Anniversary Post: Dred Scott v Sandford

Dred ScottOn this day in 1857, Dred Scott v Sandford was decided incorrectly. In a 7-2 decision, it found that African Americans — even free ones — were not citizens and therefore had no standing to sue in federal court. Dred Scott was a slave who had been taken by his owners to free states — that is: states where slavery was illegal. Dred Scott argued that once in a free state, he ought to be able to walk away. That’s a good argument. That’s why the Court decided to claim that African Americans just couldn’t be citizens.

In dissent, Justice John McLean noted that there was nothing in the Constitution that said that African Americans couldn’t be citizens. He noted that in five of the states at the time the Constitution was ratified, black men could, in fact, vote — indicating that they were, in fact, citizens. What’s more, there had been a case two decades earlier, Marie Louise v Marot, which was basically the Dred Scott case, but before the Louisiana Supreme Court. And it was found the opposite way.

The great villain in all of this is Supreme Court Chief Justice Roger Taney — usually number one on the list of worst Chief Justices in history. And he didn’t stop at simply declaring all African Americans ineligible for citizenship. He did what the Roberts Court did in Citizens United v FEC — greatly expanding the scope of the case. In Dred Scott, he greatly expanded the power of slave states and indirectly hastened the Civil War. The other dissenting opinion by Benjamin Robbins Curtis was basically that if the Court had no jurisdiction, then it should shut up about territorial matters. That’s a good point, although hardly the morally and legally clear argument that McLean had made.

(Let me just note something that I think is telling. When Sarah Palin was asked what Supreme Court decisions she disagreed with besides Roe v Wade, she had no answer. Neither Dred Scott nor Plessy v Ferguson (“separate but equal”) came to her mind. This is the very definition of white privilege. Over 600,000 people died in the Civil War — our deadliest war for obvious reasons. But she just wasn’t interested in that. There were zygotes that had to be saved!)

I think today, Dred Scott v Sandford is generally considered the worst Supreme Court decision in history. And that’s saying a lot. Because as an institution, it has generally represented the most conservative impulses — stopping the country whenever it tried to expand freedom and empower the powerless. Taney and Scalia and Roberts, for that matter, are not exceptions; they are the rule.

11 thoughts on “Anniversary Post: Dred Scott v Sandford

  1. Well done. Not to blow smoke up yer ass for a good post, there’s tons of them, but this was a good post.

    The best name for a SCOTUS case is definitely “Loving vs. Virginia.” Works on so many levels.

    • Thank you. What I constantly find interesting is that the dissents in these cases are clear as day. The people knew everything we know today. But the Court was determined to find another way and it did. This goes along with something I write about all the time (especially regarding atheism and “I only believe in things I have proof for”) is that we think backwards. We just “decide” without thought and then justify. That’s clear on the court today and it was clear then.

      Loving was during that brief period when the Court was okay. It gave people like me a totally distorted view of the Court.

  2. The thing about Dred Scott is that it was a drastic overreach by the federal government. It said individual states couldn’t decide who was a citizen or protect the rights of people within their states. “A black man has no rights a white man is bound to respect,” yet no major Southern politicians opposed it. Remember that when your Neo-Confederate friends tell you the Civil War was all about States’ Rights. The Fugitive Slave Act was another example. Southerners had no problem with federal power used in support of their peculiar institution, going so far as to write into the Confederate Constitution that states could not abolish slavery on their own (more or less- I think there was a little wiggle room, but it was strained).

    “Because as an institution, it has generally represented the most conservative impulses — stopping the country whenever it tried to expand freedom and empower the powerless.”

    That’s probably true. The Warren court was a shining exception. What struck me was your explanation of how the court expanded the scope of the case, making it much worse. One of the other cases often considered terrible was Bush v. Gore, which was notable for the opposite reason of being too narrow. The justices explicitly said it could not be used as precedent for anything else, as though they had found a Constitutional right that applied only to George W. Bush.

    • That’s an excellent point! I hadn’t thought of it. Yes, the Court had to step in to protect the rights of one very rich and powerful man, and it was just this one time — no precedent for poor and weak people who might need their rights protected at a later time! Bush is a great example of the Court working backwards toward a predetermined conclusion. But the history of the Court is so filled with that that it hardly seems worth mentioning.

      And yes: the south loved the federal government as long as it was doing its dirty work. That’s true of the pro-slavery conservative crowd today. When liberals don’t like a decision, they don’t like the decision; they don’t blather on about states rights.

      • In a way, we should be blathering about states’ rights; the right to pass campaign-finance restrictions, for example. But no real liberal will settle for “things are good in my home state, screw the other 49.”

        • That’s right. The truth is that things would get worse faster in red states than they would get better in blue states. I truly believe some states would bring back slavery, although they would probably do it with clever justifications. Not that we don’t have slavery in the this country. There is, of course, the illegal kind of slavery. But there is also our prison system.

          • We wouldn’t have race-based chattel slavery like in the 1800’s. Debt slavery, though? Yes, I can definitely see people being enslaved when unable to pay their debts.

            • I tend to think it would be worse. It would be like the literacy tests: such picky laws that everyone was breaking them, but they were only applied to African Americans. Debt slavery, sure. But don’t we already have that?

            • Apparently, that’s where the word “bond” (as in finance) comes from; bondage. If you couldn’t pay your debt, you became a slave. Because this would eventually end up with nearly everyone being slaves, most ancient societies had periods of debt forgiveness; like “Jubilee” was for the Jews.

              Incidentally, at the highpoint of Muslim civilization, there was no such thing as debt. If I loaned you money to begin a new trade route, there was no law forcing you to pay me back. So it’s in my interest to make sure your business venture succeeds, and to cultivate a personal relationship with you you you’ll pay me back out of loyalty/appreciation.

              Now THAT is something like a free market!

  3. Korematsu pretty much sucked, too. Telling when you have to start by admitting that your government had no grounds, KNEW AT THE TIME it had no grounds, to commit a gross injustice against its own citizens…and then conclude that you have to support that injustice because otherwise Stalin will win or something something…

    And with Dred Scott at least the opinion has no standing based on the CW amendments. Korematsu is still the standing ruling…

    • Good point. When you start digging in Supreme Court cases, you get dirty very quickly. I remember growing up hearing the arguments about the Japanese internment camps, “But people were scared.” I never bought them. But then I saw the US do lots of things during my own life that were later justified with, “But people were scared.” That’s especially true with the torture program, that we haven’t come to terms with, and certainly won’t in my lifetime.

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