smiling bandit, we do consider Taney “full of it.” But his was the law of the land at the time. It was hardly the aberration you make of it. Southern politicians had for years been dominating all debate on slavery and becoming more adamant and set in stone on the lack of legal rights for blacks (and all blacks, not just slaves).
Captain Amazing, the quote is obviously the lines from the Dred Scott decision you posted without attribution. I was merely clarifying that for others.
As whorfin also says, though, the meaning of the legal term “person” and the meaning you give to it and to “people” are two different things.
Not true. Slaves could sue for freedom in any court. Dred Scott’s suit for freedom originated as a state lawsuit in the courts of Missouri. Of course, if the court found that the slave was “properly” enslaved, then the suit would be dismissed. But the court would have to make that determination.
This is one reason why Taney’s assertion that a free black person could never be a citizen of the United States, even for the limited purpose of having access to federal courts, was nonsense even by the standards of 1857.
Under the Articles of Confederation, there was no reason to count people at all, except for the very limited purpose of allocating army quotas–from which slaves were excluded for obvious reasons. (Logically the count should have included free black people, since free men of color could and did serve in at least some state militias, but the A of C uses the phrase “white inhabitants”–which the Constitution never does.)
When Congress proposed an amendment to the A of C to allow direct taxes, the issue of slave count engendered more robust debate, and 3/5 was settled as an estimate of the lower wealth-generating capacity of the enslaved. (It accords surprisingly well with modern econometric studies.) The amendment was never ratified, but 3/5 survived as the ratio of choice for both direct taxation and representation in the Constitution.
Direct taxes were imposed only during the Quasi-War with France, the War of 1812, and the Civil War, and in the latter case the deep South wasn’t paying.
The Constitution is not explictly racist, but it did (until 1865) acknowledge slavery as a permitted institution. And, of course, the well-nigh universal racial status of slaves is what under today’s systematization would be deemed Black. (Remember that a mixed-race child would be deemed Black at the time, and often is even today.)
More in the nature of a nitpick than a substansive argument, but while there were jurists, North and South, who understood slaves to have a restricted set of rights and to be persons and potentially citizens, there were others who did not. Note the ruling in Dred Scott v. Sandford – it was not so much the finding against Scott as the dictum that he could not be or become a citizen, that aroused abolitionist ire against it.
First, are you debating that dred scott held slaves could not sue in federal court? I hope not, given how clearly the scott. v. sandford decision makes that point.
Technically, the case that reached the supreme court started in federal court. There was a prior state court suit (v. Emerson, if I remember correctly). Missouri would have been the exception. But more importantly, as in Scott v. Emerson, a slave suing for freedom would be asserting that he wasn’t a slave–and hence entitled to sue. A slave couldn’t sue. A free person could.
Let’s make a distinction here–one that I think you miss. The case would be dismissed because (in most southern courts), slaves did not have standing to sue. If the court ruled on the merits that the plaintiff was a slave, it would be different.
But furthermore, arguing based on the ability to “sue” if you lack standing under the law is futile. If I sue, without standing, my case will be dismissed. Yes, technically, I could file a lawsuit–but under the law, I was not entitled to bring that suit. I do not have the right to sue–even if procedurally, I can file papers. The right to “sue” is meaningless if, under the law, the suit must be dismissed.
Not only is this wrong, but Taney actually addresses this point–he says (quite correctly in 1857, before the Fourteenth Amendment) that federal citizenship is distinct from state citizenship. Remember, there was no constitutional definition of federal citizenship up till XIV.
Now, there are reasons Taney’s reasoning was flawed–for one thing, he bases his argument on the fact that there were no free black citizens–which, even at the time of the founding, was debatable–and was certainly not true after 1805, when the Louisana purchase brought with it citizenship for all those “inhabitants” of the purchase–which indisputably included quite a few free blacks.
Now, one might debate if these facts would have changed the result. I, myself, doubt it–and am more than happy to argue that Taney’s decision was flawed and his reasoning biased. But an absurdity, it just plain wasn’t, in the context of the time.
If that was all Taney had held, the ruling would have been unexceptional. But Taney went further, and said that even a free black person had no standing to sue.
When a black person sued for freedom in a Southern state court, the court would examine the facts of the case and make a decision. If the person were determined to be a slave, the case would be dismissed because slaves had no standing to sue. If the person were determined to be free, they would win the suit and go free.
Taney should have done the same in the federal case. But he didn’t. He held that it wasn’t even necessary to look at the facts of the case, because even a free black person had no standing to sue in federal court. Scott’s skin was black, so therefore the court had no jurisdiction. (Then he went on to look at the facts anyway, which contemporaries dismissed as dictum.)
I appreciate the concession that your prior statement (below) was incorrect.
Now to go on:
True, and there’s where the debate is. Not over whether slaves had standing to sue federally (or in southern courts). You are contending that it was an absurdity to rule as he did. Not misguided, not immoral, not wrong but debatable, but plainly and absurdly wrong. While many can debate where Dred Scott falls on the spectrum of wrongness, it’s hard to contend that it was an absurdity.
Interesting contention, but go on… why do you think that? Why was it absurd not to do so? There was no clear rule for defining “citizen of the united states” at that time.
Well, for the purposes of argument–surely you agree that, if a person has no standing to sue, it isn’t necessary to look at the facts of the case.
That was the holding. As an interesting aside, the issue was often more complex than just looking at skin color, as many states in the colonial era defined “black” differently, in terms of the percentage of one’s ancestors that defined your status. Hence, a person could legally be “black” in the south, (where most states held a person could not be “white” with any “non-white” ancestry), but “white” in Ohio, where a person’s legal race was defined by the majority of his ancestry.
And they’re the very definition of dictum–comments on the merits in a suit where the court holds there is no standing to sue. Are you suggesting those contemporaries were wrong?
I’m not trying to rehabilitate Taney or Scott–the decision was immoral, and factually flawed (though I suspect he would have fudged those facts, had he been forced to address them) been addressed in the decision. But it’s just plain incorrect to say it was absurd at the time–especially as the issue at hand, who was a citizen of the U.S., was something without any constitutional definition.
I’m not sure I understand. Isn’t the essence of the Dred Scott decision that the plaintiff was NOT free? As for standing to sue - obviously he could, if it reached teh Supreme court. The way I read it, simply changing state did not make transform him from property to citizen, and therefore his status did not change simply because he moved from state to state.
A bit of a cop-out, and he ignores, as far as I can tell, what happens to a property when the state says such cannot be property. But generally, it seems to be the standard legal weasel out of saying “the law dos not say explicitly Yea, so therefore we must conclude Nay.”
Whatever the purpose of the 3/5 compromise, the effect was to empower southerners to be better able to violate, not protect, the rights of the slaves. The south dominated the Supreme Court, must as conservatives do today, which led directly to the ghastly Dred Scott decision that forced northern states to return runaway slaves.
Because Taney’s definition was illogical. It went beyond anything even the slave states were doing at the time.
The law of every slave state recognized that some black people were free, and that they could assert and defend their freedom in court. Taney asserted that a black person could not do so in federal court.
Furthermore, every slave state recognized that free black people could own property. What sense does it make for a person to own property and be excluded from access to courts? Taney was not only denying a privilege, he was conferring an immunity, since if a black person could not sue in federal court, neither could they be sued.
Freedom suits in state courts followed a circular logic in which you looked at the case to determine whether the plaintiff was a slave, and if so then turned around and denied jurisdiction over the case because the person was a slave. See the discussion of freedom suits in Don Fehrenbacher, The Dred Scott Case.
But Taney, in federal court, didn’t do that–he denied jurisdiction because Scott was black and therefore not a citizen, before even addressing whether he was a slave.
Yes. See Fehrenbacher or the able and concise summary in Battle Cry of Freedom.
The circuit court had examined the merits of Scott’s case–implicitly accepting that being black wasn’t a bar to access–and determined that Scott was a slave, but only because Missouri law (and the Missouri Supreme Court ruling) should govern his status after he returned to Missouri. Taney was within his powers to review all aspects of that ruling, even after he denied jurisdiction for other reasons (that is, because Scott was black).
As a practical matter, appellate courts generally don’t do that; they usually make the minimal ruling necessary to decide the case and then stop. But in a legal sense all aspects of a lower court ruling are before the appellate court, and a ruling on any one of them doesn’t constitute dictum.
Fugitive slaves weren’t at issue in Dred Scott. Northern states were already required to return fugitives.
Illogical or inconsistent with state rules does not equal unsound as a matter of federal court precedent. Now, one may argue dred scott was unsound, but the reasons you give simply aren’t reasons for so doing.
As I pointed out earlier, there really was no rule as to what “citizen of the united states” meant–and as I hope is obvious, before the fourteenth amendment, it was decoupled from state citizenship. Federal jurisdiction is not state jurisdiction, and federal citizenship was not state citizenship. So such things were at best persuasive–not compelling, or something which it was an absurdity to rule against.
Again, this should not be taken as agreement with taney’s opinion (I myself think it should not have prevailed)–all it is is a simple rejection of the concept that he was absurdly wrong, that the opinion was sufficiently grounded in the precedents as not to be a gross departure therefrom. One fact of disputed supreme court cases is that it is rare that one can win them on the basis of legal interpretation or history–since those are things that will stand behind the arguments of either side.
In many states, they effectively were- excluded from effective access to courts–as in many states, black people simply could not testify against white people–and hence were effectively excluded from a remedy for theft or attacks. One example is California (see People v. Hall for an 1854 case interpreting the statute.)
Now this is interesting (I’ve not heard it before), but it’s just plain wrong. It is absolutely possible to sue a thing. The technical term is in rem. But in simple terms, it means that you can sue a piece of property, if you claim rights over it. Now to be in federal court, you’d need an additional jurisdictional hook–but that can be achieved if a federal law (say, for example, the fugitive slave act) is applicable.
Yes, and the supreme court reversed, deciding that the circuit court was wrong. Correct or not, that is the posture when we’re thinking about what is holding and what is dicta–the Supreme Court is, by definition, not bound by the ruling of a lower federal court.
Wrong. Once the court concluded it did not have jurisdiction, it lacked the authority to review the merits–since that is what jurisdiction IS-the authority to decide the merits of a case. If the supreme court lacked jurisdiction, it could not make a binding order as to the merits of the case–and that is what it would be doing if it reviewed the decision on the merits.
The court had jurisdiction to review all parts of the lower court
Just plain wrong. Dicta is simply defined as things other than holding–things the court discusses that are not necessary to decide the case. There is no more classic example of this than discussions of the merits when a suit is dismissed on jurisdictional grounds.
And yet the essential point remains: pro-slavery interests wanted this number to be as high as possible, while anti-slavery sentiment wanted it low. Those who today wish it were unity are probably ignorant of history and the fact that they are aligning themselves with pro-slavery sentiment.
True–and you are right to correct my error. But all this is is an error of terminology–doesn’t change my point–which is that the definition of state citizen was, for federal purposes, not defined by state law. It still isn’t. Citizenship of a state for federal jurisdictional purposes is a question determined by federal courts
Five hundred pages? How am I to compete with that? It’s not actually that hard. Federal appellate jurisdiction is not an obscure field only understood by legal historians. (on a side note, Fehrenbacher seems (from wiki at least) to be trained as a historian–for this question, you really want to look to a constitutional lawyer or legally trained historian).
On the issue of dicta, there is still some debate on what part of the decision is necessary to resolve the case. Again, to me, the better view by far is that it is mostly dicta—since most of the arguments contending that it is not are based on the court’s inquiry into an alternative basis for jurisdiction, one that is foreclosed by Taney’s sweeping holding that blacks cannot be a state citizen. Given the scope of that, all that remains is a relatively uncomplicated question of federal jurisdiction–whether dismissal due to lack of jurisdiction leaves a federal appellate court with jurisdiction over a lower federal court’s resolution of the merits.
No, I still have to call him just that: an aberation. The injustice of his ruling was widely recognized in the North at the time - even in . The chattering classes of the South were all for it because they had stopped caring about law, justice, or humanity in a mad quest for… something. Self-respect, maybe. But even they had not expected the decision.
I will agree that Taney and the Court had the legal power to make the decision. But that is a far cry from making the right decision, or an honest one. The Supreme COurt could, if they wished, proclaim a lot of stuff, and they have proclaimed a great deal of nosense and reversed half of it over the last two centuries. I do not consider the court to ever be intrinsically right, only intrinsically powerful, and if it is wrong and flagrantly so, I must say so. Taney’s decision was wrong on the facts, wrong on the law, and wrong even on its own terms (including Obiter Dicta among other flaws).
In our recent memories we had a case called Bush v. Gore, which was called absurd and denounced by half the population. That got them absolutely nowhere. Five justices agreed on the decision. It stood. History went on from that point.
Dred Scott wasn’t even that close. The vote was 7 to 2. Interestingly, each of the justices filed their own opinions, which can be found off of this page. Four of the six who concurred were southerners, making a majority of southerners.
It is wholly beyond belief that a court of five southerners would have ruled any differently than they did in 1857, in exactly the same way that it is wholly beyond belief that a court of five conservatives would have ruled differently than they did in Bush v. Gore. You can only think that in a fairy U.S. that is all roses and unicorns and doesn’t have real people and real emotions.
The law is what the Court says it is. Yes, the decision was so egregious that it became part of the emotional flames for civil war. But that war would have occurred without that decision and on the same timing, because half the country thought in an irreconcilably different way than the rest.
The 3/5 clause had little to do with that reality. Although it still gave the South a disproportionate number of seats in the House, their real power was that they had an equal split in the Senate going back to the Missouri Compromise of 1820, after which every free state was balanced with a slave state so that the South always had an equal number of votes, and were thereby able to block any legislation against slavery. Yes, the decision did declare that to be unconstitutional, which would have created new pressures for slavery in those states, and the small wars in Kansas and Missouri were precursors to the big war. I feel they were symptoms rather than causes but you’re free to disagree.
The real point is that the Civil War didn’t occur because of what happened in 1857. It occurred because of the entire 19th century’s legacy of slavery. Nothing could have prevented a war. The Dred Scott decision was inevitable because the South had political power, and the Supreme Court is a political body. Rightness and wrongness are pleasant concepts for discussion but reality marches to its own rules and imperatives.
Well sir, I have to say: Bravo, for ignoring everything of substance I have said in favor of hammering your head repeatedly into the brick wall of logic in a vain attempt to shake some bricks loose on top of you.
As to my point that Dred Scott was wrong on the facts, wrong on the law, was the creation of Taney’s desire to destroy the Republican party (as is usual of Democrats, discarding the nation for temporary political power), was reached in an extremely unethical manner involving illicit, if technically legal, bribery by the executive, you have nothing to say. All you can do is compare it to Bush v. Gore, (and then only the remedy portion, ignoring the agreement among a larger majority on the basic issue) and the supposed populist outrage, of which we saw damn near jack except for whining on the internet. Whereas in Dred Scott, the populist outrage was sufficient to lead to an awesomely bloody Civil War and the 13th Amendment.
If you wish to claim that people are and/or were racist, then say so. Yet there is nothing in the Constitution which says so. I can back everything I have said with cites - hell, even everything together with just one cite: McPherson’s Battle Cry of Freedom documents it all.
I fully agree. Which is why I didn’t. He quite fully discusses the political implications and backstory, as well as just how far it was from the law before and afterwards.
I also see you don’t have any actual counter-argument.