Presentation Marks Dred Scott’s 150th Anniversary


“Why Did Justice Fail Dred Scott?” was the subject of a Federalist Society-sponsored presentation at the law school on September 18th, given by Notre Dame professor Michael Zuckert in honor of the 150th anniversary of the decision in Dred Scott v. Sandford.

Zuckert, a political science professor, has published works in political philosophy, American constitutional law and theory, and American political thought. In order to understand the Dred Scott decision, Zuckert said it was important to understand the political climate of the times.

The Missouri Compromise, according to Zuckert, had been replaced by the Kansas-Nebraska Act. Congress would no longer be the ones to decide if slavery could come in to the new territories because the Kansas-Nebraska act allowed local governments to decide. The act was designed to diffuse tension by leaving the decision to the states, but in reality it made the conflict more intense.

By time the Dred Scott decision had come down, there were four dominant views on slavery. The first emphasized “squatter sovereignty” and the rights of each new territory to decide the slavery issue for itself. The second view wanted to restore the Missouri Compromise and extend the line between slave and free states further west. The third view held that there could be no slavery in any of the new territories, and the fourth view held that there could be slavery in all of them.

“In the Dred Scott decision, the court said three out of the four positions were unconstitutional,” Zuckert said. “The Court ruled that Congress did not have power to prohibit slavery in the territories, and descendants of slaves were not and could never be citizens.”

According to Zuckert, much of the treatment the Dred Scott decision has received in recent years has been polarized in two different views. One view paints the decision as a racist and bold move by the court to make a power grab when it could have attempted a compromise. The other view, proposed by author Mark Raber, views the Dred Scott as a correctly-decided ruling according to constitutional law at the time, or at least as plausibly correct as the position of the dissenters.

However, Zuckert said that neither of these viewpoints tells the full story because “they don’t capture accurately the place of slavery in the original constitutional order in the first chapter.”

“The existence with slavery was accepted but not endorsed,” Zuckert said. “The Constitution does not specifically accept slavery, and it is not a pro-slavery compact, but states with slavery were considered suitable partners for the new federation.”

While states were free to have slavery as a part of their internal order at the time of drafting, Zuckert said that the framers emphasized it was institutionalized only under state law. There was not a constitutional endorsement for slavery, but the Constitution accepts it as a fact and makes accommodations for the institution. However, there was something illegitimate about it in the eyes of the drafters of the text since they were hesitant to use the name of the practice and were quick to label it as a state’s matter. This led to a tension within the Constitution itself.

“At the time of the Dred Scott decision, slavery was legal but not legitimate. It was legal in member states and where it spilled over border of member states, but not legitimate because the theories expressed in Declaration of Independence were incompatible. In this sense, we had an incomplete constitution.”

In Zuckert’s view, the Dred Scott decision displayed the political system’s attempt to “work itself pure” when the Supreme Court dealt with the fault line between legitimacy and legality. In the end, seven justices preferred to make legitimacy adhere with legality.

“[Chief Justice Roger] Taney’s doctrine of natural political right was based on state sovereignty.” Zuckert said. Under this theory, the Constitution “embodies state sovereignty and recognizes it as legitimate. The Union was a joint venture of equal states. To prohibit slavery in the territories would mean the federal government was taking sides between sovereigns, and that would deny the benefits of the territories to the slave states in the union but not to all states. Therefore, the Missouri Compromise was unconstitutional.”

Justice Taney went on to settle the issue of black citizenship under the privileges and immunities clause of Article IV. If Dred Scott could sue in federal court, under the privileges and immunities clause, he would be due citizenship in other states. That might mean that southern slave states would be obliged to grant him the rights of citizens, which would be disruptive of the slave system. According to Zuckert, Taney considered that option “unthinkable.”

Only Justice McLean dissented and preferred to do the reverse and make legality echo legitimacy. McLean based its reasoning on a powerful affirmation of natural rights and natural equality stating that a slave “is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.”

Justice Curtis was the only justice who said the Missouri Compromise was constitutional, thereby attempting to maintain the tension between legality and legitimacy that had existed since the Constitution’s inception. Ultimately, the tension concerning slavery’s place in the United States would not finally be resolved until the Civil War.

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