A People's History of the Supreme Court

by Peter Irons

  Having capitulated on this question, Grier was reluctant to let Buchanan read from the Dred Scott opinion in his inaugural address and point approvingly at the justices, who would sit behind him on the podium. “I fear some rather extreme views may be thrown out by some of our southern brethren,” Grier added in his letter to Buchanan. And he made sure that the Court’s opinions would not be issued before March 6, two days after the inauguration. Consequently, the new president told his audience—and the nation—that the question of whether slavery could be lawful in the territories “is a judicial question, which legitimately belongs to the Supreme Court, before whom it is now pending and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be.”

  Hardly anyone who attended the inauguration could have believed that Buchanan remained in the dark on the Dred Scott decision. Chief Justice Taney administered the presidential oath of office, and briefly conferred with Buchanan during the ceremony. Their conversation was not overheard, but it was certainly noticed, and tongues wagged all over Washington after the Court issued its ruling on March 6, 1857. On that day, Taney read from his lengthy “opinion of the Court” for more than two hours, speaking in a low voice to a crowded chamber. justices Nelson and Catron followed with their concurring opinions. The next day, Justices McLean and Curtis read from their dissents for some five hours. The four remaining justices simply filed their opinions with the Court’s clerk and did not read them from the bench. Although the Court had much earlier abandoned the practice of seriatim opinions, with each member expressing his views in print, all nine justices wrote something in the case, ranging from a few paragraphs to fifty-five pages of small print. They split into several factions on the various issues the Court addressed. But the bottom line, decided by a vote of seven to two, was that Dred Scott was still a slave.

  What did the Court decide in the Dred Scott case, aside from its final judgment? This question is complicated by the plethora of opinions, some of which stated no position on one or more of the four major questions before the Court. First, was the “plea in abatement” subject to appellate review? Second, could a “Negro of the African race” be a citizen of the United States? Third, did Congress have power to enact the Missouri Compromise and prohibit slavery in the territories? And fourth, did the laws of Missouri allow Dred Scott’s “reversion” to slavery after his residence in Illinois? If the Court lacked a majority on any of these questions, could the final judgment stand? These were important, even momentous, questions.

  Historians who have puzzled over the nine separate opinions have reached differing verdicts, much like reading Tarot cards. Some have concluded that any jusctice’s failure to object to various parts of Chief Justice Taney’s “opinion of the Court” implied consent with his conclusions. Others have argued that Taney’s opinion had no force of authority, aside from its narrow ruling that Dred Scott remained a slave under the laws of Missouri, because Taney lacked a majority on the crucial issue of black citizenship. Because only two justices, Wayne and Daniel, clearly stated their agreement with Taney on this question, his conclusion that blacks were not United States citizens was obiter dictum, a judicial statement with no binding force as precedent. One noted scholar, in fact, omitted Taney’s opinion from his Cases on Constitutional Law in 1895, substituting Justice Nelson’s narrow opinion because it was limited “to grounds agreed upon by a majority of the court.” But these differing historical judgments overlook one basic fact: Taney did speak for the Court, and his opinion was considered at the time—even by its fiercest critics—to represent the judgment of the majority. Taney’s opinion was clearly a political tract, even with its judicial trappings, but the slavery issue was political, and the Court’s decision instantly shaped the terms of that long-standing debate.

  Taney addressed the four major questions in the case over the course of fifty-five pages, but the first and last questions received scant discussion. He devoted just three pages to the plea in abatement, holding that the Court had power to review—and reverse—the decision of the lower court. This was a crucial issue, because Judge Wells had decided that Dred Scott had standing to bring suit under the “diverse citizenship” provision of the Constitution. Unless the Supreme Court could review that decision, Scott (and other blacks who sued for their freedom) would stand on equal footing with whites in federal court. Taney concluded that John Sanford had not “waived” his objection to Scott’s citizenship by “pleading over” to the merits of the case. Consequently, the Supreme Court had power to review “the whole record of the proceedings in the court below.”

  Having decided this key jurisdictional issue, Taney devoted the next twenty-four pages to the question of black citizenship. He began, as judges often do, by posing the question before the Court in broader terms than necessary. “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?” In these words, Taney placed on the advocates of black citizenship the task of proving that the Framers meant to include blacks as citizens. Given the decision of Judge Wells that Dred Scott had standing to sue under the Diversity of Citizenship Clause, it would seem incumbent on Taney to demonstrate that the Framers clearly meant to exclude all blacks—even “free Negroes” from citizenship.

  Taney simply bypassed his first major obstacle, by posing the question in terms of “national” rather than state citizenship. The Constitution provided that federal courts could decide suits “between citizens of different States,” with no requirement of national citizenship. But the Chief Justice wanted to avoid two damaging facts: first, that the Constitution did not exclude free blacks from either state or national citizenship; second, that several states—before and after the Constitution was ratified—allowed free blacks to vote and exercise other political rights. In providing for the apportionment of House seats in Article I, the Framers distinguished between “free persons” and “all other persons,” their euphemism for slaves in the “three fifths” clause. The term “free persons” clearly included free blacks, who were counted equally with whites in apportioning House seats.

  Every state had free blacks in 1787, even though most imposed some legal disabilities on them. Taney seized on this latter fact to argue that the Framers did not mean to confer national citizenship on any blacks. He reached this conclusion through the back door. Taney first claimed that the Framers did not consider blacks—free or slave—as “persons,” let alone as citizens. His asserted evidence for this dubious claim rested on a highly distorted reading of European and colonial history. Taney first conceded that “every person” who was considered a state citizen by the Framers “became also citizens of this new political body,” the United States. “It becomes necessary,” he continued, “to determine who were citizens of the several States when the Constitution was adopted.”

  On this question, Taney looked for guidance not to the states that adopted the Articles of Confederation but to “every European nation” of the colonial era. His shift of geographic focus reflected the fact that Taney found little support for his argument in the laws of the confederated states, several of which conferred political rights on free blacks. So he looked instead to “the state of public opinion” in the European nations “when the Constitution of the United States was framed and adopted.” Taney could not point to any concrete evidence on this issue. He simply reflected the racial attitudes of his time. Speaking of the century that preceded the Declaration of Independence and the Constitution, he wrote that blacks were “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 that
the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his own benefit.”

  Taney depicted the treatment of blacks under slavery in cold, hard words. “He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it,” he wrote of slaves during the colonial period. “This opinion was at that time fixed and universal in the civilized portion of the white race,” he added. Taney accurately conveyed the racist attitude most influential Europeans (he had England primarily in mind) held toward blacks, but the opinion that they were nothing more than property was by no means “fixed and universal” in England, let alone in the American colonies. In his influential Commentaries on the Laws of England, which the Supreme Court had often cited with respect, Sir William Blackstone wrote that “a slave or negro, the instant he lands in England, becomes a freeman,” with all the rights of English citizenship. Long before the Derd Scott opinion, Blackstone had refuted every claim Taney made about the citizenship status of blacks in England, where slavery had been outlawed by Parliament.

  Taney faced a problem in dealing with the affirmation in the Declaration of Independence that “all men are created equal” and were “endowed by their Creator with certain inalienable rights” that government could not limit or destroy. Included in these rights was the “liberty” to be free of legal or physical restraints. Under the English law that Taney ignored, law that was rooted in the Magna Carta and recognized by the Framers, this did not distinguish between whites and blacks. The Declaration of Independence made no reference to skin color. Taney, however, found it “too clear for dispute, that the enslaved African race were not intended” by the men who signed the Declaration in 1776 to be included as citizens of the nation they sought to establish. In concluding that all blacks were “never thought of or spoken of except as property” and were thus “doomed to slavery,” Taney argued that “public opinion had undergone no change” between 1776 and 1787. But his evidence for this claim was thin and tendentious. Free blacks could vote in many states and enjoyed other rights of citizenship as early as 1776. So how did they lose these rights—which Taney refused to acknowledge—after the Constitution was framed and ratified? Because, he claimed once again, they were considered by the Framers as “property” and not as “persons” with all the “rights, privileges, and immunities” they shared with whites. This argument had no historical basis, but Taney was determined to strip all blacks—free or slave—of their status as “persons” with constitutional rights. His stated his conclusion with certitude: not only slaves but free blacks were “identified in the public mind with the race to which they belonged . . . and regarded as a part of the slave population rather than the free.” This was an audacious, and totally false, conclusion from dubious historical facts, but only two justices dissented from his “opinion of the court” on this crucial question.

  After removing all blacks—free or slave—from the category of “persons,” it would seem that Chief Justice Taney had no further legal issues to decide in the Dred Scott case. If Scott was nothing more than an “article of merchandise,” with no more right than a horse to bring suit in federal court, why should the Supreme Court decide the constitutionality of the Missouri Compromise? The obvious answer is that it had no legitimate reason for doing so. Taney, however, was determined to provide a legal basis for extending slavery into the territories. To accomplish this goal, he devoted twenty-one pages to an argument he could have made in one or two. He offered an exceedingly narrow—and historically wrong—reading of the “territory” clause in Article I of the Constitution, authorizing Congress “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”

  Taney first echoed the claim of John Sanford’s lawyers that this clause did not confer any power on Congress to provide for governing the territories, but simply to dispose of land. This claim was patently false; otherwise, the “rules and regulations” part of the clause would be superfluous and meaningless. Having adopted this absurd position, Taney narrowed the clause even further, arguing that it referred solely to land already owned by the federal government in 1798, and not to territory later acquired by treaty or purchase, such as the Louisiana Purchase in 1803. “It was a special provision for a known and particular territory,” Taney wrote, with the purpose of transferring “to the new Government the property then held in common by the States” under the Articles of Confederation. This was an equally groundless claim, for which Taney provided no evidence. In fact, the Framers had discussed the acquisition of new territories at length, and James Madison had proposed at the Constitutional Convention that Congress be granted power to “institute temporary governments for new States arising therein.”

  Taney then claimed that the words “needful rules and regulations” did not give Congress any power to legislate for the government of territories. “They are not the words usually employed by statesmen,” he wrote, “when they mean to give the powers of sovereignty, or to establish a Government, or to authorize its establishment.” This was semantic nonsense. The grants to Congress in Article I of powers to “establish a uniform rule of naturalization” and to “make rules for the government” of the armed forces both contemplated that Congress would pass “necessary and proper” laws for these purposes. On this issue, Taney faced the unequivocal ruling of Chief Justice Marshall in an 1828 opinion, American Insurance Company v. Canter, a case that dealt with congressional power to legislate for the Florida Territory (which was acquired after the Constitution was ratified, a fact Taney ignored). “In legislating for them,” Marshall had written of the territories, “Congress exercises the combined powers of the general, and of a state government.” States clearly had the power to prohibit slavery within their borders, and Marshall had extended to Congress the same power over the territories. Taney construed Marshall’s opinion, however, as limited to congressional power to regulate territorial judiciaries, the issue before the Court in the 1828 case. Lawyers learn to “distinguish” cases that hold against them (“that case dealt with a green car, and this car is red”), but Taney offered an absurd distinction, since Marshall’s words applied generally to congressional power over the territories. Most likely, Taney dragged out this section of his opinion to cover with wordiness the weakness of his argument. For him, the real issue was not Dred Scott, but the extension of slavery into the territories. Striking down the Missouri Compromise would open the door for the “nationalization” of slavery, as Taney’s critics—including Abraham Lincoln—soon claimed. If Congress could not prohibit slavery, territorial legislatures were equally barred from doing so.

  When Taney turned to the fourth and final question he had posed, that of Dred Scott’s alleged “reversion” to slavery, the Chief justice first addressed—at great length—the issue of his residence in Wisconsin Territory, even though Scott’s two years in Illinois came earlier in time. The reason for this chronological reversal explains why Taney devoted just one page of his opinion to this question. “Our notice of this part of the case will be very brief,” Taney explained, because Scott had not asked the Supreme Court to review the decision of the Missouri court. Even if he had, Taney wrote, “it. is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court.” And why did the Supreme Court lack jurisdiction? Because it had ruled, in deciding that the Missouri Compromise was unconstitutional and that consequently Scott’s residence in Wisconsin Territory did not free him from slavery, that Scott was not a “citizen” of the United States. And how did that ruling affect his claim that residence in Illinois granted him freedom in Missouri? Because it established that Scott was not a “citizen” and thus could not raise such a claim in any court, state or federal. If this sounds like a classic “Catch-22” situation, it is. By ruling first on the territorial question, Taney closed the door on Scott’s claim under state law, which ha
d arisen first in time. Because the lower federal court had allowed Scott to proceed under the “diversity of citizenship” clause, it became necessary for Taney to reverse this holding before he dealt with the state-law claim. Had he dealt with the issues in chronological order, Taney would have faced a more difficult task in arguing that Scott lacked standing to bring suit in state court.

  If this all sounds confusing, which it surely does, much of the blame lies with Taney. He misread history, twisted legal precedent, and bent the Constitution out of shape, all to achieve his predetermined goal of promoting the extension of slavery into the territories. Historians have uniformly agreed with Don Fehrenbacher that Taney presented “an argument weak in its law, logic, history, and factual accuracy.” To be more blunt, Taney’s opinion was a travesty of the judicial craft, riddled with obvious errors and outright lies.

  Hardly anyone today has the fortitude to plow through all 234 pages of the nine opinions in the Dred Scott case, let alone to check all their citations against the historical record. Those who read the dissenting opinions of Justices McLean and Curtis, which together matched Taney’s in length, will appreciate (and most likely agree with) their detailed, point-by-point rebuttal to each of his contentions and conclusions. But they will not be reviewed or quoted here, because the fierce political debate that followed the Court’s decision in March 1857 focused almost entirely on Taney’s opinion. The Chief Justice had spoken for the Court on the slavery issue, and those on both sides—in Congress and the press—looked to his opinion for ammunition to fire against their opponents. The rhetorical battle that followed the Dred Scott decision, as we know, later erupted into the gunfire and bloodshed of the Civil War. Whether or not Roger Taney expected—or welcomed—this result, he could hardly have been unaware of the explosive force of his words.