the Republican Justices Dissented from the Dred Scott Decision

The American Thinker ^ | March 6, 2007 | Michael Zak

[since 1854]

On this day in 1857, the Supreme Court announced its infamous Dred Scott v. Sanford decision. The slave, Dred Scott, having travelled in northern states, where he was free, was suing for his freedom after returning to Missouri. The Justices had been wrestling with how a person could be a slave, then free, then a slave again depending where he was.

The solution for the seven Democrats on the Supreme Court (the two Republicans dissented) was that blacks could not be citizens anywhere, North or South, so they had no standing to sue in court for anything. Chief Justice Roger Taney, who had been Andrew Jackson's Attorney General, wrote: "A black man has no rights a white man is bound to respect."

Atrocious as that was, the really explosive part of Dred Scott decision was striking down of a federal law for the first time since Marbury v. Madison in 1803. Congress, Taney wrote, did not have the authority to ban slavery anywhere because to do so would violate the Bill of Rights, specifically the 5th Amendment's safeguard against being deprived of one's property without due process.

Justice John McLean, one of the two dissenters in the 7-2 decision, had sought the 1856 Republican presidential nomination and would vie for the 1860 Republican nomination.

[since 1854]

This article is based on Back to Basics for the Republican Party, Michael Zak's history of the GOP from the civil rights perspective. See Grand Old Partisan for more information about the heritage of the GOP.

[popdonnelly]

Americans don't know their own history.

[joebuck]

"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."

Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).

[ripley]

"americans don't know their own history."

you said it. i'm one of 'em and i'm going to study much more in the future.

[Maceman]

Great post.

I demand that the Democrat Party publicly apologize for its driving role in perpetuating slavery and discrimination.

Clearly, the Democrats owe reparations to Al Sharpton and all the other descendants of slaves.

[RayStacy]

I don't know much about the DS decison, but I do remember Taney writing the following (paraphrased) "The F. Gov. has no more power to do in the territories, that which it cannot do in the states. For example, if the F. Gov. were to regulate speech in the states, that would be unlawful. Hence it cannot regulate speech in the territories. The F. Gov. is NOT empowered to regulate slavery in the states (consult the enumeration) hence it is NOT empowered to regulate slavey in the territories." This was his reasoning for striking down the Mo. Compromise, and a few other things. THAT part of his reasoning seems sound to me, even if one is not in favor of slavey, which I am obviously not. Yes? No?

[since 1854]

If the 5th Amendment would bar the federal government from banning slavery in the territories, the 5th amendment would bar a state government from barring it in a state. Also, the federal Congress and even the Articles of Confederation Congres has banned slavery in the territories, so how could that be unconstitutional?

[ml/nj]

I guess it's possible to pretend that one is for "strict interpretation" and still believe that the Congress was allowed to pass a law ("Compromise of 1820") about whether a new State would have to prohibit or permit slavery, as the laws existed in 1857. But pretending doesn't make it so. Taney and the six who joined him were mostly correct.

ML/NJ

[RayStacy]

Have to disagree with you there. The job of the court was certainly NOT ascertaining the moral goodness or lack thereof of slavery. Their job is to interpret the cons, PERIOD, and there can be NO question whatsoever that slavey was legal under the cons. Also, don't fall into the trap of thinking you have only those rights listed in the BOR (check the 9th and 10th amends) -- you have LOTS and LOTS and LOTS of rights not listed under the BOR.

[Ditto]

The F. Gov. is NOT empowered to regulate slavery in the states (consult the enumeration) hence it is NOT empowered to regulate slavey in the territories." This was his reasoning for striking down the Mo. Compromise, and a few other things. THAT part of his reasoning seems sound to me, even if one is not in favor of slavey, which I am obviously not. Yes? No?

No. Because Taney specifically ignored they fact that under the Articles of Confederation, Congress did indeed have the authority to regulate slavery in the territories and that authority was passed on in the Constitution by Article VI. Taney also ignored the acts of the subsequent Congresses regarding territorial authority including the 1st Congress in re-authorizing the Northwest Ordnance of 1778 with no material changes to the document produced under the Articles.

But that was not even the worst part of Taney's perversion of original intent. Declaring that race defined citizenship was completely out of line with both original intent and the clear historical record.

Plane and simple. The majority in Scott completely ignored original intent for the expressed purpose of "settling" an issue the way "they thought" it should have been settled, and to do so, they had to stand both the Constitution and history on its head. It was an out of control 'activist' court.

[Ditto]

Northwest Ordnance of 1778

S/B -- Northwest Ordnance of 1787

[Otho]

I'm curious as to how there were any Republicans on the Court in 1857. The Republican party was founded in 1854 and Lincoln was the first Republican president. Did Buchanan appoint two Republican justices on the basis of merit?

[Eva]

Thanks, that was an excellent review of the early politicization of the Supreme court. It looks like it might take another war to stop them this time.

[untrained skeptic]

What needed to be determined by this cowardly "court" was whether or not a human being could be the "property" of others.

While I am completely opposed to slavery. It is not for the courts to decide such issues.

The courts do not have the authority to create laws or rights.

The courts only have the authority to overturn the laws created by congress if they clearly violate the constitution.

This was not an issue that the court had the authority to determine.

The proper, constitutional way to abolish slavery was the Thirteenth Amendment.

Judges aren't appointed to decide based upon what they think it the right thing. They are charged with ruling according to the law and the constitution which supersedes the law.

[RayStacy]

How does Art 6 do this? Surely not the "all Debts contracted and Engagements" part. This refers to international debts and bond issues and such. Certainly does not, CANNOT refer to laws passed under the Articles, otherwise, the US Cons would be irrelevant and the Articles would be the law of the land.

[theBuckwheat]

And the Dred Scott decision, to determine if slaves were "persons" for the purposes of determining if they enjoyed the protections of the Constitution or not, has see more recent incarnations in Roe v. Wade, where an unborn human was similarly declared to not be a person under the Constitution.

The left, in defending Roe is shown to not really know what it wants, for the left likes to think it would have decided in favor of Dred Scott, not recalling that if they accepted he was a Constitutional Person, he would have the right to keep and bear arms, one of the factors that the Chief Justice used at the time to find against him.

But the left, in showing that it really doesn't know what it wants, is frightened when Bush denies that detainees at Gitmo are entitled to these protections.

Conversely, supporters of Big and Bigger government have succeeded in extending US Law to citizens who are outside of the US. Apart from taxing the income of US citizens even when they live outside of the country or have never even set foot in the US, the Justice Department has successfully charged many US citizens with US crimes even when they were committed in another country.

This is all a sobering lesson on the inexorable grasping of power that people who have positions in government all have- how to increase government's power over others in every way possible.

[ThisLittleLightofMine]

Thats because in history class they beat the drum of the failure of Vietnam. In addition to learning about celebrities (ie Marilyn Monroe and JFK) rather than important history.

[Ditto]

It was an "engagement" entered by the National government with both the people of the territory and the states of Virginia and Connecticut who ceded their colonial claims to the territory. The Constitution vowed to respect and honor that agreement. The very 1st Congress (which had something like 20 members who were part of the Constitutional convention) unanimously reissued the Ordinance with the only changes being to change references to the names of officials and departments of the government as stated in the Constitution. A year or so later, they issued the "Southwest Ordinance" (ceded by North Carolina) for lands South of the Ohio (really just Tennessee) which was a virtually identical document in all but one respect --- it allowed slavery.

It had long been settled law that Congress did have the authority to regulate slavery in the territories. Taney simply refused to recognize that fact. By 1820 when the Missouri Compromise was passed, no one North or South questioned that Congress had the Constitutional authority to decide slavery for the territories.

[since 1854]

Good question. Both dissenting Justices were appointed by Whigs. One had sought the Republican presidential nomination the year before, and the other one had been a declared Republican as well. Cheers,