The peculiar institution, in the final analysis, was thus a benevolent one.
The Confirmation: The Dred Scott Case
In 1856 the racial resolution received the official imprimatur of the United States Supreme Court. Dred Scott was an African American; he and his family had been assaulted by a white man who claimed to be Scott’s master. Scott filed suit against the white man, but the success of his suit would depend on whether he was free: as a free man, Scott could not be assaulted; as a slave, he remained subject to discipline. Scott argued that he was free, in part by virtue of his stay in the Upper Louisiana Territory, an expanse of federal land made free by the Missouri Compromise of 1820. But Scott’s very ability to file the suit depended on an interpretation of Article III of the United States Constitution: to sue, he had to be a “citizen.”
Chief Justice Roger B. Taney delivered the opinion of the Supreme Court in Scott v. Sandford, the “Dred Scott case.” Scott, the Court ruled, was not a “citizen,” and neither, incredibly, was anyone “whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves.” The entire “African race” was thus excluded from the life of the nation.
Taney purported to be bound by the “true intent and meaning” of the Constitution:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.
The founders’ views on this “unfortunate race” precluded, according to Taney, the conclusion that they were citizens:
On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
This Taney knew by examining “the legislation and histories of the times, and the language used in the Declaration of Independence.” The former included the laws establishing and maintaining slavery; the latter included the stirring proclamation that “all men are created equal”:
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted.
Such a result was inconceivable: “the men who framed this declaration were great men—high in literary acquirements—high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting.” Thus in the minds of the framers, “[t]he unhappy black race were separated from the white by indelible marks”; they could not be “citizens,” and they could not sue.
That should have ended the case. But Taney went on to hold that the Missouri Compromise, on which Scott substantially based his claim of freedom, was unconstitutional. In outlawing slavery in the federal territory, the law exceeded the scope of the powers granted to Congress by the Constitution; moreover, it violated the Fifth Amendment to the Constitution by depriving slaveholders of their liberty and property without “due process of law.” The Garrisonian view of the Constitution had received its unholy vindication: the document indeed protected slavery; and abolition—at least by Congress—was impossible without constitutional change.
For slaveholders, the decision in the Dred Scott case was a welcome sign that there was yet room for the South in the Union; for abolitionists, it was a sure sign that the “slave power” still reigned supreme. For politicians of every persuasion it became a defining issue: were you for the decision or against it, and if the latter, what would you do? Thus in 1860 the Lincoln candidacy was forced to deal directly with the question whether the decision deserved to be respected as authoritative. Lincoln’s repudiation of Scott v. Sandford meant that his subsequent election could be seen as something of a constitutional referendum: Lincoln’s election, said Illinois governor Richard Yates, “has decided that a construction which is favorable to the idea of freedom shall be given to the Constitution, and not a construction favorable to human bondage.” It also meant, of course, secession and civil war.17
The years have not been kind to Taney’s decision; indeed there is much to criticize. His determination to invalidate the Missouri Compromise is, as a legal matter, only dicta— making it ironic, at least, that a jurist so avowedly committed to separating law from politics should undertake such an overtly political project, one wholly unnecessary to the resolution of the legal case. Worse, as a calculated effort to preserve the Union, Taney’s opinion was obviously a miserable failure: not even the Supreme Court could remove slavery from the national political conscience. More broadly, Taney’s insistence that the meaning of the Constitution cannot evolve to incorporate new understandings seems too rigid and cramped a rule for an organic document; his specific determination—that the “African race” was, and thus still must be, regarded as an inferior race—seems morally obtuse.
Too rarely included among the criticisms of Scott v. Sandford is the indictment offered by Justices John McLean and Benjamin R. Curtis in their dissenting opinions. It is the most telling rebuke of all: Taney was, quite simply, wrong.
Slaves may have been, as Taney claimed, “subordinate,” but not all slaves were African, and not all subordinated peoples were slaves: women were subordinate, and minors, and men without property, and no one would suggest that they were not “citizens.”
Africans, Taney insisted, had “no rights or privileges” beyond those recognized by their government, but this is either wrong or tautological, depending on one’s views of rights: free men, black and white, participated in civil life on equal terms in parts of the new nation, and indeed the descendants of African slaves participated in the ratification decisions.
Legislative history, Taney maintained, supports the view that Africans were not citizens, but in fact the leading documents of the day make a strong case against Taney’s claim. The Articles of Confederation confer citizenship on all freemen: the qualifier “white” was explicitly rejected. The signatories to the Declaration, it is true, did not literally believe that “all men are created equal,” but the inequalities they implicitly excepted were not defined by “race”: the author of those words, Thomas Jefferson, never admitted to more than the “possibility” of racial inferiority, and this possibility he happily rejected when the evidence came due. As for the Constitution, it says not a word about “slavery,” and no more about “race,” and its framers certainly had no unifying “intent.” Benjamin Franklin had expressed his view that all races were intellectual equals as early as 1763; and, as McLean puts it, “we know as a historical fact, that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.”18
For all his protests to the contrary, it is not the “true intent and meaning” of the Constitution that Taney announces; it is instead the meaning that he chooses, informed by the “public opinion” of his day. It was Taney’s generation, not Jefferson’s and Madison’s, that finally resolved slavery’s paradox in racial terms; it was his generation, not the founders’, that condemned an “unfortunate race” to perpetual
