Examining an Infamous Supreme Court Decision: How Dred Scott Should Have Been Decided in 1857

In the infamous Dred Scott decision, the Supreme Court decided that Blacks “whose ancestors were imported into [the U.S.] and sold as slaves” cannot be citizens of the U.S. or the state they reside in, that the Missouri Compromise is unconstitutional, and that depriving a person of his slaves is equivalent to depriving someone of their property without due process of law [1]. Particularly relevant was the question of whether Scott had the right to sue in federal court which was contingent on him being a citizen of Missouri. Examining Dred Scott from a modern perspective would result in its immediate resolution using the 13th and 14th amendments. However, these amendments did not exist when the decision was reached.

Regardless, the Dred Scott case was wrongly decided because free Blacks were citizens of some states at the time of the Constitution’s adoption, such that one cannot conclude that the phrase “citizens” in the Constitution was meant to overarchingly exclude those of African descent. Additionally, laws prohibiting slavery in the territories, like the Missouri Compromise, are permissible since Congress is allowed to make needful rules governing U.S. territories and there is no indication that this power is limited to territories that the U.S. possessed at the Constitution’s adoption. Finally, the Missouri compromise does not violate the due process clause because laws prohibiting slavery, such as the Northwest Ordinance, have previously existed and the courts never claimed any violation. This ordinance was approved by the first Congress which was made up primarily of constitutional founders. Furthermore, federal laws that allow for slavery violate the Fifth Amendment’s Due Process Clause by depriving a person of their liberty, especially since the Constitution explicitly refers to slaves as people and not property. 

To begin, because free Blacks were considered citizens and allowed active participation in the political processes of states when the Constitution was adopted, the justices should determine that the phrase “citizen” in the Constitution was not intended to exclude those of African descent. The Constitution uses the phrase “a citizen of the United States at the time of the adoption of the Constitution” [2]. Because the Articles of Confederation were in place when the Constitution was adopted, the citizens at the time of adoption were those considered citizens under the previous government. Under the Articles, free Blacks could be citizens of certain states and were entitled to the privileges and immunities of said citizenship. When the Articles were under consideration, delegates moved to amend the fourth article by inserting the word “white” between free and inhabitants, such that these privileges and immunities would be secured exclusively to whites [3]. This more restrictive language was deliberately and purposely rejected by the majority of states [4]. 

Continuing our examination of textual and historical evidence, many state constitutions also gave free Blacks the privileges and immunities that citizenship entails. The Constitution of New Hampshire and New York gave the right to vote to "every inhabitant of the State having the necessary qualifications" of which color or descent was not one [5]. The granting of citizenship to free Blacks was not only observed textually but also through existing precedent. As cited in the Dred Scott case, State v. Manuel (1838) decided that former slaves who became freedmen and were born within the state of North Carolina were citizens of the state [6]. Overall, all free native-born inhabitants of the states of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but possessed the right to vote on equal terms with whites [7]. Therefore, the opinion that African-Americans were not included under the word "citizens" in the Constitution is a particularly unfounded assumption, as in at least 5 states they were part of "the people of the United States" by whom the Constitution was ordained and established for [8].

Therefore, federal courts had jurisdiction over this case since “the plea…shows no facts, except that the plaintiff was of African descent…and as these facts are not inconsistent with his citizenship of the United States, and his residence in the State of Missouri” Scott is clearly established to be a citizen of the United States and the state he resides in [9]. Since “the judicial power shall extend…to controversies… between Citizens of different States” Scott had the right to sue in federal court [10]. 

Critics of this argument claim that if the framers meant to include Blacks in the Constitution, then “the conduct of [these] distinguished men” would be “inconsistent with the principles they asserted” rendering them as hypocrites [11]. Taney says that because the framers were “high in…honor [they were] incapable of asserting principles inconsistent” with their actions [12]. This argument is flawed as the founding fathers’ personal lives should not be utilized to invalidate and dictate parts of our Constitution. Claiming that the founders were superhuman in the sense that they could never be inconsistent between what they wrote and the actions they undertook in their private lives is illogical. For example, many founders engaged in dueling against those individuals that they felt wronged them. Duels usually ended in the severe injuring or death of the other party. However, imagine saying that the 8th amendment prohibiting cruel and unusual punishment cannot prohibit the federal government’s use of a duel as punishment for a crime because this would make the founders hypocritical as they often engage in duels. The founders’ personal lives and inconsistencies should have no bearing on how we interpret the text.

After examining the hypocrisy counterargument and establishing that free individuals of African descent can be citizens of the state they reside in, the justices should rule that Scott’s status as a slave was changed by his residence within a free territory. The law in the state of Wisconsin, where Scott resided with his previous master, absolutely dissolves the relationship and the rights of a slave master when the parties reside in the state [13]. This notion was not only seen through the laws of the states but also through extensive precedent [14]. As cited in Curtis’s dissent, in Rachel v. Walker, the courts ruled that if a slave owner took a slave into free territory and established residence, the slave would be free even if returned to slave territory [15]. The Missouri Supreme Court decided 11 cases affirming this notion that a slave who traveled to and resided in a free state was no longer a slave [16]. However, this argument only holds if the court decides that the laws prohibiting slavery in the territories, specifically the Missouri Compromise, are constitutional. 

While some believe that Congress has the power to pass laws respecting only territories that belonged to the U.S at the time of adoption, the founders viewed unsettled territory as an opportunity for growth, such that logically they provided their government with the power to govern these territories [17]. Historically, the importance of acquiring and governing unceded territories was particularly emphasized by the founders. As Curtis cites, in Federalist 38 Madison claims that “the Western territory is a mine of vast wealth to the United States”, however, it was not yet U.S territory [18]. This Constitution was established with the vision of  a “government for the people…and their posterity under which… the United States might be…a powerful nation, possessing the power…to acquire territory” [19]. It is illogical to assume that a Constitution that specifically values establishing a powerful country for posterity and that allows for “new States [to] be admitted by the Congress into this Union”, would simultaneously leave these new territories ungovernable [20]. Taking this a step further, the court in McCulloch v. Maryland broadened the Necessary and Proper Clause such that  “if a certain means to carry into effect any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure…the degree of its necessity is a question of legislative discretion, not of judicial cognizance” [21]. Since Congress was specifically given the power to acquire new territory, the means needed to effectively secure these territories are up to the discretion of Congress. Therefore, the courts cannot invalidate the Missouri Compromise on this basis. However, despite proving that Congress can make rules governing newly acquired territories, some will argue that Congress cannot prohibit slavery in these territories because that is depriving an individual of his property without due process of law.

Federal laws prohibiting slavery in certain territories do not violate the Due Process Clause because they have been upheld by courts and supported by the founders themselves. The Northwest Ordinance, which prohibited slavery in the newly acquired northwest territory, was originally passed by the Confederation Congress, and was later renewed by the first Congress and signed into law by Washington. As McLean says, “the ordinance did not go into operation by virtue of the authority of the Confederation but by reason of its modification and adoption by Congress under the Constitution” [22]. The first Congress, which adopted this ordinance, was composed mostly of the very people who wrote and ratified the Constitution. Over 80% of the members of the first senate were founding fathers, who either attended the Constitutional Convention or signed the Constitution. Therefore, since the same individuals that renewed the Northwest Ordinance were the framers who wrote the Due Process Clause, it logically follows that they did not view federal prohibition of slavery in certain territories as unconstitutional. A critic of this approach may claim that both the Missouri Compromise and the Northwest Ordinance violated the slave master’s due process rights, and just because a century earlier, the legislature chose to ignore the violation does not negate the fact that the ordinance is a violation. This would be a fair argument except for the fact that the very men who wrote the Due Process Clause voted for and upheld the adoption of the ordinance. Therefore, since the founders in the first Congress intentionally did not strike down the Northwest Ordinance, the Missouri Compromise cannot be construed to violate the Due Process Clause because, “it only prohibited slavery…which, followed the ordinance of 1787” [23].

The justices should go further and say that since slaves are defined throughout the Constitution as people, federal laws, such as the Kansas-Nebraska Act, that allow slavery to exist, violate the Fifth Amendment, further invalidating Sanford’s due process claim. The Constitution subtly addresses slavery at a few distinct points, referring to slaves as “other persons [24]”, “person held to service [25]” or “such Persons” [26]. The chosen language is clearly and explicitly distinct from any language that portrayed slaves as property. Because a slave was not proclaimed to be property by the words of the Constitution, the federal government cannot deprive any person of their liberty without due process of law [27]. Slaves were deprived of their liberty when federal laws allowed for slaves to be forced to work and reside in locations outside of their control. Of course, this reasoning would be refuted by claims that slaves were not intended to be people under the Constitution. But this claim is particularly unsubstantiated as it is not supported by the Constitution nor was it a well-accepted fact of the time. In 1838, there were 1,406 anti-slavery organizations and by 1860 these groups had over 255,000 active members [28]. It is factually incorrect to assert that people overwhelmingly viewed slaves as property. As asserted by Douglass, the founders’ supposed intent to exclude slaves from the provisions of liberty, that Taney so often cites, are “intentions nowhere expressed in the Constitution, and everywhere contradicted in the Constitution [29]” even in the opening line that aims to “secure the blessings of liberty to ourselves and our posterity” and in the phrase “all men are created equal”. Therefore, because the Constitution’s wording explicitly refers to slaves as people and not property, federal laws that allow slavery violate the Due Process Clause, rendering Sandford’s due process claim as increasingly unfounded.

As a result, the infamous Dred Scott decision that led to increased discrimination in the United States during the 1800s was originally wrongly decided. First, individuals of African descent can be citizens of the U.S and the state they reside in because historically many were already citizens when the Constitution was adopted and nothing in the Constitution disenfranchises a whole subset of people. Regarding the Missouri Compromise, Congress can pass regulations affecting newly acquired territory because the founder’s prevailing notion established that the U.S would acquire more territory which cannot be left ungovernable. Finally, Sandford’s due process claim is particularly unfounded as federal laws allowing slavery violate the Fifth Amendment, and laws prohibiting slavery have existed that were approved by the men who wrote the Constitution. Even at the time of the holding, based on a textual and historical legal analysis, there is no Constitution basis that justifies the rulings that were achieved. 

References

[1] Dred Scott v. Sandford, 60 U.S. 393, 403 (1856).

[2] U.S. Const. art. II, § 1.

[3] Dred Scott, 60 U.S. at 575.

[4] The language ultimately remained: “The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States."

[5] Dred Scott, 60 U.S. at 574.

[6] Ibid.

[7] Ibid. at 573

[8]  U.S. Const. pmbl.

[9]  Dred Scott, 60 U.S. at 588.

[10] U.S. Const. art. III, § 2.

[11] Dred Scott, 60 U.S. at 410.

[12] Ibid.

[13]  It was enacted that within the state of Wisconsin "slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited” (Dred Scott, 60 U.S. at 592)

[14] While I only list one example of relevant existing precedent, these freedom suits were very common before the Dred Scott decision and would be known as the “once free, always free” doctrine.

[15] Dred Scott, 60 U.S. at 602.

[16] "Race, Law And The Struggle For Equality: Missouri Law, Politics And The Dred Scott Case". 2007. Missouri Courts: Judicial Branch Of Government. https://www.courts.mo.gov/page.jsp?id=8827, para. 15.

[17] Article IV section III of the Constitution says that “the Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”

[18] Madison, James. 1788. "Federalist No. 38". Avalon.Law.Yale.Edu. https://avalon.law.yale.edu/18th_century/fed38.asp.

[19] Dred Scott, 60 U.S. at 611.

[20] U.S. Const. art. IV, § 3.

[21] Dred Scott, 60 U.S. at 542. 

[22] Id. at 547.

[23] Dred Scott, 60 U.S. at 547.

[24] U.S. Const. art. I, § 2.

[25] U.S. Const. art. IV, § 2.

[26] U.S. Const. art. I, § 9.

[27]  And by human anatomy itself a slave could not be property as a slave has a beating heart and the genetic makeup of a human being.

[28] "Fact Sheet On Slavery And Emancipation American Abolitionists And Antislavery Activists". 2021. Americanabolitionists.Com. http://www.americanabolitionists.com/fact-sheet.html.

[29] "Frederick Douglass Project Writings: The Dred Scott Decision | RBSCP". 1857. Rbscp.Lib.Rochester.Edu. https://rbscp.lib.rochester.edu/4399.