# Were Dred Scott and Plessy truly bad decisions? **URL:** \ **Category:** Great Debates\ **Created:** [September 6, 2001, 11:03pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141 "2001-09-06T23:03:33Z")\ **Posts on this page:** 17\ **Page:** 1
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [September 6, 2001, 11:03pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/1 "2001-09-06T23:03:33Z")
Usually, whenever a legal commentator wishes to express his or her dismay with a U.S. Supreme Cout decision, the two epitomies of bad judgment are invariably the Dred Scott decision and Plessy v. Ferguson, of “separate but equal” fame, or infamy. But were these really bad Judicial decisions? Certainly they didn’t advance the cause of civil rights, but that’s not the Supreme Court’s job. When Dred Scott was brought to court, slavery was 100% legal in the U.S. - was Scott’s owner to be denied his fourth amendment rights just because he had traveled to a non-slave state? As for Plessy v. Ferguson, I can’t help but notice that Brown v. Board of Ed didn’t really say that _in principle_ separate but equal is unconstitutional, merely that _in practice_, separate is never equal, and this segregation is therefore unconstitutional. However, that was after examining the 60 years of separate public facilities that followed the Plessy decision. Having reached their decision not long after Emancipation and Reconstruction, is it fair to say that the court of 1896 should have had the vision that the Court of 1954 had? So, to boil it down…do those two Supreme Court decisions deserve the bad rep, _in the judicial sense_ (not in the civil-rights sense) that they in fact have? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [September 6, 2001, 11:48pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/2 "2001-09-06T23:48:00Z")
Well, Dred Scott was a bad decision for the reason that the two dissents in the decision mentioned. First of all, the Chief Justice argued that Scott was not a citizen, and therefore unable to bring suit, because: > [@](#): > > When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its ‘people or citizens.’ Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being ‘citizens’ within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. However, that’s simply wrong. As Justice Curtis points out, when the Articles of Confederation were adopted, blacks could be citizens, and vote, in Massachussetts, New Hampshire, New York, and New Jersey, and that: > [@](#): > > I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons > who were citizens of the United States at the time of its adoption, or who should be nativeborn citizens of any > State after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any > State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that, under the > Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by > force of its Constitution or laws, is also a citizen of the United States. because the Constitution doesn’t give the federal government the power to decide who a citizen of the United States is or not. The other problem major with Taney’s decision is that it tramples federalism and states’ rights, because it says, in effect, a state has no power to outlaw slavery, because a person can take a slave into the state, and, in spite of the law that says that no one may own slaves, that slave would remain his property, under Taney’s decision, which is in this case, a violation of Illinois law (and, as McLean points out in his dissent, contrary to the law of Missouri, which said, along with Mississippi, Virginia, Louisiana, Kentucky, and Maryland, that, if someone who holds a slave in that state voluntarily takes the slave to somewhere that slavery is prohibited, he forfeits, in the eyes of Missouri, the ownership of that slave.) I don’t know as much about Plessy, but Scott v. Sanford was a bad decision because it ignored precedent, it ignored states rights, and the main arguments that Taney used were factually incorrect. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [September 7, 2001, 12:00am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/3 "2001-09-07T00:00:23Z")
[Dred Scott vs Sandford](http://www.tourolaw.edu/patch/Scott/) [Plessy v. Ferguson](http://www.tourolaw.edu/patch/Plessy/) ---
**Author:** ![cmkeller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cmkeller/32/118_2.png) [@cmkeller](https://boards.straightdope.com/u/cmkeller)\ **Post date:** [September 7, 2001, 12:12am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/4 "2001-09-07T00:12:41Z")
Captain Amazing: I have to say, I’m a bit confused by the following argument (bolding mine): > [@](#): > > And my opinion is, that, under the Constitution of the United States, every **free** person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States. Dred Scott was not born free, he was born a slave. So how does this apply to the issue at hand at all? In addition, I fail to see how the decision renders states unable to regulate or ban slavery within its borders. Just because the decision says that a slave, whose residence is in a slave state, is not automatically freed by being brought to a free state, does not mean that a state cannot ban the sale of slaves within its borders or the ownership of slaves by its residents. Chaim Mattis Keller ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [September 7, 2001, 12:31am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/5 "2001-09-07T00:31:48Z")
That’s a rather perceptive OP, **Chaim**. There are plenty of actual lawyers who don’t realize that _Brown_ didn’t quite reject the holding of _Plessy_. That’s too bad, IMHO, since the idea that separate can be equal could have troubling consequences if the right set of facts presented itself. I tend to believe that “separate” is a bad thing, even if you can prove beyond all question that it’s also equal, even in the “psychological detriment” sense that the Court relied on in _Brown_. Because of that, I absolutely disagree with the reasoning in _Plessy_, and am happy that it’s of little real effect after _Brown_. _Dred Scott_ is a different question, however. Considering the state of the law at the time, I think the majority was pretty accurate in its analysis and resolution of the problem. The opinion reflects the disgusting state of the law at the time. Blame for that decision properly rests with the system of statutes and property law that supported slavery, not with the Court that decided Dred Scott wasn’t a citizen under the laws of the time. ---
**Author:** ![capacitor](https://avatars.discourse-cdn.com/v4/letter/c/e47774/32.png) [@capacitor](https://boards.straightdope.com/u/capacitor)\ **Post date:** [September 7, 2001, 2:02am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/6 "2001-09-07T02:02:58Z")
_Plessy_ was especially bad, because, it had the ‘separate but equal’ doctrine, but it had no provisions to ensure how the ‘equal’ part of the doctrine would be enforced, especially not terms as envisioned by Booker T Washington, who at the time was an advocate of letting the Black communities develop separately from the White neighborhoods. As a result, in practice, all state services, from parks to schools to law enforcement, were never allocated ‘equally’ among the neighborhoods. As for _Scott_, the decision was not as narrow as you depicted, cmkeller. The decision also voided the Compromise of 1845. In the compromise it was decided that the people living in the territories would decide by referendum whether or not to allow slavery in the various towns in the Kansas Territory. There were huge riots in the territory of Kansas over slavery. The hero John Brown emerged from the Kansas riots. The _Scott_ decision effectively voided the vote of the people in Kansas who did not want slavery in their towns. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [September 7, 2001, 3:31am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/7 "2001-09-07T03:31:40Z")
> [@](#): > > \*Originally posted by cmkeller \* > \*\*Captain Amazing: > > I have to say, I’m a bit confused by the following argument (bolding mine): > > > [@](#): > > > > And my opinion is, that, under the Constitution of the United States, every **free** person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States. > > Dred Scott was not born free, he was born a slave. So how does this apply to the issue at hand at all?\*\* Because, in his decision, Taney stated that > [@](#): > > A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States. According to Taney, Scott was unable to bring suit in the first place, not because he was a slave (because that’s what the lawsuit atempted to determine), but because, even if he was free, because of the quote above, he couldn’t be a citizen of the United States, because blacks were never considered citizens of the U.S… Justice Curtis, part of whose opinion is quoted above, shows that isn’t true. > [@](#): > > \*\*In addition, I fail to see how the decision renders states unable to regulate or ban slavery within its borders. Just because the decision says that a slave, whose residence is in a slave state, is not automatically freed by being brought to a free state, does not mean that a state cannot ban the sale of slaves within its borders or the ownership of slaves by its residents. > > Chaim Mattis Keller \*\* Well, because Scott and Emerson’s residence wasn’t in a slave state. Here’s a brief background of the case. Dr. John Emerson is a millitary doctor stationed in St. Louis. He buys Dred Scott, a slave, as his body servant. Dr. Emerson then gets assigned to Wisconsin Territory (in 1830), where slavery is illegal, because of the Missouri compromise (slavery in all territories above a certain lattitude is forbidden), and then, after that post, assigned to Rock Island, Illinois. Slavery is illegal in Illinois. Scott accompanies him there. They stay out of Missouri for 12 years, during which time Scott marries and has two children. Then, in 1842, Emerson, along with Scott, his wife, and their children, go back to St. Louis. Emerson then dies, in 1843. His widow then hires Scott, his wife, and their children out. In 1846, Scott and his wife sue Mrs. Emerson in the St. Louis circuit court for their freedom and the freedom of their children. The suit is dismissed w/o prejudice, meaning that even though it was dismissed, it was on technical matters, and they can refile. The Scotts sue again, and the court grants them their freedom. Mrs. Emerson then appeals the case to the Missouri supreme court, which overrules the lower court’s decision, deciding they are slaves. Mrs. Emerson then turns legal control over her dead husband’s estate to her brother, John Sanford, who lives in New York. Scott’s lawyers then file suit in U.S. Federal court. They have to do this, because Sanford is a citizen of New York, and Missouri doesn’t have any jurisdiction over him. The court rules against Scott, and he appeals to the Supremes. This isn’t a case where Dr. Emerson brought Scott across the state border for a day, or a week. They had lived in places where slavery was illegal for 12 years, and Emerson kept his main residence in those places…first Wisconsin Territory, then Illinois. If Scott and his wife were still slaves even when they and Emerson were living in Illinois, and their children, who were born in Illinois, were slaves, it meant that a state couldn’t ban slavery within its borders, because anyone who owned slaves could move there and keep them as slaves, and their children, born there as slaves, etc. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 7, 2001, 11:25pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/8 "2001-09-07T23:25:00Z")
Dred Scott was a bad decision not only because it was immoral but because it rested on poor legal principles. As others have mentioned, the issue before the court was whether Scott was a free man or still a slave. Taney’s decision ignored this question; by declaring that no black could ever be recognized as a citizen with the right to file a lawsuit, Taney in effect declared that no black could ever be recognized as free. He had no legal basis to make this declaration. Taney was also the justice who opened the door on judicial activism (ironically a principle now derided by conservatives as a liberal affront). Prior to _Dred Scott_, the only USSC decision to explicitly overrule Congress had been _Marbury_ and that had been in a fairly limited capacity. Even many pro-slavery forces were upset with Taney unexpected expansion of the Supreme Court’s power. Again, there was no legal precedent at the time to support Taney in this. Taney, who was actually a fairly good judge, is unfortunately remembered for his worst decision. In _Dred Scott_ he let his prejudice get the better of his reason. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [September 8, 2001, 12:54am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/9 "2001-09-08T00:54:11Z")
> [@](#): > > \*Originally posted by Little Nemo \* > Taney was also the justice who opened the door on judicial activism ( **ironically** (emphasis mine) a principle now derided by conservatives as a liberal affront). No irony at all. The Republicans opposed Taney, the Republicans oppose judicial activism, and the Republicans ended slavery. > [@](#): > > Taney’s support of the slavery laws was most clearly expressed in the Dred Scott Case (1857). Here he held that slaves (and even the free descendants of slaves) were not citizens and might not sue in the federal courts, and that Congress could not forbid slavery in the territories of the United States. Opposition to the second holding was furiously expressed by the Republicans, and when Lincoln became President he considered Taney an arch foe. [http://www.infoplease.com/ce6/people/A0861433.html](http://www.infoplease.com/ce6/people/A0861433.html) ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [September 8, 2001, 2:09am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/10 "2001-09-08T02:09:56Z")
While the Supreme Court’s 7 to 2 decision that Scott was not a citizen and thus lacked standing was bad news for Dred Scott and indefensible by modern lights, the real bomb in the decision was Justice Tanny’s wholly gratuitous holding that the Missouri Compromise of 1820 was an unconstitutional interference with rights of property. Under the Missouri Compromise, Missouri had been admitted to the Union as a slave state on the condition that in future all new States lying north of Missouri’s southern border would be free states. Tanny and a plurality of the Justices held that Congress lacked the authority to limit slavery and that the decision of whether a State would be slave or free was one that could only be made by its citizens in the election for a State Constitution. Neither Congress nor the Territorial legislature nor the State legislature, said Justice Tanny, had no power to bar slavery from US territories, as Congress had done in the Northwest Ordinance of 1787 (which was written by the same people who wrote the Constitution) and the Missouri Compromise. It was pretty apparent at the time that the Dred Scott Case was a bad law decision and represented a power grab by the “Slave Power” to quash abolitionist gains in Congress and public opinion and to allow the expansion of slavery into Kansas. The dissent by Justices Curtis and McLean amply demonstrated the fallacies in Justice Tanny’s opinion on both the standing and right of property issues. The whole thing is well written up in Kenneth M. Stamp’s book, America in 1857. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 8, 2001, 1:18pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/11 "2001-09-08T13:18:21Z")
December, I’m aware that contemporary Republicans opposed Taney’s decision. I’m also aware that at the time the Democrats were generally more conservative than the Republicans. That’s why I wrote the issue was one of conservatives vs liberals rather the Republicans vs Democrats. ---
**Author:** ![GoldenGael](https://avatars.discourse-cdn.com/v4/letter/g/8edcca/32.png) [@GoldenGael](https://boards.straightdope.com/u/GoldenGael)\ **Post date:** [September 8, 2001, 1:34pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/12 "2001-09-08T13:34:16Z")
If I may be permitted to expand the discussion a bit, I have always considered the Betts vs Brady decision to be an excellent example of a decision having no contact with the real world or the way real people are. It could only make sense to a lawyer – and, of course, it is a decision that the current Supreme Court could easily make today, given their track record of tortuous logic. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [September 8, 2001, 2:30pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/13 "2001-09-08T14:30:18Z")
> [@](#): > > the Republicans oppose judicial activism hee hee hee _::: giggle ::: ::: snort :::_ Bwahahaahaahaahaahaahaahaa! Thanks for mmy laugh of the day. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [September 8, 2001, 6:12pm UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/14 "2001-09-08T18:12:47Z")
[hijack] > [@](#): > > \*Originally posted by Little Nemo \* > \*\*December, I’m aware that contemporary Republicans opposed Taney’s decision. I’m also aware that at the time the Democrats were generally more conservative than the Republicans. That’s why I wrote the issue was one of conservatives vs liberals rather the Republicans vs Democrats. \*\* Here’s the first definition of “conservative”: \*1. Favoring traditional views and values; tending to oppose change. \* I think today’s Democrats are generally more conservative than Republicans. Democrats are resisting change on a wide range of issues, including missile defence, Social Security privatization, school vouchers, tax cuts, and support of international treaties.[/hijack] ---
**Author:** ![johnson](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@johnson](https://boards.straightdope.com/u/johnson)\ **Post date:** [September 9, 2001, 1:59am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/15 "2001-09-09T01:59:20Z")
I read some years ago that Taney has a bum rap as a supporter of slavery in that he decided _Scott_ the way he did to try to force the issue to Congress for the (properly legislative) end to slavery. Any thoughts on this? And, while we’re at it, aren’t there a number of other Supreme Court cases which rest on extraordinarily thin legal bases? Then again, a law professor told me the story of the Supreme Court justice who asked his new clerk what the most important principle of constitutional law was. After much hemming and hawing on the part of the clerk, and several wrong answers, the justice said “Five votes beats four votes.” ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [September 9, 2001, 5:48am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/16 "2001-09-09T05:48:47Z")
> [@](#): > > Favoring traditional views and values; tending to oppose change. > > I think today’s Democrats are generally more conservative than Republicans. Democrats are resisting change on a wide range of issues, including missile defence, Social Security privatization, school vouchers, tax cuts, and support of international treaties. As you noted, december, this is turning into a real hijack from the OP. But I think you’re stretching the point to link Democratic opposition to the programs you listed to innate conservatism. I never heard a Democrat argue against SDI by saying “dammit, exposing our nation to nuclear attack was good enough for our founding fathers, so it should be good enough for us.” Instead most of the argument against this program is that it’s a costly and unworkable program designed to counter a threat that no longer meaningfully exists. Similarly contemporary arguments are made against most of the other mentioned programs without invoking “traditional values”. Besides, keep in mind that if you argue that the Democrats are actually conservatives than the Republicans must by default actually be … shudder … LIBERALS!!! > [@](#): > > I read some years ago that Taney has a bum rap as a supporter of slavery in that he decided Scott the way he did to try to force the issue to Congress for the (properly legislative) end to slavery. Any thoughts on this? Speculating that Taney overturned a Congressional act which banned slavery because he secretly desired the enactment of a Congressional act which banned slavery is a little difficult to swallow. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [September 10, 2001, 10:10am UTC](https://boards.straightdope.com/t/were-dred-scott-and-plessy-truly-bad-decisions/80141/17 "2001-09-10T10:10:00Z")
> [@](#): > > \*Originally posted by johnson \* > \*\*I read some years ago that Taney has a bum rap as a supporter of slavery in that he decided _Scott_ the way he did to try to force the issue to Congress for the (properly legislative) end to slavery. Any thoughts on this? > \*\* It’s been a while since I looked at the _Scott_ decision, but I wouldn’t think this is right. By striking down the Missouri Compromise as contrary to slave-owners’ property rights, didn’t Taney effectively say that the only way to abolish slavery was by a constitutional amendment, which of course requires action by both Congress and the states? In other words, he made it much more difficult, as a political matter, for abolition to occur? The Thirteenth Amendment was necessary to overturn _Scott_ - Congress by itself couldn’t do so.