Dred Scott in his final days
November 21, 2012


The Dred Scott decision is one of many in the list of causes of the American Civil War. The decision was controversial when it came out, and it remains so to this day, though it is effectively a dead letter because of the post-war amendments (13th, 14th, and 15th which abolished slavery, recognized equal rights and birthright citizenship, and voting rights.)

The reading assignment was the decision, and selected writings by Lincoln, Frederick Douglass, Booker T. Washington, and W.E.B.DuBois. I'm just going to give a general commentary on the essays, and not do a lot of heavy, prolonged quoting.

One of the strangest scenes, to my mind, in Anatomy of a Murder is the bit when Arthur O'Connell, James Stewart's partner in the movie, rubs his hands in anticipation of reading Oliver Wendell Holmes aloud for after-dinner relaxation. Legal prose, to my mind, is profoundly boring, and deadly dull. So I have to admit that while I read Taney's opinion in full, and one or two of the concurring opinions, I didn't cover the rest of the concurring or the two dissenting opinions in detail.

Taney argues that there are three questions before the court:

  1. Is Dred Scott a citizen of the United States, and as such entitled to sue?
  2. Does Congress have the power to regulate slavery in the territories?
  3. Is Scott property under the 5th Amendment?
The way that Taney resolves these questions is by asserting that only the Federal government has the power to naturalize citizens, consequently only its criteria are valid for determining citizenship. He then asserts that no states prior to 1789 recognized Negroes (the polite 19th century term) as being citizens. Subsequent recognition of them as citizens would violate the federal prerogative to naturalize citizens. Consequently, the states lacked the ability to make Scott a citizen.

Now Scott could have claimed citizenship several times while in free states, but did not. I think he would have been in a better position, if he had demanded his freedom while in a free state, but he never made any demands, or raised the issue prior to his return to Missouri, a slave state, so I think he made a tactical and strategic mistake here.

Taney ruled that Scott was not a citizen of the US, and hence not a citizen of one state suing another, and therefore lacked the standing to sue in Federal court.

Taney then does another survey, and concludes that the power to regulate the territory referred to in the Constitution refers solely and forever to that territory that was ceded to the Federal government by the various states. While Congress had power over that territory, it did not have the same kind of power over more recently acquired territory. Here, from Article IV, is the relevant clause:

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
You could argue that because “the Territory,” which I've italicized, uses the definite article that it refers to only the territory then possessed by the Federal government. That is what Taney does. I think a case could be made though that the words refer to any territory possessed by the Federal government.

Taney then decides that because the territories that Scott visited were not part of the original territory ceded and referred to in Artice IV that Congress had no power to set limits. The historic compromises were thus invalidated, and slavery would be permitted to spread.

Since Scott is not a citizen, and was not made free by moving to free states, he is still a slave, and the 5th amendment rule against the taking of property is applicable to freeing him by judicial action.

Taney's first argument holds, if his historical characterization is true. That it is true was controverted immediately following his decision. I can't judge the accuracy of either Taney's assertions or the counter-assertions made by the abolitionists and the Republicans, but I rather suspect that Taney was glossing over the facts. If Taney's argument is false, which Lincoln asserted it was, then his judgement of Scott's ability to be a citizen, is false.

Now one of the dissenters argued that, if Scott had no standing Taney erred by continuing on to invalidate the relevant laws. The case should have been dismissed, and nothing further done.

As long as slavery was recognized the Fifth amendment rule against takings would apply to slaves. Taney had effectively said that Congress could do nothing to abolish or regulate slavery, so it would have endured until either Taney was overturned in a later generation, or until an amendment could be passed outlawing it. As it was it took a minor fraças and 600,000 lives to end it, and get support for the 13th Amendment.

Lincoln's speeches prior to the war emphasize these aims:

  1. Stop the expansion of slavery without abolition;
  2. Transportation of Negroes to Africa, or out of the US;
  3. That contrary to Taney's assertion there were states that had free Blacks as citizens;
  4. That he had no desire to marry a “charming Negress”*
  5. That he wished to live apart, but in peace with regard to Blacks;
  6. That the Constitution nowhere specifically mentions slavery or race, this means that the Founders wished to prepare for the elimination of slavery when the time came.

*See The Savage Curtain episode of Star Trek: The Original Series; that features Lincoln.

Frederick Douglass is an impassioned, eloquent speaker, and I rather liked the speeches of his that I read. He gave a speech on whether the Constitution was pro-slavery or anti-slavery. He essentially used the same arguments that Lincoln used, and concluded that the Constitution was an anti-slavery document.

Booker T. Washington is not as eloquent or engaging as Douglass or as forceful and poetic as duBois. His argument is basically that Blacks should acquire trades, and live and work within the system of the South without pressing for social and political equality.

W. E. B. duBois is poetic and forceful, but I'm afraid that my opinion of him is worsened by his Marxism, his atheism*, and his renunciation of his American citizenship in favor of that of Ghana. He does not go along with Booker T. Washington's agenda of compromise and industrial education. He favors education across the field, including a classical, liberal education. (It should be kept in mind that a liberal education is that befitting a free man. It enables us to be free.)

*According to Wikipedia the Episcopal church recognizes him with a feast day (August 3) in its liturgical calendar. What it says about a church that canonizes a non-believer in its core doctrines, I leave to the gentle reader to decide.

Next up is Faulkner's story, “The Bear.” That will be followed by Flannery O'Connor's story “Parker's Back,” Freud's Rat-man case study, and, if I can stand it, Wittgenstein's Philosophical Investigations. I should follow that with some of Heidegger, but I draw the line at pretentious, incomprehensible Nazis. Either Wittgenstein or Freud will close out my readings, for now, from the St. John's reading list. I plan on incorporating readings from their Eastern classics syllabus into my reading, but I'm going to concentrate primarily on Greek, Roman, Italian, English (including American), French, German, and Russian literatures. Again, I'll be writing about authors I haven't read.