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S, Slavery

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023


was the most divisive constitutional issue in pre–Civil War America. The problem (p. 925) stemmed from a federal republic that was in Abraham *Lincoln’s words, “half slave and half free.” Slavery led to the Supreme Court’s most infamous decision—Dred *Scott v. Sandford (1857)—a case characterized as a “self-inflicted wound” by Charles Evans *Hughes. This case became a political issue in 1858 and 1860, helping to elect Lincoln president in the latter year. But Dred Scott was not the only controversial slavery case to come before the high court. A full understanding of Supreme Court jurisprudence on slavery begins with an examination of the Constitution and its slavery-related clauses.

Constitutional Structure and Slavery.

The word slavery did not appear in the Constitution until the *Thirteenth Amendment abolished human bondage in 1865. Nevertheless, the Constitution explicitly protected slavery in five clauses. The three-fifths clause (Art. I, sec. 2) gave slave states representation in Congress based on 60 percent of their slaves; the same clause and the capitation tax clause (Art. I, sec. 9) limited the potential taxation of slaves; the migration and importation clause (Art. I, sec. 9) prohibited Congress from ending the African slave trade before 1808; amendment provisions (Art. V) gave added protection to the slave trade by prohibiting any amendment of the migration and importation clause before 1808; finally, the fugitives from labor clause (Art. IV, sec. 2) provided for the return of fugitive slaves (see constitutional amending process). Other clauses strengthened slavery by guaranteeing that federal troops would be used to suppress slave rebellions, prohibiting taxes on exports (which would have allowed for the indirect taxation of slaves), and giving the slave states extra votes in the electoral college under the three-fifths clause. The requirement that three-fourths of the states assent to any constitutional amendment guaranteed that the South could always block any proposed amendments. With good reason William Lloyd Garrison, America’s most celebrated abolitionist, believed the Constitution’s many compromises over slavery created a “covenant with death” and “an agreement with Hell.”

Under generally accepted nineteenth-century interpretations of the Constitution, the national government had no power to interfere with slavery in the states where it existed. During the ratification struggle (1787–1789), South Carolina’s Charles Cotesworth Pinckney articulated this understanding of the limitations on the national government. Pinckney, who had been one of the most forceful proslavery advocates at the Philadelphia Convention, told the South Carolina legislature “we have a security that the general government can never emancipate them [slaves], for no such authority is granted, and it is admitted on all hands, that the general government has no powers but what are expressly granted by the constitution; and that all rights not expressed were reserved by the several states.”

Major Supreme Court cases involving slavery arose over five areas where slavery came under federal jurisdiction: (1) the African slave trade, (2) interstate commerce and slaves, (3) the return of fugitive slaves, (4) slavery in the federal territories, and (5) the interstate transit or sojourn of slaves through or in free states. In addition to these issues, slavery came before the Supreme Court in a number of cases as a result of the normal civil and criminal litigation that arose in the District of Columbia, which was a slaveholding jurisdiction. Though those cases are of little importance to the Court’s slavery jurisprudence, they reaffirmed the proslavery leanings of the Marshall and Taney courts.

From 1790 to 1861 (with the exception of a few years in the early 1830s), the majority of Supreme Court justices were Southerners. In addition, most of the Northerners on the Court were Democrats who voted with their proslavery southern colleagues. Most prominent among these Northerners—known as “doughfaces” because they were shaped by southern interests—were Justices Henry *Baldwin (Pa.), Robert *Grier (Pa.), Samuel *Nelson (N.Y.) and Levi *Woodbury (N.H.). Except for early cases involving the slave trade, all important slavery-related cases came before a Court headed by Chief Justice Roger B. *Taney, a Southerner who, by the end of his long career on the bench, became fanatically proslavery. The Court’s decisions from 1837 until the Civil War reflected Taney’s passionate support for slavery and the South.

African Slave Trade and the Supreme Court.

At the time of the Revolution, the African slave trade was viewed as an abomination, even by many who favored the continued existence of slavery itself. In his original draft of the *Declaration of Independence, Thomas *Jefferson condemned George III for maintaining the African slave trade. His abhorrence for the slave trade, a view shared by many other slave owners, did not prevent the author of the Declaration of Independence from continuing to own a large number of slaves throughout his life. Jefferson illustrates well the possibility of supporting slavery while opposing the slave trade.

Similarly, at the Constitutional Convention slaveowners like James *Madison and George Mason attacked the slave trade without opposing slavery itself. A majority of the Convention delegates favored giving Congress the power to end the African slave trade immediately. However, delegates from South Carolina persuaded the Convention to allow the trade to continue for at least twenty years. In 1807 Congress passed legislation (p. 926) ending the trade the following year and in 1818 adopted tougher legislation against traders.

After 1808 the federal courts heard numerous cases involving the importation of slaves from Africa. Out of these cases the Supreme Court defined two quite different jurisprudential theories. In The *Antelope (1825), Chief Justice John *Marshall asserted that the African slave trade was “contrary to the law of nature” but that it was “consistent with the law of nations” and “cannot in itself be piracy” (pp. 120, 122). The Court recognized the right of foreigners to engage in the slave trade, if their own nations allowed them to do so. Thus Marshall wrote: “If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade, cannot exist” (pp. 122–123). This allowed the Court to uphold prosecutions against American traders while also protecting the property rights in enslaved Africans owned by nationals where the trade was legal. The Antelope was a Spanish vessel seized on the high seas by pirates. By the time the ship was captured by an American revenue cutter and taken to Savannah, the Antelope held more than 280 slaves taken from numerous ships owned by citizens of various countries, including Spain and the United States. The Court ruled that some of the slaves on this ship were to be given to the Spanish government because they were lawfully owned by a Spanish subject at the time the ship was captured in American waters. The rest of the Africans, however, were to be turned over to the United States government as the fruit of the illegal trade. Cases between 1820 and 1860 illustrate how the Court dealt with the trade. In United States v. Gooding (1827), the Court, continuing its opposition to the African trade, upheld an interpretation of the 1818 act that allowed prosecution of secret owners of vessels illegally participating in the trade.

United States v. The Amistad (1841) involved a Spanish ship that had drifted into American waters after a mutiny of slaves left most of the crew dead. All of the mutinous slaves had been recently imported from Africa in violation of Spanish law. The case became a major abolitionist cause célèbre, with former president John Quincy *Adams and the future Connecticut senator Roger S. Baldwin arguing before the Supreme Court on behalf of the slaves. The Court rejected attempts by the United States government to prosecute the Africans for murder or to allow their extradition to Spain for either criminal trials or enslavement. The Supreme Court ruled that because the African trade was illegal under Spanish law, all of the Africans were legally free and should be returned to Africa. Somewhat gratuitously, the Court also held that the United States government was under no obligation to pay for their passage back to Africa. Eventually private funds enabled the Africans to return to their homeland.

In Ex parte Gordon (1861), the Supreme Court sustained the conviction and death sentence of an American slave trader. In a series of cases known as The Slavers (1864), the Court upheld condemnation proceedings against vessels outfitted in the United States for slave trading activities. The Court consistently condemned the trade as a violation of *natural law and morality. But in all slave trading cases, the Court enforced concepts of international law. Thus Justice Joseph *Story noted in a circuit court opinion, La Jeune Eugenie (1822), “I am bound to consider the trade an offence against the universal law of society, and in all cases, where it is not protected by a foreign government, to deal with it as an offence carrying with it the penalty of confiscation” (p. 847). The Constitution prohibited any federal interference with African slave trade before 1808. In that year a federal ban went into effect. Although in the 1850s some proslavery advocates demanded reopening the slave trade, even most Southerners rejected the idea. In 1861 the Confederate Constitution banned the African trade in that new nation.

Slavery and Interstate Commerce.

After the adoption of the Constitution, the nation reached an unstated political consensus on the question of slavery and interstate commerce. Although most lawyers would have conceded that after 1808 Congress had the power to regulate the interstate slave trade, the consensus held that such regulation would be impossible to get through Congress and would threaten the Union. Arguments of counsel and the opinions of the justices in commerce clause cases, such as *Gibbons v. Ogden (1824), *New York v. Miln (1837), The *License Cases (1847), and the *Passenger Cases (1849), recognized the special status of slaves in the general regulation of commerce. Indeed, slavery directly or indirectly influenced almost every antebellum Commerce Clause case.

*Groves v. Slaughter (1841) was the only major slavery case to come before the Supreme Court that directly raised commerce clause issues. The Mississippi Constitution of 1832 prohibited the importation of slaves for sale. This was not an antislavery provision, but an attempt to reduce the flow of capital out of the state. In violation of this provision, Slaughter, a slave trader, sold slaves in Mississippi and received notes signed by Groves and others. Groves later defaulted on the notes, arguing that the sales of slaves in Mississippi were void. The Court ruled that the notes were not void because Mississippi’s constitutional prohibition on the importation of slaves was not self-executing. Thus, absent legislation implementing (p. 927) the prohibition, the Mississippi constitutional clause was inoperative. In separate concurrences northern and southern justices agreed that a state might legally ban the importation of slaves. This principle supported northerners who wanted to keep slaves out of their states and the southerners who wanted to make sure that the federal courts could not interfere with slavery on the local level.

Slavery and Extraterritoriality: Fugitive Slaves.

The jurisprudence surrounding fugitive slaves was the most divisive constitutional issue in antebellum America. The Supreme Court heard four major cases involving fugitive slaves: *Prigg v. Pennsylvania (1842), *Jones v. Van Zandt (1847), *Ableman v. Booth (1859), and *Kentucky v. Dennison (1861). While settling legal issues, none of these cases satisfactorily dealt with the moral and political questions raised when human beings escaped to freedom. These cases only exacerbated the sectional crisis. Ultimately, these issues were decided not by constitutional arguments and ballots, but by war.

Late in the Constitutional Convention Pierce Butler of South Carolina proposed that the Constitution “require fugitive slaves and servants to be delivered up like criminals.” Pennsylvania’s James Wilson complained that this would oblige “the Executive of the State to do it, at the public expense.” Connecticut’s Roger Sherman added, perhaps sarcastically, that there was “no more propriety in the public seizing and surrendering a slave or servant, than a horse.” In the face of this opposition, Butler withdrew his proposal. The next day, without any further debate or a recorded vote, the Convention accepted what became the Fugitive Slave Clause of the Constitution. In the first Supreme Court case interpreting the clause, Prigg v. Pennsylvania (1842), Justice Story erroneously characterized the clause as “a fundamental article without the adoption of which the Union could not have been formed” (p. 611).

The wording of this clause and its juxtaposition with the other clauses of Article IV suggest that the Convention did not anticipate any federal enforcement of the law. However, in 1793 Congress passed the first fugitive slave law, which spelled out procedures for the return of runaway slaves. The law allowed masters or their agents to capture runaways and bring them to any magistrate, state or federal, to request a certificate of removal. Armed with such a certificate, the claimant was then free to take the runaway slave out of the state where he or she was found and back to the claimant’s state.

At the time this law was passed, all the New England states and Pennsylvania had either abolished slavery outright or were in the process of eliminating it through gradual emancipation. In 1799 and 1804 New York and New Jersey joined this first emancipation. These changes in northern law and public policy meant that in half the nation a racially based presumption of enslavement no longer existed. With its arbitrary procedures and resultant lax evidentiary standards for the return of fugitive slaves, the 1793 law presented a grave threat to the many free blacks in the North. To prevent the kidnapping of free blacks, many northern states passed personal liberty laws, which placed burdens on claimants beyond what the federal law required. These laws were a good faith effort by the northern states to protect free blacks from enslavement through kidnapping or mistaken identity and to provide some procedures by which state officials could also aid in the rendition of actual fugitives. Before the 1830s the northern states generally tried to balance their desire to protect the freedom of their free black population with their desire to comply with the obligations of the Constitution to return runaway slaves.

While the *lower federal courts and some state courts enforced the federal law of 1793, its constitutionality was not tested in the Supreme Court until Prigg v. Pennsylvania. The facts of the case and Story’s opinion reveal the constitutional difficulties raised by fugitive slave rendition. Justice Story upheld the 1793 law and struck down state laws that interfered with the rendition process. Story urged state officials to continue to enforce the 1793 law but concluded that they could not be required to do so. In 1837 Edward Prigg, a professional slave catcher, seized Margaret Morgan, a runaway slave living in Pennsylvania. Prigg applied to a justice of the peace for certificates of removal under the federal law of 1793 and Pennsylvania’s 1826 personal liberty law, which had higher evidentiary requirements than the federal law. The magistrate refused Prigg’s request. Without any legal authority Prigg then removed to Maryland Morgan and her children, including one born in Pennsylvania. Prigg was later convicted of kidnapping under the 1826 law and he appealed to the U.S. Supreme Court. At issue was the constitutionality of both the federal law of 1793 and the Pennsylvania law of 1826.

Speaking for the Court, Story held that: (1) the Fugitive Slave Law of 1793 was constitutional; (2) Pennsylvania’s personal liberty law of 1826 (and by extension all similar laws) unconstitutionally added new requirements to the rendition process; (3) the United States Constitution’s Fugitive Slave Clause implied a *common-law right of recaption, and so any slaveowner or his agent could remove a fugitive slave without complying with the federal law of 1793, if such a capture could be done without a breach of the peace; and (4) all state judges and other officials should enforce (p. 928) the federal law, but that the national government could notrequire themto do so.

Chief Justice Taney concurred with the result in Prigg but objected to Story’s assertion that state judges did not have to enforce the federal law. Taney correctly predicted that the states would use Story’s opinion to undermine the effectiveness of the 1793 law.

It is not clear that Taney’s criticisms of Story’s opinion were fair or well founded. Story’s opinion in fact allowed laws that aided the rendition process, which the Court accepted in Moore v. Illinois (1852). Nevertheless, Taney’s impassioned misstatement of Story’s opinion was apparently read more frequently than the majority opinion, thus ironically enhancing its antislavery potential. The result was that in the 1840s a number of state jurists refused to hear cases involving fugitive slaves, claiming that the Supreme Court’s decision precluded them from taking jurisdiction. Some states adopted legislation that actually prohibited state officials from participating in fugitive slave cases. In 1843, for example, in response to the attempted removal of a fugitive slave named George Latimer, Massachusetts passed the “Latimer Law,” which prohibited any sheriff or other civil officer from arresting an alleged fugitive slave, prohibited the use of public facilities including jails to incarcerate fugitives, and prohibited any state judge from hearing a case under the law of 1793 (see state sovereignty and states’ rights).

Further stimulating northern opposition to fugitive slave rendition was the Supreme Court’s harsh interpretation of the 1793 statute in Jones v. Van Zandt (1847). This was a civil suit for the value of slaves who had escaped from Kentucky to Ohio, where Van Zandt offered them a ride in his wagon. His attorneys, Salmon P. *Chase and William H. Seward, unsuccessfully argued that in Ohio all people were presumed free, and thus he had no reason to know he was transporting runaway slaves. Chase’s printed brief thrust its author into the national spotlight, and he soon became known as the “Attorney General for Fugitive Slaves.”

In response to the “Latimer Law” and other personal liberty laws, as well as the rise of an antislavery bar led by men like Chase, the South demanded a new and more stringent fugitive slave law. This was achieved in 1850. The new Fugitive Slave Act authorized the appointment of a federal commissioner in every county of the United States. The commissioners could issue certificates of removal for fugitive slaves and were empowered to call on federal marshals, the military, and “bystanders, or posse comitatus” to enforce the law. People interfering in the enforcement of the law could be jailed for up to six months and fined up to one thousand dollars. Procedures under the law failed to provide even a semblance of due process to its victims. Alleged fugitives could be remanded on minimal evidence, or mere affidavit; seized blacks were not allowed to testify on their own behalf, and no jury trial was allowed to determine the status of the alleged fugitive. Worst of all federal commissioners received a fee of ten dollars if they found on behalf of the claimant, but only five dollars if they decided the alleged fugitive was in fact a free person. Congress justified this differential on the ground that the commissioner would have to do more paperwork if he found in favor of the claimant, but, for many northerners, this seemed like a blatant attempt at bribery.

The Fugitive Slave Act quickly became imbedded in American culture, in part through Harriet Beecher Stowe’s instant best seller, Uncle Tom’s Cabin (1852). About half the novel focused on the plight of the slave Eliza and her son, who escaped across the Ohio River to freedom. This book struck a responsive chord with northerners. Equally important was the open hostility to the law throughout the North and the sporadic instances of violent opposition to it. Most seizures ended in the peaceful return of the alleged fugitive. But riots and rescues in Boston, Massachusetts (1851, 1854); Christiana, Pennsylvania (1851); Syracuse, New York (1851); Racine, Wisconsin (1854); Oberlin, Ohio (1858); Ottawa, Illinois (1859); and Iberia, Ohio (1860) made national headlines, as alleged fugitive slaves sometimes avoided the clutches of federal officers, while an occasional slaveowner or local policeman lost his life.

Most cases under the 1850 law never reached the Supreme Court. The trials of abolitionists and rescuers were usually decided in the district and circuit courts. The most dramatic lower federal case, United States v. Hanway (1851), stemmed out of the Christiana riot, in which a fugitive slave killed his former owner and then escaped to Canada. In response more than forty men were indicted for treason. Supreme Court Justice Robert Grier, on circuit at the time, ruled that opposition to the fugitive slave law did not constitute treason. Although he was a proslavery doughface who despised abolitionists, Grier did not believe their actions constituted levying war on the national government.

Ableman v. Booth (1859) stemmed from the 1854 Racine rescue. After being arrested by a federal marshal for helping rescue a fugitive slave who had been seized, Sherman Booth, a prominent Republican editor, obtained a writ of habeas corpus from a state judge to secure his release from federal custody. The Wisconsin Supreme Court declared the Fugitive Slave Act unconstitutional and refused to send a record of the case to the Supreme Court. Speaking for a unanimous Court, Chief Justice Taney (p. 929) wrote a powerful opinion upholding federal judicial power at the expense of the states. Taney found that every state was pledged “to support this Constitution” and that “no power is more clearly conferred than the power of this court to decide ultimately and finally, all cases arising under” the federal “Constitution and laws” (p. 525). (See judicial power and jurisdiction.) Ableman is still cited for the proposition that the federal government “should be supreme, and strong enough to execute its laws by its own tribunals, without interruption from a State or from State authorities” and that “the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power, equally paramount in authority to carry it into execution” (p. 517). Ironically, the Supreme Court used this century-old proslavery decision in the 1950s to bolster its affirmation of desegregation decrees.

Kentucky v. Dennison (1861), decided after secession had begun, was the Court’s last major decision on slavery. Willis Lago, a free black living in Ohio, had helped a Kentucky slave escape to Ohio. Kentucky asked the governor of Ohio to extradite Lago so that he could stand trial for helping a slave escape. Governor Dennison, like his predecessor Salmon P. Chase, refused to order the extradition. Thus, Kentucky asked the Supreme Court to intervene. Chief Justice Taney faced a difficult dilemma. If he ordered Dennison to extradite Lago, he would be setting a precedent that the federal government could force state officials to act. With the Confederacy already formed, and *civil war on the horizon, Taney did not want to give authority to the federal government to compel the actions of a state governor. Thus, in an opinion reminiscent of Marshall’s in *Marbury v. Madison (1803), Taney castigated Dennison for his refusal to act, but ultimately refused to issue a *mandamus against Dennison. Taney ruled that interstate extradition was a matter of gubernatorial discretion, to be performed out of *comity and good citizenship. This precedent remained good law until 1987.

Slaves in Transit and Slavery in the Territories.

In two monumental acts, the *North-west Ordinance (1787) and the Missouri Compromise (1820), Congress prohibited slavery in most of the territories owned by the United States. These acts led to some of the most important, controversial, and complicated cases that ever reached the Supreme Court.

Even before the Constitution was written, the United States Congress, acting under the old Articles of Confederation, regulated slavery in the western territories. Article VI of the Northwest Ordinance (1787) prohibited slavery north and west of the Ohio River. Eventually the free states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and part of Minnesota would be carved out of this territory. The meaning of the slavery prohibition came before the Supreme Court in LaGrange v. Chouteau (1830), Menard v. Aspasia (1831), and Strader v. Graham (1851). Each case involved the status of slaves that had lived or worked in the old Northwest; in each case the court dismissed the appeal for lack of jurisdiction. In Strader the Court held that the slavery prohibition ceased to be in force when the territories became states (see territories and new states). Thus it was up to each state to determine for itself the status of persons within its jurisdiction, and this was not subject to review by the Supreme Court. Strader left it for each state, and an issue of interstate comity, to decide if a slave gained freedom through residence or sojourn in a free state.

Dred Scott Case. Along with Marbury v. Madison (1803), Dred Scott v. Sandford (1857) is the most famous nineteenth-century U.S. Supreme Court case. Besides Marbury, it is the only antebellum case in which the Supreme Court held a federal law unconstitutional.

The Missouri Compromise of 1820 admitted the state of Missouri into the Union as a slave state and prohibited slavery in the territory north of the new state, which was called the Missouri territory. As the slave of army surgeon Dr. John Emerson, Scott lived on a military base in the free state of Illinois and at Fort Snelling, in what was then the Missouri territory and later became Minnesota. After Dr. Emerson died, Scott sued for his freedom, and in 1850 a state court in St. Louis declared him free, under the principle that he had become free in Fort Snelling, and once free, he remained free, despite his return to the state of Missouri. This decision followed Missouri precedents dating from 1824. In Scott v. Emerson (1852), the Missouri Supreme Court, reflecting the growing proslavery ideology of the South, reversed this long-standing rule. The Missouri court declared:

Times are not as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed of a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures, whose inevitable consequence must be the overthrow and destruction of our government. Under such circumstances it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. (p. 586)

By this time Scott was technically under the control of John F. A. Sanford, a New Yorker who was the executor of Dr. Emerson’s estate. This allowed Scott to sue Sanford in federal court under diversity jurisdiction. In the United States district court, Sanford argued, in a plea in abatement, that Scott could not be a citizen of the United (p. 930) States for diversity purposes because he was a Negro. District Judge Robert W. Wells denied this plea, ruling that if Scott was free, then he was a citizen, for purposes of diversity jurisdiction, and could sue. If he was not free, then of course whether he could sue or not became moot (see mootness). Wells then held a trial on the merits of the case, and ruled that Scott’s status was legitimately determined by the Missouri Supreme Court, and he was in fact a slave. At this point, Scott’s attorneys appealed to the United States Supreme Court. By the time the case reached Chief Justice Taney’s court, the question of slavery in the territories had become the central political issue of the decade. Taney’s decision must be seen in the context of this background.

From 1820 until 1850 the issue of slavery in the territories had been governed by the Missouri Compromise, which prohibited slavery in almost all of the West. However, with the acquisition of new lands in the Mexican War, and the acceptance throughout the South of a “positive good” view of slavery, Southerners were no longer content to see slavery shut out of the western territories. In 1854 Congress repealed the Missouri Compromise, by opening Kansas and Nebraska to slavery in 1854, under a theory of popular sovereignty. Under the theory of popular sovereignty, the settlers of a territory would decide for themselves whether to admit slavery or not. Rather than democratizing the West; popular sovereignty led to a mini–civil war known as “Bleeding Kansas,” in which free state and slave state settlers fought for control of the territorial government. Meanwhile, in the North the newly organized Republican party gained enormous support by campaigning against the spread of slavery into the territories. In the 1856 presidential election this party, which was less than two years old, carried all but five northern states.

Taney’s Decision. The avidly proslavery Chief Justice Taney used Dred Scott to decide pressing political issues in favor of the South. Taney’s two most controversial points dealt with the constitutionality of the Missouri Compromise and the rights of free blacks under the federal Constitution.

By strained logic Taney argued that the territories clause of Article IV of the Constitution only applied to the territories owned by the United States in 1787 and did not apply to territories acquired after that date. This led him to conclude that the Missouri Compromise was unconstitutional. In addition, Taney argued that freeing slaves in the territories constituted a taking of property without due process, which violated the *Fifth Amendment. This was the Supreme Court’s first use of the concept of substantive *due process. Thus, under Taney’s theory of the Constitution Dred Scott had not been entitled to freedom, even while he lived in Minnesota. More importantly, Taney’s theory meant that all congressional limitation on slavery in federal jurisdictions was unconstitutional. This was a direct assault on Northerners who had been working to make the territories free.

Taney compounded this attack on northern attitudes with a stunning and gratuitous denial of the rights of free blacks in the United States. Although unnecessary for the outcome of the case, Taney examined whether Scott had *standing to sue in federal court, even if he were free. Taney asked: “Can a Negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, privileges, and immunities guaranteed by that instrument to the citizens?” Rigorously applying a jurisprudence of *original intent, Taney answered his own question with a resounding no. Taney concluded that even those free blacks living in the North with full state citizenship could never be citizens of the United States. Taney argued that blacks

are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides and secures to citizens of the United States. On the contrary, they were at that time [1787] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privilege but such as those who held the power and the Government might choose to grant them. (pp. 404–405)

In an analysis that was historically incorrect and shocking to the North, Taney asserted that at the time the Constitution was adopted blacks were universally considered “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; and that the Negro might justly and lawfully be reduced to slavery for his [white people’s] benefit” (p. 407). Taney gave examples of colonial laws discriminating against blacks, which were “still in force when the Revolution began” (p. 409), to show that blacks were not citizens in those states. He then cited sources from “the States where slavery had worn out, or measures taken for its speedy abolition,” to prove that from the Revolution onward blacks were degraded and unequal throughout New England (p. 413). He argued that these (p. 931) precedents illustrated “the entire repudiation of the African Race” (p. 415). What Taney ignored, of course, was that at the time of the Revolution free blacks in fact voted in a number of states, including Massachusetts, Pennsylvania, and North Carolina, and were clearly constituent members of the society that adopted the Constitution.

Finally, Taney discussed how Scott’s status was affected by his residence in Illinois. Here he relied on Strader v. Graham, where the Court had ruled that each state had a right to decide for itself the status of persons under its jurisdiction. Thus, if Scott had sued in Illinois, that state could have freed him. But Scott sued in Missouri, whose supreme court had refused to free Scott based on his residence in Illinois, a ruling binding on Federal courts.

Curtis’s Dissent. All nine justices wrote opinions in Dred Scott. Six concurred with Taney, including two northern doughfaces, Robert Grier and Samuel Nelson. Justices John *McLean of Ohio and Benjamin R. *Curtis of Massachusetts dissented. Curtis refuted Taney at almost every point. Curtis asserted that United States citizenship preceded the Constitution, and that under the Articles of Confederation state *citizenship qualified one for national citizenship. Curtis noted that free blacks were citizens of at least five states before 1787 and thus they were also citizens of the United States at the time the Constitution was adopted. In answer to Taney’s argument that Congress could not regulate slavery in the territories, Curtis noted that everyone, including Taney, admitted “Congress has some power to institute temporary Governments over the territory” (p. 609). Curtis believed this power came from the territories clause of Article IV, because that was a “reasonable interpretation of the language of the Constitution” (p. 610) and made much greater sense than Taney’s unpersuasive attempt to show that the clause only applied to the federal territories existing in 1787. Curtis demonstrated that if Congress has a power, it is a broad power, and not the narrow and constricted one that Taney found. Curtis reasoned that the words “needful regulation” in the territories clause was a grant of such power. Could a “needful regulation” reach slavery? Curtis noted that

while no other clause of the Constitution can be shown, which requires the insertion of an exception respecting slavery, and while the practical construction for a period of upwards of fifty years forbids such an exception, it would, in my opinion violate every sound rule of interpretation to force that exception into the Constitution upon the strength of abstract political reasoning which we are bound to believe the people of the United States thought insufficient to induce them to limit the power of Congress, because what they have said contains no such limitation. (p. 623)

Political Reaction to Dred Scott. Curtis’s dissent heartened Northerners like Horace Greeley, the editor of the New York Tribune, who wrote that Taney’s decision was an “atrocious,” “wicked,” “abominable,” “false,” opinion. It was a “collection of false statements and shallow sophistries,” a “detestable hypocrisy” and a “mean and skulking cowardice.” The Chicago Tribune expressed the reaction of many Northerners: “We scarcely know how to express our detestation of its inhuman dicta, or to fathom the wicked consequences which may flow from it.”

The Dred Scott case gave Taney an opportunity to try to settle the issue of slavery, once and for all, in favor of the South. Taney hoped that his magisterial decision would end the controversy over slavery in the territories and in the process destroy the new Republican party, which so threatened slavery. Yet his decision had just the opposite effect, in part because, as historian Don Fehrenbacher has written in his The Dred Scott Case (1978): “Taney’s opinion, carefully read, proves to be a work of unmitigated partisanship, polemical in spirit though judicial in its language, and more like an ultimatum than a formula for sectional accommodation. Peace on Taney’s terms resembled the peace implicit in a demand for unconditional surrender.” The decision was, as the political scientist Harry Jaffa has written, “nothing less than a summons to the Republicans to disband” (p. 3).

Instead of disbanding, Republicans successfully made Taney and the decision the focus of their 1858 and 1860 campaigns. In his “House Divided” speech (1858), Abraham Lincoln argued that Taney’s opinion was part of a proslavery conspiracy to nationalize slavery and a prelude to future proslavery jurisprudence. He warned of “another Supreme Court decision, declaring that the Constitution of the United States does not permit a state to exclude slavery from its limits.” He told the voters in Illinois, and by extension the entire North, that “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their state free;andweshall awake to the reality, instead, that the Supreme Court has made Illinois a slave state.” Lincoln feared such a decision because of language in a concurring opinion in Dred Scott by Justice Samuel Nelson, a New York doughface, and because of a slave case that was then making its way through the New York courts.

Justice Nelson noted that “except as restrained by the Federal Constitution” the states had “complete and absolute power over the subject of slavery.” Nelson may have only been referring (p. 932) to the Fugitive Slave Clause’s limitation on the states. But Republicans, such as Governor Salmon P. Chase of Ohio and Abraham Lincoln, saw a darker side to Nelson’s opinion, especially because Nelson concluded by observing:

A question has been alluded to … namely: the right of the master with his slave of transit into or through a free State, on business or commercial pursuits, or in the exercise of a federal right, or the discharge of a federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common citizen of the republic, under the Constitution of the United States. When that question arises, we shall be prepared to decide it. (p. 468)

In the Illinois senate race of 1858 Abraham Lincoln condemned the “wicked consequences” of the Dred Scott decision and expressed the fear that the Supreme Court might soon force slavery on the North through what he called “the next Dred Scott Case.” He noted that “in what cases” the states were restrained was “left an open question.” Lincoln warned the North that the “next Dred Scott Case” would legalize slavery throughout the nation.

Lincoln’s fears were far from paranoid. In 1852 the New York Supreme Court ruled that eight slaves were properly liberated when their owner brought them into New York while changing ships for a voyage to New Orleans. After the Dred Scott decision the New York Court of Appeals, that state’s highest court, upheld this result in Lemmon v. The People (1860). Had that case gone to the Supreme Court it is likely that Taney and his proslavery colleagues would have ruled that New York did not have the power to free slaves in transit. The election of Lincoln, secession, and the Civil War, mooted that issue.


From 1790 to 1861 the Supreme Court’s slavery jurisprudence reflected American politics. In the end the Court tried to solve the American dilemma over slavery with decisions that entirely protected slavery and thoroughly repudiated the dominant ideology of the North. Such a solution was bound to fail. The solution of the Taney Court was consistent with the makeup of that court. Dominated by southerners and northern Democrats, the Court supported slavery at almost every turn. Slaveowners and the institution of slavery almost always won before the high court. The only exceptions to this general rule involved the African slave trade, Kentucky v. Dennison, which turned on critical political issues, and a few minor cases, which were decided on strictly technical grounds. Blacks seeking freedom could find no sympathy on the nation’s highest court until the chief justice from Maryland died and was succeeded by the abolitionist Salmon P. Chase. Less than two years after this change on the Court, slavery itself disappeared, and the Court was left with the difficult task of building a new jurisprudence, based on concepts of freedom and racial equality. Saddled with formidable proslavery precedents, the postwar Court was not as successful in protecting freedom as the prewar Court had been in protecting slavery.

See also commerce power; fugitive slaves.

Robert M. Cover, Justice Accused: Anti-Slavery and the Judicial Process (1975). Paul Finkelman, “Prigg v. Pennsylvania and Northern State Courts: Antislavery Use of a Proslavery Decision,” Civil War History 25 (1979): 5–35. Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981). Paul Finkelman, “Slavery and the Constitutional Convention: Making a Covenant with Death,” in Beyond Confederation: Origins of the Constitution and American National Identity, edited by Richard Beeman, et al. (1987), pp. 188–225. Harold M. Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (1982). Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780–1861 (1974). William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (1977). William M. Wiecek, “Slavery and Abolition before the United States Supreme Court, 1820–1860,” Journal of American History 65 (1978): 34–59.

Paul Finkelman