Thank you for inviting me to deliver the 2009 Annual Lecture of the Supreme Court Historical Society. I am a great admirer of the Society's commitment to preserving the history of the Supreme Court and to increasing the public's awareness of the Court's contributions to our nation's history.
This is an especially interesting time for the Society to be meeting because the Court, for the third time in the past 15 years, is about to have a change in its membership. As soon as my friend and colleague Justice Souter announced his intent to retire, public speculation began as to whom President Obama would nominate to replace him. And as soon as the President put an end to the speculation with his announcement that he had selected Judge Sotomayor, commentators began discussing and debating her legal views and how her presence will affect the Court's decisions. The public's interest in a change in the Court's membership reminds us that the Court, for all the technical cases it decides, also can decide controversial, contentious cases that raise questions that lie at the heart of contemporary political debates.
Today, I shall re-examine one such case. The Dred Scott decision, a case that many believe is the Court's worst mistake. By examining the case in detail, I hope to find something of value for our present day judicial institution.
The case I have chosen stands at the intersection of law and politics. Throughout its history, the Supreme Court has decided cases containing legal issues that have a significant political impact. And how the Court can, or should, make its decisions in such cases is a topic of abiding interest. Alexander Hamilton, one of the Founders of our Constitution, argued that a court is better suited than a legislative or executive body to insist that the Constitution be followed — particularly in an instance where doing so is politically unpopular. But he did not explain how we know, in such instances, that the public, or the other branches of government, will do what the Court says. And while we now assume, as a matter of course, that the Court's decisions will be followed, that was not always the case. For example, despite an 1834 Court determination that the Cherokee Indians owned Northern Georgia, President Andrew Jackson evicted the Indians, supposedly saying, Chief Justice John Marshall "has made his decision; now let him enforce it."
Americans have gradually, over time, developed customs and traditions that lead them to accept and follow Court decisions, but how that has come to be is a complicated question, a question that itself touches on politics. The answer, in part, has something to do with the way in which the Court has responded to legal issues that have political impact. This afternoon I hope to illustrate the relation by speaking about Dred Scott. The Court decided Dred Scott in 1817 at a time when political tensions about slavery ran high. In that case, the Supreme Court held that no African-American could be a citizen entitled to sue in federal court and that no African-American could become free simply because he was taken into a free state by his owner. Dred Scott was a legal and practical mistake. And for that very reason it can tell us something about the more general question, namely, it can tell us what courts cannot and should not do when politics and law overlap.
Let us, then, look back to the mid-Nineteenth Century, to the era of slavery in the United States. And let us consider the background, the issues, the reasoning, the immediate consequences, and the topical lessons of Dred Scott.
Three individuals play key roles in this story: Dred Scott, Roger Taney, and Benjamin Curtis. Scott was born a slave on a Virginia plantation in the early 1800s.
His first owner, Peter Blow, took Scott with him to St. Louis, Missouri; he sold Scott to an army doctor, John Emerson; Emerson took Scott with him from base to base, including Fort Armstrong in the free State of Illinois and Fort Snelling in the free territory of Northern Missouri (now Wisconsin). During his three-year stay at Fort Snelling, Scott married. Dr. Emerson then returned to St. Louis with Scott, Scott's wife, Harriet, and Scott's newly born child, Eliza. After Emerson died, Scott and his family ultimately became the property, first, of Emerson's wife and, eventually, of his wife's brother, Sanford. Scott, or perhaps his wife Harriet, was not satisfied with this arrangement; and they brought a lawsuit, first in state, then in federal, court. They argued that their lengthy stay in free territory legally had made Scott a free man.
Roger Taney, Chief Justice of the United States, wrote the majority opinion in the Dred Scott case. Taney was born in Maryland in 1777 to a family of tobacco farmers. A longtime supporter of Andrew Jackson, he became Attorney General in the Jackson administration and was appointed Chief Justice in 1835. He was an excellent lawyer, possessing what one observer called a "moonlight mind," a mind that gave "all the light of day without its glare." He had argued for a gradual end to slavery, an institution which he viewed to be an "evil" and a "blot on our national character;" he had represented abolitionists; and he had freed his own slaves. On the other hand, as Attorney General, Taney advised the President that the "African race, even when free, . . . hold whatever rights they enjoy" at the "mercy" of the "white population."
And, finally, Benjamin Curtis wrote the main dissent in Dred Scott. Curtis was a native of Massachusetts. President Millard Fillmore appointed him to the Supreme Court in 1851 in part because of his reputation as a "moderate" on the slavery issue. He served on the Court for only six years, resigning after the Dred Scott decision, in part because, as he said, he doubted his usefulness on the Court "in" its "present state," and perhaps for financial reasons as well.
You should also keep in mind that slavery was the main political issue of the day. The Constitution's Framers, aware that the South would not join a Union that prohibited slavery, in effect postponed the question, writing into the Constitution a series of compromises. They included language that said Congress, prior to 1808, could not prohibit the "migration or importation" of slaves into the United States; that prohibited any amendment affecting that bar; and that apportioned legislators (in the lower house of Congress) among the States according to population, which was to be determined by "adding to the whole number of free persons, . . . three fifths of all other persons," i.e., slaves. This method of counting (allowing the South more representatives based on its slaves, while it forbid slaves to vote) meant that the South was over-represented in the lower House of Congress (and in the vote count for President), giving it sufficient political power to block abolitionist efforts.
During the first half of the Nineteenth Century, however, population grew in the Northwest, rather than in the Southwest as the South had expected. That fact cost the South its political advantage, and the South began to fear abolitionist legislation. At the same time, the North feared that the South would use every political and legal device within reach to extend slavery into new territories, thereby securing the election of pro-slavery Senators and helping the South to maintain its political power. In this atmosphere Congress had to decide how to treat new territories, for example, those taken from Mexico in 1848.
In the 1830s, Congress had forbidden slavery in territories North and West of Missouri; in 1845, it admitted Texas as a slave state; in 1850, it admitted California as a free state. And in 1854 it departed from the Missouri compromise principles, permitting two states north and west of Missouri, namely Kansas and Nebraska, to choose themselves whether to become slave states or free states.
The upshot is that in 1854 the legal status of slaves in the territories was of enormous political importance. The South feared those territories, if free, would soon mean a Congress that abolished slavery; it wanted the Supreme Court to find that the right to own slaves, even in the territories, was a right the Constitution required the North to respect. The North feared that a pro-slavery interpretation of the Constitution would permit the South, not only to maintain its evil institution, but to spread slavery throughout the Nation. Many hoped, or feared, that the Court would use the Dred Scott case to clarify the legal status of slaves brought by their owners into free territory.
The Legal Issues
Dred Scott initially brought his case (against his owner Mrs. Emerson) in a Missouri state court. He pointed to earlier Missouri cases holding that a slave who resided for a time in free territory became a free man. The Missouri Supreme Court, however, rejected his claim, noting that "times are not now as they were when the former decisions were made." Before the Missouri court decision was final, Scott brought the same suit (against his new owner, Sanford) in a lower federal court. That court, stating that it must accept Missouri's decision, rejected Scott's claim. And Scott appealed to the United States Supreme Court.
The case attracted considerable attention. A prominent attorney, later a member of President Lincoln's cabinet (along with Benjamin Curtis's brother) represented Scott. Three prominent lawyers, including two United States Senators, represented Sanford. The issues were the following:
First, a jurisdictional question, a question about the Court's power to hear the case: The law suit was properly in federal court only if a "citizen" of one State was suing a "citizen" of another State. Sanford was a citizen of New York. Even if we assume, with Scott, that the law made him a free man, was he then a "citizen" of Missouri?
Second, if Scott was a "citizen" and jurisdiction was proper, then what about the basic issue on the merits? Did the law make Scott a free man?
The lawyers argued this case over the course of four days in February 1856. On May 12 the Court asked for reargument on the jurisdictional question. Court notes reveal that a majority agreed to a compromise: Justice Grier would write a short jurisdiction-based opinion rejecting Scott's claim. When two of the Justices said they would write a dissent, however, the compromise unraveled. Chief Justice Taney reassigned the opinion to himself. On March 6, 1857, Taney read his lengthy opinion from the Bench; the next day Curtis read, and then re-leased, his dissent. Taney then rewrote his opinion, releasing his final version in May.
Let me turn now to the decision itself. The Court initially considered the jurisdictional question. That question, the Chief Justice says, is whether "a negro, whose ancestors were imported into this country, and sold as slaves" is "entitled to sue as a citizen in the courts of the United States." The Chief Justice, and the majority, setting forth highly legalistic arguments, held that the answer to this question is "no." Even if Dred Scott is a free man, he is not a "citizen.
Here is why: The Constitution allows the suit only if the case arises "between citizens of different States." The word "citizens" is limited to "citizens of the United States when the Constitution was adopted." And that group, says Taney, could not possibly have included freed slaves. Why not? "Public opinion" would not have allowed it. Writing in language that has since become infamous, Taney explains that public opinion at that time considered Africans "so far inferior" to the "white race" that they had "no rights which the white man was bound to respect." Even northern states, such as Massachusetts, Rhode Island, Connecticut, and New Hampshire (states where abolitionist sentiment was strong and slavery had been outlawed) forbid slaves to serve in the state militia, limited their educational opportunities, and forbid inter-racial marriage. Moreover, many of the Founders, themselves slave-holders, could not have intended the "equality" they preached to extend to slaves or former slaves. Further, some contemporaneous federal statutes distinguished between "citizens" and "persons of color," showing that the latter were not included among the former. In addition, some Attorneys General of the United States had expressed that view.
Finally, the Constitution guarantees to "citizens of each State . . . all privileges and immunities of the several States." How, in 1789, could anyone have thought that the South would have granted "privileges and immunities" to former slaves whom the North considered free? The court, Taney concludes, must not "give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted . . . . It must be construed now as it was understood then."
Curtis, in a powerful dissent, strongly disagreed. In his view, "every free person born on the soil of a State, who is a citizen of a State by force of its Constitution or laws, is also a citizen of the United States," and consequently can sue a citizen of a different State in federal court." Why?
For one thing, looking back to the Republic's founding in 1789, one finds five states, New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, which then included freed slaves among their citizens. Granted, these states imposed some disabilities on those freed slaves; but the laws of the first four states permitted those freed slaves to vote, and the Supreme Court of the fifth state, North Carolina, had explicitly held that "slaves, manumitted here, became freemen and therefore, if born within North Carolina, are citizens of North Carolina." How can one read the Constitution, silent on the subject, as excluding from its term "citizen" some of those very persons who were allowed (in those states) to vote on the Constitution's ratification?
For another thing, without (Curtis says) entering "into an examination of the existing opinions of that period respecting the African race," a "calm comparison" of the assertion in the Declaration of Independence that "all men are created equal" with the "individual opinions and acts" of its authors "would not leave these men under a reproach of inconsistency." It would show that they "were ready and anxious to make" the "great natural rights which the Declaration of Independence asserts . . . . effectual wherever a necessary regard to circumstances would allow."
Further, the purpose of the jurisdictional clause was to extend federal judicial power "to those controversies into which local feelings or interests might so enter as to disturb the course of justice." And that purpose is similarly served whether a party to the case is of "white" or "African descent."
Curtis also states that the majority's arguments are unusually weak. Its statutory claim proves nothing, for, if the language of some old federal statutes suggests that freed slaves are not "citizens," the language of other old federal statutes suggests the precise opposite. Nor is its "privileges and immunities" argument convincing once one learns that the Constitutional provision simply repeats an older guarantee in the Articles of Confederation that entitled "free inhabitants of each of these States . . . to all the privileges and immunities of free citizens in the several States." That is because, at the time the earlier language was adopted, state delegates explicitly voted down by a vote of eight to two, a North Carolina amendment that would have inserted the word "white" between the words "free" and "inhabitants," so that the guarantee would have applied only to free white inhabitants. How can one say then that the Framers intended to exclude all but "white" persons from the Clause's protection?
The Court, after having held that it had no jurisdiction to decide the merits of Dred Scott's legal claim, then nonetheless went on to do just that. Curtis, in reply, points out that a court that lacks jurisdiction cannot decide anything further; in violating this basic legal rule the majority "transcends the limits of the authority of the court," though Curtis concedes that he can go on to express his views on the merits because he believes jurisdiction exists.
Finally, the Court majority held that Dred Scott's claims lacked legal merit; his three-year sojourn in the free Territory of Northern Missouri and in the free state of Illinois did not emancipate him. The majority might have reached this conclusion by simply relying on the fact that Missouri state courts had reached it; and federal courts should follow state courts as a matter of state law. But, in the 1850s that was not always so; federal courts often second-guessed state courts on state law matters, particularly where the matter concerned common law, not statutory law. And in respect to slavery both common law and foreign law were uniform and clear. As Curtis pointed out, when a master took a slave into free territory, living there "for an indefinite period of time," taking "part," for example, in the territory's "civil or military affairs," and certainly when the slave married and had children in that place, the slave became free. Indeed, important federal statutes, the Missouri Compromise for example, made this clear, for they insisted that the law of the locality determined the status of the slave; and the law of Wisconsin, the locality around Fort Snelling, gave Dred Scott his freedom.
The Majority reasoned that the laws of Congress did not apply, however, for, in its view, Congress lacked the power to make those laws. It had to concede that the Constitution's "Territories Clause," Art. IV, Sec 3, Cl 2, says that Congress "shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States." But, says the majority, the language, history, and structure of the Constitution make clear that this Clause applies only to those territories that were territories in 1789, namely certain land belonging then to Virginia, North Carolina, and a few other States, which those States intended to cede to the federal government. Congress, the majority conceded, has an implied power to hold territory for the sole purpose of turning that territory into new states. But it cannot interfere with the rights of citizens entering or living within that territory — any more than if they were citizens of states. And, were they such citizens the Constitution would forbid the federal government to interfere with their rights to own slaves. That is because the Constitution forbids Congress to "deprive" a "person" of "property" without "due process of law." It recognizes the "right of property of the master in a slave." And nothing gives "Congress a greater power over slave property . . . than property of any other description." Rather the Clause insists that the federal government "guard" and "protect" the slave "owner in his rights."
The Court's conclusion: It "is the opinion of the Court that the act of Congress, which prohibited a citizen from holding and owning property of this kind . . . is not warranted by the Constitution and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident."
Curtis, adopting the common law position discussed earlier, replies to the majority's argument as follows: First, the Territories Clause certainly does give Congress the right to hold territory acquired from a foreign nation, to make all necessary rules for governing that territory, and to include among those rules a prohibition against slavery. Congress has acted upon that assumption since the Nation was founded, buying the Territory of Louisiana from France, carving it into at least six present States, enacting ordinances and laws excluding slavery from various of the territories (e.g., the Northwest Ordinance, the Missouri Compromise) and explicitly excluding slavery from at least eight States carved out of either Louisiana or other acquired territories. When interpreting the Constitution, Curtis writes, a "practical construction nearly contemporaneous with the adoption of the Constitution and continued by repeated instances through a long series of years may influence the judicial mind and in doubtful cases should determine the judicial mind."
As for the Fifth Amendment's Due Process argument, a slave is not an ordinary piece of "property." Slavery is a "right existing by positive law . . . without foundation in the law of nature or the unwritten common law." Nor could "due process of law" mean that a slave remains a slave when his master moves from, say, slave state A to live permanently in free state B. What law would then govern the slave, the slave's wife, his house, his children, his grandchildren? State B has no such laws. And State B's judges could not work with a proliferating legal system under which each slave, coming to B, brought with him his own law, from A or from C or from whatever other slave state he happened to be from.
More importantly, says Curtis, the phrase "due process of law" comes from the Magna Carta. When Congress passed the Northwest Ordinance in 1787 it did not think that law violated the Magna Carta. And "I am not aware that such laws, thought they may exist in many States were ever supposed to be in conflict with the principle of Magna Charta incorporated into the State Constitutions."
Still Curtis and two others were in dissent. The Court's majority of six had prevailed. That majority held: 1) Scott cannot bring his case in federal court because freed slaves are not citizens of the United States. 2) Many congressional anti-slavery-spreading statutes, including the Missouri Compromise, are unconstitutional. 3) The Fifth Amendment's Due Process Clause protects the ownership rights of slave holders even when they take their slaves into free territories and into free states to live for extended periods of times.
The Chief Justice issued his opinion in the Spring of 1857. The South and Southern sympathizers reacted favorably; President Buchanan (perhaps forewarned) favorably referred to the opinion in his March Inaugural Address and in his December State of the Union Address. But the Northerners' reaction was vehemently negative. Horace Greely's New York Herald Tribune described the holding as "wicked" and "inhumane." "If epithets and denunciations could sink a judicial body," another observer wrote, "the Supreme Court . . . would never be heard of again."
For example, the New York State Senate judiciary committee's report stated that the decision had "destroyed the confidence of the people in the Court," predicted that it would be "overruled," and described Taney's statement that "the colored race" had "no rights which white men were bound to respect" as "inhuman, unchristian, atrocious, — disgraceful to the judge who uttered it and to the tribunal which sanctioned it." The report said the opinion paved the way for slavery's spread to free states. If "a master may take his slave into a free State without dissolving the relation of master and slave," then "some future decision of the Supreme Court will authorize a slave driver . . . to call the roll of his manacled gang at the foot of the monument on Bunker Hill, reared and consecrated to freedom."
For example: Frederick Douglass, the well-known abolitionist, devoted a New York lecture to the subject, saying that, despite this "devilish decision" produced by "the slaveholding wing of the Supreme Court," the Court "cannot" make "evil good" or "good evil." The "decision," he concluded, "is a means of keeping the nation awake on the subject;" "my hopes were never brighter than now."
Indeed, the decision did keep the Nation awake. Northern supporters widely circulated the Curtis dissent in the form of a pamphlet. Abraham Lincoln, then a Republican candidate for Senate, spoke often about the decision, describing it as a "legal astonisher," while arguing that Taney's "whites only" views had turned "our once glorious Declaration" of Independence into a "wreck" and "mangled ruin." Lincoln based his Coopers' Union speech — a speech that made him a national political figure — on Curtis's dissent. He argued for the Founders' view of the Constitution — a view that denied the despotism of slavery — unless, he added, that view conflicted with some yet more basic principle that the Founders had held, of which there was none. Lincoln fed the North's fear of spreading slavery by asking, What "is necessary for the nationalization of slavery? It is merely for the Supreme Court to decide that no State under the Constitution can exclude it, just as they have already decided that under the Constitution neither Congress nor the Territorial legislature can do it."
Historians debate the precise role Dred Scott played in bringing on the Civil War, but at the least the decision energized the anti-slavery North. It became the Republican Party's rallying cry; it helped bring about Lincoln's nomination and election as President; and these circumstances together led to that most fierce War between the States.
Eventually, the North won. And the Nation added the thirteenth, fourteenth, and fifteenth amendments to the Constitution, ending slavery while securing equal treatment, voting rights, and basic civil rights to the newly-freed slaves. On a more individual level, Chief Justice Taney remained on the Court until his death in 1864; Benjamin Curtis resigned from the Court immediately after Dred Scott; and Dred Scott and his family were bought by a son of his original owner Peter Blow, who set them all free. Within a year, however, Scott had died of tuberculosis.
History has not treated Dred Scott (or Roger Taney) kindly. Modern critics describe the case as, for example, "infamous," "notorious," "an abomination," "odious," a "ghastly error," and "judicial review at its worst." Chief Justice Charles Evans Hughes said the decision was a "self-inflicted wound that almost destroyed the Supreme Court. The Oxford Companion to the Supreme Court says that "American legal and constitutional scholars consider the Dred Scott decision to be the worst ever rendered by the Supreme Court."
These judgments reflect the immorality of the decision. But what can people today learn from it? By reading with care one can draw certain lessons that remain relevant today. I suggest five.
The first concerns judicial rhetoric. Today as in 1857 the language a judge uses to set forth his argument matters. Taney's words about Americans of African descent having no "rights that a white man must respect" is lurid, more so than can be found in other Supreme Court opinions, including opinions that Taney wrote. An experienced Supreme Court justice does not write such a phrase ignorant of the fact that others will repeat it, will emphasize its judicial origin in order to make the sentiment appear legitimate. Putting the words in the mouths of others, i.e., writing that others might have thought this (as Taney wrote), does not help. The public will simply ignore the effort to put moral distance between the sentiment and the author. And the justice knows it. The language was morally repugnant then, and now. Curtis's disdainful reply seems right: "I shall not enter into an examination of the existing opinions of that period respecting the African race," while calling for a "calm comparison."
The second lesson reinforces the optimistic judicial view that, when a judge writes an opinion, even in a highly visible, politically controversial case with public feeling running high, the opinion's reasoning — not simply the author's conclusion — can make all the difference. Curtis's opinion was but one of three dissents. Its language is not the most colorful. But its reasoning is by far the strongest. Indeed, it paints the Taney majority into a logical corner from which it has never emerged.
What is the answer to Curtis's claim that five States treated slaves as citizens (hence they were American citizens) at the time the Constitution was written? He supports the claim by pointing to a state Supreme Court decision (explicit on the point) and to the fact that five States allowed freed slaves to vote. Taney, in reply, refers only to racially discriminatory marriage and military service laws — laws that are consistent with citizenship and hence do not significantly undercut Curtis's argument.
What is the answer to Curtis's jurisdictional argument? If Dred Scott was not a "citizen," then the Court lacked jurisdiction to hear the case. If it lacked jurisdiction, it had no business deciding the merits of the case, holding the Missouri compromise unconstitutional and depriving Congress of the power to maintain slavery-free territories in the process.
What sound response can the majority make to Curtis's explanation of the scope of the Constitution's Due Process and Territories Clauses? The Constitution is a practical document, yet the Majority's proposed legal system is not a practical system. How could judges of a single free State or territory, say Wisconsin, administer a legal system under which different slave state laws, say Alabama law, Georgia law, Virginia law, etc., would have to govern well into the future the family relationships of different slave families brought permanently to live in that single free State? How could one harmonize the Majority's view of the Territories' Clause with the fact that federal legislation enacted under the authority of that Clause had led to the admission into the Union of several new States? It is not surprising that modern historians believe that the Curtis dissent paints the more accurate historical picture.
Given the strength of the Curtis reasoning, it is not surprising that those opposed to slavery circulated Curtis's dissent (not the other dissents) in pamphlet form throughout the Nation. Nor is it surprising that Lincoln's speeches, abolitionist lectures, and informed Northern reaction reflected Curtis's analysis.
A third lesson concerns the relation between court decisions and politics. The kindest view of the majority's opinion sees it as seeking a political objective. Many in Congress had asked the Court to "umpire" the great political issue dividing the Nation. Taney and his majority might have thought that by reaching out unnecessarily to decide a politically sensitive legal question, i.e., by settling the constitutional status of slavery in the territories, the court would promote an eventual, peaceful resolution of the slavery question (perhaps through eventual abolition).
If that is what Taney believed, he was wrong. The Court's decision did nothing to heal the Nation. It did not slow the momentum toward civil war. It reinforced the North's fears of southern dominance by, in the words of New York's legislature, permitting the "slave driver" to bring his "manacled gang" to the foot of Bunker Hill. It helped Abraham Lincoln obtain the Republican Party's nomination for President. It promoted the political standing of that anti-slavery Party. As Frederick Douglas predicted, it solidified the case for abolition thereby helping to "awaken" America to the strength of that case. And as a purely legal matter the anti-slavery constitutional amendments resulting from the Civil War effectively reversed the Dred Scott decision.
There are, of course, institutional, jurisprudential, and ethical arguments that militate strongly against judges of a constitutional court holding up their fingers to the political winds. Hamilton's writings make clear that the very point of granting such a Court the power of judicial review was to offer constitutional security where doing so is politically unpopular. But to such reasons, Dred Scott adds another, purely practical consideration. Judges are not necessarily good politicians. Their view about what is politically expedient could well turn out to be completely wrong. Such, as history shows us, was the case in Dred Scott.
The fourth lesson concerns the Constitution seen as a whole. The Taney Court's decision must find its constitutional justification in a view of the underlying document as no more than a political compact among independent States, with its central focus upon compromise about slavery in particular. Such a view would permit the majority to argue for a reading of the Constitution consistent with a need to secure a consensus that included slave States before the Nation embarked upon a course that would lead to abolition.
Yet the Constitution's language does not support such a reading. The protection it provides the slave trade expired in the year 1808. The constitutional guarantees of equal State representation in the Senate and the census-related super-majority status of slave States in the House of Representatives were written in terms that permitted the political destruction of the protection they offered the South. The Preamble says that "We the People of the United States . . . ordain and establish this Constitution," language broad enough to cover Dred Scott.
One cannot easily reconcile Taney's vision with the exressed abolitionist hopes of many of the Framers. Nor, most importantly, can one reconcile this vision with the Constitution's most basic objective, the creation of a single nation. The constitution does so by creating political institutions strong enough to permit the "people" to govern themselves, determining policies and resolving problems ranging in subject matter from defense to territorial expansion to commerce, while protecting basic personal liberties across (the Framers hoped) the centuries. The concept of a political treaty among sovereigns, focusing primarily upon slavery, is not compatible with this more basic constitutional objective. (And, of course, if the Dred Scott majority doubted that fact in 1859, the post-Civil War amendments to the constitution, ending slavery, guaranteeing voting rights, defining citizenship, assuring individuals equal protection of the laws, and protecting basic individual liberty from State interference, over-turned the legal precedent they created.) The upshot is that Taney's vision of the constitution was not a constitutional vision; it was a view about a treaty that linked states, not about a constitution that created a central government.
Finally, Dred Scott tells us something about morality's relation to law. A famous and good novel of the day, Uncle Tom's Cabin, well describes the moral incoherence of slavery. And a contemporary personal experience showed me the relation between that moral incoherence and judicial decision-making. When discussing Dred Scott at a law school conference, I asked the audience to consider a hypothetical question. Suppose you were Benjamin Curtis. Imagine that Chief Justice Taney comes to your chambers and proposes a narrow ground for deciding the case. He asks if you will agree to a single paragraph unsigned opinion for the entire Court, in which the Court upholds the lower court on the ground that the matter is one of Missouri law in respect to which the Missouri Supreme Court must have the last word. He will agree to this approach provided that there is no dissent.
Should you agree? If you do, the majority will say nothing about citizenship, nothing about the Missouri Compromise, nothing about slavery in the territories and the Due Process Clause. As a result the Court will create no significant new law; it will not diminish its own position in the eyes of much of the Nation; it will not issue an opinion that increases the likelihood of civil war; and, since no one knows who would win such a war (the North almost lost), the prospects for an eventual abolition of slavery will be unaffected, perhaps increased.
Not a bad bargain. The audience was uncertain. Then a small voice came from the back of the room. "Say no." And the audience broke into applause. That applause made clear the moral nature of the judge's legal obligation in that case. A close examination of the Dred Scott opinion, then, can teach us something about rhetoric, reason, politics, constitutional vision, and morality — these lessons still might apply to the work of a Supreme Court judge. These lessons help us understand the role of the judge in a politically sensitive case, including cases involving the protection of individual rights, particularly in instances where the Constitution points one way and public opinion the other. To understand how courts do act, or might best act, today under such circumstances, we need to know more about the kinds of cases modern courts must resolve. But our examination of Dred Scott, the Court's "worst case," can teach us through negative example, at least the basic elements of an answer.
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There is much to learn from this single historical example. Dred Scott teaches us the importance of solid reasoning, the dangers of reliance upon rhetoric, the need for practical constitutional interpretation consistent with our Nation's underlying values; and it teaches us the important role that morality and value play – or should play – at the intersection of law and politics. Dred Scott is thus one example that helps shed light on how courts can, and should, decide cases. But it is one of many. The Supreme Court Historical Society, by helping to ensure that the Court is studied and its decisions discussed and deliberated, plays a key role in helping us to think about these broader questions. I thank the Society for its interest.