Dred Scott Case
- As a black man, was Scott a citizen with a right to sue in Federal
- Had prolonged residence in a free state and a territory in which
slavery was excluded in the Missouri Compromise made Scott free?
- Did Congress have the right to ban slavery north of 36º-30’?
- Strict Construction versus Broad Construction
- The question of slavery in the territories had been a major question
in America since at least 1820. Since 1850 (with popular sovereignty)
Congress had been unwilling to deal with the issue. The Supreme Court
took it upon itself to try to solve the problem once and for all.
- Chief Justice Taney wrote the decision. 80 years old, the Chief
was a complicated person. A Marylander who had owned slaves, he had
spent 28 years on the Court trying to protect slavery (think Prigg
v. Pennsylvania). He self-identified as a Southerner, and felt that
the “knife of
the assassin is at the throat” of the Southern way of life. Oddly,
Taney had freed his own slaves years before, and even paid them a pension
to help support them.
- Taney believed that free blacks were a great threat to the stability
of the slave system. This is why he spent so much time addressing the
status of Scott’s citizenship. Unfortunately, he had to put together
a lot of misinformation and bad history to prove his point.
- In actuality, free blacks had many legal rights at the time of the
revolution, and when the Constitution was written. But Taney declared
that STATE CITIZENSHIP had no impact on FEDERAL CITIZENSHIP.
Q. How can Taney reconcile “A person might have all of the rights
and privileges of the citizen of a State and yet not be entitled to the
rights and privileges of a citizen in any other State” with “Art
IV, Sec. 2 “The citizens of each state shall be entitled to all
privileges and immunities of citizen in the several states”?
If Taney had wanted to, he could have stopped there, and refused to
take the case (because Scott wasn’t a citizen—this is similar
to Cherokee Nation v. Georgia). But he went on to make many more sweeping
The Constitution (Art. IV, Sec. 3) gives Congress the power to “make
all needful rules and regulations” for the territories. Taney said
that laws are not “rules and regulations”, so Congress had
no power to make laws forbidding slavery in the Missouri Compromise.
Taney relied on the 5th Amendment “no person shall be deprived
of life, liberty or property without due process of law” to decide
that government could not authorize the taking away of a person’s
slave property. In other words, he put the rights of property (for slaveowners)
over the rights of people (the slaves).
The whole point of the story of America until 1865 is the story of the
right of property. The whole point of the story of America since 1865
is the story of the rights of individuals.
Before 1865 "life, liberty and property (the pursuit of happiness)" were
Since 1865 "all men are created equal" has been in the ascendence.