Was Dred Scott sound law?

Great Debates
23

Taney’s finding that Congressional bans on slavery within territories were unconstitutional was, I believe, complete nonsense. The Constitution specifically empowers Congress to make “all needful Rules and Regulations” regarding territories. Congress had been enacting territorial slavery bans without controversy since 1789. Many framers of the constitution voted for and signed such bans.

Likewise, the finding that no black person, enslaved or free, could ever sue or be sued in federal court under diversity jurisdiction was ridiculous. Diversity extends to controversies “between citizens of different states”. Some states such as Massachusetts had explicitly recognized black people as citizens; Taney had no power to override this. He fantasized an argument whereby a citizen of a particular state might still not be a citizen of the United States, which was both irrelevant and wrong.

Taney would have been a surer ground if he had pointed out that Missouri was not one of the states which had recognized black people as citizens, so Scott, even if free, was not a citizen of Missouri. Missouri subjected free black people to extreme disabilities which were probably incompatible with citizenship. But on the other hand, Missouri did allow free black people access to its courts. There had been hundreds of freedom suits in Missouri. Taney could have argued that Missouri was free to allow non-citizens access to its state courts, but this carried no weight in federal court because federal jurisdiction was explicitly limited to citizens. He could have made that argument, but he didn’t. The argument that he did make was nonsense.

Finally, did Scott’s residence in Illinois and Minnesota Territory emancipate him after he returned to Missouri? Taney said no, and on this limited question I believe he was right. Or at least, legally defensible. For Scott to be free, Missouri would have to apply the laws of Illinois and/or Minnesota which said that he was free. This is a matter of “interstate comity”. My limited non-lawyer understanding is that state laws have extraterritorial force only by the consent (comity) of the forum state. Missouri had granted such comity, with respect to freeing slaves based on Northern state laws, until the 1840’s.

Then, they stopped. Scott’s case began with a state suit against his owner Emerson, who was a Missourian. The Missouri state court overrode its own precedents and refused to apply comity, remanding Scott to slavery under Missouri law. Then, Scott initiated a federal case against his new New York-based owner, Sanford. Taney was justified in applying the most recent and most apt Missouri precedent, Scott v. Emerson, to the federal case of Scott v. Sandford.

24

Taney’s argument was that Congress’s unlimited control over territories only applied to the territories that existed in 1789 when the Constitution was adopted. He felt subsequent territory, such as the Louisiana Purchase, were covered under a different set of rules. He didn’t really explain where he was finding those other rules.

If we accept Taney’s reasoning, presumably the same principle could be applied to states. The Tenth Amendment, for example, might only reserve rights to the states that existed in 1791.

25

But that wasn’t the legal argument. Scott’s lawyers argued that he was not emancipated in Missouri. He was emancipated when he was in Illinois and the Wisconsin Territory because those areas did not have slavery. If there was no slavery, then nobody could be a slave. Scott was therefore automatically a free man in those states.

So when he returned to Missouri he was a free man who was then re-enslaved. And Missouri law at the time did not allow that. You could be born a slave but there was no procedure for a person who was free to become a slave. If Scott and his family had been free outside Missouri, they remained free even after they returned to Missouri.

The counter-argument was that the Scott family had never been free. Sanford’s lawyers argued that the Scotts had remained as slaves the whole time, even when they were living in Illinois and the Wisconsin Territory. And Taney inexplicably upheld this argument, saying that somehow people could be slaves in a state or territory where there was no slavery.

26

So, how much of the Taney decision is still binding precedent? Has all of it been overturned, or just most of it? Could a lawyer cite any part of it and expect that part to not be rejected?

27

Well let’s Socrates that a bit. I know it is distasteful to talk of humans as property, but that’s what this case did. Let’s say that slaves are analogous to fireworks today.

I buy legal fireworks in South Carolina and travel to Pennsylvania with them where they are illegal. Nobody calls me out on it in Pennsylvania and I then return to South Carolina with the fireworks. An argument could be made that while I was in Pennsylvania, I was in possession of illegal items which could have been seized. But once I returned the items to South Carolina, they retained their legal status under the laws of South Carolina.

Nobody would argue that my travel to Pennsylvania made the fireworks perpetually illicit goods that should be forfeited even on my return to a state that did not consider them illicit.

So, although Illinois would have recognized Scott as a free man, Missouri did not, and that is where he was present and the case was being heard under Missouri law. A perhaps better argument would be that Illinois law should apply as Scott was a free man while in Illinois and subsequently kidnapped and forcefully returned to Missouri.

And there is no reason, Taney’s tortured logic notwithstanding, that Scott should not be considered a citizen of Illinois and of the United States. The dissent made a good argument stating that just because a particular group of citizens are denied certain civil rights does not make them non-citizens.

For example, children are not permitted to vote, drive a car, buy alcohol or tobacco, or even travel freely. They may be confined to the home or to their bedroom as punishment. They may be legally struck by force at the hands of their parents or custodians if done in reasonable discipline. Even so, nobody argues that children are not citizens.

28

No, Dred Scott was exclusively about federal law. Taney’s opinion has two conclusions. 1) The constitution bars Scott from bringing his suit in federal court, because the constitution excludes him from being a citizen of the United States. 2) Because Congress’ powers are limited by the constitution, it cannot extend citizenship (of the United States) to people whom the constitution excludes (and the Missouri Compromise was unconstitutional to the extent that it did that).

Note that point 1 means that Scott would have lost his case for lack of federal jurisdiction even if he had filed suit in federal court in a free state.

29

I agree, but if we get past Taney’s hackneyed opinion and the Court hears the merits of the case, it should then apply Illinois law instead of Missouri law. That was my main point.

30

I think the analogy doesn’t hold. As I noted, Missouri had no legal means for enslaving a black person who was free. If Scott was free in Illinois, then he remained free in Missouri. He didn’t change back to the status he had held in the past.

It wasn’t an issue of Illinois law (other than the fact that Illinois law had freed him). Scott should have been free according to Missouri law. And previous cases in Missouri courts reflected this.

Look at it this way. Suppose Scott had been sent to Alabama instead of Illinois. Alabama was, of course, a state that had slavery. But suppose that while Scott was living in Alabama, his owner had decided to free him. Imagine Scott was legally freed in Alabama and given a certificate of manumission. And then told to leave the state because Alabama didn’t like having freed blacks around. So Scott traveled to Missouri.

Would anybody be arguing in such a case that Scott wasn’t a free man in Missouri? He had been legally freed in another state according to that state’s laws. And Missouri law said that once you were free you remained free in Missouri.

And that’s what historically happened. Scott had been freed in Illinois and the Wisconsin Territory. The only difference is that there was no paperwork involved because everyone was automatically free in Illinois and the Wisconsin Territory. But the freedom he gained in Illinois was just as valid as the theoretical emancipation he could have received in Alabama as far as Missouri law was concerned.

31

But didn’t the Missouri Supreme Court reverse itself in Scott v. Emerson and abolish the “once free always free” doctrine?

32

As you noted, the only law that mattered in Missouri was Missouri law. Illinois can declare him free while he is in Illinois, but that’s only binding on Missouri after Scott returns if Missouri law holds it to be binding. I don’t know the previous Missouri cases you mention and can’t say whether they are analogous or not. Missouri may have held, for instance, that it does not recognize the action of Illinois law and that despite his having traveled to Illinois, Scott was never free under Missouri law.

As for the Alabama example, I don’t know what Missouri law was at the time, but it’s certainly possible that Missouri law might have drawn a distinction and held that it would recognize freedom granted via an out-of-state manumission by a Missouri owner, but not freedom granted by operation of law in a different state.

33

Prior to the abolition of slavery, was there any legal bar to a white person being a slave? There were many Europeans who were captured by Muslim pirates and enslaved over the years - suppose someone purchased one and travelled with them to the US, were they set free by virtue of being white?

34

That’s what Missouri’s high court claimed, but there’s a massive problem with that logic: it violates equal protection as well as all precedent (for a legally-questionable doctrine on its own face). And that applies regardless of citizenship status in any case. They rather narrowly tried to confine this particular doctrine to slavery, of course.

35

Equal protection wasn’t a thing at the time. The 14th Amendment wasn’t ratified until 1868. I’m not really seeing how that’s an equal protection violation anyway, though.

It’s still good law in the sense that most of it has not been overturned by other SCOTUS decisions. However, what remains was almost entirely abrogated by the passage of the 13th, 14th and 15th Amendments.
Most of it - like most of any SCOTUS decision - is a recitation of existing law, and much of that cited in Scott is still good law. For example:

This is pretty much a universal truism of US law today, as it was in the 1800s - a court that doesn’t have jurisdiction cannot render judgment.

36

Many of the laws facilitating slavery targeted by race:

Indentured servitude also became more and more regulated.

But I imagine the answer to your question depends on what state, what year, and what you count as slavery.

37

To answer question 1, it depends on what you mean by white. There were slaves who had more white blood than black blood in them, and probably would have been considered white by the outside observer. Thomas Jefferson’s kids with his slave Sally Hemmings would have been 7/8ths white, but were still his slaves. If you’re talking about somebody with strictly European ancestry though, then no. Whites couldn’t be chattel slaves in the United States.

38

I apologize; I misspoke and what meant was not the 14th Amendment, but that states are required to acknowledge the legal status, protections, and actions of other states as it pertains to all.

In the case of Dred Scott, Scott’s lawyers correctly pointed out that he had become free by being taken into a free state. This inherently manumitted Scott, regardless of his owner’s will in the matter.

39

What was interesting was that there was another case winding its way through the courts that dealt with just that issue, but never got to the Supreme Court because the Civil War intervened…Lemmon v New York.

This family was moving from Virginia to Texas with their slaves,so they took a boat from Norfolk to New York, and were going to catch another boat from New York to Texas. While they were in New York waiting for the boat, a judge declared their slaves freed.

40

There really isn’t such a doctrine. (You may be thinking of the full faith and credit clause, that doesn’t apply to another state’s legislation). Think of it this way: suppose my car is not street-legal in Virginia, but then I move to Maryland, where it is. If I later move back to Virginia, is that state required to accept my car as legal, because Maryland did?

Moreover, if there were such a doctrine, it would have required Illinois to recognize that Scott was still a slave under Missouri law.

41

Didn’t matter to Taney. As he writes, a state granting citizenship to a person does not bind the United States to grant Federal citizenship hence this statement

in order to avoid the dual-citizenship issue.

So even if Scott were a citizen of New York he was not a United States citizen and thus could not avail himself of Federal courts according to Taney.

42

I’ve already explained this. Twice.

This has nothing to do with Illinois law. Missouri courts are bound by Missouri law. Scott should have been free according to Missouri law.