Seven Events That Made America America (7 page)

THOMAS JEFFERSON TO WILLIAM JARVIS, 1820

 

 

 

 

S
eldom do Supreme Court decisions make an immediate impact on American life.
Roe v. Wade
, probably the most important Court decision of the twentieth century, and
Brown v. Board of Education
are clear exceptions. Others, however, may settle a case, but they hardly settle the issues surrounding it. For example,
Bush v. Gore
may have settled an election, but it hardly settled the debate about how elections should be handled. More commonly, the impact is felt over long periods. When courts confirm damaging legislation or executive branch policies, the result normally reinforces practices that had existed during the long appeals process. If courts overturn legislation or block executive actions, markets often have already factored in a likely response. Such events as the breakup of Standard Oil Company in 1911 under antitrust concerns, or the Microsoft decision in the 1990s, had long been discounted before the final verdict. Even the implementation of
Brown
was delayed for almost a decade, then fought out on still other battle-fields of busing, property taxes, and school vouchers.

But a few Supreme Court decisions have been unexpected in terms of their scope or implications. The 1857
Dred Scott
decision is one such case. In it, the Court reached far beyond the immediate question of the “personhood” of slave Dred Scott and weighed in on the critical issue of slavery in America. As a result, it produced a remarkable trifecta of consequences: it triggered a financial panic, greatly sped up the arrival of the Civil War, and disgraced the Court itself. The
Dred Scott
decision represents the law of unintended consequences in almost every imaginable way. Historians James Huston and David Potter have both argued that the decision accelerated the drift toward war, perhaps past the point of no return.
¹
More recently, Judge Andrew Napolitano has re-examined its continued influence on American race relations.
²
The case’s impact on slavery and on sectional strife has been established, but not only did
Dred Scott
potentially affect all existing southern slaves (more than three million), but it threw open the question of whether the American land that still remained to be settled—the vast western territories—would allow slavery or not. In the process, it injected immediate uncertainty into financial markets and perpetuated a depression that had implications for the impending sectional breakup. Not only was
Dred Scott
bad law in itself, but it also demonstrated the law of unintended consequences, sparking a panic and virtually ensuring a war by taking critical questions out of the hands of the people.

The case began eleven years before the Supreme Court issued its final decision when, in 1846, a slave named Dred Scott filed a suit for manumission in the slave state of Missouri. Scott was born in 1799 as a slave of a Virginian, Peter Blow, who sold Scott in 1833 to a U.S. Army doctor, John Emerson. With Emerson, Scott went to a post in Illinois, then to Minnesota, where slavery was illegal. He then was taken with the family to other states, finally arriving in St. Louis, Missouri. There, he took advantage of the Missouri legal system, which permitted blacks to purchase their freedom. After Emerson’s widow, Irene, rejected his offer of $300 to purchase his own liberty as well as his wife’s, he sued in state court in 1846.

While the historiography of slavery remains divided between those who see the propensity in the Constitution toward confirming an unjust system of human bondage and those who see the Founders as institutionalizing a series of remedies in the wording and in subsequent acts (such as the North-west Ordinance), the purpose here is not to join that argument except to note that in Scott’s case, it should strike the reader as rather astounding that in a
slave state
, Missouri law permitted Scott access to the court to sue for his freedom.
³
In
Winny v. Phebe Whitesides
, the Missouri Supreme Court noted for the first time the precedent of freeing slaves who had resided in a free state or territory by citing an 1807 territorial statute that allowed anyone held in slavery to petition the court for freedom as a “poor person.”
⁴
Winny won her freedom. Of course, all suits did not work out so well for the petitioners: a circuit court case in 1818,
Jack v. Barnabas Harris
, featured a slave named Jack who unsuccessfully sued for his freedom. Scott, then, was only one of many—though certainly the most famous—to use the instruments of the law to seek his freedom. In a truly “closed” system, however, with a bias toward the status quo or maintaining elites (including slave owners) in a permanent position of power, no such avenues ever would have been available to Scott or any other slave.

Scott’s case rested on proof that he had been free in Illinois or in the Wisconsin Territory (Minnesota). He initially lost the case, then appealed to the Missouri Supreme Court, which held that the case should be retried.
⁵
At that point, the St. Louis circuit court found that Scott and his family were indeed free in 1850, whereupon Mrs. Emerson—her husband having died several years earlier—appealed to the Missouri Supreme Court in 1852, which reversed the circuit court decision. By that time, John Sandford, Eliza Emerson’s brother, was given title to the slaves, and thus inherited the case. Scott, meanwhile, had been freed by the sons of his original owner, Peter Blow, who had paid for his legal fees during the court battle. Denied liberty by Missouri’s state courts, Scott then filed a suit in the Missouri federal court, which agreed with the Missouri Supreme Court, leaving Dred Scott with an appeal to the United States Supreme Court and a date with history.

From the outset, the odds were stacked against Scott: seven of the nine justices had been appointed by southern presidents, and five came from slaveholding families, including Chief Justice Roger B. Taney of Maryland, who had personally owned slaves. As a young man, Taney had befriended Francis Scott Key, whose sister he married. Taney was a Jacksonian partisan of the worst kind, personifying the term “political hack.” A Catholic and a states’-rights champion, the skeletal, stooped, and ailing Taney, nearly eighty years old at the time of the
Dred Scott
case, read his decision for over two hours in a strained voice as his hands trembled from the stress of holding the paper. He had emancipated his own slaves in the 1820s, but philosophically he still believed in the “peculiar institution.” And he had a track record on the matter. In 1850, Taney’s Court in
Strader v. Graham
had ruled that slaves from Kentucky who had gone to Ohio and similarly claimed freedom were bound by Kentucky law, not Ohio law.
⁶
As is well known, all Taney and his fellow justices had to do was agree with the Missouri court system that, as a slave, Scott had no right to bring suit. But as we have also seen, Missouri and Maryland, in particular, were subjected to a constant stream of emancipation cases, and, indeed, the frequency with which they were brought in Missouri (as opposed to neighboring Illinois) suggests that in fact the law was in flux. If an owner’s word
alone
was not sufficient to characterize a black person as a slave, then the very essence of personhood was an issue, and if slaves were persons, then they were dangerously close to being the “men” who were “created equal” under the Declaration.

Whatever Taney’s motivations, he and the other justices went far beyond a quick resolution of the case by merely upholding the lower court and instead issued a manifesto on property rights and slavery in America. In an unusual development, all nine justices rendered separate opinions in the 7-2 decision against Scott. It was a case of remarkable judicial activism, even more stunning for its lack of logic. (There were seven justices appointed by Democrats, one by the Republicans, and one by the Whigs.) Taney began his opinion by stating that it was “too plain for argument, that [blacks] had never been regarded as part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure.”
⁷
Moreover, the Court maintained that the Founders had not intended to endow blacks with citizenship rights (a strange claim, given that blacks could vote in ten of the thirteen original states).
⁸

Since Scott was not a citizen of Missouri, the federal courts, including the United States Supreme Court, lacked jurisdiction to hear the suit—but then Taney’s Court went on to render a decision anyway. Engaging in judicial activism by addressing the Missouri Compromise, the justices said that the compromise had been unconstitutional, and therefore the prohibition against slavery there had likewise been unconstitutional. The property of a slaveholder had full protection under the Constitution’s Fifth Amendment. At the same time, the Court held the concept of “popular sovereignty”—in which the people of a territory could decide the fate of slavery at their state territorial conventions, touted by Senators Stephen Douglas of Illinois and Lewis Cass of Michigan—to be equally null and void. The protections of slavery could not be eliminated except by an existing state, meaning that the bias for all new territories to begin their statehood with slavery would be henceforth universal. Put another way, Taney’s Court had essentially said that Congress could not prohibit slavery, nor could the people prohibit slavery in their territorial legislatures. Only the institution of the state, after achieving statehood, could enact laws to prohibit slavery, but even those laws would not extend to any other states.

Both Abraham Lincoln and Stephen Douglas—the opposing U.S. Senate candidates in Illinois in the election of 1858—recognized the destruction caused by the decision. Each addressed it in the famed Lincoln-Douglas debates, but only Lincoln predicted that it would lead to war. Lincoln’s June 1858 “House Divided” speech warned that the nation would become either all slave or all free. Douglas had attempted to skirt the issue by supporting popular sovereignty. However, Douglas also supported the
Dred Scott
decision, and Lincoln pounced on his inconsistency by demanding that the “Little Giant” reconcile support for popular sovereignty with the Court’s decision that the people of a territory could not exclude slavery. At Freeport, Douglas’s answer, known as the Freeport Doctrine, killed his presidential chances. Douglas said he supported the
Dred Scott
ruling but that people could keep slavery out of their state by refusing to pass legislation that would protect slavery and by electing officials who would not enforce it. With the “Freeport Heresy,” as Southerners labeled it, Douglas’s political hopes crumbled and the Democratic Party split along sectional lines, ensuring the election of an anti-slavery Republican in 1860. When that occurred, war became almost inevitable.
⁹

Lincoln knew popular sovereignty was not an answer for any question of moral and constitutional proportions. He considered it the equivalent of allowing a vote on whether, say, all blonds should be imprisoned or all fifty-year-olds executed. More important, Lincoln sensed, as implied in the “House Divided” speech, that the debate over slavery in the territories was a mere proxy for the reintroduction of slavery into free states as well. It eventually came down to a question of constitutional property rights, and sooner or later, the issue of whether slaves were
people
or
property
would eventually require a final resolution.
¹⁰

Needless to say, anti-slavery forces in the North were shocked and outraged by the Court’s decision. In addition to Lincoln, who had wondered in January 1857 if the Court would use the occasion to rule on “the constitutional restriction of the power of a territorial Legislature, in regard to slavery in the territory,” others expressed concern.
¹¹
Chicago’s
Democratic Press
expressed a “feeling of shame and loathing” for the Court; Horace Greeley believed the decision held the same weight as one rendered “in any Washington bar-room.”
¹²
The New York
Independent
charged that the ruling was a “Moral Assassination of a Race and Cannot be Obeyed,” while a competitor, the
Tribune
, prophesied that no one who cherished freedom would submit to the results handed down by “five slaveholders and two doughfaces.”
¹³
Washington’s
National Era
observed, “The Slaveholding Oligarchy have the Administration, the majority in the Senate and in the House, and the Supreme Court. What is left to the People?”
¹⁴
Of course, southern and Democratic papers were ecstatic: the
Philadelphia Pennsylvanian
called the decision the “funeral Sermon of Black Republicanism,” and the New Orleans
Picayune
gleefully boasted that now “the whole basis of the Black Republican organization [is] under the ban of the law.”
¹⁵

Obvious to most was the implication that if Scott’s residence on free soil had not entitled him to emancipation, then any slave could be brought into the North permanently. This was precisely what Lincoln cautioned against in his “House Divided” speech—that one way or another, the issue had to be decided nationwide, and on the grounds of either property or personhood. He had warned, “Either the
opponents
of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its
advocates
will push it forward, till it shall become alike lawful in all the States,
old
as well as
new
—
North
as well as
South
.”
¹⁶
Taney’s Court had chosen the former. In the Lincoln-Douglas debates, the future president warned about a “nice little niche [that might be] filled with another Supreme Court decision” that would prohibit free states from excluding slavery.”
¹⁷
Lincoln, however, was well ahead of his contemporaries and fellow Republicans in realizing that “the negative principle that
no
law is free law” meant that the Constitution had a presumption of human liberty over property rights.
¹⁸
In this way, Lincoln said what many southerners feared in their hearts: that without “positive” law, slavery would become the subject of a majority vote. They began to fear that Northerners would never permit new slave states, leading the South to demand with increasing intensity a national approval of slave property. Merely admitting the right wasn’t enough: Northerners had to approve of the institution, which they would never do. Calhoun had already broached the subject during the debates over the Wilmot Proviso in 1847 by saying: