There is a fierce competition for the title of “second-worst decision of the United States Supreme Court”. The clear winner of the main event — “worst decision ever” – has to be the infamous Dred Scott case.  The opinion, delivered in March 1857 by Chief Justice Roger Taney just days after he administered the oath of office at the inauguration of James Buchanan, denied that Congress had the power to prohibit slavery in federal territories.

The facts of the case are laid out in crystalline detail by Don E. Fehrenbacher in “The Dred Scott Case: Its Significance in American Law and History”.  To boil down scores of pages of text: When Dred Scott and his wife Harriet began their suit in 1846, they and their two daughters were held as slaves in St. Louis, Missouri by a woman named Eliza Irene Emerson, known familiarly as Irene.  She was the widow of a John Emerson, an army surgeon, who had acquired Dred Scott sometime in the early 1830s when Scott’s former owner, the Blow family of St. Louis, sold him.

Emerson served at Fort Armstrong in the State of Illinois and at Fort Snelling, now in Minnesota, but at the time in Wisconsin Territory.  Dred Scott was with him at both locations.  Slavery was unlawful in Illinois.  Fort Snelling was in the portion of Wisconsin Territory that had been part of the Louisiana Purchase, where slavery north of latitude 36º 30’ had been prohibited by the 1820 Missouri Compromise.

Dred met his future wife Harriet at Fort Snelling, where they were married.  They remained at Fort Snelling even after Dr. Emerson was transferred to Fort Jesup in Louisiana.  They later traveled to Louisiana to join Dr. Emerson.  Dr. Emerson met and married Irene Sanford at Fort Jesup.  The Emersons and the Scotts then returned to St. Louis.  From there, they traveled again to Fort Snelling, and then came back to St. Louis.  The second trip to Fort Snelling is significant because one of the Scotts’ daughters was born on that trip in territory where slavery was prohibited.[1]

After the entourage returned to St. Louis, Dr. Emerson was transferred to Florida.  He traveled there alone.  He served in Florida for more than two years, lost his commission, returned to St. Louis for the last time, fathered a child with Irene, and died shortly after their daughter Henrietta was born.  He left a life estate of all his property to his wife, the remainder to pass to their daughter on Irene’s death.[2]

In 1846, some three years after Dr. Emerson’s death, the Scotts began a suit in Missouri state court, claiming that their time in a federal territory where slavery was prohibited had worked their freedom.  Similar cases had come before Missouri courts in the past.  Enslaved petitioners had been freed in several cases similar to the Scotts’.  In fact, Fehrenbacher reports that prior to this case “there appears to have been no decision of a southern appellate court that denied a suit for freedom in a clear-cut case of permanent residence on free soil”.[3]  This time, the petitioners lost.  The Missouri Supreme Court openly acknowledged that its earlier decisions were no longer applicable because it did not wish to encourage the opposition to slavery that was growing outside Missouri.

Scott v. Emerson ended in 1852 with a victory for the slaveholder.  It appeared that the Scotts had two unpromising alternatives.  They might have dropped the case and tried to buy their freedom.  However, Mrs. Emerson (now Mrs. Chaffee, having remarried and moved to Massachusetts) had fought to keep the Scotts enslaved.  She could not be expected to cooperate.

Alternatively, they might have appealed to the United States Supreme Court claiming that the Missouri case had been incorrectly decided as a matter of federal law.  The Scotts’ lawyers advised against this approach because of a precedent that they thought would spell an automatic defeat for the Scotts’ cause.  Strader v. Graham was a suit for damages between a Kentucky slaveholder and a ferry operator.  The operator had taken slave musicians from Louisville, Kentucky to a job in Cincinnati, Ohio without the knowledge of Mr. Graham, the Kentucky slaveholder.  Once in Ohio, the musicians escaped and fled to Canada.  Their Kentucky owner sued the ferry operator for the financial loss that the escape had cost him.  The operator’s defense was that the musicians were not slaves because on previous occasions they had traveled to Ohio with the owner’s permission.  The operator argued that once they landed on free soil with the consent of the slaveholder, the enslaved musicians were free, even though they had returned to Kentucky.  At the time of the river crossing that launched the lawsuit, the enslaved musicians had not left Kentucky for two years.  The Kentucky Supreme Court upheld an award of damages to the slaveholder and the ferry operator appealed to the U.S. Supreme Court.

The U.S. Supreme Court dismissed the case for lack of jurisdiction but stated in dictum that Kentucky law should govern the case.  The Strader case is easily distinguished from the Scotts’ case.  Strader was a suit for damages while the Scotts were suing for freedom.  On their previous voyages, the enslaved musicians in Strader had merely “sojourned” in Ohio, while the Scotts had been permanent residents in free territory.  The Strader dictum viewed the case as a question of choice of state law while the Scotts were claiming that federal law had been misapplied if not ignored.  Even so, the Scotts’ lawyers were convinced that the Supreme Court would rely on Strader to deny an appeal.[4]

Faced with these alternatives, the Scott team did something creative.  They began a new lawsuit in federal court naming John Sanford, Mrs. Emerson’s brother, as the defendant.  Mr. Sanford was a resident of New York.[5]

The step was creative but was also mysterious.  There is no record that Mr. Sanford owned the Scotts.  It has been argued that he was acting as a trustee or an executor of Dr. Emerson’s estate.  But Mrs. Emerson had a life estate in her first husband’s property; there was no trustee or executor.  To add to the mystery, two months after the Supreme Court decided against them, the Scott family was transferred to Tyler Blow, heir of the Blow family that had sold Dred Scott to Dr. Emerson in the early 1830s.  The transferors were Mr. and Mrs. Chaffee.  Mrs. Chaffee was, of course, the former Irene Emerson, the victor in Scott v. Emerson.  Mr. Chaffee was an abolitionist and a member of Congress from 1855 to 1859.

Despite the Scotts’ decision not to appeal the Missouri decision, the new case could be heard by a federal court because the Scotts invoked federal “diversity” jurisdiction, applicable to suits between citizens of different states, Missouri and New York in this case. Mr. Sanford signed a sworn statement that he was the owner of Dred and Harriet Scott.  The unusual facts hint that the parties contrived to manufacture a defendant in the person of Mr. Sanford, which has given rise to conspiracy theories, but no documentary evidence reveals either a pro-slavery plot that succeeded or an anti-slavery plot that failed.[6]

The Supreme Court held that the Scotts could not maintain their suits for freedom for lack of federal jurisdiction. The Court denied that the Scotts were citizens of Missouri.  Indeed, the Court stated that no person of African descent could be a citizen of a state in order to invoke the Court’s “diversity” jurisdiction.  Among the Chief Justice’s opinion’s many defects is the outrageous statement that persons of African descent are “beings of an inferior order” who might “justly and lawfully be reduced to slavery”.

When a political figure makes an unfortunate statement that he or she wants to take back, the first line of defense is often that the words were taken out of context.  Had Taney wished to walk back his outlandish statements – and there is no evidence that he ever did — the “out of context” ploy has some initial if superficial credibility.

Taney tells his readers that he was not stating his own view or the view of enlightened opinion in the year 1857.  Rather, he was invoking the attitude of the framers of the Constitution.  As a humble servant of the law, he was bound by the intent of the lawgiver.  He claimed that it was the Framers of the 1780s, rather than the faithful interpreters of their work in the 1850s, who established a government based on the racist principles[7] that Taney announced in his Dred Scott opinion.  In this he shares common ground with abolitionists who were his contemporaries and with progressives of our own time.

This kind of reasoning has given “original intent” a bad name.  Yet, Taney’s projection of his racial attitudes onto the American founding was not based in fact.  There was significant anti-slavery sentiment throughout the American colonies when they declared their independence, a sentiment that existed alongside a powerful pro-slavery interest.  Some delegates to the Second Continental Congress, the body that would adopt and publish the Declaration of Independence, received requests from constituents asking them to address the evils of slavery.  Jefferson’s draft of the Declaration included strong anti-slavery language that was removed to keep the delegates from South Carolina and Georgia onside.  At the same time, the anti-slavery principles of the Declaration’s second paragraph survived.  The Northwest Ordinance, adopted by the Confederation Congress, prohibited slavery in what was called the Northwest Territory (the future Ohio, Indiana, Illinois, Wisconsin, and Michigan).  Racial attitudes were less rigid, more tolerant in the 1770s and 1780s than in the 1850s, when explicitly racial theories began to take hold and some politicians began to see slavery as a “positive good”.[8]

In 1857, Taney cried crocodile tears and claimed that he had no choice but to follow the iron law that the Framers had laid down when they drew the Constitution.  Yet, not only is Taney’s reading of American history wrong; there is powerful evidence that he knew it was wrong.  As a younger man, Taney had argued the opposite position from the one he read into the Constitution and projected onto the American past in 1857.  Thanks to careful scholarship by Harry Jaffa, we have a clear record of statements by a younger Roger Taney that belie the position he adopted in 1857.

In 1818, an itinerant preacher named Jacob Gruber gave a sermon at a camp prayer meeting in Hagerstown, Maryland, Taney’s home state.  The audience included some 2,600 white and 400 black listeners.  Gruber preached the evils of slavery.  He was arrested on a charge of inciting public disorder.  Taney, then more than 40 years old, was Gruber’s defense counsel.

Taney’s closing statement has been preserved.  As Jaffa points out, if you didn’t know the date when the closing statement was made and you didn’t know the author, you might conclude that you were reading a note written by Abraham Lincoln.  The themes common to the time were all laid out.  Slavery was an evil practice, inconsistent with the charters of liberty on which the American republic was founded.  It was imposed on the colonies by the mother country.  As the colonies matured into states, they had found it difficult – indeed still found it difficult in 1818 – to rid themselves of this curse.

Here is an excerpt from Taney’s closing argument:

A hard necessity, indeed, compels us to endure the evil of slavery for a time.  It was imposed upon us by another nation, while we were yet in a state of colonial vassalage.  It cannot be easily or suddenly removed.  Yet while it continues it is a blot on our national character, and every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away; and earnestly looks for the means, by which this necessary object may best be attained.  And until it shall be accomplished: until the time shall come when we can point without a blush, to the language of the Declaration of Independence, every friend of humanity will seek to lighten the galling chain of slavery, and better, to the utmost of his power, the wretched condition of the slave.[9]

Was this Taney’s true thought, or merely the posturing of a lawyer advocating zealously for his client?  The excerpt has the feel of sincerity.  That impression is strengthened when you read the entire closing statement.  (That devil context again.)  The argument is stronger and covers more ground than was necessary to meet the charge laid against the Reverend Gruber.  The good Reverend had the right to speak his mind, whatever the content of his sermon.  Taney could have left it at that, rather than argue the truth of Gruber’s sermon, while invoking the natural law principles of the Declaration.

Apart from the tone and texture of Taney’s closing argument, two other facts argue for his sincerity.  First, he took the case voluntarily.  Second, after delivering his closing argument and achieving an acquittal for his client, he began to free the eight individuals who were his property under Maryland law.

As Jaffa notes, the 79-year-old Roger Taney who read out the opinion of the Court in March 1857 – he would turn 80 later that month — would have remembered what he said and did nearly forty years earlier.  He changed his mind about the evils of slavery during that period of nearly 40 years, but when he delivered the Court’s judgment, he knew that he was not the passive vessel into which the spirit and intent of the law fashioned by the Framers had flowed even against his will.

Nor was he content to revise history.  He projected his revisionist view onto the text of the Constitution itself when his opinion declared that “the right to own a slave is expressly and distinctly set out in the Constitution”.

Where?  The statement is a fabrication, as Abraham Lincoln noted almost as soon as the opinion was published.  Slaves – property that can be owned – are never mentioned by that name in the Constitution.  All references to them are to “Persons”.  Article I, Section 2 contains the notorious “three-fifths” provision, the mischaracterization of which has taken on demagogic proportions.  Direct taxation and representation in the House of Representatives were to be proportional to state populations, calculated by counting each free person and each person bound to service for a term of years as one person, each untaxed Indian as zero persons, and all “other persons” at the 3/5 rate.

The objective was to impose the burden of taxes and the benefit of representation in proportion to the economic weight that each state would swing.  Population was a stand-in for production.  However, it seemed reasonable to the Framers to debit the slave states for the reduction in productivity to be expected from persons who could not enjoy the fruits of their labor.  The Constitution recognized that in some states there was a variety of legal statuses into which a person might fall.  It apportioned representation and taxation taking that variation into account.  But the method of enumeration did not imply that the classification adopted by a state was correct and rightful, nor did it imply that the race of the “other persons” was a factor in the enumeration.  There were some 60,000 free persons of African ancestry in the United States at the time the Constitution was adopted.  Each of those 60,000 individuals was counted as a whole person for purposes of Article I, Section 2.  It was their legal status rather than their race that determined how they would be counted.  The Constitution recognized no other distinction among persons.  The “3/5 clause” recognizes facts on the ground but does not endorse the ownership of one person by another as a “right”.

As an aside, I don’t mean to suggest that the early American republic was free of racial feeling.  The First Congress enacted the Naturalization Act of 1790, which limited naturalization to “free, white persons” who had been resident in the United States for at least two years.  Racial feeling among white voters and their elected representatives was not as neutral as the language of the Constitution implied.  Apart from naturalization, questions arose frequently about the citizenship of free African Americans.  Yet, who can say whether the Constitutional Convention was more reflective of the attitudes of the wider public than was the First Congress or the politicians who later raised the question of citizenship?  The Constitution’s refusal to make racial distinctions is the more remarkable if the racial bias reflected by the 1790 Act was widely held.

Article I, Section 9 prevents Congress from prohibiting prior to 1808 the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit”.  Despite the indirect wording, we know who they are talking about. The reference is to persons, not property.  Incidentally, Congress prohibited the “importation of such Persons” as of January 1, 1808, the earliest date allowed by the provision.

Article IV, Section 2 provides that “[n]o Person held to Service or Labour in one State under the Laws thereof escaping into another shall . . . be discharged from such Service or Labour . . .”.  The person referred to is, of course, a fugitive slave.  As far as the Constitution is concerned, he or she is a person, with the same natural rights as any other person, but “held” to service “under” the laws of a state.  The “holding” is not “pursuant to” law, which would suggest a logical connection between the person’s status and the provisions of law, but rather “under” law, implying that it is power, not logic or reason, that causes a person to be treated in this way.

The carefully chosen language of this section – it was edited for just this purpose — contradicts Taney’s assertion that the right to own a slave is set out in the Constitution.  Rather, the document recognizes the fact that some states had granted to some individuals the power, not the right, to require others to provide labor against their will.  It is a fundamental error to conclude that the grant by a state of that power implies a right under the Constitution to exercise it.  It is an even greater error to claim that the right is set out distinctly in the Constitution.

The only time the document mentions “slavery” is when the institution was finally abolished by the Thirteenth Amendment in December 1865.  But before then, the Constitution refused to say what Taney tried to make it say, that humans were or could be property.

But I give Taney credit for one thing.  His position was that a Constitutional principle must be drawn from provisions that are “expressly and distinctly” set out in the document.  He is not willing to deal in shadows or phantoms.  The major premise of his argument was that a principle must be expressly and distinctly set out in the Constitution in order to provide the motive force to reach a conclusion.  His argument failed because of its minor premise.  There is no provision in the text of the Constitution that says what he needed it to say in order to reach his conclusion.

Because the text did not accommodate him, he invented a Constitutional provision that supported his position.  Even so, his approach has more honesty, in service to a dishonest purpose, than those adopted by judges who came later.

Taney’s racism is so blatant and his gaps in logic are so glaring that they distract our attention from the equally serious if less visible sin that he committed.  Taney and the six justices who agreed with him engaged in lawless conduct.  He used his position as a judge to legislate.  He had no power, no authority to do so.  Yet, he has had many followers among the judges, although they do not acknowledge him.  For his followers, all of the many judges who have been and continue to be determined to manufacture a result, the principal defect of Taney’s method is that it is so easily refuted.  A judge who claims that a provision is expressly and distinctly set out in a document will, or should, lose credibility when that provision is found to be absent.

Taney’s followers have been more inventive.  They have found ways to ignore text that is inconvenient, to supplement it, and to discover shadows – penumbras and emanations, to borrow their phrasing – cast by explicit provisions to produce meanings previously hidden, which can be discovered by members of a priestly caste with lifetime appointments.

The ongoing development of those techniques opened the door to the brisk competition for the silver medal – second-worst court decision.  I’ll offer thoughts in a later post on how that competition shapes up on this observer’s scorecard.

 

 

[1] The Scotts also had two boys who died in infancy and another daughter, who survived.

[2] Irene lived to 1903.

[3] Kindle location 705.

[4] They were right.  At the end of his opinion in the Dred Scott case, the Chief Justice indicated in dictum that an appeal would have been an automatic loss for the petitioners because of the authority of the Strader case.

[5] The case is captioned Scott v. Sandford.  The superfluous “d” in Mr. Sanford’s name attached itself to the case through a clerical error and has remained there ever since.

[6] Mr. Chaffee is a likely suspect in an anti-slavery conspiracy that didn’t work out.  When the Supreme Court decision was announced, and a local reporter in Springfield, Massachusetts recognized that Chaffee was the brother-in-law of the respondent, Chaffee stated that he himself had not heard of the case until February 1857. His connection to the case embarrassed him.  He did not run for re-election.

[7] We live in a time when a charge of racism can be laid with a straight face against a non-Mexican who wears a sombrero to a Mexican themed party.  Because the charge of racism retains its force, it is too easy for those who would appropriate its power to apply the term broadly and loosely.  I would give the word to the sombrero crowd if there were a usable substitute.  There isn’t, so I will use it here, but with the understanding that it is intended in its true, original sense of “a belief or doctrine that inherent differences among the various human racial groups determine cultural or individual achievement, usually involving the idea that one’s own race is superior and has the right to dominate others or that a particular racial group in inferior to the others”.

[8] I have noted before Abraham Lincoln’s observation that those who claimed slavery was a positive good did not want the good of it for themselves.

[9] Harry Jaffa, “A New Birth of Freedom”, p. 220.