Summarizing the Dred Scott Decision

Posted on September 20, 2011. Filed under: Civil Rights, Politics, The Founders, U.S. Constitution | Tags: , , |

Here in the final installment of our series on the 1857 Dred Scott decision, we conclude our close reading of Chief Justice Taney’s majority opinion and sum up what the case meant in its own time, and what it means to us today.

Taney began the opinion by citing precedent for upholding slavery, pointing out that slavery was written into U.S. law by the Founders. He then explained why the Founders were racist (as we would say; Taney certainly did not put it this way), and thought black people were inferior, and took this to its logical conclusion—if black Americans are ignorant and cannot understand law, they cannot be made citizens because they cannot uphold democracy. Therefore, the Founders did not accidentally omit black Americans from the definition of citizen, but consciously acknowledged that black Americans could not function as citizens. Thus, they did not ever mean for the definition of  citizen to be changed to include black Americans.

Remember that this is Taney’s interpretation; we know that slavery was such a divisive issue amongst the Founders that the new nation was almost torn apart at the Constitutional Convention of 1787. Plenty of Founders did not hold this opinion of black Americans, and even many of those who supported slavery did believe that someday it might be abolished. But we need to stick with Taney’s thinking here to understand his decision.

We see that Taney is actually avoiding ruling on Dred Scott and slavery at all; he is refusing to involve his Court in the slavery debate because he believes Congress should be the sole author of slave law. Taney says the Court’s hands are tied: enslaved people are miserable, Taney says, and the people enslaving them are despotic, but the law is the law.

Why not just amend the Constitution if slavery is wrong? Overturn precedent—the Court can do that. Here, in his conclusion, Taney will erase that possibility as well. Again, these are excerpts, and not the full text of the opinion, and all italics are mine:

“No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to 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.”

—So even if not everyone looks down on black people like they did in the past, slavery is law in the U.S., it is supported by the Constitution, and black people are specifically and deliberately excluded from citizenship by the Constitution. You can’t have a liberal interpretation of the Constitution in this regard—it allows no loopholes.

“Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended;”

—At last! Why not just amend the Constitution if we’re not all agreed now, in 1857, that slavery is justified because black people are inferior?

“…but while it remains unaltered, it must be construed now as it was understood at the time of its adoption… Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes.”

—This is an astounding solipsism. Taney is saying that the Constitution can be changed (altered), but until it is changed, it must be obeyed (“it must be construed now as it was at the time of its adoption”). So yes, you can change the Constitution if you deem it unjust, but until you change it you can’t change it. And he’s not going to change it… because it hasn’t been changed yet.

Equally astounding is the next statement, that changing the Constitution (ruling differently on its construction) is not something the judicial branch can do. Taney equates finding the Constitution to be unjust with popular fads or opinions. The implication is that no reasonable, far-sighted, intelligent person would ever find the Constitution to be unjust, so anyone who wants to change it is a nut who probably has lots of crazy ideas. The judiciary will not stoop to that. This despite the clear role laid out in the Constitution for the judicial branch to analyze U.S. laws and amend any that are unjust.

“And upon a full and careful consideration of the subject, the court is of opinion, that… Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts…”

—After maintaining that the judiciary has no Constitutional role in changing U.S. law, and reiterating that it was no accident that led the Founders to exclude black Americans from citizenship, Taney delivers the actual opinion in Dred Scott v. Sandford: there is no Dred Scott v. Sandford. The case should never have been brought in the first place since black Americans aren’t citizens. Taney is basically saying a) his hands are tied—he could never overturn slavery by amending the perfect Constitution, and b) that option isn’t even open to him since he’s not hearing a case about slavery, but dismissing a wrongful suit.

Now Taney makes a bizarre statement:

“It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a [monetary] or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment, would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be drawn into precedent, and lead to serious mischief and injustice in some future suit.”

—How a judgment in Scott’s favor, which would have made him and his wife free, could make “very little, if any, difference” to that enslaved man is unclear, to put it mildly. Taney seems to be saying, Hey, whatever way we went on this one wouldn’t matter to the slaveholder and the slave themselves, because it’s not about them. The case is about precedent in the law, and if we had ruled at all in this case—either for or against Scott—we would have sanctioned re-interpreting the perfect Constitution, and that would have created a whole new string of precedent that might someday do the “serious mischief and injustice” of outlawing slavery.

“Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no juisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequestly, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction.”

—Since black Americans are not citizens, Scott should never have appeared in any U.S. court, and so the Circuit Court was wrong to hear the case and issue a ruling, and the case is now dismissed.

And that’s it, for Scott, Sandford, Taney and his Court, and the American people. The Constitution is perfect because it was the work of the Founders who were steeped in the best wisdom of western Civilization, it has been upheld by precedent, and it is not supposed to be amended by anyone, especially not the Judiciary. The Court could amend the Constitution, but until it does that, it won’t do that.

The Dred Scott decision, after close reading, comes across as less a fiery defense of slavery and the idea that black people are inferior than as a lame, panicky, resentful hand-washing by the Court. It does not want to deal with slavery, so it won’t hear the case. It can’t change the Constitution until it does so, and until then the Constitution must be obeyed as-is. Dred Scott is shameful for many reasons, but chief among these, perhaps, is that the highest institution of our Judiciary took a pass on its Constitutionally mandated responsibilities in the name of the Constitution, and doomed its own citizens to slavery without having the guts to admit it. 

It would take President Lincoln and his Republican Congress to amend the Constitution to ban slavery, putting that amendment to a vote by the free citizens of the U.S., and finally ending slavery in this country.

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The Dred Scott Decision: An Investigation

Posted on September 15, 2011. Filed under: American history, Civil Rights, Politics, U.S. Constitution | Tags: , |

To say that the 1857 Dred Scott Decision is a landmark of U.S. jurisprudence, history, and civil rights is an understatement. It is one of the bare handful of Supreme Court cases and decisions that is regularly studied in U.S. schools (along with Plessy v. Ferguson, Brown v. Board of Education, and the early Marshall decisions).  What most Americans learn about Dred Scott is this:

In 1857, the United States Supreme Court, led by Chief Justice Roger B. Taney, declared in its Dred Scott v. Sanford decision that black Americans, whether they were considered free people or enslaved, were not citizens of the U.S. and could never become citizens because of their race. Dred Scott was an enslaved man who lived in Missouri. The man enslaving him took Scott and Scott’s wife Harriet  north to the free states of Illinois and Wisconsin, then took them back to slave Missouri. Scott claimed that once he and Harriet had crossed the border into free states, they had become free, as slavery was not allowed in those states. Once a person has gained free status, whether deliberate or not, he or she cannot be returned to slavery.

Chief Justice Taney was firmly pro-slavery and his decision was based on his desire to protect slavery where it existed in the southern states and where it might be outlawed in the west. In his majority decision, Taney said that black Americans “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”

Taney then topped this outrageous statement with the assertion that the Declaration of Independence’s ringing statement that “all men are created equal” did not apply to black people. He wrote, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration…”

Taney’s racism and determination to protect slavery led him to disallow Scott to even present a case to the Supreme Court, since he was not  U.S. citizen and to reaffirm not only the legality of slavery but its righteousness. One man’s mission sentenced millions of people to slavery.

This common interpretation of the decision is not quite right. Its outcome was, indeed, that slavery was upheld. But the decision is more a careful avoidance of drawing conclusions about slavery than a pro-slavery manifesto. It is just another in a decades-long series of non-decisions that refused to get the Court involved in the impossibly dangerous slavery debate. The Court had, for years, insisted that Congress fulfill its appointed duty to legislate and create a law to solve the slavery issue once and for all. It would not accept Congress lobbing that hot potato back in its lap.

In the next post, we’ll look briefly at the context of the Dred Scott case, and see why the Court was put in the position of deciding a slavery issue, and why it resisted doing just that so vehemently.

Next time: the slave question in 1857

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