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DRED SCOTT V. SANDFORD

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Dred Scott v. Sandford (1857) was the Supreme Court's most important decision in the years leading up to the Civil War. Jurisprudentially the decision had relatively little long-term impact. However its short-term political impact was enormous. It generated hundreds of newspaper editorials and countless speeches by politicians. In 1858 two senatorial candidates in Illinois—the incumbent Stephen A. Douglas and the challenger Abraham Lincoln—vigorously analyzed the case, as well as the issue of extending slavery into the territories, in the famous Lincoln-Douglas debates. In 1860 Horace Greeley, the editor of the New York Tribune and the most important Republican journalist, published a pamphlet edition of the majority opinion of Chief Justice Roger Brooke Taney (1777–1864) and the dissent of Associate Justice Benjamin Robbins Curtis. Predominantly antislavery, the Republicans distributed tens of thousands of copies of these two opinions as a campaign document. Republicans hated Taney's opinion and believed that distributing it would help bring out the vote in the election that year.

DRED SCOTT'S ROAD TO THE COURT

Dred Scott (1795–1858) was a Virginia-born slave. His master, Peter Blow, took him to Missouri in 1827 and, in 1833, sold him to Captain John Emerson, a U.S. Army surgeon. In December of that year Emerson took Dred Scott to his post at Fort Armstrong at Rock Island, Illinois. Slavery was illegal in Illinois and had Scott tried to gain his freedom then, presumably an Illinois court would have granted it. Illinois was generally hostile to free blacks, but at the same time the state would probably not have allowed anyone, even an army officer, to keep a slave in the state for a long period of time. Scott, however, did not seek his freedom in Illinois, and in May 1836 Emerson took him to Fort Snelling in what today is Minnesota and at the time was part of the Wisconsin Territory.

The Northwest Ordinance of 1787 had banned slavery in the Northwest Territory, including Wisconsin and part of Minnesota. The Missouri Compromise, passed in 1820, had banned slavery in the territories north of Missouri, which included all parts of Minnesota not covered by the Northwest Ordinance. In addition the Wisconsin Enabling Act, which created the Wisconsin Territory, declared that the laws of the Michigan Territory would apply to the new territory, and the laws of the Michigan Territory also prohibited slavery. Thus under a variety of federal and territorial laws, slaves could not be legally held in bondage at Fort Snelling.

Despite these laws Scott was held as a slave in Fort Snelling from 1836 to 1838. While there he married Harriet Robinson in a ceremony performed by the local Indian agent, who also served as a justice of the peace. This marriage might be construed as indicating that Scott was free because slaves could not be legally married. Over the next few years the Scotts lived in Louisiana, Missouri, and once again in the Wisconsin Territory. In 1843 Emerson died and ownership of the Scotts passed to his widow, Irene Sanford Emerson. For the next three years the Scotts were rented out to various temporary masters.

SUING FOR FREEDOM

In 1846 Scott tried to purchase his freedom, but Irene Emerson refused. Scott then sued for his freedom and after various delays, a jury in 1850 declared him free, basing its judgment on a series of precedents dating from 1824, in which Missouri courts had held that if a master took a slave to a free state, that slave became free. However, in 1852 the Missouri Supreme Court reversed these precedents, asserting that the free states had "been possessed with a dark and fell spirit in relation to slavery" (Finkelman, Dred Scott, p. 22), and thus Missouri would no longer recognize the free state law that did not recognize slavery.

The case should have ended there, but at this point Irene Emerson remarried (ironically to an abolitionist physician and politician in Massachusetts) and transferred ownership of Scott to her brother, John F. A. Sanford, who lived in New York. (The Supreme Court clerk would misspell his name as "Sandford," and it appears that way in the case.) Scott, now claiming to be a citizen of Missouri, sued Sanford in federal court under what is known as "diversity jurisdiction." "Diversity" of citizenship means that the involved parties are residents of different states, and diversity jurisdiction provides that suits between them be heard in federal court.

In response to this suit, Sanford argued that Scott could not sue in diversity because "Dred Scott is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves" (Finkelman, Dred Scott, p. 25). U.S. District Judge Robert W. Wells rejected this argument, asserting that if Scott was free he had the right to sue in federal court. After hearing the case, however, Wells ruled against Scott, finding that the federal court in Missouri should follow the decisions of the Missouri Supreme Court on the status of blacks in Missouri. Scott remained a slave.

His lawyers then appealed to the United States Supreme Court. The Court twice heard arguments in the case before deciding on 6 March 1857 that Scott was still a slave. The date of the announcement was significant. It came two days after the inauguration of President James Buchanan. In his inaugural address on 4 March, Buchanan had taken note of the controversy over slavery in the territories and urged Americans to accept the forthcoming decision by the Supreme Court.

THE SUPREME COURT DECISION

The Supreme Court's response to Dred Scott's freedom claim was extraordinary. For the first time in the history of the Court all nine justices wrote opinions. In total the case consumes more than 250 pages of volume 60 of United States Reports. Chief Justice Taney's opinion of the Court was 54 pages long; Justice Curtis answered him with a 70-page dissent.

By a seven-to-two vote the Court rejected Scott's freedom claims. Chief Justice Taney reached four major conclusions: (1) that blacks, even if free, could never sue in federal court under diversity jurisdiction because blacks, even if citizens of the states in which they lived, were not citizens of the United States; (2) that Congress lacked the power to pass general laws for the regulation of the territories; (3) that Congress specifically could not ban slavery in the territories because this would constitute taking private property without just compensation; (4) that the Missouri Compromise, which had operated for more than thirty-five years, was unconstitutional.

Not every justice in the majority agreed with all these conclusions. Justice Samuel Nelson of New York, for example, wanted to deny Scott's claim on the very narrow ground that the federal courts were bound to follow state law on the status of people within any state, and thus whatever claim to freedom Scott might have had from living in Illinois or the Wisconsin Territory was lost when he returned to Missouri. Justice John Catron of Tennessee agreed that Congress could not ban slavery in the territories, but rejected the claim that Congress had no power to pass general legislation for the territories. But despite differences among the majority justices, all agreed that Scott was to remain a slave.

CHIEF JUSTICE TANEY'S OPINION

Taney's opinion shocked many northerners. While most northern whites at this time held various prejudices against blacks, many were stunned by the conclusion that blacks were without any rights under the Constitution. Taney's language was indeed harsh and jarring. Hoping to appeal to widely held hostility toward blacks, Taney argued that race was the key to American citizenship. While almost all white southerners accepted these ideas of race, many northerners—and probably a majority of the members of the new Republican Party—no longer blindly accepted race as a reason for denying people fundamental rights. Thus Taney's language stunned many northerners when he wrote,

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? (Finkelman, Dred Scott, pp. 57–58)

Taney attemped to support these claims with an appeal to history—what we might today call the "intentions of the framers."

To bolster his claims he provided a detailed analysis of colonial statutes that discriminated against blacks. He asserted that colonial laws such as the Massachusetts Act from 1705 proved "the degraded condition of this unhappy race" at the time of the Revolution (Finkelman, Dred Scott, p. 62). He further appealed to the memory of the founders by citing the Declaration of Independence, only to argue that it did not apply to blacks. Taney quoted the Declaration's assertion that "all men are created equal" but then asserted that "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" (Finkelman, Dred Scott, p. 63). He proved this assertion, at least to his own satisfaction, by an odd appeal to patriotism and the historical memory of the founders. He argued that the equality language of the Declaration could not have applied to blacks because

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 appeared, they would have deserved and received universal rebuke and reprobation. (Finkelman, Dred Scott, p. 63)

He went on to claim that "the men who framed this declaration were great men—high in literary acquirements—high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting." Thus, because some of the founders—such as Thomas Jefferson—owned slaves, it was not possible to imagine, according to Taney's view, that blacks could ever be considered members of the body politic that created the United States. This history lesson of course ignored the many black soldiers who fought in the Revolutionary War. It also ignored what historians call the "first emancipation," which led to an end to slavery in the North during and after the Revolution.

Moving from the Declaration to the Constitution, Taney continued to use a narrowly constructed view of history and of the framers to support his conclusions about black citizenship. Thus he completely ignored the fact that free black men had voted in most of the northern states, as well as some southern states, at the time of the ratification of the Constitution in 1789. Nevertheless, tying his analysis to a flawed historical perspective, Taney declared that African Americans

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. 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 Government might choose to grant them. (Finkelman, Dred Scott, p. 58)

Taney tied his historical analysis to an explicit appeal to what legal scholars later identified as original intent, originalism, or the intentions of the framers. He argued that Americans had to follow the intent of those who wrote the Constitution and that

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. (Finkelman, Dred Scott, p. 68)

This argument seemed to acknowledge that many northerners and Europeans no longer accepted the legitimacy of slavery. Some, such as abolitionists and members of the new Republican Party, might even favor equality. But Taney in effect denied the legitimacy of such views, at least when it came to constitutional law.

Even northern whites who did not believe in racial equality were uncomfortable with this conclusion. By this time blacks could vote on equal terms with whites in five New England states and had some voting rights in three other states. Everywhere in the North blacks were able to hold property, enter various professions, attend schools, sign contracts, and sue and be sued. In all but three states (Indiana, Illinois, and California) they could testify against whites in court. Surely they were not without rights even if their rights might be restricted. But Taney said otherwise. Under Dred Scott a free black citizen of, say, Massachusetts who was kidnapped and taken to a slave state would be unable to sue in federal court to regain freedom. Such a possibility outraged many northerners.

Even more shocking was Taney's conclusion that the Missouri Compromise was unconstitutional. This was only the second time in its history that the Court had declared an act of Congress unconstitutional. The first, Marbury v. Madison (1803), had involved a single minor provision of an elaborate law. Dred Scott, however, engaged a major federal statute that had been key to regulating settlement of the territories for more than a generation. Moreover, as Justices John McLean and Benjamin Robbins Curtis stressed in their dissents, the principle of regulating the territories—and banning slavery in the territories—predated the Constitution itself. In 1787 the Congress under the Articles of Confederation had banned slavery in the Northwest Territory. Shortly after ratification of the Constitution, Congress readopted the Northwest Ordinance, confirming its power to regulate the territories. In the Missouri Compromise, Congress in 1820 also regulated the territories and banned slavery in some of them. Since then, as the dissents noted, Congress had repeatedly regulated the territories, allowing slavery in some and not in others.

Surely these many congressional acts could not have been unconstitutional. Many former delegates to the Constitutional Convention had been in the Congress that readopted the Northwest Ordinance. George Washington, a signer of the Constitution, had also signed this bill into law. President James Monroe, who signed the Missouri Compromise bill, had been a delegate to Virginia's ratifying convention. Surely all these founders of the nation in Congress and the executive branch could not have so completely misunderstood the powers of the federal legislature. This in any event is what McLean, Curtis, and many northerners thought, but Taney and a majority of the Court judged otherwise.

IN THE COURT OF PUBLIC OPINION

The public response to Taney's opinion and to the two dissents was at one level predictable. Northern Democrats were relieved, believing the issue of slavery in the territories would no longer disrupt politics. Their political opponents in the North had built an entirely new political party—the Republican Party—around opposition to slavery in the territories. They could no longer, so northern Democrats believed, fight to stop slavery in the territories without seeming to oppose the Constitution. This would vanquish the Republicans and leave the field open for sweeping Democratic victories in the next elections.

Southerners were for the most part gleeful. On 10 March 1857, the Richmond Enquirer happily noted that "the nation has achieved a triumph, sectionalism has been rebuked, and abolitionism has been staggered and stunned." The paper concluded, "And thus it is, that reason and right, justice and truth, always triumph over passion and prejudice, ignorance and envy" (Finkelman, Dred Scott, p. 130). The New Orleans Daily Picayune asserted on 21 March 1857 that the decision "clears away the mists through which many honest men have distorted views of the rights of the Southern people." The paper was pleased with a decision that "gives the sanction of established law, and the guarantees of the constitution, for all that the South has insisted upon in the recent struggles, and forces her adversaries to surrender their political organization against her rights, or assume openly the position of agitators against the constitution." As such it was "a heavy blow to Black Republicanism" (Finkelman, Dred Scott, p. 132).

Republicans rejected this analysis. They pointed out over and over again that Chief Justice Taney had said Dred Scott, as a black, had no right to sue in federal court. If that was so then there was no case before the Supreme Court, and Taney's conclusions about the validity of the Missouri Compromise were dicta that had no value or force. In its 7 March 1857 issue the New York Tribune concluded, "This decision . . . is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room. It is a dictum prescribed by the stump to the bench—the Bowie-knife sticking in the stump ready for instant use if needed." In his 1858 senatorial campaign Lincoln argued that the decision was part of a conspiracy by Presidents Franklin Pierce and James Buchanan, Chief Justice Taney, and Senator Stephan A. Douglas to nationalize slavery.

Abraham Lincoln continued to make these arguments after 1858, and in 1860 northern voters overwhelmingly supported him, giving him an electoral vote majority, as well as a popular vote plurality, that put him in the White House. Six years later Republican majorities in the House of Representatives and the Senate would pass the Fourteenth Amendment, and on 9 July 1868 the states would ratify it. The amendment made all people born in the United States—without regard to race or ancestry—citizens of the nation. This formally reversed the decision that Roger Brooke Taney had written.

See also Abolitionist Writing; Blacks; Compromise of 1850 and Fugitive Slave Law; Proslavery Writing; Slave Narratives; Slavery

BIBLIOGRAPHY

Primary Work

Finkelman, Paul. Dred Scott v. Sandford: A Brief History with Documents. Boston: Bedford Books, 1997.

Secondary Works

Ehrlich, Walter. They Have No Rights: Dred Scott's Struggle for Freedom. Westport, Conn.: Greenwood Press, 1979.

Fehrenbacher, Don E. The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press, 1978. Winner of the 1979 Pulitzer Prize in history.

Finkelman, Paul. An Imperfect Union: Slavery, Federalism, and Comity. Chapel Hill: University of North Carolina Press, 1981.

Hyman, Harold M., and William M. Wiecek. Equal Justice under Law: Constitutional Development, 1835–1875. New York: Harper, 1982.

Paul Finkelman