Thus, the Court’s conclusion: “The act of Congress which prohibited a citizen from holding and owning property of this kind … is not warranted by the Constitution and is therefore void; and … 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.”19
Curtis replied to the majority’s argument as follows: First, the territories clause certainly gave Congress the authority to hold territory acquired from a foreign nation, to make all necessary rules for governing that territory, and to include among those rules a prohibition against slavery. Congress had acted on that assumption since the nation was founded, enacting ordinances and laws excluding slavery from various of the territories (for example, the Missouri Compromise). Curtis counted eight distinct instances, “beginning with the first Congress, and coming down to the year 1848,” where Congress had explicitly excluded slavery from the territory of the United States. The acts by which Congress had regulated slavery in the territories “were severally signed by seven Presidents of the United States, beginning with General Washington, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Constitution was adopted.” And when one interprets the Constitution, Curtis wrote, a “practical construction, nearly contemporaneous with the adoption of the Constitution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind.”20
Curtis replied to the Fifth Amendment due process argument by pointing out that a slave is not ordinary “property.” Rather, slavery is a “right existing by [virtue of] positive law [for example, statutes].” It is “without foundation in the law of nature or the unwritten common law.” Nor could “due process of law” mean that a slave remained a slave when his master moves from, say, slave state A to live permanently in free state B. What law would then govern the slave, the slave’s wife, his house, his children, his grandchildren? State B has no laws governing slavery. Its judges could not manage a proliferating legal system under which each slave, coming into free state B, brought with him his own law, whether from A or from C or from whatever other slave state he happened to be from.21
More important, said Curtis, the phrase “due process of law” comes from the Magna Carta. When Congress passed the Northwest Ordinance in 1787, it did not think that law violated the Magna Carta. Moreover, numerous states, including Virginia, had passed laws prohibiting the importation of new slaves. Under these laws, any slaves imported in violation of the prohibition would be set free. And, Curtis wrote, “I am not aware that such laws, though they exist in many States, were ever supposed to be in conflict with the principle of Magna Charta incorporated into the State Constitutions.” If those laws did not violate the Magna Carta, then Congress’s prohibition of slavery in territories could hardly violate the due process clause of the federal Constitution.22
Despite the strength of Curtis’s arguments, however, the majority still held: (1) Scott could not bring his case in federal court because freed slaves are not citizens of the United States; (2) many congressional anti-slavery-spreading statutes, including the Missouri Compromise, were unconstitutional; and (3) the Fifth Amendment’s due process clause protected the ownership rights of slaveholders even when they took their slaves into free territories and free states to live for extended periods.
THE AFTERMATH
THE COURT ISSUED its decision in early March 1857, and the chief justice issued his written opinion later in the spring. The South and southern sympathizers reacted favorably. President Buchanan (perhaps forewarned) favorably referred to the opinion in his March inaugural address and again in his December State of the Union address. But the northern reaction was vehemently negative. Horace Greeley’s New York Tribune described the holding as “wicked” and “atrocious.” “If epithets and denunciation could sink a judicial body,” another observer wrote, “the Supreme Court … would never be heard of again.”23
A joint committee of the New York legislature reported that the decision had “destroyed the confidence of the people in the Court,” predicted that it would be overruled, and described Taney’s statement that people of African descent had no rights as “inhuman, unchristian, atrocious,—disgraceful to the judge who uttered it and to the tribunal which sanctioned it.” The committee said the opinion paved the way for slavery’s spread to free states. If “a master may take his slave into a Free State without dissolving the relation of master and slave,” then “some future decision of the Pro-Slavery majority of the Supreme Court will authorize a slave-driver … to call the roll of his manacled gang at the foot of the monument on Bunker Hill, reared and consecrated to freedom.”24
The case had increasing reverberation. The abolitionist Frederick Douglass offered a slightly different analysis. In a New York lecture he remarked that despite this “devilish decision” produced by “the slaveholding wing of the Supreme Court,” the Court could not make “evil good” or “good evil.” The decision, he concluded, “is a means of keeping the nation awake on the subject.… [M]y hopes were never brighter than now.”25
Indeed, the decision did keep the nation awake. Northern supporters widely circulated the Curtis dissent in pamphlet form. Abraham Lincoln, then a Republican candidate for Senate, spoke often about the decision, describing it as an “astonisher in legal history” while arguing that Taney’s “whites only” views had turned “our once glorious Declaration” of Independence into a “wreck” and “mangled ruin.” In February 1860, Lincoln based his Cooper Union speech—a speech that helped make him a national political figure—on Curtis’s dissent. Lincoln fed the North’s fear of spreading slavery by asking, what “is necessary for the nationalization of slavery? It is simply the next Dred Scott decision. It is merely for the Supreme Court to decide that no State under the Constitution can exclude it, just as they have already decided that under the Constitution neither Congress nor the Territorial legislature can do it.”26
Although historians debate the precise role of Dred Scott in bringing on the Civil War, the decision at least energized the anti-slavery North. It became the Republican Party’s rallying cry and contributed to Lincoln’s nomination and election as president. These circumstances together with others helped bring about that most fierce War Between the States. After the war, the nation added the Thirteenth, Fourteenth, and Fifteenth amendments to the Constitution, ending slavery while guaranteeing equal treatment, voting rights, and basic civil rights for the newly freed slaves.
On a more personal level: Benjamin Curtis resigned from the Court immediately after the Dred Scott decision. Chief Justice Taney remained on the bench until his death. Dred Scott and his family were bought by a son of his original owner, Peter Blow, who set them all free. Within little more than a year, however, Scott died of tuberculosis.27
LESSONS
MODERN CRITICS DESCRIBE the Dred Scott case as “infamous,” “notorious,” “an abomination,” “odious,” a “ghastly error,” and “judicial review at its worst.” Chief Justice Charles Evans Hughes said the decision was a “self-inflicted wound” that almost destroyed the Supreme Court. The Oxford Companion to the Supreme Court of the United States says that “American legal and constitutional scholars consider the Dred Scott decision to be the worst ever rendered by the Supreme Court.” These judgments reflect the immorality of the decision. What can people today learn from it? By reading with care, we can draw certain lessons about the Court that remain relevant. I suggest five.28
The first lesson concerns judicial rhetoric. Today, as in 1857, the language a judge uses to set forth his or her reasoning matters. Taney’s words about Americans of African descent having “no rights which the white man was bound to respect” are lurid and offensive, more so than can be found in other Supreme Court opinions, including other opinions that Taney wrote. An experienced Supreme Court justic
e would not write such a phrase without being aware of the fact that others will repeat it and emphasize its judicial origin in order to make the sentiment appear legitimate. Taney’s effort to attribute his words to others, such as political officials or citizens, does not help. The public simply ignores the attempt to put moral distance between the sentiment and the author. Taney could not have thought otherwise, for the language was morally repugnant even then, as Curtis seemed to acknowledge when he refused to “enter into an examination of the existing opinions of that period respecting the African race,” calling instead for a “calm comparison.”29
The second lesson reinforces the optimistic judicial view that when a judge writes an opinion, even in a highly visible, politically controversial case with public feeling running high, the opinion’s reasoning—not simply the author’s conclusion—can make all the difference. A strong opinion is principled, reasoned, transparent, and informative. And a strong opinion should prove persuasive, make a lasting impression on the minds of those who read it, and (if a dissent) eventually influence the law to move in the direction it proposes.
Curtis’s opinion was one of two dissents. Its language is not the most colorful, but its reasoning is by far the strongest. Indeed, it paints the Taney majority into a logical corner from which it has never emerged. For example, what is the answer to Curtis’s claim that five states treated slaves as citizens (hence they were American citizens) at the time the Constitution was written? He supported the claim by pointing to a state supreme court decision (explicit on the point) and to the fact that five states allowed freed slaves to vote. Taney, in reply, referred only to racially discriminatory marriage and military service laws, but these laws are actually consistent with citizenship and hence do not significantly undercut Curtis’s argument.
What is the answer to Curtis’s jurisdictional argument? If Dred Scott was not a “citizen,” then the Court lacked jurisdiction to hear the case. If it lacked jurisdiction, it had no business deciding the merits of the case, holding the Missouri Compromise unconstitutional, and depriving Congress of the power to maintain slavery-free territories in the process. In Marbury itself one could find a countervailing legal principle—the need to explain why the law did not permit the Court to avoid constitutional questions—and this principle helped to explain, if not excuse, Marshall’s decision to address the merits. Here there is no such excuse. The Court reached out, without legal justification, to decide the constitutional question itself.
And what sound response can the majority make to Curtis’s explanation of the scope of the Constitution’s due process and territories clauses? That explanation was the only one that proved workable going forward, taking account of a nation that was continuously changing. How could judges of a single free state or territory, say Wisconsin, administer a legal system under which different slave state laws (for example, Alabama law, Georgia law, or Virginia law) would have to govern well into the future the relationships of different slave families brought permanently to live in that single free state?
Given the strength of Curtis’s reasoning, it is not surprising that those opposed to slavery circulated his dissent in pamphlet form throughout the nation or that Lincoln’s speeches, abolitionist lectures, and informed northern reaction reflected Curtis’s analysis.
A third lesson concerns the relation between Court decisions and politics. The kindest view of the majority’s opinion is that it had a political objective. Many in Congress had asked the Court to “umpire” the great political issue dividing the nation. Taney and his majority might have thought that by reaching out unnecessarily to decide a politically sensitive legal question—that is, by settling the constitutional status of slavery in the territories—the Court would promote a peaceful resolution of the slavery question (perhaps even through eventual abolition).
If that is what Taney believed, he was wrong. The Court’s decision did not heal the nation. Rather, it reinforced the North’s fears of southern dominance, solidified the case for abolition, and promoted the political standing of the anti-slavery Republican Party. The Court was more an instigator of the Civil War—or at least a contributing factor—than a mediating force. Moreover, as a purely legal matter the anti-slavery constitutional amendments resulting from the Civil War effectively reversed the Dred Scott decision.
There are, of course, strong institutional, jurisprudential, and ethical arguments against judges of a constitutional court holding their fingers up to the political winds. A court that acts “politically” plays with fire. For one thing, at a minimum, it undermines the confidence of that portion of the political public that favors the opposite result. More important, Hamilton’s writings make clear that the very point of granting such a Court the power of judicial review was to offer constitutional security where doing so is politically unpopular. To such reasons Dred Scott adds another, purely practical consideration. Judges are not necessarily good politicians. Their view about what is politically expedient could well turn out to be completely wrong. Such, as history shows us, was the case in Dred Scott.
The fourth lesson concerns the Court and the Constitution. The Court’s Dred Scott opinion can find its justification only by viewing the Constitution in a particular way—as requiring a consensus among slave states before the nation could embark on a course that would lead to abolition. Thus, Taney’s decision essentially treats the Constitution as no more than a political compact among independent states, with its central focus on compromise about slavery in particular.
Yet the Constitution’s language does not support such an interpretation. The protection it provided the slave trade expired in 1808. The constitutional guarantees of equal state representation in the Senate and the census-related supermajority status of slave states in the House of Representatives were written in terms that permitted the political destruction of the protection they offered the South. The preamble says that “We the People of the United States … ordain and establish this Constitution,” language broad enough to cover Dred Scott.
One cannot easily reconcile Taney’s vision with the expressed abolitionist hopes of, for example, Benjamin Franklin and many other framers. Nor, most important, can one reconcile this vision with the Constitution’s most basic objective, the creation of a single nation. The Constitution does so by creating political institutions strong enough to permit the “people” to govern themselves, determining policies and resolving problems ranging in subject from defense to territorial expansion to commerce, while protecting basic personal liberties across (the framers hoped) the centuries. The concept of a political treaty among sovereign and independent states focusing primarily on slavery is not compatible with this more basic constitutional objective. (And, of course, if the Dred Scott majority doubted that fact in 1857, the post-Civil War amendments to the Constitution ending slavery, guaranteeing voting rights, defining citizenship, assuring individuals equal protection of the laws, and protecting basic individual liberty from state interference overturned the legal precedent they created.) Taney’s vision was not of a Constitution that created a central government but of a treaty that linked states.
A fifth lesson concerns the harm the Court worked upon the Hamiltonian cause. The Court placed those who saw the need to follow the law in a dilemma that Lincoln himself expressed well in his first inaugural address:
I do not forget the position … that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess th
at if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.30
That is to say, the other departments of government, while bound to carry out the Court’s decision in a particular case, owe that Court only “high respect and consideration” in respect to its interpretation of the Constitution. And sometimes the “people” rightly can themselves decide “vital” interpretive “questions” irrespective of the Court’s views. If Abraham Lincoln has begun to sound like Andrew Jackson, is the Dred Scott Court itself not to blame?
Finally, Dred Scott tells us something about morality’s relation to law. When discussing Dred Scott at a law school conference, I asked the audience to consider a hypothetical question. Suppose you are Benjamin Curtis. Imagine that Chief Justice Taney comes to your chambers and proposes a narrow ground for deciding the case. He asks if you will agree to a single-paragraph unsigned opinion for the entire Court, in which the Court upholds the lower court on the ground that the matter is one of Missouri law in respect to which the Missouri Supreme Court must have the last word. He will agree to this approach provided there is no dissent.31
Should you agree? If you do, the majority will say nothing about citizenship, nothing about the Missouri Compromise, nothing about slavery in the territories and the due process clause. As a result, the Court will create no significant new law; it will not diminish its own position in the eyes of much of the nation; it will not issue an opinion that increases the likelihood of civil war; and because no one knows who would win such a war (after all, the North almost lost), the prospects for an eventual abolition of slavery will be unaffected, perhaps increased.
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