Dred Scott and Today
In everything that Trump and MAGA do in the way of pushing back against Diversity, Equity and Inclusion initiatives and asserting White Supremacist values (‘values’) there sound the echoes of the worst-ever Supreme Court decision in US history, the Dred Scott case. Admittedly, today’s Supreme Court is working hard to wrest that mantle from their infamous forerunners, and if Trump is still able to continue his wrecking-ball progress after November, they might yet achieve it. But to date Dred Scott v Sandford 60 U. S. 393 (1857) stands out as one of the most hideous stains on the history of the Land of the Free. Given that there are plenty of stains this really says something. It did however lead to one of the best stain-removing exercises in the Land of the Free, giving this expression some meaning at last: the Fourteenth and Fifteenth Amendments to the Constitution. This is what Trump is trying to reverse with his anti-Birthright endeavours and election meddling.
Dred Scott was a Black slave born in Virginia in c .1799 who, after passing from one owner to another, with periods of being rented out by his owners to other white masters, found himself the property of an Army doctor called John Emerson. Because of his employment Emerson had to move frequently from one army base to another. He had bought Scott in 1831 from a family named Blow in Missouri, where he was based at the time. In 1833 he was posted to the Fort Snelling military base in the Wisconsin Territory (now Minnesota), making Scott with him. The Territory was ‘free’ in the sense that slavery was illegal there. This reflected the tense pre-Civil War situation in which some states, mainly in the South, retained slavery while states and territories in the North and North-West had abolished it, the country overall trying to keep united by means of the ‘Missouri Compromise’ that reserved decisions about slavery to individual states. Great antipathy and hostility obtained between pro-slavery apologists and abolitionists.
While at Fort Snelling, Scott met and married his wife Harriet Robinson, in a ceremony conducted by Robinson’s owner who was a local Justice of the Peace (and Indian Agent). This is a notable detail; slave marriages had no legal status, so in this instance they were treated as free persons. Robinson was transferred to Emerson’s ownership so that she and Dred could be together. Not long afterwards the Scott’s daughter Eliza was born on a boat on the Mississippi River while they were travelling to rejoin Emerson at his new posting in Louisiana. As they were in free territory at the time, baby Eliza was technically born free.
About this time Emerson met and married Eliza Irene Sanford (sic; in the Supreme Court documents later, a clerical error changed the name to ‘Sandford’). When Emerson died, having served in the Seminole War in Florida (that is, in the episode that took place around 1840 in that recurrent series of wars), Eliza Sanford inherited the Scotts. In 1846 Scott, fearing that his daughters (by then there were two) were at risk of being sold, tried to buy the family’s freedom, offering Sanford $300. She refused. That is when the Scotts decided to try the law – as it happens, a promising move, because there were precedents for slaves gaining their freedom after having spent time in free states or territories, which was regarded as liberating them ipso facto on the principle ‘once free, always free’ until then generally accepted. This is what lay behind the ‘Underground Railroad’ taken by slaves (it was a figurative railroad) escaping to the North. The Scotts were helped by the adult daughter of Scott’s previous owners, the Blows, who with her husband provided money and advice and found lawyers for them. (There are good people everywhere.)
An ascending series of trials in the Missouri courts, some faltering because of procedural technicalities, resulted in victory for Scott in a retrial in the State Circuit Court, but Sanford appealed, and the Missouri Supreme Court overturned the Circuit Court’s decision: Scott was still a slave. This was in 1852, by which time the nationwide pro and anti slavery confrontation was boiling up even more, influencing the courts in the pro-slavery South. As if bolstering the South’s right to slavery, the Missouri Supreme Court asserted that the doctrine of states’ rights meant that the laws of other states and territories were irrelevant to Missouri’s laws, so the fact that the Scotts had lived in free domains made no difference to their status in Missouri. ‘Once free’ therefore did not mean ‘always free’; return to a slave state from a free state and you were back in chains.
Now Scott tried the federal court system. The judge in the case ruled that the decision of the Missouri Supreme Court regarding his enslaved status should stand. So Scott appealed to the Supreme Court.
Controversy remains about whether there was political interference in the Supreme Court trial – James Buchanan was just about to be inaugurated as fifteenth President of the US and he wanted an outcome that would dampen the furore over the slavery question. There were also some shenanigans on the Sanford side about the ownership issue, but in the event the stunning decision written by Chief Justice Roger Taney was the main point, whatever led to it.
Taney wrote, ‘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 of the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?’ His answer was: No. The Court holds, he wrote, that ‘They’ (i. e. Black people) ‘are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time’ (i.e. at America’s founding) ‘considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them…a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery…It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. ... They had for more than a century before been regarded as beings of an inferior order ... and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.’
If one reels before the enormity of this, one is right to do so. It might however make one fail to notice that Taney also went off in another direction that was undoubtedly a factor in the dreadful Civil War not long after to follow. This was that he declared the Missouri Compromise unconstitutional, thereby voiding it.
Only two of the seven justices dissented, one of whom, Benjamin Robbins Curtis, to his undying credit, wrote in his dissent that Taney was wrong in his interpretation of the Founders’ intentions, pointing out that at the time the Constitution was adopted in 1789 Black men could vote in five of the thirteen states, making them full citizens. Black people are described as ‘persons’ in the Constitution, another indication that the ‘inferior class of beings’ argument Taney deployed does not wash. Moreover Curtis said that it was ‘more a matter of taste than of law’ whether or not a Black person can be ‘an agreeable member of society’, thus calling out the racism of Taney’s stance.
The Dred Scott decision, far from damping down the slavery issue, poured petrol over it. There was furious outrage in the Northern states and the Supreme Court was almost universally vilified and condemned there. Apparently Taney and the concurring justices were ‘stunned’ by the reaction, so Robert McCloskey avers in his history of the Supreme Court.[1] Abraham Lincoln was among those who robustly opposed the Court’s decision. The great abolitionist and former slave Frederick Douglass prophesied that it would lead to war. Predictably enough, Jefferson Davis – Confederate President to be – was happy with it.
The Fourteenth Amendment, one of the key ‘Reconstruction Amendments’ after the Civil War, did not pass without much bitterness and controversy. The Southern states had to ratify it if they wished to be represented in Congress again, so they did it - understatement coming - unwillingly. It has been the most challenged and litigated element of the Constitution ever since. Its Section 1 reads, ‘All 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.’ The Fifteenth Amendment is also highly relevant today: it prohibits denying any citizen the right to vote based on his or her ‘race, colour, or previous condition of servitude’. This latter is what Trump seeks to overturn with his current election initiatives – if he allows the midterms to go ahead at all.
The sorry saga of the infamous Dred Scott decision, of the turmoil of the slavery issue generally and the war that brought it to a head, offers many things to contemplate. One is this: after the Civil War here had to be a reconstruction, a reset, predicated among other things on amendment of the Constitution. After Trump, the same thing is going to be absolutely and fundamentally necessary again.
[1] Robert G. McClosky The Supreme Court (University of Chicago Press 1960, 5th ed. revised by Sanford Levinson 2010).
The Causes of the American Civil War defy reason. Slavery was on its way out in 1861 and the importation of new slaves had been ended by 1790. Just what made a predominantly agricultural society challenge a predominantly industrial society over a designation of statehood that was in conflict with the Declaration of Independence? Kier Hardy opposed conscription in WW1 because he saw the British working class being sent to slaughter the German working class, yet both countries put millions of men into the trenches. If the confederacy had won, slavery would eventually have been abolished. Even Brazil abolished slavery in 1890, the last American State to do so. Did 400,000 American men die for no good reason?
This is the first article I have ever read on the Dred Scott decision that has so eloquently demonstrated the destructive effects of that decision and the potential for further destruction to democracy. Great job!