Dred Scott revisited.

• Author: Jaffa, Harry V.

I.

It has been many years since I first wrote that the American Revolution was, at once, an event in time and an idea out of time. (1) Lincoln meant no less when he wrote that Jefferson enshrined in the Declaration of Independence "an abstract truth, applicable to all men and all times." (2) It was a commonplace among the Founders (and Lincoln) that the American experiment in self-government was not for Americans alone, but for all mankind. (3) This was not merely an expression of national pride. It was a sober judgment. It was almost as impossible then, as it is now, to imagine circumstances more favorable to the success of this experiment than those that existed at the Founding. It was, and is, hard to imagine this experiment succeeding elsewhere if it failed here. The Civil War clearly was a test, as Lincoln said at Gettysburg, of whether any nation "conceived in Liberty, and dedicated to the proposition that all men are created equal" could long endure. (4) The test came when eleven states "seceded" following the election of Abraham Lincoln in 1860. The Republican platform in that year contained a pledge to end any further extension of slavery into the new territories from which new states might be formed. (5) The seceding states found it intolerable that all new states would be free states, so that eventually three-fourths of the states might be able to abolish slavery by constitutional amendment, without the consent of the slave states. As Lincoln put it in his first inaugural, "One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended. This is the only substantial dispute." (6)

Lincoln believed that the Constitution established a regime within which such disputes might be resolved peacefully. The states, in ratifying the Constitution, bound themselves to accept the results of elections held according to the rules of the Constitution. To set aside the results of an election because of dissatisfaction with those results, as the secessionists proposed, would make a mockery of the very idea of government by elections. It would leave tyranny or anarchy as the only alternatives. Lincoln set out this argument--ballots or bullets--with mathematical simplicity and clarity. He conceded, however, that if any constitutional rights or privileges had been denied to the discontented states in the elections, or if there was any future threat by the Republicans to such rights or privileges, the states' withdrawal from the Union might be justified. (7) Lincoln took the greatest pains to deny that any such rights or privileges had been denied or threatened. He could not, however, deny their differences concerning slavery. Nor did he deny that a difference on this subject could turn friends into enemies and make a common citizenship impossible. (8)

In all his speeches, from Peoria in 1854, (9) to Cooper Union in 1860, (10) and finally to Gettysburg in 1863, (11) Lincoln insisted that the central idea of the Founding, from which all its minor thoughts radiated, was the proposition that all men are created equal. The slavery that existed in the Founding generation was an inherited evil that could not be eradicated instantly, but it was, in accordance with the principles of the Declaration, to be "put in course of ultimate extinction." (12) All the legal rights of white men depended finally upon the recognition of a common human nature. The Declaration itself was addressed to a "candid world," (13) which included all races and nations. There could be no such thing as equal rights of slavery and freedom. Property in human beings could not be compared indifferently to property in non-human chattels. To make chattels of other human beings was a violation of the laws of nature, and this nation was founded upon "the Laws of Nature and of Nature's God." (14)

To justify their claim to the same rights in the territories as in the free states, leading Southerners transformed the assertion of equality of the rights of individual human beings into a claim of equality of rights of the states. They contended that the federal government could not discriminate between the property of settlers from free states and settlers from slave states, since the territories were the joint property of all the states. This argument was elaborated by John C. Calhoun. (15) To make it, he had to deny any authority to the Declaration's proposition of equality. This "hypothetical truism," he said, was "the most false and dangerous of all political errors." (16) For the Slave South, Calhoun became a prophet of unrivalled authority. His argument suffered, however, because it was based upon a candid rejection of the Founders, who were still revered in the antebellum South. Jefferson he regarded as a fanatic. (17)

To turn the Founders against the Founding, to expunge the authority of the idea of the equality of the rights of individual human persons, was the task to which Chief Justice Roger Taney set himself in Dred Scott 150 years ago. To accomplish this task Taney did not merely have to ignore the generally accepted historical view of the Founding, accepted even by Calhoun; he actually had to reverse the facts in the case. Here is how he did it:

It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted.... 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, either in social or political relations; 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.... This opinion was at that time fixed and universal in the civilized portion of the white race. (18) Taney was a firm advocate of what is known now as a jurisprudence of original intent. According to this view, the words of the Constitution are always to be interpreted as they were understood by those who framed and ratified them. No change in how those words might come to be understood at any later period authorizes a departure from that original meaning. Only an amendment to the Constitution by the authority that made the Constitution can authorize an emendation in that original understanding. (19) Taney's approach in Dred Scott, however, was counterfeit originalism. He placed this perfectly sound jurisprudential doctrine in the service of an incredible misrepresentation of the Founding ideals shared by those who framed and adopted the Declaration of Independence and the Constitution.

It is true that blacks at the time of the Founding were regarded in some generalized sense as inferior. This remained true throughout the nineteenth century and beyond. But such alleged inequality of blacks and whites was not necessarily regarded as greater than that ordinarily seen among whites. Jefferson, for example, once observed that although Sir Isaac Newton may have been the most intelligent man in the world, this gave him no dominion over Jefferson's person or his property. (20) The inequality within species must be distinguished from the inequality of species. There is no inequality within the human species such as that between man and beast, or between man and God. Unequal abilities among human persons, regardless of color, nationality, or gender, do not determine what the rights or privileges of said persons ought to be. (21)

When Taney says that blacks during the Founding era were regarded as inferior, he is not exaggerating. But when he says that they were regarded as having "no rights which the white man was bound to respect"--as if they were animals of a different species--he is simply wrong. Historian Don Fehrenbacher has pointed out that a free black man in late eighteenth century America had, in some respects, more legal rights than a married white woman. (22) Free blacks could marry, inherit and bequeath property, buy and sell, sue and be sued. (23) Nor is it true that they could "justly and lawfully be reduced to slavery." (24) In fact, there was never a time or place at which a free black in America could be lawfully reduced to slavery. A free black man, like a free white man, could be deprived of his liberty only when he had been duly convicted of a crime. (25)

Taney invented a proslavery Founding and a proslavery jurisprudence of original intent. After quoting in full the passage in the Declaration beginning, "We hold these truths to be self-evident," he comments:

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; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. (26) Taney's assertion that the words of the Declaration "seem to embrace the whole human family" is remarkable, and it becomes even more remarkable when joined with the further assertion that these same words would be so understood "today," that is, in 1857. Taney assumes without question that he knows that the so-called African race belongs to the "human family." But he implies that those who wrote the Declaration in 1776, and those who subsequently framed and adopted the Constitution, did not know this...