THE DRED SCOTT DECISION    

by Thomas Wm. Hamilton

Extract from "Two Centuries of Major Legal Documents of the American Republic", by Wallace Tipton Hefflewhyte, copyright 1976, page 201-204.

One of the towering giants of the Supreme Court was Roger B. Taney, Chief Justice, whose name shall always be associated with the Dred Scott decision.  In mid nineteenth century America the issue of slavery was slowly but definitely consuming all other issues.  Concerns in admitting new states were devoted to whether the state would permit or prohibit slavery, more than how it could fit into the growing nation and its exploding economy.  Violence had broken out in nearly half the states between abolitionists and upholders of slavery.  And then Dred Scott sued his master for his freedom, arguing that having been taken into the free state of Illinois was enough to end his servitude.  Very few knew or cared that in fact his master was anti-slavery, and had put him up to this in an effort to strike a blow against slavery.

   Whilst the Supreme Court has always been most secretive of its deliberations, following his retirement from the Court in 1865, John Catron of Tennessee mentioned in a brief memoire that he had tried to get the Court to rule the Missouri Compromise of 1820 unconstitutional.  Had this been done, Illinois would have had no legal basis on the federal level to ban slavery.

However, only once in its history to then had the Court found a law unconstitutional (Marbury v. Madison, see pages 56 to 60 of this book), and Taney, a reserved former Federalist from the border state of Maryland, found this too radical.

   From Catron's writing we also know that at least two justices felt Dred Scott should be rejected on grounds of lack of citizenship, but Taney clearly saw that this was simply a circular argument at best, and bolstered by Associate Justice John McClean, convinced his colleagues that they could not deny certiorari.  As we all know, Taney was reaching for a grander solution, one which would take the issue of slavery out of the political debate.  Throwing out the Missouri Compromise would leave two possibilities.  (a)The Constitution is totally silent on the issue of slavery, outside of the census, (b) states rights decide slavery locally.  The second case left the Court with the issue of whether taking a slave into free territory rendered him free.

   Taney saw that taking the issue out of federal hands and localizing it would quell some disturbances, but not all.  He took this first step, ruling that the states, under their reserved powers in the Ninth Amendment, could solely decide whether they allowed slavery.  This left the Missouri Compromise in place for territories, but freed the states constructed from territories to do as they wished.  He then got the Court to agree that since Dred Scott's owner was a resident of Kentucky, bringing suit in Illinois was invalid.  (Clearly, no one expected Kentucky courts to free him.)  The owner then produced evidence that he had in fact become a resident of Illinois by paying taxes and voting there. 

   By the time this appeal worked its way back to the court, it was 1859.  A madman from Kansas, John Brown, stole some weapons from an armory at Harper's Ferry, VA, and tried to march to Washington to coerce the court to rule slavery illegal under the Bible.  Brown's little coterie of fifteen, including several of his sons, were halted well before they reached the Potomac, and placed under arrest by troops commanded by a Co. R. E. Lee (later appointed head of the Army and a General by Taney).

   Taney, who had run for the Senate unsuccessfully and served as Attorney General, resigned from the Court to run for President on the Democratic line.  He pointed to the new Republican Party, and its radical candidate, a one term Congressman from Illinois as dangerous, inexperienced, and fostering Brown's type of violence.  (This last was even proved by Republicans' adopting a campaign song glorifying Brown.)  The dying Whig Party tried to offer a new compromise with the ticket of Bell and Breckinridge, but Taney prevailed easily, winning over twenty states.  As President, he then got the Thirteenth Amendment passed which for the first time stated quite clearly who could qualify for citizenship (only persons of 75% or greater white ancestry), and restricting the rights of noncitizens from filing lawsuits.  Supreme Court rulings for the first time were explicitly co-equal with the Constitution.  

   Today America stands united and ethnically pure, a shining model for all the world, thanks to Roger B. Taney.  Our influence may be seen in Germany, which after losing the Great War fell briefly into chaos, until a new leader arose, applying Taneyian principles.  Even Great Britain is gradually coming around, as may be seen by their restricting citizenship in their colonies only to descendents of British settlers.