Some weeks ago I saw a reference to the Dred Scott decision and decided that it was time finally to read it. Delivered in March 1857, the decision was a key step towards the Civil War. Chief Justice Roger Taney, a Marylander, ruled against Dred Scott, a Missouri slave who had sued on behalf of himself, his wife and two children, arguing that they had become free by virtue of years of residence (with their master) in the free state of Illinois, and in parts of the Louisiana territory north of the 36' 30" line that had defined the permissible area of slavery under the Missouri Compromise. Taney argued that Dred Scott had no right to sue because the Founders, he claimed, had never imagined that either slaves or their free descendants could become citizens. But Taney had not just ruled against Scott in this case: he had declared any Congressional attempt to limit the area in which slavery would be permitted to be unconstitutional, and he appeared to endorse the increasingly popular white southern view that slaveholders had a right to take slaves, like any other property, with them anywhere in the Union. The Republican Party had just lost a fairly close election to Democrat James Buchanan, and the decision alarmed northerners who, while not abolitionists, wanted to keep slavery out of new territories and out of the North. The principle behind the decision--that slavery could not be restricted--split the Democratic Party three years later in 1860, paving the way for the election of Lincoln, the secession of mot of the slave states, and the Civil War.
Slavery is the subject of renewed controversy nowadays, and Taney's opinion and the two dissents by Justices McLean and Curtis raise critical questions about slavery's relation to the Constitution and its role in the early Republic. The opinions make up one of the longest entries in the whole record of the Supreme Court, and I did skim parts of Tawney's and skipped a couple of concurring opinions. But the whole experience was extraordinarily educational.
"Originalism" is of course the dominant right-wing judicial philosophy today, and Taney's opinion turns out to be originalism on steroids. He began by asking whether Dred Scott had the right to bring suit in the first place, given that he was black, a slave, and the descendant of slaves, and answered the question with a resounding no. The Founders, he argued, never believed that such beings could become citizens of the United States or full members of the community. That was proven, he argued, by their status in all the original colonies, North and South, which treated all blacks as inferior beings. It was also proven, he argued, by the text of the Constitution, which in at least two places specifically acknowledged and thereby endorsed the existence of slavery. Now Taney, from the Compromiser generation (like Henry Clay and Daniel Webster), was old enough to remember the adoption of the Constitution, and he argued that no subsequent generation could disregard the views of the framers on this point. Going even further backward to the Declaration of Independence, Taney argued that "all men are created equal" could not possibly be taken to include black men.
The question I am going to address at length with the help of Justice McLean's and Justice Curtis's dissents is whether Tawney was right. This question now has far more than historic interest. What immediately struck me was how closely Taney's view of the Constitution and the views of founders echoes what PC academics argue today: that the Constitution specifically relegated black people to inferior status and that no one had the slightest intention of every changing this. But it turns out that Taney sustained his argument only with the help of extremely selective evidence and highly tendentious reasoning--as the two dissenters made very clear.
Taney cited a number of colonial and even post-revolutionary statutes from New England states that did indeed mark out "negroes" (as the opinions used and wrote the word) as a separate class and denied them certain rights. But almost without exception, the statutes that he quoted referred to the right to marry: they barred miscegenation and punished it with fines. We shall see in a moment how incomplete this historical view was, but I might also remark that I see a great inconsistency in Taney's view. He was using these colonial and state laws to argue that the people of the states in 1787 did not believe black people could be citizens, but arguing that that view bound the whole nation for all time, even though it was based upon state laws that obviously could, and sometimes were, changed at a later date. It was incumbent upon him, it seems to me, to show that this view was actually reflected in the Constitution itself, and this, in my opinion, he most definitely could not do.
The two brief constitutional provisions that Taney cited to make his case deserve to be quoted. The first, from Article I, Section 9, related to the importation of slaves: "The Migration or Importation of such Persons as
any of the States now existing shall think proper to admit, shall
not be prohibited by the Congress prior to the Year one thousand
eight hundred and eight, but a Tax or duty may be imposed on such
Importation, not exceeding ten dollars for each Person." The second, from Article IV, Section 2, related to fugitives from one state to another: "No Person held to Service or Labour in one State, under
the Laws thereof, escaping into another, shall, in Consequence of any
Law or Regulation therein, be discharged from such Service or
Labour, but shall be delivered up on Claim of the Party to whom
such Service or Labour may be due." Now both of these passages did refer indirectly to slavery. The first allowed states to continue importing slaves for twenty years, or until such time as Congress prohibited the trade (as indeed it did in 1807, although enforcement of the prohibition was unfortunately lax.) The second provided for the return of fugitive slaves from one state to another. Yet in fact, Taney's interpretation of these clauses, in my opinion, is clearly backwards. They do not enshrine a right to hold slaves, much less a permanent inferior status for black people, in the Constitution. First of all, neither of these passages refers only to slaves. The first covers "migration" as well as "importation," and "migration" could not possibly refer to slaves. And the second obviously refers, in fact as well as in theory, to all those white people who were bound to masters for set terms of service, and to apprentices as well. These provisions do not establish a separate status for any of the men and women to whom they refer: they are referred to simply as "persons," one of the framers* favorite words, for which we owe them our thanks. And their language--like the language of the three-fifths clause, which Taney interestingly chose not to mention--was obviously designed to avoid putting the word "slave" into our founding document. That tends to confirm the historical view of Abraham Lincoln (and many others), opposite to Taney's, that most of the founders regarded slavery as an evil that had unfortunately found its way to our shores, one that they had already kept out of the Northwest territories, and one that they hoped and expected to disappear. And last, but hardly least, just as the Constitution includes no explicit reference to, or definition of, slavery, no one could possibly argue that it defined even a third group of "persons," free black people who could not be citizens, which Taney's argument assumed to exist then and for all time.
It was not necessary, however, to wait 160 years for an historian to discover the logical and historical weaknesses in Taney's argument. Justice McLean (from Ohio) exposed both the logical and historical flaws in Tawney's argument in quite scathing terms. To begin with, he argued, Taney was ruling against Scott on the grounds that he was a slave--but the question of whether he was in fact a slave was the one the case was supposed to decide. (And Scott had in fact prevailed in a lower court!) Then Curtis showed that Taney's argument about the historical view of black people within the United States was utterly without foundation in theory or fact.
"In the argument, it was said that a colored citizen would not be an
agreeable member of society. This is more a matter of taste than of
law. Several of the States have admitted persons of color to the right
of suffrage, and, in this view, have recognized them as citizens, and
this has been done in the slave as well as the free States. On the
question of citizenship, it must be admitted that we have not been very
fastidious. Under the late treaty with Mexico, we have made citizens of
all grades, combinations, and colors. The same was done in the
admission of Louisiana and Florida. No one ever doubted, and no court
ever held that the people of these Territories did not become citizens
under the treaty. They have exercised all the rights of citizens,
without being naturalized under the acts of Congress."
In short, McLean simply reported that black people's status varied enormously from state to state and that there no prohibition, neither explicit nor customary, against them enjoying the rights of citizens, nor had there ever been. He proceeded in another lengthy argument to show that Taney's arguments that Congress had no power to ban slavery from territories, or even to legislate for territorial governments, was without foundation, a tendentious claim reflecting a violent contemporary controversy over the extension of slavery. And last but hardly least, drawing on older British precedents, he argued that Dred Scott's slavery had ceased when he took up residence with his master in a free state. Slavery, he argued powerfully, existed only where it was protected by local law. And while the Constitution did require free states to return fugitive slaves, a master surrendered his right to his slaves the moment that he crossed with them into a free jurisdiction. In other words, taking the white southern argument head on, McLean argued that law did not regard slaves as property like any other, but rather as property only when explicitly sanctioned by local law.
But it was when I reached Justice McLean's discussion of the actual legal point that would decide the freedom of Dred Scott that I got a real shock. That point was the issue of whether Dred Scott had become free by virtue of his residence with his master in Illinois and in free Louisiana territory where slavery had been outlawed by the Missouri Compromise. From the moment I first read about the case when I was perhaps ten years old, I had assumed that Dred Scott, perhaps influenced by abolitionists, was asserting a novel right and that Taney's decision reflected precedent. I could not have been more wrong. Many state courts, and the courts of Missouri in particular, had heard such cases in the previous decades and had frequently awarded the aggrieved slaves their freedom. The Missouri Supreme Court had explicitly repudiated more than 20 years of precedence in denying him his freedom. It was Taney who was making new law by fiat, reflecting new slaveholder militancy, just as the whole South was making new law by asserting the inability of Congress to prohibit slavery in the territories. In fact, McLean noted that not only Missouri, but also Mississippi, Virginia, Louisiana, Kentucky, Maryland and other states had held that slaves taken by their masters to reside in free states became free.
Justice Curtis, who hailed from Massachusetts (and specifically from Watertown where I now live myself), began with a very lengthy technical argument about jurisdiction but then went straight to the heart of Tawney's argument that descendants of slaves could not be citizens. The Constitution, he noted, referred to "citizens" of the United States, by which it could only have meant citizens under the Articles of Confederation, which in turn meant citizens of the various states. There was no question that the citizenry included persons of African descent. "Of this there can be no doubt. At the time
of the ratification of the Articles of Confederation, all free
native-born inhabitants of the States of New Hampshire, Massachusetts,
New York, New Jersey, and North Carolina, though descended from African
slaves, were not only citizens of those States, but such of them as had
the other necessary qualifications possessed the franchise of electors,
on equal terms with other citizens."
Curtis proceeded to quote from an extraordinary 1838 decision from the Supreme Court of North Carolina defining the status of free black inhabitants in terms opposite to what Taney had said, and remarkable for its use of the terms "persons" and "property", keeping in mind that only the word "persons" is used to refer to slaves in the Constitution when such reference cannot be avoided.
"According to the laws of this State, all human beings within it, who are not slaves, fall within one of
two classes. Whatever distinctions may have existed in the Roman laws
between citizens and free inhabitants, they are unknown to our
institutions. Before our Revolution, all free persons born within the
dominions of the King of Great Britain, whatever their color or
complexion, were native-born British subjects -- those born out of his
allegiance were aliens. Slavery did not exist in England, but it did in
the British colonies. Slaves were not, in legal parlance persons, but
property. The moment the incapacity, the disqualification of slavery,
was removed, they became persons, and were then either British subjects
or not British subjects, according as they were or were not born within
the allegiance of the British King. Upon the Revolution, no other
change took place in the laws of North Carolina than was consequent on
the transition from a colony dependent on a European King to a free and
sovereign State. Slaves remained slaves. British subjects in North
Carolina became North Carolina freemen. Foreigners, until made members
of the State, remained aliens. Slaves, manumitted here, became freemen,
and therefore, if born within North Carolina, are citizens of North
Carolina, and all free persons born within the State are born citizens
of the State. The Constitution extended the elective franchise to every
freeman who had arrived at the age of twenty-one and paid a public tax,
and it is a matter of universal notoriety that, under it, free persons,
without regard to color, claimed and exercised the franchise until it
was taken from free men of color a few years since by our amended
Curtis, like myself a proud New Englander, proceeded to show that Taney's statements about the status of free blacks in revolutionary-era New England were simply wrong. The Articles of Confederation, he noted, granted "the free inhabitants" of all the states "all the privileges and immunities of free citizens of the several states," and during the debate on the adoption of those articles in the Continental Congress,an amendment proposed by South Carolina to insert the word "white" between "free" and "inhabitants" was voted down. The basic rule of citizenship, he showed at length was the one now enshrined in the 14th amendment, that it was conferred by birth. Curtis also stood another of Taney's arguments on its head. Taney had cited a 1792 federal law establishing the militia, to which "every free, able-bodied, white male citizen" should belong, as evidence that black people were not regarded as citizens. In fact, Curtis argued effectively, it proved the exact opposite, since if it were agreed that black people were not citizens it would have been unnecessary to add the word "white" in the first place. And when Missouri was admitted in 1821, he showed, the Congress specifically invalidated a provision of its Constitution that would have barred free colored persons from settling in the state, on the grounds that it would have unconstitutionally deprived citizens of other states of privileges to which the Constitution entitled them. He also argued that international law was common law, and that international law had rejected slavery for some time. He also argued that Scott's master had effectively recognized his freedom by allowing him to conclude, in the Wisconsin territory, a lawful marriage!
Curtis aggressively asserted the power of Congress to legislate against slavery in a territory, and did not hesitate to note " the social and moral evils of slavery, its
relations to republican Governments, its inconsistency with the
Declaration of Independence and with natural right." The attempt to argue that rules against slavery would discriminate against inhabitants of the southern states, he argued, was an attempt to write an exception into a categorical clause of the Constitution for which there was no basis.
Let us then put this decision in the context of American history, with particular reference to race and slavery.
Because so many of them believed slavery to be an evil, the Founders, while unable to do anything about it in southern states, did not specifically recognize or protect it in the Constitution. When the Constitution was first adopted the Confederation had just banned slavery in the Northwest territories, clearly anticipating that Congress would be able to do the same. Meanwhile, most of the northern states had just abolished it. Many southerners also hoped to see it disappear, and a number of the founders, including Washington, freed their slaves upon their death. However, with the invention of the cotton gin and the rise of a new generation of southerners, the view that slavery was a necessity and a positive good gained ground. In 1820, when the Missouri Compromise banned slavery north of 36' 30" (except in Missouri), some southerners were arguing that slave property was protected everywhere--but they clearly lost that fight in Congress.
Like the NRA and its allies in recent decades, the slave owning South now began re-interpreting the Constitution to serve their own ends. The controversy over slavery became more and more bitter in the 1830s and 1840s, and especially after the Mexican War added vast new territories to the Union. More and more southerners began to argue that slaves were property like any other--a claim that could not really be justified at common law, since slavery had formed no part of the English common law which the new Republic had adopted. What happened in the Dred Scott decision was perfectly parallel to what happened in the District of Columbia v. Heller decision in 2008, when the court, by a 5-4 majority, suddenly adopted the NRA's view, overturned two centuries of precedent, and created an individual right to bear arms. In both cases, an organized, ideologically driven minority had imposed its will upon the Supreme Court, and thence upon the country. In the Dred Scott case the reaction was swift. Not even the entire Democratic Party would accept the view of Dred Scott, and the decision allowed Lincoln to win a huge electoral college victory in 1860. With no hope of making its views prevail through law, the South seceded, and the Civil War both defeated the southern states and ended slavery.
The argument that the framers and their Constitution were deeply embedded in racism and never envisioned freedom for the slaves is false. It is also politically disastrous for the nation. Again and again we have preserved our ideals by returning to the principles the framers enshrined. That, in my opinion, is what we must do again now, rather than argue that the American society and government has always been inherently, irretrievably racist. Racism certainly has never been absent from American life and is not now, but it has lost ground over the centuries precisely because it is alien to our founding documents. To argue that it is not takes away our best hope for further progress.