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The U.S. Supreme Court hands down its decision on Sanford v. Dred Scott, a case that intensified national divisions over the issue of slavery.
In 1834, Dred Scott, a slave, had been taken to Illinois, a free state, and then Wisconsin territory, where the Missouri Compromise of 1820 prohibited slavery. Scott lived in Wisconsin with his master, Dr. John Emerson, for several years before returning to Missouri, a slave state. In 1846, after Emerson died, Scott sued his master’s widow for his freedom on the grounds that he had lived as a resident of a free state and territory. He won his suit in a lower court, but the Missouri supreme court reversed the decision.
Scott appealed the decision, and as his new master, J.F.A. Sanford, was a resident of New York, a federal court decided to hear the case on the basis of the diversity of state citizenship represented. After a federal district court decided against Scott, the case came on appeal to the U.S. Supreme Court, which was divided along slavery and antislavery lines; although the Southern justices had a majority.
During the trial, the antislavery justices used the case to defend the constitutionality of the Missouri Compromise, which had been repealed by the Kansas-Nebraska Act of 1854. The Southern majority responded by ruling on March 6, 1857, that the Missouri Compromise was unconstitutional and that Congress had no power to prohibit slavery in the territories. Three of the Southern justices also held that African Americans who were enslaved or whose ancestors were enslaved were not entitled to the rights of a federal citizen and therefore had no standing in court.
These rulings all confirmed that, in the view of the nation’s highest court, under no condition did Dred Scott have the legal right to request his freedom. The Supreme Court’s verdict further inflamed the irrepressible differences in America over the issue of slavery, which in 1861 erupted with the outbreak of the American Civil War.
READ MORE: America's History of Slavery Began Long Before Jamestown
Supreme Court rules in Dred Scott case - HISTORY
The Dred Scott Decision
Digital History ID 293
Author: Roger B. Taney
In March 1857, the Supreme Court answered a question that Congress had evaded for decades: whether Congress had the power to prohibit slavery in the territories. The case originated in 1846, when a Missouri slave, Dred Scott, sued to gain his freedom. Scott argued that while he had been the slave of an army surgeon he had lived for four years in Illinois, a free state, and Wisconsin, a free territory, and that his residence on free soil had erased his slave status.
All nine justices rendered separate opinions, but Chief Justice Roger B. Taney (1777-1864) delivered the opinion that expressed the position of the court's majority. His opinion represented a judicial defense of the most extreme proslavery position. The Chief Justice made two sweeping rulings. The first was that Scott had no right to sue in federal court because neither slaves nor free blacks were citizens of the United States. At the time the Constitution was adopted, the Chief Justice wrote, blacks had been "regarded as beings of an inferior order" with "no rights which the white man was bound to respect." (In fact, some states did recognize free blacks as taxpayers and citizens at the time that the Constitution was adopted).
Second, Taney declared that any law excluding slaves from the territories was a violation of the Fifth Amendment prohibition against the seizure of property without due process of law. The Missouri Compromise was unconstitutional, he announced, because it prohibited slavery in the Louisiana Purchase north of 36º 30'.
The Dred Scott decision was a major political miscalculation. In its ruling, the court sought to solve the slavery controversy once and for all. Instead, the court intensified sectional strife, undercut possible compromise solutions to the issue of slavery's expansion, and weakened the moral authority of the judiciary.
Mr. Chief Justice Taney delivered the opinion of the Court.
In the opinion of the Court the legislation and histories of the times, 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.
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 for his benefit. 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.
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.
And upon a full and careful consideration of the subject, the Court is of opinion that, upon the facts stated in the plea in abatement, 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.
We proceed. to inquire whether the facts relied on by the plaintiff entitle him to his freedom.
The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude and not included within the limits of Missouri. And the difficulty which meets us. is whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution.
As there is no express regulation in the Constitution defining the power which the general government may exercise over the person or property of a citizen in a territory thus acquired, the Court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decisions must be governed.
Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a territory. cannot be ruled as mere colonists, dependent upon the will of the general government, and to be governed by any laws it may think proper to impose.
For example, no one, we presume, will contend that Congress can make any law in a territory respecting the establishment of religion. or abridging the freedom of speech or of the press.
These powers, and others. are. denied to the general government and the rights of private property have been guarded with equal care.
An act of Congress which deprives a citizen of the United States of his liberty or property, without due process of law, merely because he came himself or brought his property into a particular territory of the United States. could hardly be dignified with the name of due process of law.
The powers over person and property of which we speak are not only not granted to Congress but are in express terms denied and they are forbidden to exercise them. And if Congress itself cannot due this. it could not authorize a territorial government to exercise them.
It seems, however, to be supposed that there is a difference between property in a slave and other property.
Now. the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every state that might desire it, for twenty years. And the government in express terms is pledged to protect it in all future time if the slave escapes from his owner. This is done in plain words--too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection than property of any other description.
Upon these considerations it is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution and is therefore void and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory even if they had been carried there by the owner with the intention of becoming a permanent resident.
Supreme Court rules in Dred Scott case - HISTORY
Dred Scott Painting by Louis Schultze, 1998 Missouri Historical Society, St. Louis
On March 6, 1857, in Dred Scott v. Sandford, the U.S. Supreme Court ruled that Black people were not American citizens and could not sue in courts of law. The Court ruled against Dred Scott, an enslaved Black man who tried to sue for his freedom.
For years before this case began, Dred Scott was enslaved by Dr. John Emerson, a military physician who traveled and resided in several states and territories where slavery was illegal—always accompanied by Dred Scott. Dr. Emerson eventually took Mr. Scott back to Missouri, where slavery was legal. When Dr. Emerson died there in 1843, Mr. Scott was still enslaved.
After Dr. Emerson's death, Dred Scott and his wife, Harriet, sought freedom in the Missouri state courts. The Scotts argued that their prior residence in free territories had voided their enslavement. The Missouri Supreme Court ruled against the Scotts and authorized Dr. Emerson's widow, Irene, to continue to enslave them. When Irene Emerson later gave her estate, including the Scotts, to her brother, John Sandford, Dred Scott brought suit in federal court.
Written by Chief Justice Roger B. Taney, the U.S. Supreme Court's Dred Scott decision held that the Fifth Amendment did not allow the federal government to deprive a citizen of property, including enslaved people, without due process of law. This ruling kept the Scotts legally enslaved, invalidated the Missouri Compromise, and re-opened the question of slavery's expansion into the territories. The resulting legal uncertainty greatly increased sectional tensions between Northern and Southern states and pushed the nation forward on the path toward civil war.
Unable to win liberty in the courts, Dred and Harriet Scott were freed by a subsequent enslaver a few months after the decision. Dred Scott died just months later of tuberculosis, while Harriet Scott lived until 1876.
Justice Deferred: The Supreme Court’s History of Enforcing Racism
The new book “Justice Deferred: Race and the Supreme Court,” by Orville Vernon Burton and Armand Derfner, takes a look at the racist history of our legal system.
In the wake of George Floyd’s murder, Black writers have led a bold literary reckoning with this country’s past. . With books like Isabel Wilkerson’s Caste or Eddie S. Glaude’s Begin Again, or Caroline Randall Williams’s powerful essay “You Want a Confederate Monument? My Body Is a Confederate Monument,” they have issued a call for truth and reconciliation. It remains to be seen if the country will listen.
But this effort continues to mount, and with their book Justice Deferred: Race and the Supreme Court (Harvard University Press, 464 pages), historian Orville Vernon Burton and civil rights lawyer Armand Derfner have made an important contribution.
More disasters followed in the second half of the century, as the court played a central role in ending the promise of Reconstruction and setting the legal stage for segregation.
“Americans typically think of the Supreme Court as the guardian of both law and liberty,” they write. “Even when we rail against some of its particular decisions, Americans recognize it as the institution that ended segregation, guarantees fair trials, and protects free speech and the right to vote. But the reality is more complicated, especially in the area of race and civil rights.”
Burton and Derfner argue that most of the Supreme Court’s accomplishments happened from the 1930s to the early 1970s. Before then, the court “spent much of its history ignoring or suppressing those rights, and in the half century since the early 1970s the Court’s record on civil rights has retreated far more than it advanced.”
With clear and accesible prose, Burton and Derfner trace this disheartening story, which began during slavery and has not stopped.
In the case of United States v. Schooner Amistad, decided in 1841, the Supreme Court affirmed the rights of forty African captives who had rebelled and killed the captain of their slave ship. Citing lofty principles of justice, the Supreme Court concluded, “These negroes ought to be deemed free.” The case was an outlier. For the most part, the Justices in the 1800s allied themselves with the rights of slave owners, culminating in 1857 with the most infamous decision in the Supreme Court’s history, Dred Scott v. Sandford.
In that case, Chief Justice Roger Taney wrote a sweeping majority opinion that not only denied freedom to the enslaved Dred Scott, but ruled that no Black person could ever be a citizen of the United States. Those of African descent, he wrote, were “beings of an inferior order, altogether unfit to associate with the white race . . . and so far inferior that they had no rights which the white man was bound to respect.”
It was an assertion so extreme that, as Derfner and Burton point out, it inflamed public passion. “If the Supreme Court majority thought its pro-slavery decisions resolved all disputes over slavery,” they write, “that notion exploded in civil war.”
More disasters followed in the second half of the century, as the court played a central role in ending the promise of Reconstruction and setting the legal stage for segregation.
Immediately after the Civil War, three amendments to the U.S. Constitution sought to assure full citizenship rights for those who had been enslaved: The Thirteenth Amendment abolished slavery The Fourteenth guaranteed equal protection under the law and the Fifteenth established the freedmen’s right to vote.
Within a decade, the white South launched an attack against these protections through a combination of legal maneuvering and terror. Critically, if not quite explicitly, the Supreme Court gave its stamp of approval to both forms of resistance.
In United States v. Cruikshank, decided in 1876, the Supreme Court overturned the convictions of three white men in the Colfax Massacre, a violent shootout in Louisiana that killed at least sixty African Americans. Twenty years later, in Plessy v. Ferguson, the Court affirmed the legal fiction of separate but equal. For the next half century, Jim Crow was the law of the land.
In the 1930s and 1940s, often in cases brought by attorney Thurgood Marshall, the Supreme Court quietly foreshadowed a change in direction—an era of racial sensitivity that reached its apex under Chief Justice Earl Warren. Beginning with the Brown v. Board of Education decision in 1954, the Supreme Court resolutely dismantled the legal framework of segregation—in schools and public transportation, even in the matter of interracial marriage, decided in the case of Loving v. Virginia. But times change and the authors argue that the Supreme Court is now on a path of retreat.
The path is not straight. But overall, they write, there has been “a slowdown in momentum for change. . . . Under Chief Justices Rehnquist and Roberts, momentum has stopped altogether and even reversed. Most notably, in 2013 the Court held the heart of the 1965 Voting Rights Act unconstitutional, the first such ruling in more than a century.”
In many ways, this is a personal book for Burton and Derfner. Burton, an award-winning historian at Clemson University, grew up in the segregated South, and has spent his career “writing about a past that we must overcome.”
Derfner, whose parents escaped the Nazis when he was a baby, has spent an equally distinguished career challenging segregation through the courts. In these pages, they are careful to celebrate the moments of triumph—those shining departures from the overall history—when the Supreme Court has expanded the promise of democracy. But they are also careful to document the opposite.
Despite their inevitable disillusionment, they end their story with a leap of faith—a quote from Amanda Gorman, a young Black poet who sees the pursuit of justice as “something that’s unfinished.” Perhaps that is what we must believe, and the authors add their own note of hope: “New generations will continue the work.”
Frye Gaillard is Writer in Residence at the University of South Alabama and the author of A Hard Rain: America in the 1960s.
The Lincoln-Douglas Debates
On August 21, 1858, Abraham Lincoln and Stephen Douglas met in Ottawa, Illinois, for the first of seven debates. People streamed into Ottawa from neighboring counties and from as far away as Chicago. Reporting on the event was strictly partisan, with each of the candidates’ supporters claiming victory for their candidate. In this excerpt, Lincoln addresses the issues of equality between blacks and whites.
[A]nything that argues me into his idea of perfect social and political equality with the negro, is but a specious and fantastic arrangement of words, . . . I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so. I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two, which, in my judgment, will probably forever forbid their living together upon the footing of perfect equality, . . . I, as well as Judge Douglas, am in favor of the race to which I belong having the superior position. . . . [N]otwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. I hold that he is as much entitled to these as the white man. . . . [I]n the right to eat the bread, without the leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man.
—Lincoln’s speech on August 21, 1858, in Ottawa, Illinois
How would you characterize Lincoln’s position on equality between blacks and whites? What types of equality exist, according to Lincoln?
During the debates, Lincoln demanded that Douglas explain whether or not he believed that the 1857 Supreme Court decision in the Dred Scott case trumped the right of a majority to prevent the expansion of slavery under the principle of popular sovereignty. Douglas responded to Lincoln during the second debate at Freeport, Illinois. In what became known as the Freeport Doctrine , Douglas adamantly upheld popular sovereignty, declaring: “It matters not what way the Supreme Court may hereafter decide as to the abstract question whether slavery may or may not go into a territory under the Constitution, the people have the lawful means to introduce it or exclude it as they please.” The Freeport Doctrine antagonized southerners and caused a major rift in the Democratic Party. The doctrine did help Douglas in Illinois, however, where most voters opposed the further expansion of slavery. The Illinois legislature selected Douglas over Lincoln for the senate, but the debates had the effect of launching Lincoln into the national spotlight. Lincoln had argued that slavery was morally wrong, even as he accepted the racism inherent in slavery. He warned that Douglas and the Democrats would nationalize slavery through the policy of popular sovereignty. Though Douglas had survived the election challenge from Lincoln, his Freeport Doctrine undermined the Democratic Party as a national force.
Dred Scott Case Summary
Among the decade’s most controversial and divisive events was the notorious Dred Scott decision of 1857. That case involved a Missouri slave, Dred Scott, who had been taken by his master, an army surgeon, to both the free state of Illinois and the free territory of Wisconsin. Scott later sued for his freedom on the grounds that his time in those places, where slavery was not recognized in law, had made him a free man.
The Dred Scott Case summary was enormously complicated. In 1836, the Boston Female Anti-Slavery Society brought before the Massachusetts Supreme Court the case of a six-year-old slave girl who had been brought to the state by her mistress for a visit. According to the Society, since this slave girl was in a free state, the slave relation was dissolved and she was now free. (Since the girl was not a runaway, the case had nothing to do with the fugitive slave clause of the Constitution.) Arguing on behalf of the girl, Rufus Choate declared: “Comity is only policy and courtesy—and is never to be indulged, at the expense of what the State, by its public law, declared to be justice.” That is, the understanding whereby states honored one another’s laws was a matter of courtesy and convenience, not of unbending principle, and thus Massachusetts was not bound by another state’s laws on slavery.
The rule of comity thus could not be used to challenge Massachusetts’s ability to declare free those non-fugitive slaves who reached its borders. The Court, concurring with Choate, declared that “an owner of a slave in another State where slavery is warranted by law, voluntarily bringing such slave into this State, has no authority to retain him against his will, or carry him out of the State against his consent, for the purpose of being held in slavery.”
Scott’s case was not entirely similar to that of this six-year-old girl, since the Massachusetts Supreme Court was deciding a case in which the slave had not yet been removed from Massachusetts. Scott, on the other hand, had already been back in Missouri for years by the time he pursued his case. The Massachusetts example, however, shows that entering the jurisdiction of a free state could make a slave free.
Dred Scott Case Facts
There have been many important laws and court cases in black history and the United States Supreme Court's 1857 decision in the Dred Scott Case is one of the earliest. The case involved the freedom of Dred Scott, a man born into slavery but who had lived in states where slavery was illegal for many years before returning to a slave state. Beyond the important question of Dred Scott's freedom the United States Supreme Court's decision would affect the rights of black people throughout the United States. The court's decision in essence took away the U.S. Congress's ability to limit slavery in the United States western territories and would be a contributing factor to the outbreak of the American Civil War 4 years later.
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On this page you will find a list of interesting facts about the Dred Scott Case written for kids and adults. Information on this page includes where Dred Scott lived, how he could have easily become free, and what impact the case had on black history.
The Importance of Teaching Dred Scott
In January, 2011, the House of Representatives undertook a recitation of the United States Constitution on the House floor. Lawmakers started with &ldquoWe the People&rdquo and took turns reading the text aloud for the next hour and a half. Orchestrated by a new Republican majority to perform devotion to the Constitution, the exercise excluded some provisions, including ones that supported slavery: the three-fifths clause, which says that an enslaved person counts as &ldquothree-fifths&rdquo of a person for the purpose of apportioning congressional representatives and taxes, and the fugitive-slave clause, which commands that an enslaved person &ldquoescaping into another&rdquo state, regardless of its laws, &ldquoshall be delivered&rdquo back to the slave owner. The Thirteenth Amendment, which abolished slavery after the Civil War, was read aloud by Representative John Lewis. But Representative James Clyburn, the top-ranking Black congressman, refused to participate in the reading, calling the choice to omit provisions &ldquorevisionist history.&rdquo Representative Jesse Jackson, Jr., similarly objected that the &ldquoredacted constitutional reading gives little deference to the long history of improving the Constitution&rdquo through &ldquothe blood, sweat and tears of millions of Americans.&rdquo
A decade later, during the nationwide grappling with racial injustice that followed the murder of George Floyd, I saw a striking Twitter discussion among professors of constitutional law, a course that I also teach. They were debating whether much of the Supreme Court case of Dred Scott v. Sandford should be excised from constitutional-law courses. In the case, which Scott brought in federal court to assert his freedom from enslavement, the Supreme Court held, in 1857, that Scott did not have the privilege to bring the suit because, as a Black person, he could not be a &ldquocitizen&rdquo within the meaning of the Constitution. Matthew Steilen, a law professor at the University at Buffalo, launched the Twitter thread and advocated for editing the case down to a minimalistic page or so, to omit text that is &ldquoso gratuitously insulting and demeaning.&rdquo He wondered whether assigning that material is asking students &ldquoto relive the humiliation of Taney&rsquos language as evidence of his doctrine of white supremacy.&rdquo
The Dred Scott case addressed the moral and political struggle that in those years was threatening to tear the United States apart: whether slavery would be allowed in newly acquired territories. The man who enslaved Scott had taken him from Missouri, a slave state, to live in Illinois, a free state, and in a federal territory (present-day Wisconsin, Minnesota, Iowa, and parts of the Dakotas) where Congress had made slavery unlawful. Scott claimed that his stay in Illinois and the territory had emancipated him a common-law doctrine said slaveholders who intentionally transported enslaved people into free jurisdictions freed them, regardless of intent.
The problem, though, was that, under the Constitution, in order to bring the lawsuit in the first place, one had to be a &ldquocitizen.&rdquo To arrive at the conclusion that Scott was not one, Chief Justice Roger B. Taney zeroed in on the statement in the Declaration of Independence that it was &ldquoself-evident&rdquo &ldquothat all men are created equal&rdquo and &ldquoendowed by their Creator with certain unalienable Rights.&rdquo If the Founding Fathers intended to include Black people in that declaration while personally enslaving them, Taney reasoned, that would mean that the Founding Fathers were hypocrites who &ldquowould have deserved and received universal rebuke and reprobation.&rdquo But Taney found it impossible that these &ldquogreat men&rdquo acted in a manner so &ldquoutterly and flagrantly inconsistent with the principles they asserted.&rdquo So he concluded, instead, that their intent was to exclude Black people from the American political community. Of the two possibilities, grotesque hypocrisy or white supremacy, Taney found the latter far more plausible.
Indeed, Taney, a former Maryland slaveholder, said the language of equality and rights &ldquowould 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.&rdquo The &ldquounhappy black race,&rdquo he wrote, was &ldquonever 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.&rdquo Most notoriously, Taney wrote that Blacks were &ldquoregarded 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.&rdquo He also noted that the Constitution itself took slavery as a given in the fugitive-slave clause, and the slave-trade clause, prohibiting Congress to abolish the &ldquoMigration or Importation of such Persons&rdquo before 1808 and allowing an import tax of up to &ldquoten dollars for each Person.&rdquo Taney took this as evidence that the country&rsquos founding document did not confer on Black people &ldquothe blessings of liberty, or any of the personal rights so carefully provided for the citizen.&rdquo
Judicial Overreach in High Partisan Times: How the Dred Scott Decision Broke the Democrats and Boomeranged on the Court
James Morone is the John Hazen White Professor of Political Science at Brown University. He has published eleven books and two hundred essays ranging from American populism to Harry Potter. His Hellfire Nation: The Politics of Sin in in American History was an HNN book of the month. His latest book, published this month, is Republic of Wrath: How American Politics Turned Tribal from George Washington to Donald Trump.
With the imminent confirmation of Amy Coney Barrett, Republicans appear to have a solid Supreme Court majority in their grasp. But they &ndashand the conservative Supreme Court majority&mdash ought to heed a lesson from the Court&rsquos history: Beware of overreaching.
The most dramatic example comes from the Court&rsquos most infamous case. We usually parse Dred Scott v. Sandford as the Worst Decision Ever, but it also offers an overlooked political lesson. The Court waded into a high partisan battle and badly damaged the institutions behind the ruling. The Democratic Party broke in two and the Supreme Court itself endured a decade of court packing.
Start with the case itself. An army surgeon was posted to the free territory of Wisconsin and took along a slave named Dred Scott. While in the territory, Scott married in a civil ceremony &ndash something he could not have done as a slave. When the army sent the doctor back into slave states, Scott sued for his family&rsquos freedom (by now they had two daughters) citing the traditional legal rule, &ldquoonce free, always free.&rdquo After a 12-year legal saga through state and federal courts, Chief Justice Roger Taney decided to use the case to settle the fiercest question of the 1850s: Which of the vast western territories should be open to slavery?
Democratic President James Buchanan, who never missed an opportunity to side with slaveholders, used his inaugural address to cheer the awaited court decision as the final word on the matter. Like all good citizens, intoned this soul of innocence, &ldquoI shall cheerfully submit &hellip to their decision &hellip whatever it may be.&rdquo Except that he already knew perfectly well what it would be. Buchanan had pushed Justice Robert Cooper Grier (a fellow Pennsylvanian) to join with the five southern justices in order to improve the optics when the legal bomb detonated.
Two days later, on March 6, 1857, the Supreme Court announced its ruling in Dred Scott v. Sandford, an historically inaccurate, legally implausible, virulently partisan decision marked by eight different opinions (two dissenting). A clerk even misspelled the plaintiff&rsquos name &ndashit was Sanford, not Sandford-- so that even the name of this infamous decision memorializes a typo.
At the heart of all the jurisprudence sits Justice Taney&rsquos majority opinion, an implacable picture of race and exclusion. The Constitution and its rights could never apply to Black people. What about Scott&rsquos claim to have lived in a free territory? Not valid, ruled Taney, and for a blockbuster reason: no one had the authority to prohibit slavery in any territory &ndash not the federal government, not the residents of the territory, not anyone. What about the Missouri compromise of 1820 which forbade slavery above the 36 30&rsquo parallel? &ldquoNot warranted by the Constitution and therefore void.&rdquo How about the compromise of 1850 and the Kansas-Nebraska Act, which had turned to popular sovereignty? Nope. No one could limit slavery in any territory.
The political fallout quickly spread to both the parties and the courts. The Republicans had sprung up, in the mid 1850s, to stop the spread of slavery into the territories. The Dred Scott decision, which was the first to strike down a major act of Congress in more than half a century, ruled out the party&rsquos very reason for being. As historian George Frederickson put it, the ruling was &ldquonothing less than a summons to the Republicans to disband.&rdquo Republican leaders denounced the Court as part of the Slave Power and accused Chief Justice Taney of conspiring with pro-slavery Democrats in the White House and Senate. The decision itself helped propel these new-found enemies of the court to power.
Across the party aisle, the detonation unexpectedly wrecked the Democrats. At their next political convention, in 1860, they paid the price of their victory. When it came time to write a party platform, northern Democrats opted for the same slavery plank they had used during the last presidential election: White men in the territories should decide the slavery question for themselves. After all, these politicians could not very well go before their voters &ndashwho were eager to claim western lands for white men and women-- and announce that every territory was open to slavery regardless of local opinion.
The southern Democrats, however, insisted on a plank that said exactly that. They bitterly denounced their party brethren for casually handing back what the Supreme Court had given. The southern version of the plank proclaimed that Congress had a &ldquopositive duty&rdquo to protect slaveholders wherever they went -- &ldquoon the high seas, in the territories, and wherever else [Congress&rsquos] constitutional authority extends.&rdquo The high seas? A sly call to bring back the Atlantic slave trade which had been banned in 1808. When the convention narrowly chose the northern version of the platform, the southerners walked out of the convention and eventually nominated their own candidate.
A divided Democratic Party eased the way for a Republican victory in 1860 and that, of course, gave the nation a hard shove toward the Civil War. Democrats had dominated Washington throughout the antebellum period. Now they fell from power. They would not control the Presidency and Congress again for forty-two years.
The recoil from the Dred Scott decision also shook the Court. Lincoln bluntly expressed the Republican&rsquos skepticism in his Inaugural Address. &ldquoThe candid citizen must confess that if the policy of the government &hellip is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers.&rdquo The other branches of government were every bit as capable of enforcing the Constitution, he continued, and the Court had no business claiming that right for itself.
Republican Senator John Hale (NH) added that the Court &ldquohad utterly failed&rdquo and called for &ldquoabolishing the present Supreme Court&rdquo and designing a new one. The new majority did not quite go that far, but they packed and repacked the court. They added a tenth justice (in 1863), squeezed the number down to seven members (in 1866) and, finally, returned it to nine (in 1869). The Republicans also reached into the lower courts and rearranged the Circuits. The partisan reorganization of the courts &ndashthe only sustained court packing in American history-- went on for most of a decade.
The lessons from Dred Scott echo down through to the present day. A declining political party only injured itself by using the courts to settle a fierce political controversy. Even more important, the Court&rsquos plunge into the hottest issue of the era blew right back on the Court itself. Taney&rsquos botched effort to settle the slavery issue sends a warning to every generation. There are distinct limits to the Court&rsquos legitimacy in highly partisan times. Modest jurisprudence can protect the court. Overreach can cause all kinds of blowback.
This essay is taken from Republic of Wrath: How American Politics Turned Tribal from George Washington to Donald Trump (Basic Books, September 2020)
The Dred Scott decision of 1857 went well beyond the question of whether or not Dred Scott gained his freedom. Instead, the Supreme Court delivered a far-reaching pronouncement about African Americans in the United States, finding they could never be citizens and that Congress could not interfere with the expansion of slavery into the territories. Republicans erupted in anger at this decision, which rendered their party’s central platform unconstitutional. Abraham Lincoln fully articulated the Republican position on the issue of slavery in his 1858 debates with Senator Stephen Douglas. By the end of that year, Lincoln had become a nationally known Republican icon. For the Democrats’ part, unity within their party frayed over both the Dred Scott case and the Freeport Doctrine, undermining the Democrats’ future ability to retain control of the presidency.