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A Dredful Decision

It is the one Supreme Court case that the proverbial “every schoolboy” is said to know by name. The unforgettable name itself undoubtedly helped. That and an obscure connection with the coming of the Civil War. Beyond that, however, an experienced teacher of the law has wryly remarked, “The only sensible way of handling the Dred Scott case in class is to ask—hurriedly—if there are any questions on the reading assignments which cover the subject, pray that there will be none, and then pass rapidly on to the Lincoln-Douglas debates.”

The experts have done their bit to confuse the interpretation and obscure the significance of the case. It has long been a standard part of the nation’s legal and historical vocabulary, and lawyers have rated it high among “milestones” of legal history. Apart from their assumption that the case was important, even momentous, however, they agreed on little else. In spite of predominant feeling that the decision of the court was a judicial failure or disaster, the reputation of Chief Justice Roger B. Taney, who wrote the decision, later grew and flourished. His name appeared regularly in the top category of great justices. Professor Felix Frankfurter of Harvard, shortly before his own appointment to the court, placed Taney “second only to Marshall in the constitutional history of our country.” Of this paradox Don Fehrenbacher observes, “There has probably never been a sharper contrast between the reputation of an author and the reputation of his most famous work.” Paradoxes multiply the deeper one goes into the case of Dred Scott versus John F. A. Sanford.

The litigation began simply enough in the efforts of Sam, a slave who later acquired the name Dred Scott, to gain his freedom. John Emerson, an army surgeon, bought him in St. Louis from a family of Virginia origin named Blow and took him to army posts in the free state of Illinois and in parts of the Louisiana Purchase where slavery was forbidden. Scott and his slave wife returned to Missouri, where Emerson was transferred, and there in 1846 after his owner died he brought suit against Emerson’s widow for his freedom on the ground that residence in a free state and free territory made him free. He lost his suit but was granted a retrial and in 1850 won a verdict. Mrs. Emerson then appealed to the Missouri Supreme Court, which reversed the lower court. Scott’s only recourse now was in the Supreme Court of the United States. Meanwhile Mrs. Emerson had remarried and moved to Massachusetts and left the Scott family in St. Louis under control of her brother, John Sanford, who also moved east to New York. This enabled Scott to bring suit from Missouri against a new defendant, Sanford, under the diverse citizenship clause of the Constitution. The circuit court ruled that he might do so but denied him his freedom. His lawyers then appealed the decision on writ of error to the Supreme Court.

The case was beset by ironic coincidence. From beginning to end Scott’s long litigation for freedom was supported by friendly members of the Virginia family Blow, his original owners. Further embarrassment to the case in antislavery legend was the disclosure that not Sanford, the defendant, but Calvin C. Chaffee, a prominent antislavery congressman from Massachusetts, the man Mrs. Emerson had married, was the real owner of Dred Scott. Charges of collusion to rig the case for partisan purposes came from both sides but proved to be without foundation. The suit got almost no public attention until it suddenly became the center of national attention in March, 1857.

What gave the obscure slave his historical significance was the fateful convergence of his case with the national crisis over slavery. Scott first brought suit in 1846, the year of the Wilmot Proviso, which attempted to exclude slavery from territory to be acquired from Mexico. The slow progress of the case was punctuated by periodic crises over the question of slavery in the territories: the Compromise of 1850, the Kansas-Nebraska Act, the battles in Bleeding Kansas. In those days the Supreme Court sat in a small room of the Capitol basement. While the case was first being argued before the court in 1856, violent words and deeds were being exchanged over the same questions upstairs in the same building. Senator Charles Sumner delivered seven days of oral attack on the slave power, and Congressman Preston F. Brooks of South Carolina delivered a physical attack on Sumner. Downstairs the rhetoric was dry and technical and the conduct decorous, but the court proceedings were no less political and emotional than the congressional proceedings they echoed.

For years Congress had evaded the question of whether it had the power to prohibit slavery in the territories and avoided a definition of territorial power over the subject. It had repeatedly declared that these were constitutional questions that the Supreme Court should settle and implied that the court possessed some magical power to do what Congress could not—end the slavery crisis. No chance for the court to accept the challenge occurred, however, until the Dred Scott case—and then it was an opportunity, not a necessity. For a long time it appeared that the court could not take the opportunity but would uphold the lower court decision on narrow grounds. A majority of the members, five including the Chief Justice, were proslavery Southerners, however, and at the last moment they reversed their strategy and plunged into the explosive constitutional question. With less than three weeks for the task, the aged Taney sat down shortly before his eightieth birthday to write his long opinion for the court.

The opinion took the form of reasons for the lack of federal court jurisdiction. The first was that Dred Scott was not a citizen, since at the time of the adoption of the Constitution Negroes had been “regarded as beings of an inferior order” with “no rights which the white man was found to respect.” Slaves could not be citizens, nor could their descendants, free or not; states could not confer national citizenship upon Negroes, nor had any state made them citizens. Since Scott was not a citizen he had no right to bring suit in federal court. In the second place his claim to have gained his freedom through residence in free territory was denied on the ominous ground that any law excluding one type of property in the territories was a violation of the Fifth Amendment which guaranteed that no person should “be deprived of life, liberty, or property without due process of law.” It followed that the prohibition of slave property north of the 36° 30’ line in the Missouri Compromise was unconstitutional.

Apart from the conclusion that Dred Scott was still a slave it is hard to say on what points the majority of five Southerners and one Northerner did agree and why. They frequently gave different reasons for reaching the same conclusion. The conclusions they did reach were strangely abstract in their effects. They denied freedom to slaves in areas that had no slaves, and declared unconstitutional a law that had already been repealed. Like so many victories the South won in those years, the Dred Scott decision was abstract, a hollow triumph, “like an enormous check that could not be cashed,” as Fehrenbacher says. Yet he would at the same time insist that the decision was of tremendous historic importance, with meanings still to be explored.

The historical landscape surrounding the American Civil War was planted with intricate mazes. They include the great sectional compromises from 1820 to 1877, along with the Kansas embroglio, the Squatter Sovereignty puzzle, and the Reconstruction conundrums. The intricacies are there by design, for these labyrinths were constructed to discourage logical solutions, plain answers, and idle curiosity. They still defy easy mastery, and historians regularly get lost in them. Don E. Fehrenbacher brings to the Dred Scott maze skills of his own, plus help from one predecessor in particular. This was his late colleague David M. Potter, whose Impending Crisis he completed and saw through the press after Potter’s death. It is the best general study of the period of sectional crises we have. Fehrenbacher does not depart significantly from the interpretation in that work, but Potter could spare the case only a chapter, while Fehrenbacher gives it a whole book, a large one. More than that, he makes it a history of the long conflict over slavery in the territories, traces the consequences of the Dred Scott decision to the Civil War, and adds a chapter on the case in legend and myth.

One of his prime tasks is to rescue criticism of the decision from fellow critics who took the wrong path at the start and followed it for generations. The antislavery response to Taney’s opinion was a storm of outraged fury. To radicals like Garrison it was a new reason for burning the Constitution. But for Republicans like Lincoln it was more complicated. They were not Constitution burners. Yet the Supreme Court had declared the cardinal principle of their party unconstitutional, and the court’s opinion was the law of the land. They were determined to defy the decision, but how could they defy the court without defying the law and being charged with treason? They found the way out of an intolerable dilemma by branding Taney’s opinion on slavery in the territories “obiter dictum” and therefore without authority as law.

The same argument rescued Republicans and other anti-Negro Northerners from another dilemma, for it rested on the tacit acceptance of Taney’s refusal of jurisdiction on the ground that the Negro was not a citizen. That diverted attention from the race issue in the Dred Scott case. “Judge Taney’s decision,” declared Susan B. Anthony, “infamous as it is, is but the reflection of the spirit and practice of the American people, North as well as South.” Another attack on the authority of the court was to brand it a part of a gigantic slave-power conspiracy that included Presidents Pierce and Buchanan, and Senator Stephen A. Douglas as well as Taney. The conspiratorial thesis was a standard feature of Lincoln’s senatorial campaign against Douglas in 1858. There was nothing paranoid in perceiving a sharp tilt toward slavery expansion in the politics of that decade, and the conduct of the doughface politicians was not above criticism. But there was no evidence of a monstrous plot or conspiracy to account for the tilt of events.

Thoroughly committed to the obiter dictum thesis and the conspiracy assumption to undermine the authority of the Dred Scott decision, critics neglected analysis and criticism of the decision itself for half a century. Once he demolishes the obiter dictum argument—which he does thoroughly—and dismisses the conspiracy obsession, Fehrenbacher turns to criticism of the decision with devastating effect. He concentrates on the Taney doctrines regarding Negro citizenship and rights and the ruling on the constitutionality of slavery in the territories. He demonstrates that the opinion on citizenship and rights is riddled with error, inconsistency, and misrepresentation, and full of bad law, inaccurate history, and flawed logic. The same faults are also found in the ruling of congressional powers over slavery in the territories. Here in addition the court was blatantly amending the Constitution by judicial decree. “In the very unreasonableness of its argument,” concludes the author, “one finds a measure of southern desperation.”

Along the way, Fehrenbacher disposes of some persistent myths about the case. One was that Roger B. Taney was secretly an antislavery man. It is true that he had long before freed his slaves, that he was unfairly called a “slaveholding justice,” and that he might be called more pro-Southern than proslavery. But that did not make him antislavery. “Behind his mask of judicial propriety,” says Fehrenbacher, “the Chief Justice had become privately a bitter sectionalist, seething with anger at ‘Northern insult and Northern aggression.’ ” The reputation of the Taney Court for judicial self-restraint, which was behind Taney’s rising fame and Frankfurter’s tribute in the 1930s, is found to be quite undeserved, especially where slavery was concerned.

Certainly self-restraint had little to do with the decision in the case at hand. It was, in fact, “the first historic instance of judicial invalidation of a major federal statute.” All for high purposes, of course—and it failed in all of them. One was to restore sectional peace, but instead the decision intensified strife and undermined the moderates and peacekeepers. It strengthened the power of extremists on both sides. Another purpose was to make policy, to leap in and settle a question that a succession of Congresses had avoided and acknowledged their inability to settle. But the court gained no acceptance of its settlement and instead impaired its own authority and the power of Congress to occupy a middle ground. An unconfessed but real purpose was to score a victory for the South, but it turned out to be an empty victory, the more frustrating for lack of substance.

The great failure of the Dred Scott decision, however, in David Potter’s words, lay in “pitting the Constitution against basic American values.” As Fehrenbacher writes, “The framers were half-consciously trying to frame two constitutions, one for their own time and the other for the ages, with slavery viewed bifocally—that is, plainly visible at their feet, but disappearing when they lifted their eyes.” They wrote a charter for a free people with room for local sanction of slavery. The tragedy of the Taney court decision was that it fatally reversed the positions of slavery and freedom. “In other words, slavery, once local, was now national, and freedom, once national, was now local.” To borrow from Potter again, it “converted the charter of freedom into a safeguard of slavery.” It was in all a disaster as judicial revision of the Constitution and ruinous as judicial legislation and policy making.

Historians who devote years to exploring one of these Civil War labyrinths such as Dred Scott are likely to emerge at the end with announcements that they have slain the Minotaur—found the ultimate cause of it all. It is only human to justify prolonged labors. Don Fehrenbacher proves to be an exception to the rule. He emerges from the labyrinth after the most complete exploration ever made of the famous case and probably the most thorough study of any Supreme Court decision ever undertaken. But he makes no boast about finding the ultimate cause of the Civil War. He acknowledges mildly that “there were many other causes,” that the sectional conflict “was already deepseated and pervasive before 1857,” and that it was the election of 1860 that “turned a chronic struggle into a secession crisis.” He knows that great numbers of citizens tended “to vote in ethnic-religious blocs” rather than on issues, and doubts that the Dred Scott decision significantly affected the outcome of the election. He might well claim, though he does not, that his study contributes significantly to an understanding of the whole catastrophe.

As for poor Dred Scott, he had remained home in St. Louis all along. His embarrassed owner, the Massachusetts congressman, hastily disposed of him to the Blow family after the decision of his case, and they promptly liberated him and his wife and children. He died within a year.

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