The American Civil War and States’ Rights; A Critique, Part Two: The Dred Scott Decision
ECW welcomes guest author Brian Krasielwicz
When evaluating the importance of the demand for states’ rights as a causal factor of the Civil War, it is important to review contemporary judicial rulings and the public’s reaction to those rulings. In the infamous Supreme Court decision of Dred Scott v. Sandford (1857), the judiciary was confronted directly with aspects of the state’s rights question that the Fugitive Slave Act of 1850 failed to address: whether or not a state could confer citizenship upon a person. Prior to Dred Scott, the Constitution indicated that someone could be a citizen of the United States or of a particular state, but there was ambiguity about whether citizenship of a state meant that one was, by proxy, a citizen of the country or whether it was national citizenship that conferred the right to be a citizen of a state. In the case of Dred Scott, a slave was purchased by an army officer and taken from Virginia (a slave state) to Illinois (a free state) and then to the territories of Minnesota and Wisconsin (both free territories) before ending up in Missouri (a slave state). In conjunction with these relocations, Scott filed a petition in the Missouri Supreme Court stating that his residency in a state where slavery was unlawful meant that he should be considered a free citizen.[1] As such, what the court was forced to consider was whether or not a sovereign state could confer citizenship to Dred Scott in the absence of clear language from the Constitution.
Interestingly, there was some precedent for this type of claim. In 1807, the territory that would soon become Missouri (then called “Upper Louisiana”) voted into law the right for “any person held in slavery to petition the general court… that such person may be permitted to sue as a poor person, and stating the grounds on which the claim to freedom is founded.”[2] In this way, re-located slaves who found themselves residing in the Missouri territory could apply for freedom, exactly as Dred Scott was attempting to do. However, the state supreme court ruled against Scott, stating that “times are not now as they were when the former decisions on this subject were made.”[3] The change in “times” was really a change in political philosophy, namely that the territorial ordinance of 1805 that governed the area and was written in such a way as to exclude any mention of slavery had been replaced by statehood and the Missouri Compromise of 1820, in which the right to own slaves in Missouri was federally recognized for the first time.
The court did suggest that the issue was not one of state sovereignty, but rather one of having the unfortunate luck of being tried in the wrong state. In fact, it suggested that had Scott filed a petition in the Wisconsin state court, his case might have had a different outcome. Justice William Scott, writing the majority opinion for the Missouri Circuit Court, writes: “[i]f a slave passes our western boundary, by the order of his master, and goes into the territory subject to the Missouri Compromise, does he thereby become free? Most of the courts of this Union would say that he does, if his freedom is sought to be recovered under the laws of that territory.”[4] This peculiar suggestion indicated the belief of the court that the individual states reserved the power to confer citizenship.
Scott took his case all the way to the United States Supreme Court in the case of Dred Scott v. Sandford (1857). Writing the opinion for the majority, Chief Justice Roger B. Taney ruled that states did not have this power of conferment. Specifically, he argued that “[i]n discussing this question, we must not confound the rights of citizenship which a state may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State.”[5] The rights-and-privileges idea was an important one as Article IV of the Constitution specifies that “[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State” and that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”[6] As such, it was argued that becoming a free man through conferred citizenship in a free state should have that status recognized by all other states. Using a contextual argument about the original intent of the framers, Justice Taney argued that no “change in public opinion or feeling” about slaves should cause 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.”[7] In other words, no one who was not expressly provided with rights and the privileges of constitutional protection when the document was ratified in 1789 should ever be permitted by a state to have those rights in the future.[8] In fact, Dred Scott could not even file suit in the Supreme Court because only a citizen could do that.[9] Again, Taney’s decision acted to limit the power and ability of a state to define the rights of its citizens.
It is important to understand that a majority of Justice Taney’s written opinion was not intended to justify the court’s final determination that Scott, even if he was found to be a free man, was not considered a citizen of the United States and thus had no rights and no ability to sue for the protection of those rights. The court had the ability to simply rule that Scott had no standing.[10] In fact, as the Missouri Supreme Court had already ruled against Scott, the justices didn’t even need to take the case. Going against precedent, Justice Taney chose to assess the merits of Scott’s case even despite his lack of standing. In language that since been regarded as some of the most despicable words ever spoken by the court, the majority opinion stated that “the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants… were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument… They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race… and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit” (my italics added).[11]
The Dred Scott decision was wildly popular with Southern states because Justice Taney’s reasoning that slaves were private property deprived Congress of the power to regulate slavery in the territories (thereby nullifying the Missouri Compromise of 1820), and it prevented a slave owner from having their rights to own a slave revoked simply because of the laws of the state where the slave owner lived.[12] Both of these principles served to safeguard and maintain the practice of slavery, which southern lawmakers applauded. In fact, Justice Taney’s reasoning that slaves were nothing more than “ordinary article[s] of merchandise and traffic” seemed to echo at a national level what southerners believed at a local level.[13] However, even in a vacuum where the physical existence of slavery and its immoral underpinnings are not considered (as state’s rights advocates attempt to rationalize,) the significance of the Dred Scott decision was actually a restriction of the dual-federalism gray space that had permitted states to make internal decisions about the composition of their citizenship.[14] In other words, following Dred Scott, only the federal government had the ability to confer rights and constitutional protections to people living within its borders. In effect, by undermining the authority of states, the decision expanded and strengthened the powers of the federal government… and in spite of beliefs still commonly held today (including a Pew Research study in 2011 that revealed that nearly half of self-described southern whites considered states’ rights to be the primary cause of the Civil War[15]), antebellum southerners cheered, because what really mattered to the political and mercantile classes of the South was the maintenance of the slave-based economic system that served as the basis for southern agriculture.
Brian Krasielwicz lives in Carrollton, Georgia and has a Master’s Degree in Public Administration from Walden University. He spent the last 30 years studying the Civil War and travelling to battlefields through the south. Brian has a fiction novel called “Marsupial Tracks.”
Works Cited
Breyer, Stephen. Making Our Democracy Work; A Judge’s View. Vintage Book, 2010.
Maltz, Earl M. “Slavery, Federalism, and the Structure of the Constitution.” The American Journal of Legal History, vol. 36, no. 4, October 1992. [Online version, https://www.jstor.org/stable/845555?read-now=1&seq=23#page_scan_tab_contents, JSTOR, January 06, 2024.]
Missouri Office of the Secretary of State. Missouri State Archives. Before Dred Scott: Freedom Suits in Antebellum Missouri, 1807 Missouri Territorial Statute. 2023. [https://www.sos.mo.gov/archives/education/aahi/beforedredscott/1807FreedomStatute, Missouri Digital Heritage, January 06, 2024.]
Pew Research Center for the People & the Press. “Civil War at 150: Still Relevant, Still Divisive.” Pew
Research Center – U.S. Politics & Policy. 8 April 2011. [Online version, http://www.pewresearch.org/politics/2011/04/08/civil-war-at-150-still-relevant-still-divisive, January 06, 2024.]
Supreme Court of Missouri. Scott v. Emerson. March 1852. Caselaw Access Project, Harvard Law School. [Online version, https://cite.case.law/mo/15/576/, January 06, 2024.]
The Constitution of the United States: A Transcription, National Archives Building at Washington D.C. [Online version, https://www.archives.gov/founding-docs/constitution-transcript, National Archives, January 06, 2024.]
United States, Supreme Court. Dred Scott v. John F. A. Sandford. 6 March 1857. Appellate Jurisdiction Case Files, 1792-2010, Records of the Supreme Court of the United States, Record Group 267, National Archives Building at Washington D.C. [Online version, www.archives.gov/milestone/documents/dred-scott-v-sandford, National Archives, January 06, 2024.]
[1] Supreme Court of Missouri. Scott v. Emerson. March 1852. Caselaw Access Project, Harvard Law School. [Online version, https://cite.case.law/mo/15/576/, January 06, 2024.]
[2] Missouri Office of the Secretary of State. Missouri State Archives. Before Dred Scott: Freedom Suits in Antebellum Missouri, 1807 Missouri Territorial Statute. 2023. [https://www.sos.mo.gov/archives/education/aahi/beforedredscott/1807FreedomStatute, Missouri Digital Heritage, January 06, 2024.]
[3] Supreme Court of Missouri. Scott v. Emerson. March 1852. Caselaw Access Project, Harvard Law School. [Online version, https://cite.case.law/mo/15/576/, January 06, 2024.]
[4] Supreme Court of Missouri. Scott v. Emerson. March 1852. Caselaw Access Project, Harvard Law School. [Online version, https://cite.case.law/mo/15/576/, January 06, 2024.]
[5] United States, Supreme Court. Dred Scott v. John F. A. Sandford. 6 March 1857. Appellate Jurisdiction Case Files, 1792-2010, Records of the Supreme Court of the United States, Record Group 267, National Archives Building at Washington D.C. [Online version, www.archives.gov/milestone-documents/dred-scott-v-sandford, National Archives, January 06, 2024.]
[6] The Constitution of the United States: A Transcription, National Archives Building at Washington D.C. [Online version, https://www.archives.gov/founding-docs/constitution-transcript, National Archives, January 06, 2024.]
[7] United States, Supreme Court. Dred Scott v. John F. A. Sandford. 6 March 1857. Appellate Jurisdiction Case Files, 1792-2010, Records of the Supreme Court of the United States, Record Group 267, National Archives Building at Washington D.C. [Online version, www.archives.gov/milestone-documents/dred-scott-v-sandford, National Archives, January 06, 2024.]
[8] Breyer, Stephen. Making Our Democracy Work; A Judge’s View. Vintage Book, 2010. pgs. 36,37.
[9] United States, Supreme Court. Dred Scott v. John F. A. Sandford. 6 March 1857. Appellate Jurisdiction Case Files, 1792-2010, Records of the Supreme Court of the United States, Record Group 267, National Archives Building at Washington D.C. [Online version, www.archives.gov/milestone-documents/dred-scott-v-sandford, National Archives, January 06, 2024.]
[10] Breyer, Stephen. Making Our Democracy Work; A Judge’s View. Vintage Book, 2010.
[11] United States, Supreme Court. Dred Scott v. John F. A. Sandford. 6 March 1857. Appellate Jurisdiction Case Files, 1792-2010, Records of the Supreme Court of the United States, Record Group 267, National Archives Building at Washington D.C. [Online version, www.archives.gov/milestone-documents/dred-scott-v-sandford, National Archives, January 06, 2024.]
[12] Breyer, Stephen. Making Our Democracy Work; A Judge’s View. Vintage Book, 2010. p. 38-41.
[13] United States, Supreme Court. Dred Scott v. John F. A. Sandford. 6 March 1857. Appellate Jurisdiction Case Files, 1792-2010, Records of the Supreme Court of the United States, Record Group 267, National Archives Building at Washington D.C. [Online version, www.archives.gov/milestone-documents/dred-scott-v-sandford, National Archives, January 06, 2024.]
[14] Maltz, Earl M. “Slavery, Federalism, and the Structure of the Constitution.” The American Journal of Legal History, vol. 36, no. 4, October 1992. p. 488. [Online version, https://www.jstor.org/stable/845555?read-now=1&seq=23#page_scan_tab_contents, JSTOR, January 06, 2024.]
[15] Pew Research Center for the People & the Press. “Civil War at 150: Still Relevant, Still Divisive.” Pew Research Center – U.S. Politics & Policy. 8 April 2011. [Online version, http://www.pewresearch.org/politics/2011/04/08/civil-war-at-150-still-relevant-still-divisive, January 06, 2024.]
