What if the Dred Scott Decision had gone the other way?

I was perusing various Supreme Court topics today and reading the Dred Scott decision led me to wonder what would have happened if the Court had found in favor of Dred Scott. The Court finding that blacks were not and could not be citizens of the US and therefore the Court didn’t have jurisdiction helped lead to the Civil War, in the opinion of many.

If the Court had decided instead that Dred was free once he lived for awhile in free territories, what affect would that have had in the runup of the Civil War? Would the war have still happened? Would the decision have made trouble for the continued existence of slavery in the US? Would it have made any difference whatsoever in changing events that did happen?

There’s a good chance the South might decide to secede over this and considering the President at this time was James Buchanan (who make Chamberlain, Daladier, and Poincare look like he-men) they might become independent. Incidentally it might be hard for the case to go the other way since like Roe v. Wade it was 7 to 2 not 5 to 4

The Taney court was trying to shoehorn in a broad ruling about federal power over slavery in the territories, but I’ve thought that the case could, and arguably should, have been settled on much narrower grounds: Article Four Section Two of the Constitution says,

This was the basis for both the original 18th century Fugitive Slave Act and the 19th century one. It’s meaning and purpose seems pretty straightforward- the fact that some areas of the United States upheld slavery and some abolished it would not be a pretext to nullify slaveowners property rights. If a free state which otherwise completely refuted the institution of slavery could nonetheless be compelled to yield up a fugitive slave, then I don’t see how it could be claimed that dwelling in a free territory for a time could somehow manumit a slave. What legal theory did Scott’s lawyers pursue to make such a claim?

It was the law of Missouri at the time, and had been for decades. Once free, always free.

Scott didn’t escape into another state. Sandford took him there.

It really does seem like the court should have made their decision on narrow grounds. I mean, I I don’t support this, but they could have easily found that slaves taken to free territories and living there for a time were still slaves, according to the two Acts mentioned above. Instead, they open a whole kettle of fish by declaring that blacks were not citizens. Given that there were free blacks at the time, this seemed like a pretty counter-productive and rather stupid decision that was really unnecessary to make.

And I guess there were probably at least 3 decisions that the Court could have chosen from: Scott was still a slave no matter where he lived based on the Fugitive Slave Acts, Scott was free given he lived in free territory (based on what constitutional section?), or what they did decide, which was punt and declare that blacks were not citizens, therefore the Court did not have jurisdiction. Were there any other decisions they could have made or any other argument that would have made sense?

Although by the time Scott sued for his freedom, attitudes had hardened. The Missouri Supreme Court efectively said “we must uphold slavery without question because slavery is under attack”:


The aforementioned Constitutional provision is irrelevant, because Scott originally filed suit it Missouri. At no point was any state or territory unwilling to hand him over to anyone. It was well-accepted that extended swelling in a free state or territory implied that the slave had been intentionally manumitted, in that he became a resident of that state or territory and was therefore bound by its laws. This did not apply to a fugitive, of course - but Dred Scott never was a fugitive.

There were several issues. Taney was one of those brilliant justices who can’t resist trying to turn the law into something he wants it to be (i.e., pretty much every Supreme Court Justice… aside from Scalia). Second, many Democrats then as now believed that a key Court decision against the Republican party would hurt it severely. But third, Buchanan apparently intervened and more or less bribed two justices to see things his way.

Thje court could, by the way, simply have affirmed the Missouri decision and left it.

Damned activist judges…

The smart thing would have been for Taney to decide the case on the narrowest possible grounds, which is what most people expected. He could have just said that the Supreme Court didn’t have jurisdiction in the case. There was a strong argument to be made for this - Scott’s lawyers claimed that it was an interstate case because Scott’s legal owner of record was now John Sanford, a lawyer who had moved to New York. Scott’s actual owner had been John Emerson who was now deceased and Sanford was the executor of Emerson’s will. (The reality was that Scott had already lost his case in Missouri and his lawyers were looking for some possible grounds to have it reheard in a federal court.) The court could easily have declared Sanford’s residency was not a relevant issue and let the decision of the Missouri court stand.