In a 2022 article titled “Will the U.S. Supreme Court ever get around to overruling the shame of Dred Scott?” the surprising proposition is advanced that the1857 Dred Scott case is “still precedent” in the United States, and that “racist lawyers and racist judges can (blatantly or discreetly) rely on it in their arguments and rulings.” Like President Biden’s Antilynching Act of 2021, we are asked to believe that the injustices of past centuries are still in operation and new laws are needed to eradicate them.
Does the US Constitution today really permit “racist lawyers and racist judges” to deny rights to black people by invoking the precedent of Dred Scott? In the years preceding the War for Southern Independence, the question whether slavery was legal under the US Constitution was in contention between originalists—who insisted that the Constitution ought to be interpreted based on its original meaning and intention—and those who saw the Constitution as a “living” document, whose meaning and interpretation must evolve to adapt to a changing political, social and moral environment.
In Canada, where the “living tree” constitutional doctrine now enjoys widespread support, law professor Bruce Pardy has criticized Supreme Court justices like Rosalie Abella for transforming themselves into judicial activists under the guise of purposive interpretation of the Constitution:
The court’s job, she told Wells, is to do the right thing when politicians won’t… Abella said that supreme courts must be independent because they are “the final adjudicator(s) of which contested values in a society should triumph.”
Pardy points out that the “living tree” justification for judicial activism—where judges see their role as that of resolving contested moral and social values—is comparatively recent. For centuries, the role of judges was thought to be that of interpreting the law as it is, not as they think it ought to be. Pardy observes:
Justice Brian Dickson, later the Supreme Court’s chief justice, in a 1978 decision, rejected the notion that the court should weigh political and socio-economic issues, which would necessarily reflect judges’ personal beliefs. He cited U.S. Supreme Court Justice Benjamin Cardozo, who wrote in 1921 that a judge “is not to innovate at pleasure. He is not a knight errant, roaming at will in pursuit of his own ideal of beauty or of goodness.”
This was one of the key issues in the Dred Scott case. The legal issue was not whether slavery is morally abhorrent, but whether it was prohibited by the Constitution. As summarized by the New York Times in 1927, the facts were that:
Dred Scott was a slave belonging to a Dr. Emerson, who was attached to a Missouri army post. Emerson took Scott to Illinois in 1834 and in 1836 to what is now Minnesota – non-slave territory. In 1838 he was again back in Missouri. After several years Scott brought suit against his master’s widow in the Circuit Court in Missouri, claiming that his residence in free territory had made him a free man.
The question was whether, upon returning to a slave state, Dred Scott could seek federal protection, as a free citizen, against the resumption of his slave status. The majority ruled that, “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.” Many people today seem to think that because there is now a moral consensus that slavery is wrong, it follows that courts in the nineteenth century should have upheld the principle that slavery is immoral and unconstitutional, and any judge who failed to do so must himself be morally abhorrent.
Yet that is not the classical meaning of upholding the rule of law. Under the rule of law, it is relevant to study the text and interpret the meaning of the rules as laid down in legislation and case law—a matter on which different judges could, and often do, disagree. And so it was in the Dred Scott case. The reasoning of the majority (Chief Justice Roger B. Taney joined by justices James M. Wayne, John Catron, Peter V. Daniel, Samuel Nelson, Robert C. Grier, and John A. Campbell) was that when the Constitution was adopted, slaves were not regarded as citizens. The majority insisted that the original meaning of the Constitution must be upheld. Justice Taney said:
They 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.
Justice Taney’s approach seems preposterous to many people today, so much so that Britannica, Wikipedia, and other politically correct sources of information confidently inform us that lawyers “all agree” that it is the worst decision ever handed out by any court in the entire history of the United States. This hyperbolic language reflects the universal normative rejection of slavery as immoral. But regarding a practice as abhorrent, and spewing forth wrath against nineteenth century judges by taking down their statues and memorials, does not in itself settle the point about constitutional interpretation. Otherwise, we would simply be saying that when we care enough about an issue that is widely regarded as abhorrent, we should disregard the Constitution—a view that is now widely touted by those opposed to the first and second amendments of the US Constitution. Activists who disagree with the first amendment protection of free speech argue that “free speech is hate speech,” which in their view is “literally genocide,” as the United Nations informs us that, “There are historical precedents showing that hate speech can be a precursor to atrocity crimes.” The second amendment protection for the right to bear arms fares no better in the eyes of the neo-Puritans, social justice warriors, and progressive activists who believe that, “Government is God’s major instrument of salvation.”
In his Dred Scott judgement, Justice Taney rejected the notion that the Constitution ought to be judicially amended by the Supreme Court to fit better with prevailing legal and moral principles. He was of the view that a Constitutional amendment would be required in order to change the meaning of the Constitution:
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.
Britannica claims that Dred Scott is “the most egregious example in the court’s history of wrongly imposing a judicial solution on a political problem.” Yet Justice Taney states the precise opposite, namely that the court cannot impose a judicial solution on a political problem:
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. (emphasis added)
That is a perfectly acceptable principle of constitutional interpretation. In a stunning display of “it’s politics when we dislike the outcome, but it’s not politics if we agree with the outcome,” Britannica denounces the majority opinion as political, but approves of the fact that many courts disregarded the Dred Scott ruling and treated the dissenting opinions of Curtis and McClean as the correct statement of the law. Britannica explains:
For all practical purposes, Northern courts and politicians rejected Scott v. Sandford as binding. In an advisory opinion, Maine’s high court declared that African Americans could vote in both state and federal elections. The Ohio Supreme Court ruled that any slave coming into the state with his master’s consent, even as a sojourner, became free and could not be reenslaved upon returning to a slave state; the New York Court of Appeals handed down a similar ruling in Lemmon v. The People (1860). In several states, legislatures resolved to prohibit slavery in any form from crossing onto their soil and enacted legislation freeing slaves passing within their borders.
Although Britannica thinks disregarding the majority opinion of the Supreme Court was not political at all, the New York Times observed that, “Five of the nine Judges, including Roger B. Taney, the Chief Justice, were Southerners… This decision upheld the Southern claim and strengthened the South in its opposition, while it called forth a storm of denunciation from the North and the new Republican Party.” The fact that Britannica agrees with the North on this point, it would seem, suffices as evidence that the courts who rejected Dred Scott were not being political.
Abolitionists like Lysander Spooner had a more principled position than contemporary hypocritical neo-Puritans. While Spooner regarded slavery as morally wrong, it did not follow that he agreed with the subsequent war of Northern aggression. Spooner regarded it as morally wrong to wage wars of aggression, regardless of the alleged good motives of the aggressor. Other libertarians, including Murray Rothbard, take the same view as Spooner. Moral wrongs are not “total” in the sense that once a wrong has been established it justifies the perpetration of further wrongs, otherwise injustice would merely precipitate further and more egregious injustices. This explains why Spooner did not simply argue that slavery was morally wrong, but rather sought to show that it was also unconstitutional. He made the effort, which is the only approach compatible with the rule of law, to distinguish his moral opposition to slavery and his opposition to the majority view of its constitutionality, from the question of the justice of Lincoln’s war.
