Scott v. Sandford (The DRED SCOTT DECISION)

19 Howard (60 U.S.) 393; 15 L.Ed. 691 (1857)

Dred Scott            Dred Scott (pictured left) was a slave belonging to a surgeon in the U.S. Army. He was taken by his master into territories in which slavery was forbidden by the Missouri Compromise of 1820. Several years after his return to Missouri, Dred Scott brought suit in to obtain his freedom, arguing that his temporary residence in a “free” territory had abolished his servitude. After an adverse ruling in the U.S. Circuit Court, Scott took the case to the Supreme Court on a writ of error.

            The U.S. Supreme Court first heard oral arguments in Scott v. Sandford in February, 1856.  By this time, the Dred Scott case had achieved notoriety in the stormy sectional controversy over slavery.  Reluctant to announce its decision during what promised to be a bitterly fought presidential election campaign, the Court ordered that the case be reargued at the beginning of its next Term, in December, 1856.  One of the most controversial questions addressed on reargument was whether Congress had acted constitutionally in passing the Missouri Compromise of 1820, thereby asserting  the power to regulate slavery in the Territories.  President-Elect James Buchanan, whose position on the territorial issue had been equivocal, stated that the "great object" of his Administration would be "to destroy the dangerous slavery agitation and thus restore peace to our distracted country."  He ardently hoped that through its anticipated decision in the Dred Scott case, the Supreme Court would help him achieve this objective.

             Acting on this hope, Buchanan wrote his old friend, Justice John Catron on February 3, 1857, wanting to know whether the Court would deliver its decision before March 4, Inauguration Day, so that he could take it into account in preparing his Inauguration Address.  In responding to this highly unusual inquiry, Catron said that the Court had not yet taken action on the case, but that he would try to obtain this information, since he believed Buchanan was entitled to it.  Professor Don E. Fehrenbacher in his authoritative study of the Dred Scott case (
The Dred Scott Case: Its Significance in American Law and Politics), has argued convincingly that only a decision on the constitutionality of the Missouri Compromise would have been important to Buchanan in preparing his inauguration speech.  On February 10, Catron wrote Buchanan, advising him that the case would be decided in Conference on February 14 but that the justices probably would not rule on the power of Congress over slavery in the territories.  This prediction seemed to be confirmed when the majority opinion was assigned to Justice Nelson, a Northern centrist on the Taney Court.  In his narrowly focused draft opinion, Nelson maintained that there was no need to consider the constitutionality of the Missouri Compromise’s  restriction on slavery in the Territories.  In a sudden about face, a Court majority decided to take on the  territorial issue as well as all other constitutional questions raised in the case.  The formidable task of writing a new majority opinion was assigned to Chief Justice Taney.  On February 19, Catron again wrote to Buchanan, informing him of the dramatic change in the Court's plans and suggesting that Buchanan's Inaugural Address might include a passage leaving the territorial matter with the "appropriate tribunal" and declining to "express any opinion on the subject."  In the same letter, Catron urged Buchanan to help persuade his fellow Pennsylvanian, Justice Grier, to support the broad approach taken by Taney and his four Southern colleagues.  Buchanan immediately wrote to Grier urging him to fall into line.  Grier then conferred with Taney and wrote to Buchanan on February 23, indicating that he would support Taney's opinion which would hold the Missouri Compromise "to be of non-effect."  He and his colleague Justice Wayne would try "to get Brothers Daniel and Campbell and Catron to do the same...."  After informing Buchanan that the decision would not be delivered before March 6, Grier concluded his lengthy letter with the following revealing comments: "We will not let any others of our brethren know anything about the cause of our anxiety to produce this result [a majority opinion supported by six or possibly seven justices], and though contrary to our usual practice, we have thought due to you to state to you in candor and confidence the real state of the matter."  It is clear from this selective summary of events leading up to Buchanan's inauguration, that the President-Elect was fully informed by two members of the Supreme Court--each initially unaware of the other's actions-- of the substance of the forthcoming Dred Scott decision. 

            On March 4, 1857, Chief Justice Taney administered the oath of office to President-Elect Buchanan.  During a pause in the ceremonies, the two men had a brief conversation, a fact accorded grave significance by some of Buchanan's critics as they listened to his Inaugural Address.  He noted with approval that Congress, through the Kansas-Nebraska Act, had left the people free to deal with the institution of slavery as they saw fit, subject only to the Constitution.  Admittedly, a minor problem remained unresolved.  "A difference of opinion has arisen in regard to the point of time when the people of a territory shall decide this question for themselves.  This is, happily, a matter of but little practical importance.  Besides, it is a judicial question which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled.  To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be."  A more disingenuous statement has seldom appeared in an inaugural address.  Buchanan not only knew what the Court was about to decide in the Dred Scott case, it is fair to say that he had a hand in forging the Court majority that endorsed that decision.                            

Mr. Chief Justice Taney delivered the opinion of the Court.

            ...The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution....

            We think ... [that Negroes] ... are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

            It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted....

            The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endow him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?

            The court thinks the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts... .

            In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument... .

            They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion... .

            The only two provisions [of the Constitution] which point to them [slaves] and include them [Article I, Section 9, and Article IV, Section 2], treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Government of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves.

            No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion of the day... .

            What the construction was at that time, we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word “citizen” and the word “People.” ...

            The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the ... inquiry is whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under the laws of any one of the States.

            The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,” but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more.

            ... The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved... .

            ... An Act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.

            The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this—-if it is beyond the powers conferred on the Federal Government—-it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It would confer no power on any local Government, established by its authority, to violate provisions of the Constitution... .

            Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident... .

Mr. Justice Curtis, joined by Mr. Justice McLean, dissenting.

            I dissent from the opinion pronounced by the Chief Justice, and from the judgment which the majority of the court think it proper to render in this case... .

            To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.

            Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens... .

            I dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that a person of African descent cannot be a citizen of the United States; and I regret I must go further, and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri Compromise act, and the grounds and conclusions announced in their opinion.

            Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Court had no jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appear on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of the court... .