Q & A: What Did the Court Decide in Dred Scott v Sandford and Why Did It Matter?
The Taney Court
1. Was Scott v Sandford a “test case”?
No, Dred Scott had a strong desire to seek his freedom through legal means and he was strongly supported in those efforts by the Blows. Similarly, Emerson (and then Sandford and his lawyers) had both a financial and a political interest in denying Scott his freedom.
2. Did the Court hold that a Negro cannot be a citizen of the United States?
Not exactly, but as a practical matter, yes. Three justices of the Court said exactly that (Taney, Daniel, Wayne). Chief Justice Taney’s opinion was titled the “opinion of the Court,” which normally would suggest that he spoke for a majority of the justices—and Taney made very clear that he did not think a Negro was a citizen of the United States. Taney went on to conclude that because Scott was not a citizen within the meaning of the Constitution, he had no right to bring to a suit under the diverse citizenship clause and, therefore, the trial court was wrong to have accepted jurisdiction of his case.
The difficulty is saying whether the Court actually held that a Negro was a citizen arises because only four members of the Court saw the issue as properly before the Court, and only two justices explicitly adopted Taney’s view on the citizenship question.
It is worth noting that a majority of the Court believed that the Court did in fact decide the citizenship question. Both Justices McLean and Curtis, in their dissenting opinions, assumed that the Court did conclude Negroes could not be citizens. The Court’s holding to that effect was central to their argument that the Court had no basis for reaching the question of the Missouri Compromise’s constitutionality. If Negroes were not citizens and could not be citizens, that should have ended the matter, in their opinion.
3. Did Taney for the Court indicate that emancipation made no difference at all for the freed slave in terms of the right to sue under the Constitution?
Yes, whether free or not, Negroes were not citizens. Even Negroes who might have been free at the time the Constitution was adopted, and who were recognized at the time as citizens by their states of residence, were not—in the Court’s opinion—ever citizens for purposes of the federal Constitution. Their status as non-citizens was fixed forever by their ancestors.
4. Did the Court hold that the Missouri Compromise violated the Constitution and was therefore invalid?
Yes. Six justices (Taney, Daniel, Wayne, Grier, Catron, and Campbell) agreed that the Missouri Compromise was unconstitutional.
While three of these justices would not have reached the merits had their views on the question of jurisdictional question (whether Scott’s plea for abatement was properly before the Court) had commanded a majority, the fact is that a majority rejected their jurisdictional views, and those three justices then had a right (some might even say, an obligation) to then weigh in on the issues on the merits.
5. Could the Court have held against Dred Scott without going on to decide the citizenship or Missouri Compromise questions?
Easily. The Court could have adopted the approach favored by Justice Nelson. They could have said that each state had a right on its own to determine whether or not to give effect to the law of another state or territory (here, e.g., Illinois’s law on slavery) and accepted Missouri’s decision that travel to another state did not change the status of Scott under Missouri law. But Taney had a political agenda, so he opted for another path.
6. Was Chief Justice Taney a racist?
That’s probably a fair description. As President Andrew Jackson’s attorney general, Taney had prepared an official opinion in which he called Negroes “a degraded class” and suggested that they were not intended to be protected by any of the Constitution’s provisions. He used the opinion in Dred Scott to try to make his extreme views on race the law of the land. In general, he viewed the increasing attacks on the institution of slavery (as well as the presence of free Negroes) as a threat to social stability.
7. Did Taney indicate that changing social attitudes on race could or should affect the question of whether Negroes might be considers citizens for constitutional purposes?
No. To the contrary, Taney warned that judges should not let “any change in public opinion” for “this unfortunate race” tempt them to give a more liberal construction to the Constitution. To do so, he said, would mean the Court would lose “its judicial character” and become “the mere reflex of the popular opinion or passion of the day.”
8. Apart from the injustice of the result, is it possible to look at Taney’s opinion as a sound piece of judicial craftsmanship? That is, even though we may disagree with the result, can we respect his thinking and scholarship?
No. Taney’s decision is full of historical inaccuracies and fallacious reasoning. For example, Taney broadly asserts that in the late 1700s Negroes had “no legal rights the white man was bound to respect” when free Negroes in the 1780s actually could enter into contracts, purchase property, and even sue in courts. The opinion even contradicts itself on several key points. Taney often asserted some point or another as being too clear for argument when he lacked an analytical path to his conclusion. His opinion is a long and muddled mess that reflected Taney’s anger and desire to settle scores.
9. On what basis did the Court conclude that the Missouri Compromise, prohibiting slavery in territory north of the southern border of Missouri, was unconstitutional?
There should be a clear answer to that question, but there isn’t. Taney’s opinion never explicitly states why the Missouri Compromise was unconstitutional!
Scott’s attorneys argued that the Congress had power to regulate slavery in the territory under the Territory Clause of Article IV, Section Three, which states Congress has the power “to dispose and make all needful rules and regulations respecting the territory…” But Taney interpreted the clause very narrowly to give Congress only the power to own or dispose of territory—and, moreover, only the territory north of the Ohio River (Northwest Territory) it had at the time of the Constitution’s adoption, not territory subsequently acquired. Nonetheless, even Taney recognized that the Constitution implicitly authorized the United States to establishment governments for the territories—governments with the power to enact and enforce regulations.
So Taney next turns to the Due Process Clause and says that the power to legislate in the territories could not include, for example, the power to deny residents of the Territory their First Amendment rights. So too, he said, the government under the Fifth Amendment Due Process Clause could not deprive a citizen of his “property [which Taney said might include slave property] merely because he came himself or brought his property into a particular Territory.” Taney could have ended the matter there and simply declared that the Missouri Compromise violated the Fifth Amendment, but he dropped the issue and went on to a new topic.
To the extent any reason for finding the Missouri Compromise unconstitutional is given, it seems to be that Congress lacked the specific power to ban slavery in territories. He seems to come to this conclusion after observing that the Constitution allowed the original states to continue the slave trade for 20 years after the Constitution’s adoption (evidence, he said, that the framers viewed owning slaves as a “right of property”) and that the Fugitive Slave Clause gave federal protection for slave owners whose “property” escaped to non-slave states, thus favoring a right in “slave property” above all other property. These arguments are full of holes (e.g., the Constitution permitted, but did not guarantee the slave trade for twenty years), but it seemed to be the best he had.
10. Apart from what it said about Negro citizenship and the Missouri Compromise, was the Dred Scott decision important for any other reason?
Yes. For starters, Scott v Sandford was a landmark decision on judicial review, a principle first laid out in Marbury v Madison, but here for the first time being used to strike down an important pieces of federal legislation (the Missouri Compromise). It represented an unprecedented extension of federal judicial power from what had previously been the case. The Court also put a new spin on the meaning of “due process of law,” adopted a highly disputed notion of the meaning of state citizenship, and gave expression to the fears and rages of many southerners as the issue of slavery approached its boiling point.
11. Why did most Republicans argue that Scott v Sandford was not authoritative (that is, didn’t really do what it said it did: reject citizenship for African-Americans and invalidate the Missouri Compromise) rather than criticize it for being plainly wrongly decided?
Republicans, by and large, were not prepared to defy a clear decision of the Supreme Court. They recognized that the law was the law. So they tended to argue that the decision wasn’t really authoritative and therefore that by ignoring the “dictum” (language not essential to the holding) they were not actually defying the law.
12. Was Dred Scott v Sandford overruled?
Scott v Sandford was effectively overruled, not by a later Supreme Court decision, but by enactment of the 13th, 14th, and 15th Amendments.
Before that, it was largely ignored. For example, in June of 1862, Congress passed a law abolishing slavery in the federal territories—and no member of Congress even mention the Dred Scott decision during the debate. In November of the same year, Attorney General Bates issued an opinion holding that all free men of color in the United States were citizens of the United States. Bates mentioned the Scott decision, but deemed it irrelevant.
The Thirteenth Amenment, ratified in 1865 abolished slavery and made all of the Court’s discussion on the slavery issue obsolete. The Civil Rights Act of 1866, and more conclusively, the Fourteenth Amendment, ratified in 1868, stated “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” Scott v Sandford was dead.