Dred Scott Decision
In 1857, the U.S. Supreme Court in Dred Scott v. John A. Sandford (1857) determined that the Framers of the U.S. Constitution intended to establish a deliberate racial divide. Furthermore, the Supreme Court declared that the Constitution, ratified in 1788, was designed to create a “perpetual and impassable barrier“ between the white race and those they enslaved. In this context, it concluded that the Framers of the U.S. Constitution intended to establish a color-biased Constitution in 1788.
Significantly, the Supreme Court concluded that the Declaration of Independence was never meant to include or acknowledge “the class of person who had been imported as slaves nor their descendants,” asserting that “the negro might justly and lawfully [be] reduced to slavery for his benefit.” These findings were robust because in Marbury v. Madison (1803), the U.S. Supreme Court proclaimed its power to interpret the Constitution, and since the Dred Scott decision remains part of U.S. legal history, as it has never been formally overturned, it is the law of the land.
Dred Scott was a descendant of a black Englishman who was wrongfully enslaved in the United States after the American Revolution, in violation of the Treaty of Paris of 1783—born into slavery around 1799. He was owned by Dr. John Emerson, a U.S. Army surgeon, who took Scott from Missouri, a slave state, to Illinois, a free state, and then to the Wisconsin Territory (present-day Minnesota), where slavery was prohibited by the Missouri Compromise of 1820. After living in the Free Territories, Scott returned to Missouri with Dr. Emerson, who died in 1843. Scott then attempted to purchase his freedom from Emerson’s widow, Irene Emerson—but she refused.
In 1846, Scott filed a lawsuit in Missouri state court claiming that his time in Minnesota had made him a free man. He initially won the case—but the Missouri Supreme Court reversed it. Afterward, Scott filed a suit in federal Court against John F.A. Sandford, Irene Emerson’s brother, who had taken over the management of her estate. Scott claimed his freedom based on his extended stay in Minnesota. However, the federal Court held Scott was still a slave, which caused him to appeal to the United States Supreme Court.
The Dred Scott decision, as it was later called, was seven to two against Scott, where Chief Justice Roger B. Taney of the United States Supreme Court wrote the opinion for the majority. They found—that the High Court lacked jurisdiction to take Scott’s case because federal courts, including the Supreme Court, are courts of “peculiar and limited jurisdiction” and may only hear cases brought by select parties involving limited claims.
For example, under Article III of the U.S. Constitution, federal courts may only hear cases brought by “citizens” of the United States. Taney, on behalf of the majority, interpreted the U.S. Constitution and found that no slave or any person that descended from an American slave had ever been a citizen of the United States, as Article III of the United States Constitution proposed, and that Scott did not have standing to sue in federal courts.
Universally, legal scholars agree Taney’s opinion could have ended the decision when the Supreme Court found federal courts lacked jurisdiction and, in continuing to answer the two remaining questions, was obiter dictum—a statement on matters not officially before the Court and without the force of law. However, on behalf of the majority, Taney concluded that because the federal circuit court had considered all parts of the case, all aspects of the Dred Scott case were also up for consideration by the Supreme Court.
Taney then chronicled the history of slave and “negro laws” in colonial America and concluded that black colonials were not included in the Declaration of Independence and were classified as being chattel property when the Founding Fathers declared independence on July 4, 1776. However, this was a gross mischaracterization of the history of slave and “negro laws” in colonial America and the controlling English law.
Parliamentary sovereignty led to the abolishment of colonial “slave and negro laws” in 1766, even if the colonial assemblies had lawfully enacted these statutes. These laws inherently challenged Parliament’s supreme legislative authority and contradicted existing laws like the English Bill of Rights of 1689.
However, it is extremely telling that Chief Justice Taney did not address colonial slavery’s origins—the Declaratory Act of 1766 or the Twelve Judges panel’s ruling in the Somerset decision, which stated that slavery was not “allowed or approved by the law of the Kingdom” and could only be made lawful by “positive law,” a legislative power which only the Parliament possessed and never exercised. Nor did he consider the Founding Fathers’ grievance in the Declaration of Independence regarding the abolishment of their “most valuable laws.”
Further, nor did Taney on behalf of the majority, consider the fact that the original 19 Africans who arrived in Virginia in 1619 became indentured servants—not slaves upon their arrival because of English law. This appeared to be a massive misstep by the Supreme Court since the U.S. Congress and all State legislatures had specially adopted Anglo-Saxon Jurisprudence and English law after the Declaration of Independence. Colonial assemblies within the American colonies lacked the legislative power to enact a slave law without securing the approval of England’s King, thus, colonial slavery was always a legal fiction.
Moreover, the 1703 ruling of the Court of the King’s Bench in Ashby v. White (2 Ld. Raym 938) established that “a void act does not become good with the passage of time.” This precedent meant that all such slave and “negro laws” passed by colonial assemblies within the American colonies, which violated colonial charters or English law were void ab initio and could never become valid.
Additionally, colonial slave statutes and laws breached Parliament’s Royal Assent by Commission Act of 1541, potentially resulting in charges of high treason against colonial assemblymen, a crime punishable by death. Lastly, any attempts to undermine England’s monarch or Parliament could be considered acts of treason or sedition, particularly in the context of 16th-century England.
As the King did not give his assent to any of the slave or “negro laws,” they violated the colonial charter and remained legal nullities under English law. Furthermore, the colonial assemblies in the American colonies could not alter England’s long-standing common law traditions of prohibiting slavery on British sovereign soil or partus sequitur patrem, a patrilineal descent system, and change this tradition into a matrilineal system because these lesser legislative assemblies in colonial America did not have the legislative authority to enact a “positive law”.
Parliament passed the English Bill of Rights of 1689, which outlined specific rights and established certain constitutional principles, including parliamentary sovereignty and protection for individual rights of all Englishmen, such as the right to habeas corpus, the prohibition of cruel and unusual punishment, which lifelong slavery at birth undoubtedly qualifies.
Moreover, Parliament’s Declaratory Act of 1766 recalibrated colonial America’s legislative governance, as the Act abolished and repealed all colonial slave and “negro laws” that denied or questioned Parliament’s supreme legislative authority. Moreover, Parliament’s legislation in 1766 abolished colonial America’s hereditary slave laws, and this Act automatically and fully restored the status of the 500,000 enslaved black individuals to a lawful status under English law.
According to Taney—Thomas Jefferson’s status as a slaveowner implied that when Jefferson wrote that “all men are created equal,” he was referring exclusively to white men. Taney’s conclusion is erroneous and misleading as this historic phrase was the product of a collaborative effort of the Committee of Five, not Jefferson’s.
History supports Jefferson’s initial preamble stated, “We hold these truths to be sacred and undeniable; that all men are created equal and independent, that from that equal creation, they derive rights inherent and inalienable, among which are the preservation of life, and liberty, and the pursuit of happiness.” Founding Fathers John Adams of Massachusetts, who never owned slaves and Benjamin Franklin of Pennsylvania, who even expressed concern over the small portion of “purely white People in the world,” are often credited with contributing to the final version of the Declaration.
Franklin, as Donald Yacovone in his book Teaching White Supremacy, pointed out, harbored racist views and aimed to reinforce white supremacy. However, as early as 1751, Franklin opposed slavery because he feared the “darkening” of the American colonies. Yacovone quoted Franklin as stating, “Why should we, in the sight of Superior Beings, darken its people? Why increase the Sons of Africa by planting them in America, where we have so Fair an opportunity, by excluding all blacks and Tawneys, of increasingly the lovely white and red?”
Moreover, Chief Justice Taney was incorrect in his finding that the Framers of the U.S. Constitution did not consider black people part of the citizenry to be governed by the document. As well, he was also wrong when he claimed that the inferior status of black people at the time of the founding persisted into the present day.
Instead, as Taney and the majority of the Supreme Court, including Justices John Catron, Peter V. Daniel, Samuel Nelson, and James M. Wayne, had owned slaves at some point, their views were biased and prejudiced. Their prior slave ownership caused these justices to ignore the actual history of slave and “negro laws” within colonial America.
These colonial slave laws had an illegal beginning. They were never lawfully codified because colonial legislatures were bicameral, and colonial assemblies within the American colonies lacked the legislative authority to enact a positive law to authorize colonial slavery. And without the British monarch’s assent, they were void ab initio and never became valid laws.
Additionally, in 1766, the British imperial government legislatively abolished and repealed all colonial-enacted statutes and laws “for all purposes whatsoever” if such laws “denied” or called into question Parliament’s supreme legislative power—which colonial slave statutes and its “negro laws” did.
Further, Taney and the other justices ignored that the Founders did concede in the Declaration of Independence that King George III “… abolished our most valuable laws and altering fundamentally the Forms of our Governments.” This was exculpatory and dispositive evidence supporting Dred Scott’s petition for judicial relief to the Supreme Court once the Founders in the Declaration of Independence conceded that the British imperial government “abolished our most valuable laws and altering fundamentally the Forms of our Governments” before the Declaration of Independence.
Conclusively, with declarations that the Framers designed the U.S. Constitution to create a “perpetual and impassable barrier” between the white race and those they enslaved—black individuals had no rights that white men were bound to respect and “We think. . . that [black people] 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,” in the historic Dred Scott decision—the Framers of the Constitution designed a color biased document. Moreover, the Dred Scott decision is still good law and the law of the land.