Dred Scott (Murrin, 1999)

John M. Murrin, et al., eds., Liberty Equality Power: A History of the American People, 2nd ed. vol. 1 (Fort Worth:  Harcourt Brace, 1999), 478-79.
The South took the offensive at the very outset of the Buchanan administration. Its instrument was the Supreme Court, which had a majority of five justices from slave states led by Chief Justice Roger B. Taney of Maryland. Those justices saw the Dred Scott case as an opportunity to settle once and for all the question of slavery in the territory.

After the owner’s death, Scott sued for freedom on the grounds of his prolonged stay in Wisconsin Territory, where slavery had been outlawed by the Missouri Compromise. The case worked its way up from Missouri courts through a federal circuit court to the U.S. Supreme Court. There it began to attract attention as a test case of Congress’s power to prohibit slavery in the territories.

The southern Supreme Court justices decided to declare that the Missouri Compromise ban on slavery in the territories was unconstitutional. But to avoid the appearance of a purely sectional decision they sought the concurrence of at least one northern Democratic justice. They found their man in Robert Grier of Pennsylvania, and President-elect Buchanan played an improper role by pressing his fellow Pennsylvanian to go along with the southern majority. Having obtained Justice Grier’s concurrence, Chief Justice Taney issued the Court’s ruling stating that Congress did not have the power to keep slavery out of a territory, because slaves were property and the Constitution protects the right of property. For good measure, Taney also wrote that the circuit court should not have accepted the Scott case in the first place, since black men were not citizens of the United States and therefore had no standing in its courts. Five other justices wrote concurring opinions. The two non-Democratic justices (both former Whigs, one of them now a Republican) dissented vigorously from both parts of the Court’s decision. They stated that blacks were legal citizens in several northern states and were therefore citizens of the United States. And to buttress their opinion that Congress could prohibit slavery in the territories, they cited the provision of the Constitution giving Congress power to make “all needful rules and regulations” for the territories.

Modern scholars agree with the dissenters. But in 1857 Taney had a majority and his ruling became law.
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