DRED SCOTT v. SANDFORD 19 Howard 393 (1857)

Closely associated with the coming of the civil war, dred scott v. sandford remains one of the most famous decisions of the United States Supreme Court. It is certainly the prime historical example of judicial power exercised in the interest of racial subordination, and, as such, it stands in sharp contrast with brown v. board of education (1954), handed down almost a century later. Scott was a Missouri slave owned by an army medical officer named John Emerson, who took him to live at military posts in Illinois and in federal territory north of 3630 where slavery had been prohibited by the missouri compromise. In 1846, Scott brought suit against Emerson's widow in St. Louis, claiming that he had been emancipated by his residence on free soil. Missouri precedent was on his side, and after two trials he won his freedom. In 1852, however, the state supreme court reversed that judgment. By a 2–1 vote and in bitterly sectional language, it declared that the state would no longer enforce the antislavery law of other jurisdictions against Missouri's own citizens. Scott's residence elsewhere, it held, did not change his status as a slave in Missouri.

Normally, the next step should have been an appeal to the United States Supreme Court, but a recent decision in the somewhat similar case of strader v. graham (1851) may have persuaded Scott's legal advisers that the Court would refuse to accept jurisdiction. They decided instead to initiate a brand new suit for freedom in the federal circuit court for Missouri against Mrs. Emerson's brother, John F. A. Sanford of New York, who had been acting as her agent in the Scott litigation and may even have become the slave's owner. Sanford's New York citizenship provided the foundation for diversity jurisdiction. So began the case of Dred Scott v. Sandford (with Sanford's name misspelled in the official record).

Up to this point, the principal issue in Scott's suit had been how residence on free soil affected the legal status of a slave. It was a familiar issue that dated back to the noted British case of Somerset v. Stewart (1772) and had been dealt with in a number of state court decisions. (See somerset ' scase.) During the early decades of American independence, a tacit sectional accommodation had prevailed. Southerners accompanied by slaves were generally able to travel and sojourn in free states without interference. At the same time, southern courts joined in upholding the rule that a slave domiciled in a free state became forever free. Beginning in the 1830s, however, this arrangement broke down under antislavery pressure. State after state in the North withdrew the privilege of maintaining slaves while sojourning, and there was growing judicial acceptance of the view that any slave other than a fugitive became free the moment he set foot on free soil. (See commonwealth v. aves.) To Southerners the change meant not only inconvenience but also insult, and by the 1850s they were retaliating in various ways.

Dred Scott v. Sandford raised an additional issue. In order to maintain a suit in federal court, Scott had to aver that he was a citizen of Missouri. Sanford's counsel challenged this assertion with a plea in abatement arguing that Negroes were not citizens and that the Court therefore lacked jurisdiction. The trial judge ruled that any person residing in a state and legally capable of owning property was qualified to bring suit under the diverse-citizenship clauses of the Constitution and the judiciary act. On the merits of the case, however, he instructed the jury in favor of the defendant. Like the Missouri Supreme Court in Scott v. Emerson, he declared that Scott's status, after returning to Missouri, depended entirely upon the law of that state, without regard to his residence in Illinois and free federal territory. The jury accordingly brought in a verdict for Sanford.

The case then proceeded on writ of error to the United States Supreme Court, whose membership at the time consisted of five southern Democrats, two northern Democrats, one northern Whig, and one Republican. Argument before the Court in February 1856 introduced another new issue. For the first time, Sanford's lawyers maintained that Scott had not become free in federal territory because the law forbidding slavery there was unconstitutional. This, of course, was the issue that had inflamed national politics for the past decade and would continue to do so in the final years of the sectional crisis. With a presidential contest about to begin, the Justices prudently ordered the case to be reargued at the next session. On March 6, 1857, two days after the inauguration of James Buchanan, Chief Justice roger b. taney finally read the decision of the Court.

Although Taney spoke officially for the Court, every other member had something to say, and only one concurred with him in every particular. The effect of the decision was therefore unclear, except that Dred Scott had certainly lost. Seven Justices concluded that at law he remained a slave. Taney, in reasoning his way to that judgment, also ruled that free blacks were not citizens and that Congress had no power to prohibit slavery in the territories. But were these declarations authoritative parts of the decision?

According to some contemporary critics and later historians, Taney did not speak for a majority of the Court in excluding Negroes from citizenship. Their conclusion rests upon the assumption that only those Justices expressly agreeing with him can be counted on his side. Yet, since Taney's opinion was the authorized opinion of the Court, it seems more reasonable to regard only those Justices expressly disagreeing with him as constituting the opposition. By this measure, the opinion never encountered dissent from more than two Justices at any major point. Furthermore, five Justices in their opinions spoke of the citizenship question as having been decided by the Court. In other words, the authoritativeness of that part of Taney's opinion was attested to by a majority of the Court itself.

More familiar is the charge that Taney indulged in obiter dictum when he ruled against the constitutionality of the Missouri Compromise restriction after having decided that Scott was not a citizen and so had no right to bring suit in a federal court. "Obiter dictum" was the principal battle cry of the Republicans in their attacks on the decision. By dismissing Taney's ruling against territorial power as illegitimate, they were able to salvage the main plank of their party platform without assuming the role of open rebels against judicial authority. What the argument ignored was Taney's not unreasonable contention that throughout his opinion he was canvassing the question of jurisdiction. Having concluded that Scott could not be a citizen because he was a Negro, the Chief Justice elected to fortify the conclusion by demonstrating also that Scott could not be a citizen because he was a slave. Such reinforcement was especially appropriate because some of the Justices were convinced that the Court could not properly review the citizenship question.

It therefore appears that none of Taney's major rulings can be pushed aside as unauthoritative. In any case, the long-standing argument over what the Court "really decided" has been largely beside the point; for Taney's opinion was accepted as the opinion of the Court by its critics as well as its defenders. As a matter of historical reality, the Dred Scott decision is what he declared it to be.

Taney devoted about forty-four percent of his opinion to the question of Negro citizenship, thirty-eight percent to the territorial question, sixteen percent to various technical issues, and only two percent to the original question of whether residence on free soil had the legal effect of emancipating a slave. Throughout the entire document, he made not a single concession to antislavery feeling but instead committed the judicial power of the united states totally to the defense of slavery. Behind his mask of judicial propriety, the Chief Justice had become privately a fierce southern sectionalist, seething with anger at "Northern insult and Northern aggression." His flat legal prose does not entirely conceal the intensity of emotion that animated his Dred Scott opinion.

The citizenship issue concerned the status of free Negroes only; for everyone agreed that slaves were not citizens. Yet Taney persistently lumped free Negroes and slaves together as one degraded class of beings who "had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority." Thus all blacks, in his view, stood on the same ground. Emancipation made no difference. Negroes could not have been regarded as citizens by the Framers of the Constitution, he declared, because at the time they "had no rights which the white man was bound to respect." These notorious words were not mere historical commentary as defenders of the Chief Justice have often insisted. Taney also held that the constitutional status of Negroes had not changed at all since 1787, which meant that in 1857 they still had no federal rights that white men were bound to respect. His reasoning excluded blacks not only from citizenship but also from every protection given to persons by the Constitution.

Much more forceful in its political impact was Taney's ruling against the constitutionality of the antislavery provision in the Missouri Compromise. He began by dismissing as irrelevant the one clause of the Constitution in which the word "territory" appears, preferring instead to derive the territorial power of Congress by implication from the power to admit new states. No less remarkable is the fact that he never said precisely why the antislavery provision was unconstitutional. Historians have inferred from one brief passage that he based his holding on the due process clause of the Fifth Amendment. Yet there is no explicit statement to that effect, and in the end he did not declare that congressional prohibition of slavery in the territories violated any part of the Constitution; he said only that it was "not warranted" by the Constitution, a phrasing that suggests reliance on the principle of strict construction.

Not satisfied with ruling in effect that the Republican party was organized for an illegal purpose, the Chief Justice also struck a hard blow at northern Democrats and the doctrine of popular sovereignty. If Congress could not prohibit slavery in a territory, he said, neither could it authorize a territorial legislature to do so. This statement, being on a subject that did not arise in the case, was dictum. It exemplified Taney's determination to cover all ground in providing judicial protection for slavery. The dissenting Justices, john mclean and benjamin r. curtis, rejected Taney's blanket exclusion of Negroes from citizenship. Having thus affirmed Scott's capacity to bring suit in a federal court, they proceeded to the merits of the case while denying the right of the Court majority to do so. Both men upheld the constitutionality of the Missouri Compromise restriction by interpreting the territory clause, in Republican style, as an express and plenary delegation of power to Congress. They went on to maintain that antislavery law, state or federal, dissolved the legal relationship between any master and slave coming within its purview, thereby working irrevocable emancipation.

Antislavery critics made good use of the dissenting opinions in launching an angry, abusive attack upon the Court majority and its judgment. The influence of the decision on the sectional conflict is difficult to assess. No doubt it contributed significantly to the general accumulation of sectional animosity that made some kind of national crisis increasingly unavoidable. It also aggravated the split in the Democratic party by eliciting stephen a. douglas ' s freeport doctrine and inspiring southern demands for a territorial slave code. At the same time, there is reason to doubt that the decision enhanced Republican recruiting or had a critical effect on the election of abraham lincoln.

For the two principals in the case, the verdict of the Court made little difference. John Sanford died in an insane asylum two months after the reading of the decision. Dred Scott was soon manumitted, but he lived only sixteen months as a free man before succumbing to tuberculosis. The constitutional effect of the decision likewise proved to be slight, especially after the outbreak of the Civil War. The wartime Union government treated Dred Scott v. Sandford as though it had never been rendered. In June 1862, Congress abolished slavery in all the federal territories. Later the same year, Lincoln's attorney general issued an official opinion holding that free men of color born in the United States were citizens of the United States. The thirteenth amendment (1865) and the fourteenth amendment (1868) completed the work of overthrowing Taney's decision.

The Dred Scott case damaged Taney's reputation but did not seriously weaken the Supreme Court as an institution. Aside from its immediate political effects, the case is significant as the first instance in which a major federal law was ruled unconstitutional. It is accordingly a landmark in the growth of judicial review and an early asserton of the policymaking authority that the Court would come to exercise more and more.

Don e. fehrenbacher
(1986)

Bibliography

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

Fehrenbacher, Don E. 1978 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.

Swisher, Carl B. 1974 The Taney Period, 1836–1864, Volume V of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. New York: Macmillan.