Was the Dred Scott Decision Morally Wrong but Still Legally Correct?

Dred Scott has too long been considered the disreputable old maid of American constitutionalism. As in the card game, the party to a constitutional debate that gets stuck with the Dred Scott card loses. Proponents and opponents of such controversial decisions of Roe v. Wade repeatedly insist that their rivals are relying on the same principles of constitutional interpretation that Chief Justice Roger Taney used when he concluded in 1857 that slaveholders had a constitutional right to bring their human chattel into the territories and that former slaves could not become American citizens. Historicists who insist that judicial opinions rely exclusively on the original meaning of constitutional provisions and past legal precedents argue that the Taney opinion demonstrates the evils that result when constitutional authorities fail to be tethered to the constitutional understandings of 1787 or subsequent judicial decisions. Aspirational theorists who demand that constitutional provisions be interpreted in light of their broader animating principles, maintain that the Taney opinion demonstrates the evils that result when constitutional authorities are too tethered to precedent or the original meaning of the constitution.

These efforts to pin responsibility for Dred Scott on contemporary practitioners of a particular method of constitutional interpretation are fruitless and counterproductive. Most judicial opinions rely on many constitutional logics. Taney’s analysis was no exception. His arguments were hardly airtight, but the proslavery and racist holdings of that case were as consistent with the constitution of 1857 as contrary claims set out in the Dred Scott dissents. Scholars who condemn Taney’s opinion on craft grounds without being familiar with the jurisprudential and political context in which that opinion was issued do little more than score cheap debating points at the expense of gaining a better understanding of antebellum American constitutional politics.

The crucial issue in Dred Scott was whether the due process clause of the Fifth Amendment gave persons a right to bring slaves into the territories. Contemporary scholars scoff at this right, insisting that Congress has the power to ban persons from bringing any form of property into the territories. What is clear to present commentators was not clear before the Civil War. Antislavery Republicans declared that the due process clause protected the property rights of white settlers moving westward. "[T]he slaveholder [would have] the same [political] right to take his negroes to Kansas that a freeman has to take his hogs or his horses," Abraham Lincoln informed his fellow citizens, "if negroes were property in the same sense that hogs and horses are." As Lincoln’s statement indicates, the main bone of contention between Taney and most antebellum northerners was whether the generally understood right to bring property into the territories entailed a right to bring human property into the territories. Once the issue is so defined, the holding in Dred Scott seems reasonable. As the Chief Justice stated, “no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description.” If, as Lincoln believed, the constitutional law of property entitled northerners to bring their farm animals into the territories, that a good (though not compelling) case can be made that the same constitutional law of property entitled southerners to bring their farmhands into the territories.

The carnard that Dred Scott caused the Civil War similarly fails to stand up to historical analysis. The Taney Court decision had no effect on Democratic Party strength or unity. If anything, that decision benefitted the last remaining party of sectional accommodation. The increased Democratic vote totals in every northern election held during the spring and summer of 1857 suggests that the decision enabled northern Jacksonians to unite on a platform of deferring to the Supreme Court. President James Buchanan’s decision in the fall of 1857 to fight for the pro-slavery Lecompton Constitution in Kansas was the event responsible for the destruction of the Democratic Party. No evidence exists that Dred Scott influenced that decision.

Contemporary Americans should not be surprised that competent justices in 1857 could interpret the Constitution of the United States as granting a right to bring slaves into territories and prohibiting former slaves from becoming American citizens. Dred Scott was constitutionally permissible because American popular majorities supported racist practices, the framers in 1787 provided some degree of protection for that racist institution, many framers had racist aspirations, and proponents of slavery had established additional precedents supporting their practice during the years between ratification and the Civil War. What is wrong with Dred Scott is what is wrong with slavery and racism, and not what is wrong with any contemporary theory of constitutional interpretation.

The first lesson of Dred Scott is that the Constitution cannot make Americans better than we are. Constitutional law is structurally incapable of yielding consensually just or consensually right answers to enduring constitutional controversies. The preconditions of political struggle practically guarantee that when constitutional controversies have excited a society for any period of time, historicists will find particular framers or past judicial precedents that support their policy prescriptions, aspirationalists will find political traditions indicating that their cherished values are also fundamental constitutional principles, and institutionalists will find evidence that favorable judicial review satisfies basic democratic standards. Demands that proponents of a particular policy place more weight on a particular constitutional logic will usually change only the balance of citations in legal arguments, not the general policy prescriptions. Antebellum controversies were particularly fierce because persons mining for traditions in a society historically ambivalent about human bondage naturally found rich lodes of proslavery and antislavery ore.

The second lesson of Dred Scott is that constitutional controversies are resolved only when one side persuades or eliminates the other. The Constitution of 1787 was neither proslavery nor antislsavery. Rather, the framers sought to structure politics in such a way as to prevent conflicts over slavery from disrupting national union. They failed. The consequence of that failure was secession, Civil War, and Lincoln’s “new birth of freedom.” Americans had that new birth of freedom, however, not because a commitment to racial equality was immanent in the original Constitution, but because a series of battlefield accidents enabled proponents of a more egalitarian policy to slaughter the proponents of greater racial inequality.