Dred Scott Case – The Effects on the Political parties
News of the Court’s decision swept the country and provoked generally predictable responses. The Republicans were outraged and saw the decision as a threat to their party, but in the end they actually profited because many moderates came to the support of the new party.
On the other hand, President James Buchanan greeted the decision favorably in hopes that that the slavery issue could be put to rest. Critics of the president charged that he had actually conspired to shape the Court’s response.
The Taney Supreme Court 1836 -1864
The Supreme Court under Chief Justice ROGER B. TANEY (1836–1864) has not been a favorite among historians, perhaps because it defies easy generalization. There were few great constitutional moments and no dramatic law-making decisions comparable to those handed down by the Marshal Court. The fifteen Justices who served with Taney (not counting Abraham Lincoln’ Civil War appointees) varied immensely in ability—from JOSEPH STORY of Massachusetts who was the leading scholar on the bench until his death in 1845 to JOHN MCKINLEY of Alabama whose twenty-five years on the Court left barely a trace. Institutional unity and efficiency were often disrupted by abrasive personalities like HENRY BALDWIN (who became mentally unstable shortly after his appointment in 1830) and PETER V. DANIEL (whose passion for State’s Rights drove him into chronic dissent). Division was constant and bitter as the Justices disagreed openly over corporation, banking, and slavery questions—all of which tended to be seen from a sectional point of view. Fortunately for the ongoing work of the Court, most of its members shared a respect for the Constitution and had a common commitment to economic progress and property rights that cut across ideological and sectional differences. All were Democrats, too, except Story, JOHN MCLEAN, and BENJAMIN R. CURTIS. Most of the Court respected the Chief Justice—whose legal mind was of a high order—and responded well to his patient, democratic style of leadership. Still the Court under Taney did not quite cohere. There was no “leading mind,” as Daniel Webster complained, and no clear-cut doctrinal unity.
Most threatening to judicial unity, because it was directly reflected in the opinions of the Court, was the intensification of sectional rivalry. As northern states committed themselves to commerce and manufacturing, they came to see themselves—taking their cultural cues from the abolitionists—as a section united in defense of liberty and freedom. The South found ideological conservatism an ideal umbrella for an expansive social-economic system based on cotton and organized around plantation slavery. As the sections competed for political power and control of the new West, each came to think of itself as the last best hope of mankind. And each insisted that the Constitution accommodate its policy preferences—a demand that the Supreme Court could satisfy only by compromising doctrinal purity and finally could not satisfy at all.
In short, the political and economic problems of the new age became constitutional problems just as Alexis De Tocqueville had said they would. Whether the Supreme Court would be the primary agency to resolve those problems was, of course, a matter of debate. Andrew Jackson, armed with a mandate from the people, did not believe that the Court had a monopoly of constitutional wisdom. Newly organized political parties stood ready to dispute judicial decisions that offended their constituencies. States armed with John C. Calhoun’s theory of nullification insisted that they, not the Court, had the final word on the Constitution. Accordingly, the margin of judicial error was drastically reduced.
The Court was obliged to make the Constitution of 1787 work for a new age; the high nationalism of the Marshall Court, along with its Augustan style of judging, would have to be toned down. Changes would have to come. The question—and it was as yet a new one in American constitutional law—was whether they could be made without disrupting the continuity upon which the authority of the law and the prestige of the Court rested.
The moment of testing came quickly. Facing the Court in its 1837 term were three great constitutional questions dealing with state banking, the COMMERCE CLAUSE, and corporate contracts. Each had been argued before the Marshall Court and each involved a question of Federalism which pitted new historical circumstances against a precedent from the Marshall period. The Court’s decisions in these cases would set the constitutional tone for the new age.
By 1850 the Taney Court was even more popular than the Marshall Court had been and the Chief Justice was praised by men of all political persuasions. All this would change when the Court confronted the issue of Slavery.
Adjudicating the constitutional position of slavery fell mainly to the Taney Court; there was no escape. Slavery was the foundation of the southern economy, a source of property worth billions, a social institution that shaped the cultural values of an entire section and the politics of the whole nation. Moreover, it was an integral part of the Constitution, which the Court had to interpret. At the same time, it was, of all the issues facing the antebellum Court, least amenable to a rational legal solution—and in this respect, it foreshadowed social issues like abortion and affirmative action which have troubled the contemporary Court. No other single factor so much accounts for the divisions on the Taney Court or its inability to clearly demarcate power in the federal system.
Given the slavery question’s explosive nature, the Justices not surprisingly tried to avoid confronting it directly. Thus the obfuscation in Groves v. Slaughter (1841), where the issue was whether a provision in the Mississippi Constitution prohibiting the importation of slaves for sale after 1833 illegally encroached upon federal power over interstate commerce. The Court circumvented this issue by ruling that the state constitutional clause in question was not self-activating—a position that, while avoiding trouble for the Court, also guaranteed the collection of millions of dollars of outstanding debts owed slave traders and in effect put the judicial seal of approval on the interstate slave trade. The Court also dodged the substantive issue in Strader v. Graham (1851), which raised the question whether slaves who resided in Kentucky had become free by virtue of their temporary residence in the free state of Ohio. The Court refused jurisdiction on the ground that Kentucky law reasserted itself over the slaves on their return, so that no federal question was involved.
Where the substantive question could not be sidestepped, the Court aimed to decide cases on narrow grounds and in such a way as to please both North and South. Thus in The Amistad (1841), Justice Story ruled that Africans on their way to enslavement who escaped their Spanish captors were free by virtue of principles of international law and a close reading of the Treaty of 1794 with Spain. Extremists in neither section were pleased. Even less were they content with Story’s efforts to juggle sectional differences, morality, and objective adjudication in Prigg v. Pennsylvania (1842). There the question was whether and to what extent states were allowed to pass Personal Liberty Laws protecting the rights of free Negroes in rendition cases. The South was pleased when Story declared the Pennsylvania liberty law of 1826 to be a violation of the constitutional and statutory obligation to return fugitive slaves. He went on to say, with his eye on northern opinion (and with doubtful support from a majority on the Court), that the power over fugitives belonged exclusively to the federal government and that states were not obliged to cooperate in their return. The decision encouraged northern states to pass personal liberty laws but also necessitated the more stringent federal fugitive slave law of 1850. Both developments fueled sectional conflict. The Court’s strategy of avoidance aimed to keep slavery on the state level where the Constitution had put it, but the slavery question would not stay put. What brought it forth politically and legally as a national question was Slavery in the Territories, a problem which confronted the Court and the nation in Dred Scott. The nominal issue in that famous case was whether a Negro slave named Scott, who had resided in the free state of Illinois and the free territory of Minnesota (made free by the Missouri Compromise of 1820) and who returned to the slave state of Missouri, could sue in the federal courts. Behind this jurisdictional issue lay the explosive political question of whether Congress could prohibit slavery in the territories, or to put it another way, whether the Constitution guaranteed it there. The future of slavery itself was on the line.
The first inclination of the Justices when they confronted the case early in 1856 was to continue the strategy of avoidance by applying Strader v. Graham (1851); by that precedent Scott would have become a slave on his return to Missouri with no right to sue in the federal courts. This compromise was abandoned: in part because of pressure from President James Buchanan and Congress; in part because northern Justices McLean and Curtis planned to confront the whole issue in dissent; in part because the pro-slave, pro-South wing of the Court (led by Taney and Wayne) wanted to silence the abolitionists by putting the Constitution itself behind slavery in the territories; in part because the Justices pridefully believed they could put the troublesome question to rest and save the Union.
Taney’s was the majority opinion so far as one could be gleaned from the cacophony of separate opinions and dissents. It was totally pro-southern and brutally racist: Scott could not sue in the federal courts because he was not a citizen of the United States. He was not a citizen because national citizenship followed state citizenship, and in 1787 the states had looked upon blacks as racially inferior (which the states in fact did) and unqualified for citizenship (which several states did not). Scott’s argument that he was free by virtue of residence in a free state was wrong, said Taney, because of Strader (which had been relied upon by the Supreme Court of Missouri); Scott’s argument that residence in a free territory made him free carried no weight because Congress had no authority to prohibit slavery in the territories—an assertion that ignored seventy years of constitutional practice and permitted Taney to set forth the Substantive Due Process theory of the Fifth Amendment against the taking of property. Scott was still a slave. Congress could not prohibit slavery in the territories, because the Constitution guaranteed it there; neither, as the creatures of Congress, could territorial legislatures prohibit slavery as claimed by proponents of the doctrine of Popular Sovereignty. Taney’s Constitution was for whites only.
Instead of saving the Union the decision brought it closer to civil war and put the Court itself in jeopardy. In effect, the decision outlawed the basic principle of the Republican party (opposition to the extension of slavery in the territories), forcing that party to denounce the Court. The Democratic party, the best hope for political compromise, was now split between a southern wing (which in 1860 chose the certainty of Dred Scott over the vagueness of popular sovereignty) and northern antislavery forces who, if they did not defect to the Republicans, went down to defeat with Stephen Douglas and popular sovereignty. Sectional hatred intensified and the machinery of political compromise was seriously undercut—along with the prestige of the Court. From its peak of popularity in 1850 the Taney Court descended to an all-time low. After Secession it served only the section of the Union that ignored Dred Scott entirely, condemned the Court as a tool of southern expansionism, and looked upon the Chief Justice as an arch-traitor to liberty and national union.
Fortunately, these disabilities were not permanent. Northern hatred focused less on the Court as an institution and more on the particular decision of Dred Scott, which was obliterated by the Thirteenth and Fourteenth Amendments. Dred Scott seemed less important, too, after President Lincoln “Republicanized” the Court with new appointments (five, including a new Chief Justice who had been an abolitionist). More important, the Court brought itself into harmony with the northern war effort by doing what the Supreme Court has always done in wartime: deferring to the political branches of government and bending law to military necessity. Sometimes the Court deferred by acting (as in the Prize Cases of 1863 where it permitted the President to exercise Warf Powers and still not recognize the belligerent status of the Confederacy) and sometimes it deferred by not acting (as when it refused to interfere with the broad use of martial law during the war).
The Taney Court not only survived but it also salvaged its essential powers—and with time even a grudging respect from historians. The memory of Dred Scott could not be totally exorcised, of course, but it diminished along with the idealism of the war years and with the recognition that the racism of the opinion was shared by a majority of white Americans. In any case, the reform accomplishments of the Taney Court helped to balance the reactionary ones. Its modest style of judging fit the new democratic age. Through its decisions ran a new appreciation of the democratic nature and reform potential of state action and a tacit recognition as well of the growing maturity of legislative government. The Court’s pragmatic federalism, while it could support the evil of slavery, also embodied a tradition of cultural pluralism, local responsibility, and suspicion of power. This it did without destroying the foundations of constitutional nationalism established by the Marshall Court. Change is the essence of American experience. The Taney Court accepted this irresistible premise and accommodated the Constitution to it. The adjustment was often untidy, but the Court’s preference for process over substance looked to the modern age and prefigured the main direction of American constitutional law.
- KENT NEWMYER
COVER, ROBERT M. 1975 Justice Accused: Antislavery and the Judicial Process. New Haven: Yale University Press.
FEHRENBACHER, DON E. 1978 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.
FRANKFURTER, FELIX 1937 The Commerce Clause under Marshall, Taney and Waite. Chapel Hill: University of North Carolina Press.
HARRIS, ROBERT J. 1957 Chief Justice Taney: Prophet of Reform and Reaction. Vanderbilt Law Review 10:227–257.
KUTLER, STANLEY 1971 Privilege and Creative Destruction: The Charles River Bridge Case. Philadelphia: J. B. Lippincott.
SWISHER, CARL B. 1974 The Taney Period, 1836–1864. Volume V of The Oliver Wendell Holmes Devise History of the Supreme Court of the United States. New York: Macmillan.
WARREN, CHARLES 1926 The Supreme Court in United States History, Vol. 2. New and revised ed. Boston: Little, Brown.