The Supreme Court’s Insertion in Politics: Dred Scott
“These judicial events are important to American history as a glaring example of how the improper insertion by the United States Supreme Court into political questions is detrimental to our great American cultural debates. ”
A photograph of Dred Scott, taken around the time of his court case in 1857 (Source: Wikimedia Commons).
In arguably one of the most controversial opinions of the United States Supreme Court, Chief Justice Roger Brooke Taney’s opinion in Dred Scott v. Sanford (1857) contributed to the Panic of 1857 and defined the debates of the Illinois senate race in 1858 between Stephen Douglas and Abraham Lincoln. However, most importantly, this decision fractured the Nation.
Justice Taney, at the behest of the newly elected President Buchanan, attempted to put an end to the debate about slavery in the United States by delivering an overly expansive decision which held, inter alia, that the Missouri Compromise was unconstitutional.
Contrary to the intentions of Justice Taney, he inadvertently ignited the American Civil War. As a direct result of Justice Taney’s decision, the Democrat Party fractured between northern Democrats and southern Democrats leading to the inevitable election of Abraham Lincoln as the 15th President of the United States. He also set the country on a path to war. These judicial events are important to American history as a glaring example of how the improper insertion by the United States Supreme Court into political questions is detrimental to our great American cultural debates.
The primary sources guiding the question are the actual Dred Scott v. Sanford opinion written by Chief Justice Taney and debates between Stephen A. Douglas and Abraham Lincoln, as well as West Coast Hotel Co. v. Parrish, and Roe v. Wade. Further and since the enactment of the Fourteenth Amendment after the Civil War, Fourteenth Amendment jurisprudence evolved and the Supreme Court’s interpretation and judicial standards of substantive due process from the Lochner-era through the abortion cases distinguished the protection of economic liberties and the protection of personal liberties under the Fourteenth Amendment.
Dred Scott was a slave in Missouri who, for an extended time, left Missouri with his owner to free territories. Upon his return to Missouri, Dred Scott sued for his freedom. In Dred Scott v. Sanford, the Supreme Court held that no negro (slave or free) could have standing to sue in court as they are not citizens of the United States (Dred Scott, 60 U.S. at 407). The Court also held that slaves were property under the Fifth Amendment and, as such, could not be taken without due process and any law that would deprive a slave owner of that property was unconstitutional. In dissent opinions to the majority holding, Justice John McLean argued that free negroes could be citizens, as they already had voting rights in a few states, and Justice Benjamin Robbins Curtis opposed Justice Taney’s reasoning that the founding fathers opposed anti-slavery laws.
The Supreme Court’s decision exposed the deep divisions among the American people regarding the morality of slavery in the United States. The Dred Scott decision also seemed to be a foregone conclusion before the case was even heard. “Although no hard evidence has surfaced to convict Taney of collusion with Buchanan, Abraham Lincoln, in his famous ‘House Divided Speech’ (1858), spoke of the “dark and mysterious circumstances” that led to the infamous decision, and he cast particularly incriminating light on Taney, since he was the court’s chief justice and deliverer of the most comprehensive opinion.
As was reported in 1857, and emphasized by many scholars subsequently, Buchanan had suspiciously whispered something into Taney’s ear during the inaugural ceremony before pronouncing in his inaugural address that the question of slavery’s extension in the territories was a matter that “legitimately belongs to the Supreme Court.” In any event, those in the South hailed the decision as a victory and a major defeat to the abolitionists. Supporters of slavery viewed the Court’s decision in Dred Scott as a legal precedent that would forever end the national debate.
Far from being over, the debate about the morality of slavery bled into the 1858 campaign for the United States Senate in the State of Illinois between Stephen A. Douglas and Abraham Lincoln. While prior to 1913, United States senators were elected by the various state legislatures, Douglas and Lincoln took their arguments directly to the people that would be voting for the representatives of the Illinois state legislature who would, in turn, elect a senator from Illinois. The debates between Douglas and Lincoln are some of the most iconic debates in American political history and went directly to the heart of the issue of the morality of slavery.
In his ‘House Divided Speech’ on June 16, 1858, Abraham Lincoln gives his opinion as to the then current state of the national debate regarding slavery:
“In my opinion, [agitation across the United States] will not cease, until a crisis shall have been reached and passed. ‘A house divided against itself cannot stand.’ I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved – I do not expect the house to fall – but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new – North as well as South.”
In short, Lincoln posits that, in order to bring resolution to the issue of slavery and the country to “cease to be divided,” the United States must become either a slave country or a free country.
During their first debate on August 21, 1858, Lincoln affirmatively stated his opinions on slavery in general and its connection to the Declaration of Independence:
“Now gentlemen, I don’t want to read at any greater length, but this is the true complexion of all I have ever said in regard to the institution of slavery and the black race. This is the whole of it, and anything that argues me into his idea of perfect social and political equality with the negro, is but a specious and fantastic arrangement of words, by which a man can prove a horse chestnut to be a chestnut horse. I will say here, while upon this subject, that I have no purpose directly or indirectly to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so. I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two, which in my judgment will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong, having the superior position. I have never said anything to the contrary, but I hold that notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty and the pursuit of happiness. I hold that he is as much entitled to these as the white man. I agree with Judge Douglas he is not my equal in many respects – certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man.”
Here and while stopping short stating that negroes are human beings (in a moral and philosophical sense), Lincoln undercuts the primary holding of the Dred Scott opinion that slaves were property under the Fifth Amendment and not citizens persons in a legal sense. While Lincoln does not assert that whites and negroes could live in “perfect equality,” Lincoln does posit that negroes are entitled to the natural rights of all men. Lincoln makes the moral argument that the natural rights as espoused in the Declaration of Independence are to be afforded to all citizens (U.S. Declaration of Independence, Paragraph 2), and that slavery cannot exist taking in consideration the natural rights of man.
During their first debate on August 21, 1858, Douglas affirmatively stated his opinions on the Dred Scott decision and slavery in general.
“Here I assert that uniformity in the local laws and institutions of the different States is neither possible or desirable. If uniformity had been adopted when the government was established, it must inevitably have been the uniformity of slavery everywhere, or else the uniformity of negro citizenship and negro equality everywhere. We are told by Lincoln that he is utterly opposed to the Dred Scott decision, and will not submit to it, for the reason that he says it deprives the negro of the rights and privileges of citizenship. That is the first and main reason which he assigns for his warfare on the Supreme Court of the United States and its decision. I ask you, are you in favor of conferring upon the negro the rights and privileges of citizenship? Do you desire to strike out of our State Constitution that clause which keeps slaves and free negroes out of the State, and allow the free negroes to flow in, and cover your prairies with black settlements? Do you desire to turn this beautiful State into a free negro colony, in order that when Missouri abolishes slavery she can send one hundred thousand emancipated slaves into Illinois, to become citizens and voters, on an equality with yourselves? If you desire negro citizenship, if you desire to allow them to come into the State and settle with the white man, if you desire them to vote on an equality with yourselves, and to make them eligible to office, to serve on juries, and to adjudge your rights, then support Mr. Lincoln and the Black Republican party, who are in favor of the citizenship of the negro. For one, I am opposed to negro citizenship in any and every form. I believe this government was made on the white basis. I believe it was made by white men, for the benefit of white men and their posterity forever, and I am in favor of confining citizenship to white men, men of European birth and descent, instead of conferring it upon negroes, Indians and other inferior races.’”
Thus, and through the debates of Lincoln and Douglas, the divergent opinions in connection with slavery across the United States are explained. Subsequently, Lincoln was not elected to be a senator from the State of Illinois, but the Dred Scott decision and the debates between Lincoln and Douglas lingered in the minds of the public. With the election of Abraham Lincoln as the 15th president of the United States in 1860, those in the South knew, in no uncertain terms, Lincoln’s position on the wrong of slavery and thereafter seceded from the Union.
In her article “Dred Scott Case in Context,” (Journal of Supreme Court History 40, no. 3), Lea Vandervelde, a professor at the University of Iowa College of Law and as the title states, puts the Dred Scott decision into context.
“The Dred Scott case was a catalyst in that constitutional reformation. The Dred Scott decision not only catapulted Lincoln’s rise to prominence in his ‘House Divided’ speech, but it also served as a springboard to the Reconstruction Amendments. The Thirteenth and Fourteenth Amendments were legally necessary not only to validate the Emancipation Proclamation but also to repudiate the harm that had been wreaked by the expansive decision in Dred Scott. The Amendments were also necessary to fix the flaws in our Constitution that that decision had so dramatically revealed. The purpose of his essay is to set the case in context in order to understand more clearly some of its lessons and its significance. I will not address how the case led to the Civil War, except to note that it not only further polarized the two sides but also rendered congressional action futile. The decision implied that any future congressional moves toward emancipation would likely be unconstitutional. The Court had just signaled that Congress had no such power to declare slavery banned under the Constitution.”
Following the Civil War and enacted in 1866 and ratified in 1868 and in direct response to the Dred Scott decision, the Fourteenth Amendment was ratified and, in relevant part, provides, as follows: [a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const., amend. XIV). Since its ratification, the Court’s application of the Fourteenth Amendment from a very narrow reading, which was originally enacted to protect former slaves, to a widely expansive reading of such amendment which has now been found to include the right to have an abortion. Understanding the evolution of Fourteenth Amendment jurisprudence provides clearer knowledge of why the Supreme Court should, or should not, be involved in making public policy thereby potentially impacting our culture.
