Dred Scott

(Dred) Scott v. Sandford (sp), 60 U.S. 393 (1857), was a landmark decision by the U.S. Supreme Court in which the Court held that African Americans, whether enslaved or free, could not be American citizens and therefore had no standing to sue in federal court, and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States. (Isn’t it interesting that the Court has since ruled that one doesn’t even have to be a citizen to have standing to sue in federal court.)

Born around 1800, Scott migrated westward with his master, Peter Blow. They traveled from Scott’s home state of Virginia to Alabama and then, in 1830, to St. Louis, Missouri. Two years later Peter Blow died; Scott was subsequently bought by army surgeon Dr. John Emerson, who later took Scott to the free state of Illinois. In the spring of 1836, after a stay of two and a half years, Emerson moved to a fort in the Wisconsin Territory, taking Scott along. While there, Scott met and married Harriet Robinson, a slave owned by a local justice of the peace. Ownership of Harriet was transferred to Emerson. Scott’s extended stay in Illinois, a free state, gave him the legal standing to make a claim for freedom, as did his extended stay in Wisconsin, where slavery was also prohibited. But Scott never made the claim while living in the free lands – perhaps because he was unaware of his rights at the time, or perhaps because he was content with his master. After two years, the army transferred Emerson to the south: first to St Louis, then to Louisiana.

A little over a year later, a recently-married Emerson summoned his slave couple from Wisconsin. Instead of staying in the free territory of Wisconsin, or going to the free state of Illinois, the two, amazingly, traveled over a thousand miles, apparently unaccompanied, down the Mississippi River to meet their master.

Only after Emerson’s death in 1843, after Emerson’s widow hired Scott out to an army captain, did Scott seek freedom for himself and his wife. First he offered to buy his freedom from Mrs. Emerson – then living in St. Louis – for $300. The offer was refused.

Scott then sought freedom through the courts. Scott went to trial in June of 1847, but lost on a technicality – he couldn’t prove that he and Harriet were owned by Emerson’s widow. Why that didn’t trigger freedom is a mystery. The following year the Missouri Supreme Court decided that that case should be retried. In an 1850 retrial, the St Louis circuit court ruled that Scott and his family were free.

Two years later the Missouri Supreme Court stepped in again, reversing the decision of the lower court. Scott and his lawyers then brought his case to a federal court, the United States Circuit Court in Missouri. In 1854, the Circuit Court upheld the decision of the Missouri Supreme Court.

There was now only one other place to go. Scott appealed his case to the United States Supreme Court. In a 7–2 decision written by Chief Justice Roger B. Taney (pronounced ‘Tawney’) in March 1857, the Court denied Scott’s request.

Democrat President-elect James Buchanan had successfully pressured Associate Justice Robert Cooper Grier, a Northerner, to join the Southern majority in the decision to prevent the appearance that the decision was made along sectional lines. For only the second time in its history the Supreme Court ruled an Act of Congress to be unconstitutional.

Perhaps the most immediate business consequence of the decision was to help trigger an economic crisis. Economists and historians have discovered that uncertainty about whether the entire West would suddenly become either slave territory or engulfed in combat like that in “Bleeding Kansas” immediately gripped the markets. The east/west railroads collapsed immediately (although north/south-running lines were unaffected), causing, in turn, the near-collapse of several large banks and the bank runs that ensued. What followed these runs has been called the “Panic of 1857”.

Opponents of slavery fiercely attacked the Dred Scott decision. The Evening Journal of Albany, New York, combined two themes and denounced the decision as both an offense to the principles of liberty on which the nation was founded, and a victory for slave-states over the free-states:

“The three hundred and forty-seven thousand five hundred and twenty-five Slaveholders in the Republic, accomplished day before yesterday a great success — as shallow men estimate success. They converted the Supreme Court of Law and Equity of the United States of America into a propagandist of human Slavery. Fatal day for a judiciary made reputable throughout the world, and reliable to all in this nation, by the learning and the virtues of Jay, Rutledge, Ellsworth, Marshall and Story (former Chiefs Justices of the Supreme Court)”

Prior to Dred Scott, Democrat Party politicians had sought repeal of the Missouri Compromise of 1820, and were finally successful in 1854 with the passage of the Kansas–Nebraska Act. This act permitted each newly admitted state south of the 40th parallel to decide whether to be a slave state or free state. Now, with Dred Scott, the Supreme Court under Taney sought to permit the unhindered expansion of slavery into all of the territories.

The Dred Scott decision, then, represented a culmination of what many at that time considered a push to expand slavery. Southerners at the time, who had grown uncomfortable with the Kansas-Nebraska Act, argued that they had a right, under the federal constitution, to bring slaves into the territories, regardless of any decision by a territorial legislature on the subject. The Dred Scott decision seemed to endorse that view.

The expansion of the territories and resulting admission of new states would mean a loss of political power for the North, as many of the new states would be admitted as slave states, and counting slaves as three-fifths of a person would add to the slave holding states’ political representation in Congress. This was anathema to the Northern states and became a proximate cause of the Civil War.

Although Taney believed that the decision represented a compromise that would settle the slavery question once and for all by transforming a contested political issue into a matter of settled law, it produced the opposite result. It strengthened Northern slavery opposition, divided the Democrat Party on sectional lines, encouraged secessionist elements among Southern supporters of slavery to make bolder demands, and strengthened the Republican Party. Abraham Lincoln reacted with disgust to the ruling and was spurred into political action, publicly speaking out against it and eventually winning the Republican nomination for President in 1860. (Beware the Law of Unintended Consequences.)

While some supporters of slavery treated the decision as a vindication of their rights within the Union, others treated it as merely a step to spreading slavery throughout the nation, as the Republicans claimed. Convinced that any restrictions on their right to own slaves and to take them anywhere they chose were unlawful, they boasted that the coming decade would see slave auctions on Boston Common. Instead, they got Union Army enlistments on The Common! Overall, the Dred Scott decision had the effect of widening the political and social gap between North and South and took the nation closer to the brink of civil war.

Incidently, the sons of Peter Blow, Scott’s first owner, purchased emancipation for Scott and his family on May 26, 1857. Their gaining freedom was national news and celebrated in northern cities. Scott worked in a hotel in St. Louis, where he was a local celebrity. He died of tuberculosis only 18 months later, on November 7, 1858. In 1977, the Scotts’ great-grandson, John A. Madison, Jr., an attorney, gave the invocation at the ceremony at the Old Courthouse in St. Louis, Missouri, a National Historic Landmark, for the dedication of a National Historic Marker commemorating the Scotts’ case tried there.

The economic disaster called the “Panic of 1857” was a financial panic in the United States caused by a number of additional issues – the declining international economy, over-expansion of the domestic economy as well – as the Dred Scott decision. Because of the growing interconnectedness of the world economy by the 1850s, the financial crisis that began in late 1857 was the first world-wide economic crisis of the industrial age.

“In Britain, Prime Minister Palmerston’s government circumvented the common-sense requirements of the Peel Banking Act of 1844, which required gold and silver reserves to back up the amount of money in circulation. This circumvention set off the panic in Britain [since confidence in a bank’s strength and stability is the key to capitalism]. The sinking of the SS Central America in September 1857 contributed to the panic, as New York banks were awaiting a much needed shipment of gold; not recovering financially until after the Civil War.

[The SS Central America was carrying 30,000 lbs. of gold from Central America bound for New York banks. It sank in a hurricane in September 1857 off the coast of North Carolina. The value of the gold lost was more than $200 million in today’s money.]

After the failure of the Ohio Life Insurance and Trust Company, the financial panic quickly spread as businesses began to fail, the aforementioned railroad industry experienced financial declines and thousands of workers were laid off. Since the years immediately preceding the panic were prosperous, many banks, merchants, and farmers had seized the opportunity to take risks with their investments and as soon as market prices began to fall, they quickly began to experience the effects of financial panic.”

Subsequently, the economic uncertainty and political upheaval led inevitably to the election of Lincoln as president in November 1860, the secession of the Southern states from the Union shortly thereafter and unavoidable civil war. The American Civil War lasted from April 1861 to April 1865. It resulted in more than 625,000 deaths – American deaths – out of a population of 31,443,321 per the census of 1860. That would be the equivalent of more than 6,250,000 American deaths if the war was fought today.

The Supreme Court’s ruling in the Dred Scott case in 1857 effectively repealed the Missouri Compromise of 1820 by ruling that all territories were open to slavery. The abolitionist John Brown’s raid at the Army arsenal at Harper’s Ferry, Virginia, in 1859 aroused sectional tensions even further: Executed for his crimes, Brown was hailed as a martyred hero by Northern abolitionists and a vile murderer in the South.

The South would reach the breaking point the following year, when Republican candidate Abraham Lincoln was elected as President. Within three months, seven southern states had seceded to form the Confederate States of America; four more would follow after the Civil War began.

Though Lincoln’s anti-slavery views were well established, the central Union war aim at first was not to abolish slavery, but to preserve the United States as a nation (that was now terminally divided over the moral, economic and political issue of slavery). Abolition became a political war aim only later, due to military necessity, growing anti-slavery sentiment in the North and the self-emancipation of many African Americans who fled enslavement as Union troops swept through the South.

Five days after the bloody Union victory at Antietam in September 1862, Lincoln issued a preliminary emancipation proclamation, and on January 1, 1863, he made it official that “…slaves within any State, or designated part of a State…in rebellion…shall be then, thenceforward, and forever free.”

By freeing some three million black slaves in the rebel states, the Emancipation Proclamation deprived the Confederacy of the bulk of its labor forces and put international public opinion strongly on the Union side. Some 186,000 black soldiers would join the Union Army by the time the war ended in 1865, and 38,000 (almost 20%) lost their lives. The total number of dead at war’s end made it the costliest conflict in American history.

The Civil War resulted in the greatest social upheaval and cultural change our country has ever seen – predicated on the realization that nothing like the war that was just endured could ever be allowed to happen again. More than anything else, the Civil War had been about the words, meanings, intentions, understandings, interpretations and implementations of the Constitution used by the Founders, Drafters, Ratifiers and succeeding generations of Americans. Out of the war came the 13th, 14th and 15th Amendments to the Constitution.

“An attempt to write a 13th Amendment began in December 1860, when states of the Deep South were threatening to secede from the Union following Abraham Lincoln’s victory in the presidential elections. The so-called Corwin Amendment –named for Thomas Corwin, an Ohio Republican who chaired the Committee of Thirty-three that introduced the amendment into the House of Representatives – was a compromise measure passed to prevent that secession.

The Committee of Thirty-three was formed at the request of Lincoln’s predecessor, President James Buchanan to explore an amendment to deal with the secession crisis; the committee included one representative from each state. The committee’s first proposal, introduced on January 21, 1861, failed to pass the House. On February 26, Corwin introduced an abridged version of the proposed amendment.

The Senate had formed a Committee of Thirteen for the same purposes as the House’s Committee of Thirty-three. It had produced a proposed amendment submitted by New York Republican senator William Seward, the future secretary of state under President Abraham Lincoln. It would have prohibited Congress from ever abolishing or interfering with slavery. It read:

“That no amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish, or interfere within any State, with the domestic institutions thereof, including that of persons held to labor or servitude by the laws of said State.”

The House failed to pass the amendment on February 27, but then the following day it was accepted on a vote of 133 to 65. The Senate voted to adopt the 13th Amendment on March 2, by 24 votes to 8.

Although a proposed constitutional amendment does not require a president’s approval, President Buchanan on his last day in office, March 3, 1861, took the unusual step of signing the bill. The following day, President Lincoln, in his first inaugural address, said he had “no objection” to the proposed amendment “being made express and irrevocable.”

He sent it to the States for ratification or rejection. Only Ohio and Maryland ratified it; Illinois approved it in a constitutional convention, but that vote was nullified because ratification of amendments requires approval by state legislatures, not special conventions. Ohio rescinded its approval on March 31, 1864. An attempt that year to halt the national ratification process never passed the Senate; technically, the Corwin Amendment is still awaiting action by State legislatures.”

In December 1863 and January 1864, two bills and a joint resolution were introduced into the House and Senate, all making similar proposals for a Constitutional amendment abolishing slavery. The Senate Judiciary committee worked to combine these proposals and present them to the Senate, which passed the amendment on April 8, 1864, in a 38 to 6 vote. Of course, no Southern State senators voted because they had essentially been removed due to secession.

Unfortunately, the House did not act similarly and the amendment had to be reintroduced. This time, President Lincoln took a more active role in getting it through the House by making it part of the Republican platform in the upcoming election. The House passed it on January 31, 1864, and it was sent to the state legislatures for ratification. On April 14, 1865, Lincoln was assassinated. On December 6, 1865, the 13th Amendment was adopted – three fourths of the states had ratified it. It reads:

1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

2. Congress shall have power to enforce this article by appropriate legislation.

(All but three of the remaining states had ratified it by 1870 (two of those would not ratify it until the second half of the 20th century): Delaware ratified it on February 12, 1901, Kentucky on March 18, 1976, and Mississippi on March 16, 1995.) In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states.

“The Black Codes [in the former Confederate States] attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and by preventing them from suing or testifying in court. Although strongly urged by moderates in Congress to sign the bill, President Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites. Three weeks later, Johnson’s veto was overridden and the measure became law.”

In April 1866, the Joint Committee forwarded a third proposal for a civil rights amendment (that would become the 14th Amendment) to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates.

The House of Representatives passed House Resolution 127 of the, 39th Congress several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. A concurrent resolution requesting the President to transmit the proposal to the executives of the several States was passed by both houses of Congress on June 18.

The 14th Amendment was adopted on July 9, 1868, as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves following the Civil War. The amendment was bitterly contested, particularly by Southern states, which were forced to ratify it in order for them to re-enter the Union and regain representation in Congress. Maryland and Kentucky didn’t ratify it until the middle of the 20th Century. California finally ratified it on May 6, 1959!

The 14th Amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Roe v. Wade (1973), regarding abortion, and Bush v. Gore (2000), regarding the 2000 presidential election. The amendment limits the actions of all State and local officials, including those acting on behalf of such an official.

The amendment’s first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. The second, third, and fourth sections of the amendment are seldom litigated. However, Section 2’s reference to “rebellion and other crimes” has been invoked as a Constitutional ground for felony disenfranchisement. The fifth section gives Congress enforcement power. The Citizenship Clause provides a broad definition of citizenship, overruling the Supreme Court’s decision in (Dred) Scott v. Sanford (1857), which had held that Americans descended from African slaves could not be citizens of the United States. The Due Process Clause prohibits State and local government officials from depriving persons of life, liberty, or property without legislative authorization. This clause has also been used by the federal judiciary to make most of the Bill of Rights applicable to the States, as well as recognize substantive and procedural requirements that State laws must satisfy.

The Equal Protection Clause requires each State to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for Brown v. Board of Education of Topeka, Ks. (1954), the Supreme Court decision that precipitated the dismantling of racial segregation, and for many other decisions rejecting irrational or unnecessary discrimination against people belonging to various “protected” groups.

The 15th Amendment to the Constitution prohibits the federal and State governments from denying a citizen the right to vote based on that citizen’s “race, color, or previous condition of servitude.” It was ratified on February 3, 1870, as the third and last of the “Reconstruction Amendments”. “In the final years of the … Civil War and the Reconstruction Era that followed, Congress repeatedly debated the rights of the millions of black former slaves. By 1869, as we have seen, amendments had been passed to abolish slavery and provide citizenship and equal protection under the laws, but the election of Ulysses S. Grant to the presidency in 1868 convinced a majority of Republicans that protecting the franchise of black voters was now possible and important for the party’s future.

Anticipating an increase in Democratic membership in the following Congress, Republicans used the lame-duck session of the 40th United States Congress to pass an amendment protecting black suffrage. Representative John Bingham, the primary author of the 14th Amendment, pushed for a wide-ranging ban on suffrage limitations, but a broader proposal banning voter restriction on the basis of “race, color, nativity, property, education, or religious beliefs” was rejected. A proposal to specifically ban literacy tests was also rejected. Some Representatives from the North, where nativism was a major force, wished to preserve restrictions denying the franchise to foreign-born citizens, as did Representatives from the West, where ethnic Chinese were banned from voting. Both Southern and Northern Republicans also wanted to continue to deny the vote temporarily to Southerners disfranchised for support of the Confederacy, and they were concerned that a sweeping endorsement of suffrage would enfranchise this group.

After rejecting more sweeping versions of a suffrage amendment, Congress proposed a compromise amendment banning franchise restrictions on the basis of race, color, or previous servitude on February 26, 1869. A House and Senate conference committee proposed the amendment’s final text, which banned voter restriction only on the basis of “race, color, or previous condition of servitude”. To attract the broadest possible base of support, the amendment made no mention of poll taxes or other measures to block voting, and did not guarantee the right of blacks to hold office. This compromise proposal was approved by the House on February 25, 1869, and the Senate the following day and was adopted on March 30, 1870.

The House vote was almost entirely along party lines, with no Democrats supporting the bill and only 3 Republicans voting against it. The final vote in the Senate was 39 to 13, with 14 not voting. Some Radicals, such as Massachusetts Senator Charles Sumner, abstained from voting because the amendment did not prohibit literacy tests and poll taxes. Following congressional approval, the proposed amendment was then sent by Secretary of State William Henry Seward to the states for ratification or rejection.

United States Supreme Court decisions in the late 19th Century interpreted the amendment narrowly. From 1890 to 1910, most black voters in the South were effectively disenfranchised by new State constitutions and State laws incorporating such obstacles as poll taxes and discriminatory literacy tests, from which white voters were exempted by grandfather clauses. A system of whites-only primaries and violent intimidation by white groups also suppressed black participation.

In the 20th Century, the Court began to interpret the amendment more broadly, striking down grandfather clauses in Guinn v. United States (1915) and dismantling the white primary system in the “Texas primary cases” (1927–1953). Along with later measures such as the 24th Amendment, which forbade poll taxes in federal elections, and Harper v. Virginia State Board of Elections (1966), which forbade poll taxes in State elections, these decisions significantly increased black participation in the American political system. To enforce the amendment, Congress enacted the Voting Rights Act of 1965, which provided federal oversight of elections in discriminatory jurisdictions, banned literacy tests and similar discriminatory devices, and created legal remedies for people affected by voting discrimination.”

After 150 years of determined and exhausting work, by Americans of every stripe, to ensure the right to vote for all American citizens, the PLDC still refuses to address the issue of the sanctity of those votes by opposing any and all measures to assure that the principle of “one person, one vote” is guaranteed in every election.

After historic violations of voting laws – like the appearance of untold numbers of deceased persons on voting roles in Cook County, Illinois during the Kennedy-Nixon presidential election of 1960 (which, arguably, cost Nixon the victory that would have precluded the Watergate scandal that brought down his subsequent presidency in the early 1970s), the PLDC still prevents any discussion about assuring a voter’s identification at the polling place – such as a free “Voter Photo Identification Card”.

“One source of opposition to the proposed amendment was the women’s suffrage movement, which before and during the Civil War had made common cause with the abolitionist movement. However, with the passage of the 14th Amendment, which had explicitly protected only male citizens in its second section, activists found the civil rights of women divorced from those of former slaves.

Matters came to a head with the proposal of the 15th Amendment, which barred race discrimination but not gender discrimination in voter laws. After an acrimonious debate, the American Equal Rights Association, the nation’s leading suffragist group, split into two rival organizations: the National Woman Suffrage Association of Susan B. Anthony and Elizabeth Cady Stanton, who opposed the amendment, and the American Woman Suffrage Association of Lucy Stone and Henry Browne Blackwell, who supported it. The two groups remained divided until the 1890s. Women didn’t get the vote until the adoption of the 19th Amendment on August 18, 1920.

Next time: the underground railroad.

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