Dred Scott Continues to Cause Difficulties for the United States

The reason we're having to put up with all this business about anchor babies and birthright citizenship is because of the Supreme Court's Dred Scott vs. Sandford Decision of 1857. It's a classic case study in the Law of Unintended Consequences.

A brief summary: Dred Scott was a Missouri slave who had permitted a lawsuit for his freedom to be filed on his behalf, on the grounds that his master (a U.S. Army doctor) had taken him along with him for three years in Fort Armstrong, Illinois (near Rock Island), and later on to Fort Snelling in Wisconsin Territory (now in Minnesota).  Scott was retained as a slave in both places, in violation respectively of the Northwest Ordinance of 1787 (for Illinois) and the Missouri Compromise (for Fort Snelling).  After Scott's master left Fort Snelling for Louisiana, he left Scott behind in Fort Snelling and hired him out as a slave laborer, also in violation of the Missouri Compromise.  Along the way, they also had had to pass through the Territory and later the State of Iowa.  Dred Scott contended that since slavery was illegal in these places, he ought to have been freed then and there, but better late than never -- he wanted his freedom and ought to have it.  His suit was complicated by the fact that he had actually resided in a free state and a free territory and had not filed for his freedom at those times, nor had he been seized as contraband by a sheriff in Iowa or Illinois or Wisconsin Territory.  Instead, he had waited to file his suit until he was back in Missouri, which was "Slave Country."

It could have been a simple case of property rights: Was Dred Scott a legally owned piece of property where he was now residing (Missouri)? Yes or no?

The Supreme Court could have reasoned something like this: It's like the man who legally owns a case of whiskey in a "wet" state. He transports it across a "dry" State, where it is subject to confiscation without compensation, because possession of whiskey is illegal there. However, the "dry" State fails to do this, perhaps because it fails to detect the hooch. When the whiskey's owner enters another "wet" state with his hooch, the whiskey is legal property all over again, and the "dry" State has no claim on it.

Same with Dred Scott. The court could have made its decision on the narrowest grounds: property possession.   They could have found that that since Scott was legally a slave where he was now, the fact that he had been on free soil no more emancipates him than the fact that the whiskey that had been in a "dry" state enables the "dry" state to seize it after it has left its borders.  Indeed, Chief Justice Roger Taney, in his decision consigning Dred Scott to remain a slave, even wrote 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 [emphasis added], wherever a profit could be made by it."   If Taney had stopped there, Dred Scott might today be nothing more than a historical footnote.

Instead, the court, in a decision authored by Taney himself, invented a line of legal reasoning of breathtaking complexity, in order to resolve what could have been a simple case of property possession. In order to show that Dred Scott needed to remain a slave, Taney invented a line of reasoning that overturned the Northwest Ordinance and found the Missouri Compromise to be "unconstitutional," and ruled that the Congress had no constitutional authority to outlaw slavery in the territories. To top it off, Taney also opined that since Dred Scott was black, he wasn't even a citizen anyway, even though he had been born here, and that as a black man he had "no rights that a white man is bound to respect." None of this was necessary in order to determine Scott's legal status as property or not property.

All of this went way beyond what was a simple case of property possession. Any time a court invokes reasoning beyond the minimum necessary to decide the legal question facing it along its narrowest scope, that is called obiter dictum. The Dred Scott case was the worst case of obiter dictum in the history of jurisprudence.   None of Taney's sophistries -- which is what they were -- were needed to decide what should have been a simple property case. Instead, this Southern sympathizer was so incensed by abolitionism and "northern aggressors," he wanted to craft an opinion that would enshrine slavery forever, by taking it out of the realm of politics and making it "settled law," like Roe v. Wade.   Instead, he so enraged the country -- on both sides -- that the Civil War broke out four years later.

Just to show just how outrageous a decision the Dred Scott case was, it was only the second time in the country's history that any court ever ruled an Act of Congress to be unconstitutional -- the first instance being the Marbury vs. Madison decision itself.   This was the case in which Chief Justice John Marshall invented the extra-constitutional doctrine of judicial review.

It didn't end there, either.  After the Civil War, despite emancipation and the ratification of the 13th Amendment (which outlawed slavery), Dred Scott remained the law of the land.  Blacks might no longer have been slaves, but in accordance with Taney's decision they still weren't citizens, either.  They still "had no rights that a white man is bound to respect."   Their lot may actually have been even worse than that of blacks in pre-Mandela South Africa.  Obviously, this could not be allowed to stand.  A 14th Amendment was necessary in order to annul the Dred Scott decision and kill it off once and for all.  So the Congress enacted the Fourteenth Amendment to ensure that everyone born here and who had a right to be here was a citizen, and the country quickly ratified it.

However, Dred Scott continued to live on.   As the late, great editor of Analog Science Fiction Magazine, John W. Campbell, wrote in one of his editorials, "You can't do just one thing."   This may be the wisest thing ever said outside the Bible.   It particularly applies to the Dred Scott case, because all that Taney had to do was find that Scott was legally a slave where he now was, and that was that.   Instead, he decided that he just had to enshrine slavery forever.   Thanks to Roger Taney's outrageous obiter dictum, we got a Civil War and a Fourteenth Amendment that would never have been ratified if not for the Dred Scott decision.  But, in Hegelian fashion, the antithesis to Dred Scott was likewise flawed.  The framers of the 14th Amendment didn't foresee that someone, in some future time, might abuse the 14th Amendment to permit the modern-day absurdities of birthright citizenship and birth tourism.   Perhaps, if the 14th Amendment had been better crafted, we might not he having to endure its abuses today.   Instead we got, 150 years later after Roger Taney's opinion, anchor babies and birthright citizenship for babies who had no business being born here. Talk about unintended consequences!

Thanks for nothing, Roger.

The reason we're having to put up with all this business about anchor babies and birthright citizenship is because of the Supreme Court's Dred Scott vs. Sandford Decision of 1857. It's a classic case study in the Law of Unintended Consequences.

A brief summary: Dred Scott was a Missouri slave who had permitted a lawsuit for his freedom to be filed on his behalf, on the grounds that his master (a U.S. Army doctor) had taken him along with him for three years in Fort Armstrong, Illinois (near Rock Island), and later on to Fort Snelling in Wisconsin Territory (now in Minnesota).  Scott was retained as a slave in both places, in violation respectively of the Northwest Ordinance of 1787 (for Illinois) and the Missouri Compromise (for Fort Snelling).  After Scott's master left Fort Snelling for Louisiana, he left Scott behind in Fort Snelling and hired him out as a slave laborer, also in violation of the Missouri Compromise.  Along the way, they also had had to pass through the Territory and later the State of Iowa.  Dred Scott contended that since slavery was illegal in these places, he ought to have been freed then and there, but better late than never -- he wanted his freedom and ought to have it.  His suit was complicated by the fact that he had actually resided in a free state and a free territory and had not filed for his freedom at those times, nor had he been seized as contraband by a sheriff in Iowa or Illinois or Wisconsin Territory.  Instead, he had waited to file his suit until he was back in Missouri, which was "Slave Country."

It could have been a simple case of property rights: Was Dred Scott a legally owned piece of property where he was now residing (Missouri)? Yes or no?

The Supreme Court could have reasoned something like this: It's like the man who legally owns a case of whiskey in a "wet" state. He transports it across a "dry" State, where it is subject to confiscation without compensation, because possession of whiskey is illegal there. However, the "dry" State fails to do this, perhaps because it fails to detect the hooch. When the whiskey's owner enters another "wet" state with his hooch, the whiskey is legal property all over again, and the "dry" State has no claim on it.

Same with Dred Scott. The court could have made its decision on the narrowest grounds: property possession.   They could have found that that since Scott was legally a slave where he was now, the fact that he had been on free soil no more emancipates him than the fact that the whiskey that had been in a "dry" state enables the "dry" state to seize it after it has left its borders.  Indeed, Chief Justice Roger Taney, in his decision consigning Dred Scott to remain a slave, even wrote 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 [emphasis added], wherever a profit could be made by it."   If Taney had stopped there, Dred Scott might today be nothing more than a historical footnote.

Instead, the court, in a decision authored by Taney himself, invented a line of legal reasoning of breathtaking complexity, in order to resolve what could have been a simple case of property possession. In order to show that Dred Scott needed to remain a slave, Taney invented a line of reasoning that overturned the Northwest Ordinance and found the Missouri Compromise to be "unconstitutional," and ruled that the Congress had no constitutional authority to outlaw slavery in the territories. To top it off, Taney also opined that since Dred Scott was black, he wasn't even a citizen anyway, even though he had been born here, and that as a black man he had "no rights that a white man is bound to respect." None of this was necessary in order to determine Scott's legal status as property or not property.

All of this went way beyond what was a simple case of property possession. Any time a court invokes reasoning beyond the minimum necessary to decide the legal question facing it along its narrowest scope, that is called obiter dictum. The Dred Scott case was the worst case of obiter dictum in the history of jurisprudence.   None of Taney's sophistries -- which is what they were -- were needed to decide what should have been a simple property case. Instead, this Southern sympathizer was so incensed by abolitionism and "northern aggressors," he wanted to craft an opinion that would enshrine slavery forever, by taking it out of the realm of politics and making it "settled law," like Roe v. Wade.   Instead, he so enraged the country -- on both sides -- that the Civil War broke out four years later.

Just to show just how outrageous a decision the Dred Scott case was, it was only the second time in the country's history that any court ever ruled an Act of Congress to be unconstitutional -- the first instance being the Marbury vs. Madison decision itself.   This was the case in which Chief Justice John Marshall invented the extra-constitutional doctrine of judicial review.

It didn't end there, either.  After the Civil War, despite emancipation and the ratification of the 13th Amendment (which outlawed slavery), Dred Scott remained the law of the land.  Blacks might no longer have been slaves, but in accordance with Taney's decision they still weren't citizens, either.  They still "had no rights that a white man is bound to respect."   Their lot may actually have been even worse than that of blacks in pre-Mandela South Africa.  Obviously, this could not be allowed to stand.  A 14th Amendment was necessary in order to annul the Dred Scott decision and kill it off once and for all.  So the Congress enacted the Fourteenth Amendment to ensure that everyone born here and who had a right to be here was a citizen, and the country quickly ratified it.

However, Dred Scott continued to live on.   As the late, great editor of Analog Science Fiction Magazine, John W. Campbell, wrote in one of his editorials, "You can't do just one thing."   This may be the wisest thing ever said outside the Bible.   It particularly applies to the Dred Scott case, because all that Taney had to do was find that Scott was legally a slave where he now was, and that was that.   Instead, he decided that he just had to enshrine slavery forever.   Thanks to Roger Taney's outrageous obiter dictum, we got a Civil War and a Fourteenth Amendment that would never have been ratified if not for the Dred Scott decision.  But, in Hegelian fashion, the antithesis to Dred Scott was likewise flawed.  The framers of the 14th Amendment didn't foresee that someone, in some future time, might abuse the 14th Amendment to permit the modern-day absurdities of birthright citizenship and birth tourism.   Perhaps, if the 14th Amendment had been better crafted, we might not he having to endure its abuses today.   Instead we got, 150 years later after Roger Taney's opinion, anchor babies and birthright citizenship for babies who had no business being born here. Talk about unintended consequences!

Thanks for nothing, Roger.