Overcoming Dred: a counterfactual analysis.

AuthorWeinberg, Louise
  1. INTRODUCTION

    Could anything have been done about Dred Scott (1) in its own day, in a Supreme Court remade by Abraham Lincoln? That is, was Dred Scott vulnerable to overrule, even in its own day, even in advance of the Thirteenth and Fourteenth Amendments? Would the power of then-existing constitutional theory have been sufficient to support overcoming Dred? If the answer is yes, we would have the key to the essential wrongness of Dred Scott, quite apart from the usual critiques of Chief Justice Roger Taney's opinion.

    Analysis of this question is best performed in a counterfactual setting. By stripping away the aftermath of the election of 1860, the South's secession and the Civil War, and by examining a Lincoln Supreme Court's likely options as rationally perceivable by voters in 1860, we can isolate for consideration the constitutional vulnerabilities of Dred Scott in the context of the national predicament at the time. We can examine the Court's plausible alternatives, with some freedom from involuntary anachronism and presentism.

    We can reasonably assume that voters in 1860 were anticipating that the South would abide the election and accept Lincoln's presidency, in the ordinary peaceable way the Constitution provides that Americans undergo a transfer of power. Voters would anticipate that the South, through the Democratic Party, would retain effective control of the Senate after the election, as, in fact, it did. Nobody in 1860 could have predicted the Confiscation Acts of 1861 and 1862, (2) the Emancipation Proclamation of 1863, (3) or the Thirteenth Amendment of 1865. (4) So we can clear all these events from our thinking and conduct our inquiry as if they never occurred. In order to focus more precisely on overruling Dred Scott, we will eliminate related possibilities, such as the possibility of the Court's sustaining an act of Congress providing for a compensated emancipation. Still, we could not advance the inquiry if we took the Court as it was in 1860. The "Chase Court," a ten-Justice Court with its full complement of five Lincoln appointees, was complete only in 1864, and lacked a Lincoln-appointed majority. Let us hypothesize, then, for purposes of this analysis, a Chase Court with a majority comprised of Lincoln appointees, coming into being early in the 1860s, and prepared to overrule Dred Scott at the earliest opportunity.

    What can we gain from setting up this wholly counterfactual inquiry, apart from the sheer intellectual fun of it? I have said that with this inquiry we will be able to identify and articulate the essential constitutional critique of Dred Scott, uncovering, among Dred Scott's manifold wrongnesses, its core constitutional infirmity. More specifically, we will also discover the true ground on which to assess the constitutionality of the Missouri Compromise, struck down in Dred Scott--and indeed, all of the old territorial "compromise" statutes. We will find that Dred Scott was constitutionally infirm within the constitutional understandings of its own time and therefore might have been overruled then. The Court arguably could have done this even if an overruling of Dred Scott would have been greeted with the kind of disregard we have come to associate with the modern school prayer cases, or with Worcester v. Georgia. (5) We will also begin to see why the necessary analysis was not evoked, not considered, not developed, not argued at the time, even by counsel in Dred Scott, even by Dred Scott's dissenting Justices. But we shall also see very good reasons for the silence of that generation. Among the surprises our exploration has in store for us, we will come to see, along with the benefits of overruling Dred Scott, the very real difficulties that stood in the way at the time, and the ironies that would have accompanied any such overruling.

  2. THE POLITICAL SIGNIFICANCE OF DRED SCOTT

    It is not always understood to what extent Dred Scott was at the heart of the election of 1860 and the crisis that followed. In a recent symposium on Dred Scott, I argued the centrality of the case to those events. (6) In making that claim I did not mean to be understood as saying that Dred Scott was the only issue in the election of Abraham Lincoln, or, as is often said, that Dred Scott caused the Civil War. But it was a central issue in the election, and at the eye of the sectional storm as the War came on.

    I need only recount the main lines of that argument here. In the 1850s, the sectional conflict over slavery (7) was coming to a head. With the Kansas-Nebraska Act of 1854, Congress opened the West to slavery, for the first time providing the option of slavery to all territories, North as well as South of the old Missouri Compromise line. (8) The status of the Western territories--slave or free--would thenceforth be determined by vote of the people of those territories. This was the beguiling theory of so-called "popular sovereignty." But in the wake of the Kansas-Nebraska Act, "Bleeding Kansas" became the stage of a veritable rehearsal for the Civil War. And the Whig party, the party of compromise, collapsed with the North-South (9) coalition that had sustained it. On both sides, increasing anger and extremism in politics was exceeded only by the anger and extremism of the press.

    Historians generally agree that this conflict was not about slavery simply, or about slavery in the South, but about slavery in the territories. It is also understood that the dispute was not about competing labor systems for the territories, but rather was a scramble for territory itself. Moreover, the scramble for territory was not a struggle for land, but rather for national political power. (10) In my earlier paper I traced the economic, political, and social roots of this power struggle.

    In 1857, in Dred Scott, through a reactionary blunder of monstrous proportions, the Taney Court attempted to put an end to the conflict by coming down squarely on one side, endowing slave-owners with a fundamental constitutional right of property in their slaves. The Court held that Congress could not establish free territory, since to do so would destroy the property rights of slave-owners traveling or settling there.

    Chief Justice Taney found these substantive property rights in the Due Process Clause of the Fifth Amendment. (11) This sacralization of slave property, depending as it did on the Constitution, necessarily stripped Congress of authority to reach a fresh political compromise of the issue tearing the country apart. With Dred Scott, Congress lost its power of abolition. Yet the Union had been able to survive until then largely because Congress could prohibit slavery in some territories as the price of permitting slavery in others. James Madison thought that no blame should attach to Congress in seeking to avoid disunion by this means. (12) This sort of compromise had characterized the whole course of legislation governing the territories from which new states would be added to the Union. This was the bargain struck over and over, from the Northwest Ordinance of 1787, (13) and the Missouri Compromise of 1820, (14) through the Compromise of 1850, (15) to the Kansas-Nebraska Act of 1854. (16) In declaring the Missouri Compromise unconstitutional, (17) however, Dred Scott, in effect, rendered all these old compromises unconstitutional. Congress could only permit slavery, never prohibit it. (18) With an obtuseness that still baffles the reader, the Dred Scott Court thought to pacify the South by denying Congress power to pacify the rest of the country. The Court imagined it could contain the conflict by denying Congress the power to contain it.

    Let me pause briefly to acknowledge that a purist reader might characterize the Court's ruling on the limits of the power of Congress under the Fifth Amendment as mere obiter dictum, casually offered only in passing. (19) In this view, Dred Scott simply held that there could be no federal diversity jurisdiction in the case, Scott being black, and therefore, according to Chief Justice Taney, incapable of citizenship. But to suppose that Dred Scott was about jurisdiction would be about as helpful as supposing that Marbury v. Madison was about jurisdiction. (20) The issue roiling the country, which the Court had undertaken to settle, was not about the availability of federal courts to black persons, but was about the extension of slavery into the remaining territories of the United States.

    Of course, Dred Scott was deeply satisfying to Southerners. After Dred Scott, neither Congress nor its delegate, a territorial legislature, could constitutionally prohibit slavery in the particular territory. (21) And, just as the Fifth Amendment protected slave property from deprivation by Congress, it might even protect slave property from deprivation by a state, notwithstanding the Fifth Amendment's inapplicability to the states. The original thirteen colonies came into being as "states" when the nation did, in 1776. But the newer states were creatures of Congress, as were the territories from which they emerged, and thus might be held to be Congress's delegates too. Abraham Lincoln feared that with just one more case the Court would strip the states of power to abolish slavery within their own borders. (22) True, this last possibility was unlikely. The states created by Congress generally were assumed, under the applicable statutes, to enjoy "equal footing" with the original thirteen states, (23) and therefore to have the same power to opt for or against slavery, once statehood was achieved, as the original thirteen possessed. And the Fifth Amendment, as interpreted in Dred Scott, would obviously protect slave property from deprivation by Congress in a state as well as in a territory, whether that state were one of the original thirteen or not.

    The trouble, to Southern leaders, was that Dred Scott appeared to be threatened. Not by constitutional amendment--the South was protected...

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