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“A House Divided”: Slavery and Race in the Late 1850s

I

TWO DAYS AFTER the inauguration of James Buchanan in March 1857, the Supreme Court handed down one of the most infamous decisions in its history. During the 1830s, Dred Scott, a slave of Dr. John Emerson of Missouri, resided with his owner in Illinois, where state law prohibited slavery, and the Wisconsin territory, from which it had been barred by the Missouri Compromise. He married another slave, Harriet Scott, and in 1846, after returning to Missouri, the Scott family, by now consisting of husband, wife, and two daughters, went to court claiming that residence on free soil had made them free. In time, the case made its way to the Supreme Court. Chief Justice Roger B. Taney, supported by six other members of the court, concluded that the Scotts must remain slaves. No black person, Taney declared, could be a citizen of the United States and thus the Scotts had no standing to sue in court. The case could have ended there. Taney, however, went on to argue that because the Constitution “distinctly and expressly affirmed” the right to property in slaves, slaveholders could bring them into the federal territories. The Missouri Compromise—repealed three years earlier by the Kansas-Nebraska Act—had therefore been unconstitutional. Only once before, in the landmark case of Marbury v. Madison, which established the principle of judicial review, had the Court invalidated an act of Congress on constitutional grounds. John McLean of Ohio and Benjamin R. Curtis of Massachusetts dissented; Curtis was so outraged by the decision that he resigned from the bench.

Much of Taney’s opinion consisted of a historical discussion purporting to demonstrate that the founding fathers had not recognized black persons as part of the American people. The framers of the Constitution, he insisted, regarded blacks, free and slave, 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.” (This statement, Thaddeus Stevens later remarked, “damned [Taney] to everlasting fame; and, I fear, to everlasting fire.”) States could make free blacks citizens if they wished, but this did not require the federal government or other states to recognize them as such. No state could unilaterally “introduce a new member into the political community created by the Constitution”—a community, according to Taney, limited to white persons.1

“The most important decision ever made by the Supreme Court,” as the New York Times described it, Dred Scott was the work of a chief justice who belonged to a long-established planter family in Maryland. Taney had manumitted his own slaves in the 1820s but strongly believed in black inferiority. He seems to have thought that the Court could restore sectional harmony by resolving the slavery controversy. The decision had precisely the opposite effect. As a Georgia newspaper exulted, it “covers every question regarding slavery and settles it in favor of the South.”2 Taney had declared unconstitutional the platform of the nation’s second largest political party. His ruling also seemed to undercut Stephen A. Douglas’s popular sovereignty doctrine, for if Congress lacked the authority to deprive slaveholders of their constitutionally guaranteed right to bring slaves into a territory, how could a territorial legislature created by Congress do so?

Until after the Civil War, there existed no commonly agreed understanding of citizenship or of the rights it entailed. People derived different kinds of rights from different levels of citizenship: local, state, and national. The Constitution mentioned but did not enumerate the “privileges and immunities” of citizens. Although popular usage identified citizenship with voting, legal doctrine did not (in some states, immigrants could vote before becoming citizens, and everywhere, white women were citizens but could not vote). The Court’s denial of black citizenship did not lack for legal precedents. Before