More Dred Scott

(Guest Post from Big Tent Democrat)

Scott Lemieux responds to my reaction to his post on Dred Scott. I will respond to Scott's points that I feel pertinent to my argument. Lemieux writes, in part:

To take the key points as they come up:

  • BTD then articulates a structuralist theory of Constitutional interpretation, identified with John Marshall, and locates a similar theory in Lincoln's famous Cooper Union speech. Now, I am something of a structuralist myself, and I agree that Lincoln constructs a perfectly plausible reading that I of course find infinitely more attractive than Taney's arguments for moral reasons. But this isn't enough; the question is not whether there are plausible arguments against Taney, but whether Lincoln provides the only plausible reading of the Constitution in 1857. And the answer to this is clearly that he doesn't (see pp. 57-76 of the Graber book.)

  • The short version is that the argument that there was a Constitutional right, embedded in the due process clause of the 5th Amendment, to bring property in the territories was a widely held view. BTD asks: "prohibiting slavery in certain territories. Was there a Constitutional right to carry your slaves to territories? That is a property right? Based on what? The right to travel? The full faith and credit clause?" What BTD doesn't mention is that not only McLean--who argued that "[i]t is said the Territories are common property of the States, and that every man has a right to go there with his property. This is not controverted"--but Lincoln himself accepted the validity of these property rights, which was the mainstream Republican position of the time. Were they lawless hacks ignoring the clear text of the Constitution? Lincoln and McLean disagreed about whether slaves remained property once taken to a jurisdiction that didn't have slavery, but to argue that this was a universally accepted proposition in 1857 would be farcical (as is the claim that Article IV can only be read to say that slaves cease to become property when taken into states--if this was true, the Constitution wouldn't have been signed by the slave states.)
  • With respect to whether individuals lost constitutional rights when going to the territories, even in 1803 many rejected this proposition, and by 1857 the position that citizens retained constitutional rights in the territories was strongly entrenched, and Republican jurists continued to treat this part of Dred Scott as good law even after the Civil War.

Lemieux ignores the most important point I make (imo of course) in countering my argument. I'll explain and react to these points in extended.

I previously wrote:

How is the argument of the original understanding of the Constitution vis a vis the federal government prohibiting slavery in the Territories (the question of whether rights could be conferred upon Negroes is a separate issue) rebutted? Taney wrote:

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 difficulty which meets us at the threshold of this part of 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 anyone 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 afterward 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... [!!]

. . . 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.

This is, in a word, drivel. There is no support for it in the text of the Constitution, nor in the understanding of the Territorial Clause, as Lincoln demonstrated. In short, it is made out of whole cloth by Taney to support his result and nothing more. Consider the Insular Cases, which decided that the Constitution does not apply in full to territories unless "incorporated." And that remains the law today.

Lemieux ignores Taney's contortions. Taney ignores the plain text of the Constitution which clearly does grant the Congress plenary power over territories. Instead Taney's "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. . ." This is made up out of whole cloth. Lemieux's answer is to say some beleived otherwise. Well, some believe many things but that does not make the belief plausible or reasonable. By 1820, it cannot be argued that such a view was anything but an extreme view as the political compromise of 1820 clearly attests.

Lemieux further argues that "With respect to whether individuals lost constitutional rights when going to the territories, even in 1803 many rejected this proposition, and by 1857 the position that citizens retained constitutional rights in the territories was strongly entrenched, and Republican jurists continued to treat this part of Dred Scott as good law even after the Civil War." That may be so but it does not make such assertions reasonable or plausible. Indeed, the view became spread in the late 1840s after the Mexican War when John C. Calhoun decided that it was politically expedient to act as if it was a bedrock view of the Constitution. But let's be clear, the view was extreme and unreasonable and went against the most celebrated political action of the first half of the 19th Century - the Compromise of 1820, not to mention the Compromise of 1850. Both of these depended on the power of the Congress to prohibit slavery. The reasonable understanding of the Constitution in the first half of the 19th Century did not question this obvious reasoning of the plain text of the Constitution. No one claiming any affinity to Originalism could have ruled otherwise.

On the issue of Constitutional rights and whether they were retained in the Territories, this is a red herring in my view. Let us assume they were retained, my question was what constitutional right was there to hold slaves in the Territories? I argue none. To consider it another way, to adopt Lemieux's view of it would require the belief that in fact the Constitution had already decided that slaves were property protected THROUGHOUT the United States, that there was no such thing as free and slave states, that slaveholders could carry their "property" anywhere in the United States, because to deny them this "right" would be to deprive a citizen of his property. Does Lemieux believe that is a plausible interpretation of the Constitution? It simply can not be. Why? Lincoln said why: because the men who enacted the Constitution immediately reenacted the prohibition against slavery in the Northwest territories.

Taney saw this problem and pretended the territorial clause did not apply to new territories based on nothing but his results oriented goal. If this view was the right one, then the Constitution was not ambiguous at all, slavery was enshrined for ALL of the United States by the Constitution.

And that was precisely Lincoln's point. Lincoln marshalled the evidence, overwhelming and irrefutable, against such an implausible construction. Lincoln demonstrated that Douglas' idea of popular sovereignty was completely overturned by Dred Scott. Lincoln fully understood the outrageousness of the Dred Scott decision and its utter implausibility.

Lemiuex and I have gone into the weeds here on Dred Scott for no good reason frankly. His lessons learned does not depend on Dred Scott being a plausible reading. Lemieux writes:

At any rate, I'm not trying to sell or discredit any particular grand theory; what I'm saying is that grand theories simply cannot produce determinate outcomes on questions the framers deliberately left ambiguous.

In my first post, I completely agreed with this. Indeed, I springboard off it to defend the idea that the Senate has every right to demand specific answers on issues from Supreme Court nominees because of this very fact. But my point is Dred Scott is not one of those cases that decided an issue left ambiguous by the Constitution. To be clear, there are probably many decisions that I approve of morally that are similarly unmoored. But none so unmoored as Dred Scott. Lochner is a work of judicial restraint placed alongside Dred Scott.

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    Re: More Dred Scott (none / 0) (#2)
    by cpinva on Mon Oct 09, 2006 at 11:42:43 AM EST
    intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States. .
    justice taney's interpretation didn't even meet the common sense test, aside from the evisceration by lincoln at cooper union, and a plain reading of the text. why would the authors draft a section providing control only over territories then owned by the gov't, and not those to be owned in the future? based on taney's interpretation, one could reasonably conclude that the authors expected the united states to remain physically as it was in 1787, for all time. this is inconsistent with the rest of the document. the constitution's authors had problems, but far sightedness wasn't among them.

    Re: More Dred Scott (none / 0) (#1)
    by mpower1952 on Mon Oct 09, 2006 at 11:42:44 AM EST
    This post was a little too much for me to follow completely but wouldn't his theory that slaves could be carried to the non-slave areas and remain slaves mean that gay marriages approved in Mass. must be acknowledged in all states?

    Re: More Dred Scott (none / 0) (#3)
    by Talkleft Visitor on Mon Oct 09, 2006 at 02:00:56 PM EST
    Another point has not the present SC ruled contrary about the constitition extending to "Territories". By carving out a Constitition free zone in Gitmo - starting with Haitian refugees held there in the 80's and 90's - does not that abrogate the principle that the Constitition extends to all US Territories?

    Re: More Dred Scott (none / 0) (#4)
    by Talkleft Visitor on Mon Oct 09, 2006 at 06:10:50 PM EST
    As to the first post, the argument really was that territories were "common property" of all states. States could, within reason (no immediate emanicaption for mere travel thru the state, or so many thought), prohibit slavery. But, territories were open to slave owners. Also, a key issue was if Missouri could declare Dred Scott a slave once he returned there from "free" areas. Thus, a state now might declare gay marriages illegal, even if the couple was legally married in MA. There is an exception to the "full faith and credit" rule if the practice is against local norms. Thus, important issues do harken back there. Thus, when the MA Supreme Court decided the issue of if the state could deny the rights of out of state residents to marry members of the same sex because such marriages would not be recognized in their home states, one judge referenced an important slave decision: the slave in question was free in MA, even if she would become a slave again if brought back to a slave state. [To take a less controversial example ... NY allows cousin marriages. Unless this is deemed violation of equal protection or some other constitutional demand, other states need not recognize such marriages sanctioned in NY.] As to the Insular Cases, I don't think we should honor such backward "those dark skinned people can't handle the same rights as us" doctrine. It really is a "red herring" and on that minor point, Taney's path was the better one. So thought Justice Harlan (he of the famous Plessy dissent) at the time.