest and best men of western civilization, freedom-loving men who would clearly grant liberty to anyone who deserved it, and compassionate men who put in place laws to help protect those who did not deserve liberty from themselves. Precedent is also enshrined in dozens of state laws.

Taney is moments from his conclusion; we will cover it in the next post. For now, we see that he began by citing precedent in U.S. law supporting slavery. He then reached back to find precedent for U.S. law in colonial and English law. By doing so, he removed racism from the realm of opinion to the realm of principle. Notice again how his own Court, his own decision, has not made an appearance. Taney was not about the make a ruling on the controversial slavery issue. He knew the uproar it would create if his Court found Scott to be free or if it found Scott to be still enslaved. He resented Congress bailing on its duty to write legislation to solve the slavery debate once and for all by throwing the issue at the Court. He therefore turns back to the original legislators, the Founders, to do the dirty work for everyone and uphold slavery.

Next time: the final decision

Reading the Dred Scott Decision: Precedent, precedent, precedent

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