Dred Scott v. Sandford

Dred Scott in 1857

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Dred Scott v. Sandford 60 U.S. 393 Decided: March 6, 1857

Dred Scott v. Sandford was a case brought before the United States Supreme Court in the years prior to the American Civil War. The case dealt with a man who had been a slave, and then moved with his master to a state that forbade slavery. When the master wanted to move back south, the slave, Dred Scott, protested, claiming that his residence in the free state had made him free. This led to a ten year long legal battle between the family of Dred Scott and the Sanford family. The Court's holding, led by Chief Justice of the Supreme Court Roger Taney (who just so happened to be a blatantly biased and deeply racist former slave owner), had three basic tenets:

1. Persons of African descent could not be, nor were ever intended to be, citizens under the Constitution; because of this, Scott had no standing to file a suit.
2. Congress could not ban slavery in the territories, and thus, the Missouri Compromise was unconstitutional.
3. The Due Process Clause of the Fifth Amendment prohibited the federal government from freeing slaves brought into federal territories.

As Taney infamously put it, African Americans "had no rights which the white man was bound to respect". Tamey came to this conclusion through looking at not just what the Founding Fathers wrote, but also how they lived. As Jeannie Suk Gersen noted in a 2021 article for The New Yorker:

The problem, though, was that, under the Constitution, in order to bring the lawsuit in the first place, one had to be a “citizen.” To arrive at the conclusion that Scott was not one, Chief Justice Roger B. Taney zeroed in on the statement in the Declaration of Independence that it was “self-evident” “that all men are created equal” and “endowed by their Creator with certain unalienable Rights.” If the Founding Fathers intended to include Black people in that declaration while personally enslaving them, Taney reasoned, that would mean that the Founding Fathers were hypocrites who “would have deserved and received universal rebuke and reprobation.” But Taney found it impossible that these “great men” acted in a manner so “utterly and flagrantly inconsistent with the principles they asserted.” So he concluded, instead, that their intent was to exclude Black people from the American political community. Of the two possibilities, grotesque hypocrisy or white supremacy, Taney found the latter far more plausible.

Indeed, Taney, a former Maryland slaveholder, said the language of equality and rights “would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.” The “unhappy black race,” he wrote, was “never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.” Most notoriously, Taney wrote that Blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” He also noted that the Constitution itself took slavery as a given in the fugitive-slave clause, and the slave-trade clause, prohibiting Congress to abolish the “Migration or Importation of such Persons” before 1808 and allowing an import tax of up to “ten dollars for each Person.” Taney took this as evidence that the country’s founding document did not confer on Black people “the blessings of liberty, or any of the personal rights so carefully provided for the citizen.”

There was great outcry within the North against this ruling, as it basically made it impossible to abolish slavery anywhere, as well as nullifying the North's benefits from the Missouri Compromise (which was a result of already high tensions around negotiating the slavery problem). Even many northerners who were against abolition thought the ruling was absurd, with Senator Stephen Douglas arguing "that territories could choose not to enforce Dred Scott by withholding protection for slaveholders under local law."

With that said, the case was popular among the South, with one Georgia newspaper declaring that “The Southern opinion upon the subject of Southern slavery is now the supreme law of the land.” According to them "The view that Southern ideologues such as John C. Calhoun had promoted for more than a decade—that the federal government had a positive, indeed a constitutional, obligation to defend slavery—had apparently triumphed."

In its opinion, the Court held that slaves did not enjoy the "privileges and immunities" of citizenship. The Fourteenth Amendment to the Constitution sought to supersede Dred Scott by defining citizenship and the "privileges and immunities" of citizenship.

Irony

This decision was originally brought forward to settle slavery tensions in the United States during the antebellum period once and for all. In his inaugural address, James Buchanan even talks about how the country is currently compromising over slavery, saying on the then-upcoming decision of Dred Scott:

A difference of opinion has arisen in regard to the point of time when the people of a Territory shall decide this question for themselves.

This is, happily, a matter of but little practical importance. Besides, it is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be, though it has ever been my individual opinion that under the Nebraska-Kansas act the appropriate period will be when the number of actual residents in the Territory shall justify the formation of a constitution with a view to its admission as a State into the Union. But be this as it may, it is the imperative and indispensable duty of the Government of the United States to secure to every resident inhabitant the free and independent expression of his opinion by his vote. This sacred right of each individual must be preserved. That being accomplished, nothing can be fairer than to leave the people of a Territory free from all foreign interference to decide their own destiny for themselves, subject only to the Constitution of the United States.

We all know how that turned out.

Modern meaning

In modern politics, Dred Scott is occasionally used as a dog whistle to disguise opposition to Roe v. Wade. To anti-abortion advocates, just as Dred Scott ruled that African Americans have no rights, Roe v Wade ruled that fetuses have no rights. One example of this is a Daily Wire article from Josh Hammer with the headline "Abortion Is A Grave Injustice. We Must Treat Roe Just Like Dred Scott." Hammer writes:

The fight for the unborn is the human rights struggle of our time. The comparisons to antebellum chattel slavery are remarkable: Both involve treating fellow human beings as property to be harmed at will, both were upheld by the Supreme Court on constitutional grounds via the Fifth/Fourteenth Amendment doctrinal ruse known as “substantive due process,” both are deemed beyond reproach by judicial supremacists, and the opposition to each is led by the Republican Party.

This is nonsensical for numerous reasons, among them that, if one really followed Hammer's logic to its extreme, we would accept the notion that slavery is a Constitutional right. Remember, it took an amendment to the Constitution to end slavery in the United States, so slavery was understood to at least be Constitutional enough to where amending the document was required to end it.

Also, Republican opposition to slavery cannot be compared to opposition to abortion, if only because Republicans weren't always opposed to women having the legal right to choose. Meanwhile, the Republican Party was specifically formed in opposition to the institution of slavery.

The rather large differences between fully-grown African American people and fetuses is covered up in this analogy (which has rather racist implications). It is also sometimes used as an example of "activist judges" giving an unjust ruling (just as Roe v Wade supposedly was an "activist" ruling that gave an "unjust" result), but the fact of the matter is that the primary injustice was the legality of slavery; any ruling that rejected slavery would have been "activist." If one believes that laws should be followed, and judges should not evaluate them according to their own consciences, then it doesn't make much sense to be bringing up slavery.

See also

• Brown v. Board of Education of Topeka
• Plessy v. Ferguson, the second-worst United States Supreme Court decision