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Bloomington event marks the worst U.S. Supreme Court decision ever

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Dred Scott c. 1857

Dred Scott was a slave for all but the last year of his life.

Unlike Frederick Douglass and Harriet Tubman, he did not escape to freedom and become a famous anti-slavery crusader. Unlike Nat Turner, he did not lead a famous, bloody, slave rebellion. Dred Scott is among the most famous of slaves because he sued for his freedom and his case went all the way to the U.S. Supreme Court.

Unfortunately, the court used the occasion to hand down one of its most infamous, racist decisions, going way beyond the issue of Scott’s freedom to declare that no blacks could ever be U.S. citizens (even free blacks in free states) and that African-Americans had no rights which any white man was bound to respect. Seriously. That’s a quote. And that interpretation of the U.S. Constitution prevailed by a vote of seven justices to two. Under our system, as you know, the Supreme Court is the final arbiter of the meaning of the U.S. Constitution. Until it isn’t.

Even though Dred Scott lost, his case played a significant role in bringing about the end of the despicable tale of legal human slavery in the United States, although it ended in the worst possible way, and maybe the only possible way, by a long bloody civil war.

Why bring this up today? Well, it’s a heck of a tale on any day, but it comes up today because a substantial observance and celebration of Dred (and his wife Harriet) Scott will take place May 22 in Bloomington. Yes, the one in Minnesota.

Minnesota connection

Why here? Because Minnesota played a key role in Dred Scott’s pretty amazing tale and a large and excellent athletic complex in Bloomington is named for Dred Scott. But a while back, human rights activist Frank White noticed that, other than the signs stating the name of the Dred Scott Playfield, the story of Dred Scott was not told. Kids played ball there without necessarily learning the tale of the man for whom their field was named.

White approached Michael Davis, the chief federal judge of the Minnesota District (and the first African-American federal judge in Minnesota history), and suggested that something be done about this. He had in mind a plaque at the site telling the kids who play there about Dred Scott.

White’s idea of the plaque has snowballed into a much bigger deal, including a curriculum about the case that is taught to Bloomington high school juniors and a play, developed by the estimable Mixed Blood Theater, with actors portraying Dred Scott and his wife, Harriet. And more.

The ideas set in motion by White and Davis will culminate Wednesday evening with a dedication and unveiling of plaques for the playfield, the performance of the play, a talk by Lynne Jackson of St. Louis, the great-great-granddaughter of Dred Scott and president and founder of the Dred Scott Heritage Foundation. The schedule and location are right here.

Dred Scott's life story

OK, you’ll learn a lot more about Scott and the case if you go to the event, but for those who can’t make it, I can’t let you go without a brief summary of Dred Scott’s story, especially of the Minnesota angle.

Dred Scott’s owner, an Army doctor who was dispatched to various military bases, took him from their home in Missouri (which was a slave state) to a base in Illinois (a free state) and then to Fort Snelling (in what was then the Wisconsin territory), governed by the federal government, which prohibited slavery in the territory. But not really prohibited because it had been fairly normal for slaveowners to travel with their slaves into free states and free territories. So it was there that Dred Scott spent most of the 1830s in free Illinois and free (pre-)Minnesota.

Back in Missouri, a doctrine had developed, sometimes called “once free, always free,” under which some slaves had successfully sued for their freedoms on the ground that their masters had taken them to free states, and after some period of time they had to be considered to have gained their freedom.

With the legal and financial support of sympathetic whites (actually, Scott got backing from the Blow family, which had owned him earlier in his life), Scott initiated such a “freedom lawsuit” in Missouri in 1846. His case dragged on for 11 years. He actually won once, in state court, precisely under the “once free” doctrine, but then lost on appeal. The case moved into the federal courts, and when the Supreme Court agreed to hear it, it became, of course, the case that would decide for the whole country whether the doctrine of “once free, always free” was valid.

The ruling, delivered by justices who were mostly southerners or slavery sympathizers, was so over the top, and the verbiage of blacks having no rights at all shocked the North.

Judge Donovan Frank

Federal Judge Donovan Frank of the Minnesota District, who has been active in the local celebration of Dred Scott and who talked to me Monday about it, didn’t exactly say that the Supreme Court got it wrong, but he did say that ”many scholars have described this is as the worst decision ever by the U.S. Supreme Court.”

He credited the ruling, and by extension the Scotts’ “courage and quest for freedom,” with “solidifying the abolitionist movement and with helping to bring about the election of Abraham Lincoln, which led to the secession of the southern states, the Civil War and the abolition of slavery.

I’ve been over the Dred Scott ruling and its aftermath several times in my ridiculously slow quest to understand U.S. history but I recently had a breakthrough when I read Eric Foner’s fantastic study of Lincoln’s evolution on the slavery issue titled “The Fiery Trial.” But this dang post is already so long, and I’m trying to write shorter. So, with your permission, I’ll start over soon with a discussion of Foner’s revelations.

Dred Scott's freedom

But in the meantime, I do have to redeem the very first sentence of this post, which mentioned that Dred Scott was a free man in the last year of his life. It wasn’t, of course, thanks to the Supreme Court case, which he lost. And it wasn’t because he lived long enough to be emancipated by the Emancipation Proclamation (which wouldn’t have affected him anyway, because Missouri never seceded) nor to be freed by the 13th Amendment, which took effect seven years after Scott’s death.

No, after the case was over, the ownership of Dred Scott was transferred back to his former owners, the Blow family, who had become abolitionists. They freed him from legal bondage in 1857 but, sadly, he died of tuberculosis in 1858.

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Comments (20)

If we had lost the revolution

Scott would have gained his freedom much earlier, since Great Britain abolished slavery in all its territories in 1833.
And if his owners had moved to England, he would have been instantly freed, since slavery was abolished in England and Scotland in 1772.

What was wrong?

Given that Dred Scott did not create slavery, merely recognized it, I think the piece above never quite gets to the point of explaining how it was wrong, and what precisely was it's disastrous effect on American history. Was the north really all that shocked by it?

Wrongness

I'm not a Supreme Court junkie, but let me see if I can take a stab at why this ruling is so wrong and so shocking for the time. There was a balance of power established between the northern and southern states with the latter allowing slavery. Letting people bring their slaves into northern states without any repercussions flies in the face of that agreement. The whole point was to keep the odiferous slavery confined to the southern states and not let it encroach on the rights of everyone else.

Probably not

Much of Justice Taney's opinion was based on a legal consensus among the states that African Americans were not citizens. The contemporary unpopularity of the decision is easy to overstate.

The saddest part of the Dred Scott case is that it was, at the time, legally correct. Justice Taney's opinion (the one that is usually cited as "the Dred Scott opinion") makes perfect sense from the viewpoint of mid-19th century American jurisprudence. Mark Graber's book "Dred Scott and the Problem of Constitutional Evil" is a very interesting discussion of this point. The decision is now recognized as the worst decision ever made by the US Supreme Court, but aside from abolitionists--the Occupiers of the day--disagreement was muted.

Interestingly, the Dred Scott decision made slavery a national institution, as opposed to a local one. States were no longer free to say they would not allow or recognize slavery within their boundaries. Kind of undercuts the states' "rights" trope of Confederate apologists, doesn't it?

The Constitution

"ARTICLE I

Section 1. Legislative powers; in whom vested

.......................

3. Representatives [and direct taxes] {Altered by 16th Amendment} shall be apportioned among the several States which may be included within this Union, according to their respective numbers, [which shall be determined by adding the whole number of **free persons**, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of **all other persons**.] {Altered by 14th Amendment} "

Thus, the Constitution originally made a clear distinction between free persons and other persons.

State vs. federal

The US Constitution recognized and permitted slavery. It did not, however, mandate it everywhere in the country. States began abolishing slavery "gradually" by legislation starting in the 1780s. The Northwest Ordinance (1787) prohibited the slave trade, but required the return of fugitive slaves.

Prohibiting the slave -trade-

and freeing slaves are two different things.

You are correct

Until the Dred Scott decision, many states probably thought that their local abolition of slavery would be enough to end slavery, if not nationwide, at least within the state. After all, although the Constitution protects slavery where it existed, states were not required to be slave states. Dred Scott upended that thinking.

Again, the contrast

with Great Britain.
The British courts found that there was no basis in English or Scottish law for slavery, and therefore that no person could own another. This was supported by the British public.
American courts in the Dred Scott case, on the other hand, did find that one person could be the property of another. The (white) American public at the time did, by and large, support this judgement, though certainly not unanimously.
And of course there's a lot of economic and political history involved (which has been covered in this column). Unlike the American South, I don't think that Great Britain was ever a major agricultural exporter.

A little further reading

by Mr. Foster might clear up some misconceptions.

http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

Wikipedia isn't always 100% correct, but it's pretty close in this instance. The SCOTUS did not merely *recognize* slavery in the Dred Scott ruling, it *endorsed* slavery. It went even farther than that by stating for the record that slaves had no rights — were, in legal terms, no more human than farm animals. Even at the time, quite a few people, especially in the north, found that suggestion offensive in the extreme.

To suggest that several millions of people brought to the U.S. against their will, some of whose family members had been living in this society for 4 or 5 generations, had no rights — ZERO rights — flies in the face of both the language and the Enlightenment philosophy of our founding documents. My amateur's opinion is that that's the main reason why it's wrong, though there are likely more reasons that others could point out.

As Eric noted, instead of settling the question of slavery, the Dred Scott decision focused the attention of the entire nation on the question. One of several deleterious effects was the bloodiest war in our history, bar none, with more than 600,000 Americans killed.

I'm old, but not old enough to have any first-hand recollection of whether or not the North was genuinely shocked by the decision, but based on what I've read in a slew of Civil War histories over the years, I think it's safe to conclude that the answer to Mr. Foster's rhetorical question is "Yes." Northerners outside the circle of those running the Underground Railroad might have felt the doctrine of "Once free, always free" didn't have much legal standing, but the whole society, north and south, seems to have been taken aback by the Court's language in denying rights of any kind to slaves.

Slavery still exists; a relative term?

Slavery has just added more faces...too often beyond state jurisdiction; outsourcing workers in China and other third world countries with sweatshops and unsafe, low wage working conditions irresponsibly accepted, even as labor suffers its own losses at home?

Economic slavery outsourced in factories overseas and 'in-house' histories still practiced here
... and so recently, it's like frosting on still-active inequalities culturally and economically, as another, incompetent, blind act by the Supremes, person-hood given to corporations ? A new whip in the hand of 'slave owners' - to protect those who practice slavery here or over-there in the workplace?

From Mr. Hintz;"There was a

From Mr. Hintz;

"There was a balance of power established between the northern and southern states with the latter allowing slavery."

IMO, at least, Mr. Hintz is on the right track. The problem Dred Scott created was that it disrupted the balance of power between northern and southern states, or more precisely, it took away from Congress the power to address those balance of power issues, by overturning the Missouri Compromise and other federal statutes which legislate on slavery issues. Without power to resolve conflicts between the states peacefully through Congressional legislation, the principal alternative to Civil war was removed.

From Mr. Schoch:

"The SCOTUS did not merely *recognize* slavery in the Dred Scott ruling, it *endorsed* slavery." I find this a distinction without much of a difference, certainly not a difference that justifies a decision to break up the union and go to war. My suspicion is that we have always flattered ourselves in believing the Civil War was caused by a fiery national debate over slavery, one exacerbated by Dred Scott. While slavery was at the heart of the dispute, the real story is a bit more complicated. Let's recall that Lincoln's public rationale, at least, for going to war was not the elimination of slavery, it was to preserve the union. In his first inaugural address, he made it very clear to the South that he was willing to accept slavery indefinitely in return for the southern states agreeing to stay in the union.

The events of that time of that time have been obscured by hindsight. That's because in part, history is written by winners who know how things turned out, and have a tendency to make historical judgments accordingly. We think of Lincoln as the secular saint of Gettysburg and the second inaugural, not as the utterly pragmatic politician of the Lincoln Douglas debates and the first inaugural. In movies we see Lincoln as the visionary and strong leader who led the passage of the 13th amendment in 1865, not the politician whose failure of leadership in 1861, one might argue, led to the collapse of our constitutional system of government, and the most disastrous war in our history.

Failure of leadership?

It's curious to state that Lincoln's "failure of leadership" led to the Civil War when 7 states had already seceded and formed the Confederate States of America in February 1865--a full month before Lincoln even took office. The "official" beginning of the war is usually marked by the Confederate seizure of Fort Sumter, just one month later in April. The real failures were from Lincoln's three immediate predecessors--Fillmore, Pierce, and Buchanan--who were generally pro-slavery and didn't assert any power to intervene. Pierce (a Northerner but a racist pro-slaver) made matters even worse by endorsing and vigorously enforcing the Fugitive Slave Act, which essentially required "free" state citizens to capture and return slaves to their supposed owners, no questions asked. Together, the Fugitive Slave Act and the Dred Scott Decision put an end to any hope for a chance to craft another ineffective "compromise" on slavery. American expansionism caused the 1820 Missouri Compromise, the Compromise of 1850 (which included the Fugitive Slave Act), and the 1854 Kansas-Nebraska Act to all become abject failures that ultimately meant that without change, slavery was free to expand into even more new territories and states and that slaveholders' "rights" could be enforced any time, any place. Your statement that the distinction between "upholding slavery" and "endorsing slavery" is "not much of a difference, certainly not a difference that justifies a decision to break up the union and go to war" makes no historical sense at all. It was not the North that decided to "break up the union." History may be written by the victors (although Southerners spun the war and its causes furiously for a full century after), but it still does not change facts like historical dates.

And of course Fillmore, Pierce, and Buchanan

who were not the Brooklyn Dodgers infield,
are well in the competition for worst presidents.

Worst Supreme Court cases

My own view that with regard to civil rights issues, the worst Supreme Court cases were the Slaughterhouse Cases which essentially emptied the fourteenth amendment of meaning, and Plessy v. Ferguson which legalized racial discrimination.

And then there's Citizens United

which trivialized civil rights by holding that corporations were persons with constitutional rights.

The past

One of my favorite things to talk about, one of the cliches I like to harp on, is that almost invariably when we are talking about the past, we are talking about the present. There are many reasons for this, one of them being that we know vastly more about the present than we do about the past. When we discuss things like the Dred Scott case, we tend to do it terms of our contemporary political debate, and to use it to perhaps support and justify arguments and understandings that might very well be quite foreign to the era we are nominally discussing.

Past present future

And this is why history matters. One of my favorite quotes is by William Faulkner: “History isn’t dead. It isn’t even past.”

Fiery National debates

For example, we sort of assume that Dred Scott set off a fiery national debate. Is this really true? Was a culture with very limited capabilities for mass communication even capable of having a fiery national debate? We seem to have them every day now, because we have a media industry that finds them profitable. Was that even possible in 1857? These questions aren't intended to be rhetorical, by the way. Media was different back then, but it did seem to have it's power. Publication of books like "Uncle Tom's Cabin" certainly had an impact, although it's really har now to gauge the impact it had then, because as always, history tends to be written by winners. One of the things I might observe now, is do we really have the fiery debates depicted on TV, or are they just creations of a self interested media. Despite all the kerfuffle in Washington, I seem to notice the sun rises in the morning exactly on schedule, in a manner totally indifferent to such disputes. For grievous sins undoubtedly committed in a prior lifetime, I personally spend a lot more time talking about political issues than is probably healthy for me. What I find is that the vast majority of people don't really have that much interest in those fiery political issues, and those who do have little of interest to say, quite properly because their positions are determined, not by rational examination, but by their pre-existing political views, something that's true for myself by the way.

debates?

Much of what Washington is talking about is of no or little interest to most Americans. A lot of these pumped-up issues are just that--they aren't very relevant for the problems we face. Take the current "scandals," of which I think only the AP one deserves that term. Most people aren't paying much attention to the so called Benghazi scandal, and it appears that more of us are understanding the real core of the IRS one, and the real core of our scandalous and corrupt politics, which is the amount of unregulated, secret money in politics. Since Citizens United, politics--which has always been tainted by money--is even more controlled by money.
It is true that life seems to go on as always and the sun comes up. But that does not mean, here on earth, we are facing (although not necessarily looking at) issues that may doom us like global warming, when the sun coming up is not necessarily a time of celebration. Or the wider scandal underlying Benghazi--why are we there in the first place?