McGinty Brian. Lincoln and the Court

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not be citizens under the Constitution for, when the great charter was framed,

the Founding Fathers did not intend to include them in the group denomi-

nated the “people of the United States”; nor did they intend to include

them in the Declaration of Independence’s soaring assertion that “all men are

created equal.” When the Declaration was signed and the Constitution was

adopted, the chief justice said, persons of African descent were “considered as a

subordinate and inferior class of beings, who had been subjugated by the domi-

nant race, and, whether emancipated or not, yet remained subject to their au-

thority.” In fact, he said, Africans were then deemed “so far inferior that they

had no rights which the white man was bound to respect.”

Thus an African

person, free or slave, could not maintain a suit in a federal court, and the cir-

cuit court in St. Louis was in error when it declined to dismiss Dred Scott’s suit

for want of jurisdiction.

Taney then proceeded to discuss the Missouri Compromise and its restric-

tion on slavery north of 36° 30´. In a narrowly cramped reading of the Terri-

tories Clause, he said that the power given to Congress “to dispose of and make

all needful rules and regulations respecting territory or other property belong-

ing to the United States” referred only to “the territory which at that time be-

longed to, or was claimed by, the United States.” Thus it applied only to the

old Northwest Territory which, by 1857, had all been subdivided into self-gov-

erning states. He admitted that Congress had power, under Article IV, Section

3, to admit new states into the Union, and that, by implication from this

power, it also had power to provide the initial government for a territory before

it was admitted as a state. But if Congress actually governed a territory (or es-

tablished rules under which the territory would be governed), he said, it would

be maintaining “colonies bordering on the United States or at a distance to be

ruled and governed at its own pleasure.” Since Congress had no power to gov-

ern a territory, it had no power to exclude slavery from a territory. Further,

Congress could not violate constitutional provisions guaranteeing personal

rights, and one such provision was the Due Process Clause of the Fifth Amend-

ment, which provides (in relevant part): “No person shall be...deprived of

life, liberty, or property, without due process of law.” Taney said that slaves were

a form of property protected by the Fifth Amendment wherever their owner

might take them.

Thus the provision of the Missouri Compromise that re-

stricted slavery in the western territories was unconstitutional and void.

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Justice Samuel Nelson of New York followed the chief justice, reading an

opinion that concurred with Taney’s result but offered a different rationale. In

Nelson’s opinion, the status of Dred Scott and his family was to be determined

solely by the state of Missouri and solely under Missouri law. Nelson agreed

that Congress had no power to prohibit slavery in any federal territory. But

even if it did, he argued, a prohibition could not be given extraterritorial effect

in a slaveholding state, for if Congress had the power to prohibit slavery in a ter-

ritory, it would also have the power to establish slavery in a territory. Giving ex-

traterritorial effect to a congressional enactment establishing slavery would re-

quire that an African who became a slave in a territory would have to be

regarded as a slave in a free state.

Such a result would be absurd, Nelson said,

and could not be tolerated in any free state.

Justice John Catron was next to read his opinion, which also concurred

with the chief justice’s result but stated different reasons. The Tennessean

agreed that the Missouri Compromise provision restricting slavery was uncon-

stitutional, but not because Congress lacked the power to govern the territo-

ries. In the exercise of his circuit court duties, Catron had for nearly twenty

years been exercising jurisdiction from the western Missouri line to the Rocky

Mountains (in some cases even imposing the death penalty) under the author-

ity of legislation enacted by Congress. He thought it was “asking much” of a

judge who had done this “to agree that he had been all the while acting in mis-

take, and as an usurper.” But Catron maintained that the Missouri Compro-

mise restriction on slavery violated the treaty with France under which the

United States had acquired the Louisiana Territory. In that treaty, the United

States agreed to protect the inhabitants of the territory “in the free enjoyment

of their liberty, property, and the religion which they profess.” Since the right

to own slaves was guaranteed in French Louisiana, Catron said, Congress could

not prohibit slavery in any part of that territory.

On March 7, Justice John McLean and Justice Benjamin R. Curtis read

their opinions, both of which dissented from Taney’s. They vigorously disputed

the chief justice’s analysis of African American citizenship, insisting that there

was no consensus among the founders that persons of African descent were

disqualiﬁed from citizenship. In some states, free Africans were permitted to

vote, to own property, and even to hold public ofﬁce. It was a misreading of

American history to conclude that they never had any rights under the Consti-

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tution. It has often been speculated that McLean’s and Curtis’s opinions were

prepared before Taney prepared his, and that the chief justice was provoked

into a discussion of the territorial question by the knowledge that McLean and

Curtis would discuss that question in their opinions. The evidence on this

question is not persuasive, however. McLean and Curtis were ﬁrm in their con-

victions that persons of African descent could be citizens under the Diversity

Clause and that Congress had ample authority to deal with the question of

slavery in the territories under the Territories Clause, and they were deter-

mined to state their views. And Roger Taney was ﬁrm in his contrary convic-

tions, and equally determined to state them.

McLean’s opposition to slavery was known throughout the country long

before 1857. Benjamin Curtis’s, in contrast, was not. A Whig from Massachu-

setts, Curtis had joined the Supreme Court in 1851 as an appointee of Presi-

dent Millard Fillmore. He was one of Boston’s most respected lawyers, a gradu-

ate of Harvard College who had commenced his law studies under the revered

Justice Joseph Story at Harvard Law School and had steadily built a reputa-

tion as a clear and forceful advocate. Conservative by nature and political in-

clination, he was a supporter of Daniel Webster (it was Webster who recom-

mended that Fillmore nominate him to the Supreme Court) and a staunch

defender of the Fugitive Slave Act, which he believed necessary to mollify the

slaveholding states and maintain their loyalty to the Union. In 1836, in a case

argued before the Supreme Judicial Court of Massachusetts, he had defended

the right of a slaveholder to bring a slave into Massachusetts and then take the

slave back home against his will. Though his argument in that case was not

successful, it won Curtis the admiration of many New England lawyers, among

them Webster.

Curtis began his dissent by citing an opinion of the great Chief Justice

John Marshall to the effect that “a citizen of the United States, residing in any

state of the union, is a citizen of that state.” Since it was admitted that Dred

Scott was a resident of Missouri, Curtis argued that Missouri’s law could not de-

prive him of his rights under the Constitution’s Diversity Clause. The only

question was whether he was ineligible for United States citizenship simply be-

cause he was of African descent. Curtis argued that United States citizenship

antedated the adoption of the Constitution. The Constitution itself proved

this, for in prescribing the qualiﬁcations of the president, Article II, Section 1,

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states that “no person except a natural born citizen, or a citizen of the United

States, at the time of the adoption of this Constitution, shall be eligible to the ofﬁce

of President.” Further, ﬁve states under the Articles of Confederation had rec-

ognized free Africans as citizens, and since the Constitution did not attempt to

deﬁne citizenship, it did nothing to change the preexisting rule.

Thus, Curtis

argued, Dred Scott had a right to ﬁle his suit in the federal court in St. Louis,

and Judge Wells was correct in refusing to dismiss it.

Curtis also addressed the territories question, but merely for the purpose of

demonstrating the error in Taney’s opinion. Since the chief justice had decided

that Dred Scott’s African ancestry disqualiﬁed him from bringing suit, and that

Judge Wells should have dismissed his suit for want of jurisdiction, the chief

justice was wrong to inquire further into the merits of the case—wrong, most

especially, in declaring the Missouri Compromise unconstitutional. Curtis did

not “consider it to be within the scope of the judicial power of the majority of

the court to pass upon any question respecting the plaintiff’s citizenship in

Missouri, save that raised by the plea to the jurisdiction.” Further, Curtis said

he did not “hold any opinion of this Court, or any court, binding, when ex-

pressed on a question not legitimately before it....Thejudgment of this court

is, that the case is to be dismissed for want of jurisdiction, because the plaintiff

was not a citizen of Missouri. . . . Into that judgment, according to the settled

course of this Court, nothing appearing after a plea to the merits can enter. A

great question of constitutional law, deeply affecting the peace and welfare of

the country, is not, in my opinion, a ﬁt subject to be thus reached.” But since

Curtis believed that the circuit court did have jurisdiction of the case, he pro-

ceeded to discuss the judgment on the merits, arguing that Congress’s power

to legislate respecting the federal territories was fully and fairly expressed in

the Territories Clause. In fact, Congress had passed legislation regulating terri-

torial governments fourteen times since the Constitution came into force in

1789, and the legislation had been signed by seven presidents, beginning with

George Washington himself. This “practical construction of the Constitution

...bymenintimately acquainted with its history” should, in Curtis’s view, be

entitled to “weight in the judicial mind.”

If Taney was willing to concede that

Congress had implied power to provide temporary government for a territory be-

fore it became a state (even in the absence of any provision in the Constitution

to that effect), why was he unwilling to concede that Congress had the express

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power to provide government for a territory up to the time of its admission

to the Union, when the Constitution contained an explicit provision to that

effect?

The other justices—Wayne of Georgia, Grier of Pennsylvania, Daniel of

Virginia, and Campbell of Alabama—ﬁled their decisions with the clerk of the

Supreme Court without reading them. All agreed with Taney’s holding that

Dred Scott was still a slave, but each expressed his own reasons for reaching

that conclusion. There were so many opinions and so many reasons that ob-

servers expressed bewilderment as to what exactly the court had decided. Not

surprisingly, however, most of the attention focused on Taney’s “opinion of the

Court” and Curtis’s thirty-ﬁve-page dissent, which seemed to controvert the

chief justice on almost every important point in the case.

after all the opinions had been read, McLean and Curtis released their

written opinions to the press. Taney, however, refused to release his. He said

that he wanted to revise it. He had been outraged by some of the statements

made by Curtis, and he thought McLean’s and Curtis’s eagerness to spread their

views before the public indicated a desire to embarrass him. The conclusion is

almost inevitable, too, that Taney recognized weaknesses in his arguments and

thought (or at least hoped) that if he continued to work on his opinion he

might make it more convincing. At the end of March, McLean wrote Mont-

gomery Blair to ask about rumors that Taney’s opinion had been “modiﬁed.”

“This, it appears to me, to be unusual, if not improper,” McLean said.

When

the rumors reached Curtis (by that time back in Boston), he wrote the clerk of

the Court asking for a copy of Taney’s opinion. But the chief justice had given

orders that no one be permitted to see the opinion before it was published in

the ofﬁcial reports. Curtis then wrote to Taney to ask if the order included

other members of the Court, and the chief justice replied with a hostile letter

in which he impugned Curtis’s motives and asserted that he had no “right” to

see his opinion. Privately Taney accused Curtis of adopting “the tone of a dem-

agogue.” After another unfriendly exchange of letters, Curtis decided that his

relations with Taney had been so badly damaged that they could no longer

work together, and, in September 1857, he submitted his resignation as an as-

sociate justice. Taney had won the argument—and the Dred Scott case—and

Benjamin Curtis had lost his seat on the highest court in the United States.

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It is not surprising that public reaction to the Dred Scott decision divided

largely (although not entirely) along sectional lines. Horace Greeley’s New

York Tribune led the Northern antislavery voices, condemning the decision as

“entitled to just so much moral weight as would be the judgment of a majority

of those congregated in any Washington bar-room.”

The New York Indepen-

dent described it as a “horrible hand-book of tyranny” that reduced black men

to “an ordinary article of merchandise.”

And the Chicago Tribune branded

it “one of those legal monstrosities which the Judicial tools of tyrants or the

judicial confederates of parties have insanely perpetrated against right and

justice.”

But in the South, the Richmond Enquirer praised the decision as

“deﬁnitive” and “authentic,” and said that, by it, “the nation has achieved a tri-

umph, sectionalism has been rebuked, and abolitionism has been staggered and

stunned.”

The New Orleans Daily Picayune congratulated the Supreme Court

for dealing “a heavy blow to Black Republicanism and its allies.”

And the

Charleston Mercury said that the decision demonstrated that “in its most ex-

treme demand the South contends only for its rights under the Constitution.”

Other voices saw ominous signs in the decision. The New York Times

feared that the doctrine it promulgated would “sink deep into the public heart,

and germinate there as the seed of discontent and contest and disaster hereaf-

ter.”

And the Charleston Mercury doubted that the decision would settle the

deep differences that still separated the North and the South. On the contrary,

the Mercury predicted that it would accelerate “the ﬁnal conﬂict between Slav-

ery and Abolitionism.” “The Abolitionists are not at all abashed or dismayed,”

the paper declared. “They know well enough that the Supreme Court is infalli-

ble only in a technical sense; and that even its decision may be reversed by the

vote of a popular majority.” “The Black Republican party will go into the can-

vass of 1860,” the Mercury continued, “strengthened rather than discredited

and weakened by the adverse judgment of the Supreme Court; and we might as

well prepare for the struggle.”

If the South was not deluded by its “victory” in Dred Scott v. Sandford, the

North was certainly not encouraged by its “loss.” After the ﬁrst ﬂurry of con-

demnations and congratulations, it appeared to many sober observers that the

Supreme Court’s ruling had fundamentally changed the constitutional land-

scape of the country. If, as Chief Justice Taney had ruled, free blacks could

never aspire to citizenship under the U.S. Constitution; if, as Taney had also

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ruled, Congress had no power to exclude slavery from the western territories; if,

as he further ruled, the right to own slaves was a fundamental right, guaranteed

by the Fifth Amendment to the Constitution, slavery had in a strange way be-

come a national institution, protected by the most basic law of the land and no

longer relegated to one section or a handful of states.

politicians began to reﬂect on the consequences of the Dred Scott deci-

sion. In Illinois in 1858, the case became a major topic in the debates between

the incumbent senator Stephen A. Douglas and his Republican challenger,

Abraham Lincoln.

Lincoln had been slow to react to Dred Scott, in part because it included

so many different opinions and was based on so many different rationales that

it was difﬁcult to know exactly what the Court had decided. The more he

thought about the case, however, the more it troubled him. Chief Justice

Taney’s assertion that blacks were not included in the protections of the Con-

stitution or the Declaration of Independence seemed to him particularly offen-

sive, for he believed that the Declaration’s promise of equality for all men was

basic to the ideals of the founders. “In those days, our Declaration of Indepen-

dence was held sacred by all,” he said, “and thought to include all; but now, to

aid in making the bondage of the negro universal and eternal, it is assailed, and

sneered at, and construed, and hawked at, and torn, till, if its framers could rise

from their graves, they could not at all recognize it.”

Douglas, in contrast, was quick to defend Dred Scott, arguing that “this

Government was created on the white basis by white men for white men and

their posterity forever, and should never be administered by any but white

men.”

Blacks, in Douglas’s view, could be a species of property but not citi-

zens. The senator seemed not to realize at the outset that Taney’s decision

threatened popular sovereignty as much as it threatened the Missouri Compro-

mise. If, as Taney argued, Congress had no power to exclude slavery from the

western territories, how could it authorize territorial voters to do that? A “non-

existent power” can hardly be delegated. Yet that in essence is what the Kan-

sas-Nebraska Act purported to do, for by establishing the rule of popular sover-

eignty, Congress was authorizing the voters to make decisions about slavery

that it could not itself make.

On June 26, 1857, Lincoln made his ﬁrst deﬁnitive statement on Dred

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Scott. Speaking in his hometown of Springﬁeld, he expressed his disagreement

with the two basic rules of the case, that Negroes could not be citizens of the

United States and that Congress could not prohibit slavery in the territories,

and he backed up his disagreement with a discussion of the authority that Su-

preme Court decisions ought to command. In good legal fashion, he explained

that judicial decisions “have two uses—ﬁrst to absolutely determine the case

decided, and secondly, to indicate to the public how other similar cases will be

decided, when they arise. For the latter use, they are called ‘precedents’ and

‘authorities.’” He acknowledged that a Supreme Court decision—any Supreme

Court decision—was entitled to “respect.” But the Court’s decisions “should

control, not only the particular cases decided, but the general policy of the

country” only when “fully settled,” and Dred Scott, he said, was not “fully set-

tled.” He reminded his listeners that the Supreme Court had in the past over-

ruled some of its decisions when convinced that they were erroneous (had not

Chief Justice Taney done that very thing when he ruled against Lincoln in the

case of Lewis v. Lewis in 1849?), and he stated Republican intentions to do

what they could to have Dred Scott overruled.

However, until that time ar-

rived, he said, they would offer “no resistance” to it.

In Chicago, on July 10, 1858, Lincoln restated his disagreement with the

Dred Scott decision but again denied any intention of resisting it. “If I wanted

to take Dred Scott from his master, I would be interfering with property....

But I am doing no such thing as that....[A]ll that I am doing is refusing to

obey it as a political rule. If I were in Congress, and a vote should come up on a

question whether slavery should be prohibited in a new territory, in spite of

that Dred Scott decision, I would vote that it should.”

In the Lincoln-Douglas debates of 1858, Lincoln continued to state his op-

position to Dred Scott, while Douglas continued to support it. (Douglas even

went so far as to declare that the decision was “pronounced by the highest judi-

cial tribunal on earth” and that there was no appeal from it “this side of

Heaven.”)

Lincoln made it clear that his opposition to Dred Scott was based

not only on what Chief Justice Taney had actually decided in the controversial

ruling but also on what he (or some other like-minded judge) might decide in a

future case. If in 1857 the Supreme Court had decided that slavery could not

be excluded from a federal territory, the same tribunal might decide in 1858 or

1859 that slavery could not be excluded from a state, even a state that had

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banned slavery from its sovereign territory. “It needs only the formality of a sec-

ond Dred Scott decision,” Lincoln warned, “. . .to make slavery alike lawful in

all the states, old as well as new.”

The 1858 election campaign in Illinois ended with Douglas’s reelection to

the United States Senate and Lincoln’s return to his law practice in Spring-

ﬁeld, believing that he would “now sink out of view” and “be forgotten.”

But

political events were quickly moving beyond the control of men like Lincoln

and Douglas, or judges like Taney and Benjamin Curtis. Kansas was still torn

by bloody ﬁghting between pro- and antislavery factions that were struggling

for control of the territorial government. A farmer-turned-abolitionist named

John Brown was leading a violent crusade against slavery in that territory, tell-

ing his followers that freedom could be won only by the sword. And the Su-

preme Court in Washington was going about its usual business, deciding land

cases, settling commercial disputes, hearing appeals in contract and admiralty

cases—and, inevitably, considering cases that involved the delicate question of

slavery.

On March 7, 1859, Chief Justice Taney handed down the Court’s decision

in Ableman v. Booth, a highly publicized decision that, like Dred Scott, afﬁrmed

the authority of the United States Supreme Court to make deﬁnitive decisions

regarding slavery. In this case, however, Taney was on ﬁrmer ground than he

had been in Dred Scott, and his colleagues on the bench rallied much more

closely around him. The case had arisen out of bitter differences in Wisconsin

(now a state) over the operation of the Fugitive Slave Law of 1850. Sherman

M. Booth was an abolitionist newspaper editor in Milwaukee who had helped a

slave named Joshua Glover escape arrest under the federal law. Glover had

been held in slavery in Missouri by a man named Benjamin Garland. After

Glover escaped, Garland came to Milwaukee to recapture him. The Fugitive

Slave Law was unpopular in Wisconsin, and after Glover was lodged in the

Milwaukee jail, a Wisconsin state judge ordered his release on a writ of habeas

corpus, asserting as his authority for doing so the alleged unconstitutionality of

the Fugitive Slave Law. When the Wisconsin Supreme Court afﬁrmed the state

judge’s order, the federal marshal in Milwaukee, a man named Stephen

Ableman, appealed to the United States Supreme Court. In announcing the

Supreme Court’s unanimous decision in the case, Taney stressed that the recap-

ture of fugitive slaves was a matter that the Constitution entrusted to federal

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law, not to the states, and that Wisconsin could not order the release of a man

held under the authority of federal law. So long as the Constitution endured,

Taney said, the Supreme Court “must exist with it, deciding in the peaceful

forms of judicial proceeding the angry and irritating controversies between sov-

ereignties, which in other countries have been determined by the arbitrament

of force.”

Lincoln delivered his most forceful response to Dred Scott on February 27,

1860. Speaking before a large crowd in New York City’s Cooper Union, he

compared Taney’s contention that Congress had no power to prohibit or re-

strict slavery in the federal territories with the opinions of the signers of the

Constitution on that issue. With persuasive historical detail, he demonstrated

that, of the thirty-nine men who actually signed the Constitution, at least

twenty-three (a clear majority) had explicitly approved of prohibitions or re-

strictions on slavery in the territories, either by votes they cast in Congress or,

in the case of George Washington, by signing an act of Congress approving the

Northwest Ordinance and its prohibition of slavery in the Northwest Terri-

tories.

Lincoln also cited the expressed views of other signers of the Constitu-

tion (among them Benjamin Franklin and Alexander Hamilton) who strongly

condemned slavery. Lincoln’s research did not reveal even one signer who had

ever expressed Taney’s view that Congress had no power to restrict or prohibit

slavery in the territories. Lincoln also attacked Taney’s contention that the

Fifth Amendment protected the right to own slaves, pointing out that the ﬁrst

ten amendments to the Constitution (the Bill of Rights) were approved by

the same Congress that approved the antislavery provisions of the Northwest

Ordinance. It was “impudently absurd,” Lincoln said, to argue that these mea-

sures—the Northwest Ordinance, with its prohibition of slavery in federal ter-

ritories, and the Fifth Amendment, with its guarantee that no person be de-

prived of “property, without due process of law”—were inconsistent with each

other.

Lincoln’s Cooper Union speech was directed as much at Stephen Douglas

as at Roger Taney, for Lincoln now sensed that he had a real chance to be

nominated for president by the Republican Party and a further chance to meet

the “Little Giant” in the presidential election of 1860. He attacked Douglas’s

doctrine of popular sovereignty with as much vigor as he attacked Taney’s

Dred Scott opinion, and on substantially the same grounds. His Cooper Union

Dred Scott

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