Dred Scott

Greetings class. This is our second lecture looking at the 1850s. It's the second of three so we're going to continue looking at this important decade and we're going to begin with the election of 1856. One of the first things you should notice about this particular slide is that the Whigs are not represented in this election. Remember the Whig Party has fallen apart largely as a result of the compromise of 1850. It has collapsed. The election of 1852 was really the last gasp for the party. The party can no longer hold itself together because its members are torn. Over the wisdom of the compromise of 1850 a stronger fugitive slave clause and so on. Remember the parties existed in part what one function of the parties was to avoid the sectional debate between north and south. But now the sectional crisis largely over the future of slavery is tearing the country apart.

We saw it earlier. With American churches we saw the Baptist Methodist Presbyterian churches all broke into separate north versus south factions because they could not agree on a position toward slavery should they tolerate slavery should they oppose slavery. And so they broke into rival factions. Now we've seen the Whig Party divide primarily over slavery policy.

Ultimately we're going to see the Democrats have their own split related to slavery until finally the issue threatens to tear apart the country itself.

So who's running in this race. Well the Democrats have put forward James Buchanan of Pennsylvania. Buchanan was what was known as a go faced politician. That is he is a northern man of southern principles. Specifically he is a northern candidate willing to compromise with the south. To give it what. To give the south what they want. In order to prevent a crisis to prevent secession he's willing to if you will appease the slave states.

Now we've got two rival parties. There's no Whig Party anymore.

And so we have two different parties trying to fill that power vacuum. Who is going to be the opposition party to the Democrats. Well we've got a party calling themselves the Republicans. The Republican Party. And they have nominated John C. Fremont. Fremont was an Army officer. He had done some exploring out West. He had fought the Mexican War. Out in California. And he is their candidate. The Republican Party is squarely an anti slavery party. It's not necessarily abolitionists because abolitionism to many Americans is a rather extreme position to end slavery as soon as possible. You might well call the Republicans a free soil party. At the very least they say do not allow slavery to expand. So we have a party actually taking a side in the sexual crisis saying we are against slavery.

There's many complicated reasons why Americans would oppose slavery in the 19th century. Now I could see why white Americans. Because if you're an African American experience in slavery you you know whites whites bad.

But what about Americans white Americans who don't experience slavery themselves especially northerners the North i.e. the free states. Why might they. And this if we were in class together I would pose this question to you and get you thinking about this. What are reasons.

A 19th century American might oppose slavery. Well I always like it when the first one when the first answer is it's wrong. And yes I would I would hope lots. I would hope everybody in the group in the room would agree that owning people and selling people is is wrong. So the moral reason. Right.

A moral objection to slavery to the buying and selling and owning of human beings. So the moral reason. That's that's a very easy one for us to understand.

There's also economic reasons slavery is after all part of an economic system it's part of the radically agrarian society favored by the southern states. Now the free states they have a much more diverse economy. They've got some kind of. They've got some growing industries in the free states but they also do tons of farming themselves. And generally it's your typical small family owned farm. Now there's lots of those in the south too. Not everybody lives on a grand plantation with hundreds or thousands of acres and scores of slaves. But slavery. Is an element of an economic system. Why might northern's oppose slavery for economic reasons. Well depends on whether you think slavery is. Harmful or beneficial economically. But either way you can oppose slavery. For instance you might say you know I don't want to have to compete with somebody who owns his labor force. I'm a small farmer. I don't want to have to compete with the rich planter especially. Maybe I have my heart set on settling in Kansas on a new piece of land. So maybe you think slavery slave ownership is is an unfair advantage. Maybe you think on the other hand maybe you think slavery is an economically backward system. It's kind of feudal. And there's a debate among historians you know was slavery profitable or not. The institution was growing. In the 1850s certainly but there was a lot of costs involved as well. So economically is it good for the country. Many northerners would have said the South needs to abandon slavery and adopt a system of wage labor of free labor like we have now. Free labor doesn't mean you're working for free. That's you know what the slaves are doing.

Free labor means the labor is free. The labor her gets to choose whether he comes to work for you or not. Rather than being a piece of property.

Other reasons you might want to oppose the political power of the south and that could be for economic or moral reasons. But. Americans are looking at the West looking at those new territories and what states would be carved out of those new territories. Maybe you say you don't want the South to get any more power any more seats in Congress and therefore that's another reason to contain slavery to prevent slavery from spreading.

Yet another reason could be racial animosity. A 19th century American might be opposed to slavery or at least the extension of slavery because of an animosity toward African-Americans. You might say I don't know whether there are you know whether free or slave. I don't want them here.

You might against somebody who wants to move to Kansas might not want. The African-Americans there at all free or slave. And certainly true that the South did not have a monopoly on racism you could find rampant racism in the north even among some diehard anti-slavery people. Now not everybody was. Some people were more shall we say racially enlightened or more even tolerant of the word more open minded let's say. But there was a great deal of racial animosity and even just racial bias. And so that is another reason why somebody might oppose slavery or at least slavery's expansion. So there's lots of different ways and it doesn't have to be one single reason. There could be a number of reasons why somebody could oppose slavery but it's important to note that we are seen.

Many Americans many free state voters getting tired of the South getting its way tired of appeasing the South tired of compromising the south. When it comes to the future of slavery. Now you should notice we have a third party in the race as well calling themselves the American Party and they're actually running. Former President Millard Fillmore as their candidate. The American Party was largely characterized by animosity or worries about new waves of immigration coming to the United States. Millions of immigrants coming from Ireland coming from Germany coming from other places. But Germany and Ireland were the most prominent ones up. Germany had seen a number of revolutions in 1848 as Europeans wanted to throw off monarchy and undemocratic forms of government. Ireland that same year was enduring a potato famine. Many people were starving or dying of malnutrition and sought the United States as a new place of freedom and opportunity. So many immigrants are coming to the country. And many Americans of a nativist position were worried about these new immigrants are they going to take jobs depress wages. Do they believe in all the same things good native born Americans are supposed to believe in.

They're they're culturally different. They're socially different. The Irish are mostly Catholics the Germans many of them don't speak the language. One of the things than the nativists want to do was extend the time it took for somebody to become naturalized as a citizen. The American Party is better known to history as the No Nothing party because they were rather secretive about their activities and supposedly were supposed to tell anybody any outsider who asked about the party's activities. I know nothing. Well the name kind of stuck. The Republicans and the know nothings represent two different factions to different.

Constituency's if you will within the old Whig Party it's an open question in 1856 who's going to be the who's going to emerge as the true opposition party. Well as history tells us it was the Republican Party and a huge reason for this was that the question or questions revolving around slavery quickly were becoming the most critical issues facing the nation as a whole. So the no nothings are going to be kind of lost to history. But this is the establishment of the Republican Party as we know it today. Founded as an explicitly anti-slavery party they consciously used the name Republican because that was the name used by Thomas Jefferson's party. Now Jefferson's party has morphed into the Democratic Party. But the Republicans will say no no no. We are upholding the true principles of Thomas Jefferson.

Now this race the Democrats have won and it's not surprising that Buchanan the Democrat has won the opposition to the Democrats is split three ways. So do the Democrats have to worry in the future about opposition at the ballot box. They should they really should notice Buchanan has only won forty five percent of the vote. Now of course it's the Electoral College that decides who wins the presidency. But if you change enough votes you change which states give their electoral votes to a candidate. The Republicans are only at 33 percent. That's only about a third of the electorate. Now if we were at to add these two columns together the Republican and the American vote we would get fifty four point six percent. Now again. You have to translate into that. Look into that into the Electoral College. And you shouldn't necessarily assume that everyone. Voting for Fillmore will vote for a Republican in the future but it's a good chance all the same. Now if you break down the map. State by state. It turns out that the Republicans only need to flip a handful of states if they can keep all of the states that they want in 1856 and add a few more. They could win the presidency. They could win the presidency only with northern states only with free states. The northern states are more populous. The free states in total are more populous. Then the slave states.

And so the Democrats better watch out and Southerners better watch out because it's entirely possible. OK. Spoiler alert it's going to happen that the Republicans can and will elect win a presidential election. And we will see how that plays out.

Let's turn back to bleeding Kansas remember we're fighting over Kansas we're fighting over whether Kansas will become a free or slave state in the future. And you might remember the free and slave settlers that the precinct's settlers on the border ruffians settlers had rival territorial capitols in Lawrence and La Compton. Respectively. The pro-slavery settlers drew up the so-called La Compton constitution and they told the federal government hey we are the legitimate territorial government of Kansas recognize us and we will get ready for statehood. James Buchanan is a northerner who wants to keep the slave states happy and so he recognizes the Lecompton Constitution. This is going to start a scism. This is going to start a split within the Democratic Party. Buchanan is a Democrat. He's president of the United States. That makes him the most important Democrat in the country.

But one of the most other important Democrats in the country is Senator Stephen Douglas. Stephen Douglas. The guy who introduced the legislation the Kansas Nebraska acts that caused this huge controversy. Douglas does not support the Le Compton Constitution. He doesn't believe that this. Reflects the will of the people. And there's elections in Kansas. Whenever I talk about bleeding Kansas I like to talk about voter participation because we talk about you know how few people vote today. And I think a lot of times like national elections were somewhere in the 50 percent mark. Boy did Kansas in 80 in the 1850s have us beat. They had over 100 percent voter participation. What's that. Well if you think about through what is over 100 percent mean it means that more people than are on the books that should be voting are voting. There's some kind of electoral fraud going on. This La Compton government too wanted to pass some very draconian laws. They basically wanted to make any public criticism of slavery a crime. And for many reasons. Stephen Douglas opposed this Compton government. This causes a split among the Democrats. Do you support the president who endorses this pro-slavery government in Kansas. Or do you support Stephen Douglas one of the most influential senators of his day and his opposition to the Lecompton Constitution. So the Democrats cannot agree on this thorny issue of slavery in Kansas.

This is a famous cartoon that relates to this idea of the Democrats policy towards Kansas. What we have is as the caption suggests the Buchanan administration is literally forcing slavery down the throat of a free soyland. The Democrats are using fraud and force to force slavery on Kansas when the argument is a majority of Kansans. Do not want to be a slave state or a slave territory.

And so this is an ongoing dispute. Again we have we have dissension among Democrat ranks because of this.

We're going to conclude this lecture and we're gonna to spend criminal time on it. On one of the most influential Supreme Court cases one of the most infamous Supreme Court cases ever the Dred Scott case. And this has a huge bearing on the future of slavery in the United States. Dred Scott was an enslaved African-American. He was married. They had two daughters. You see he and his family depicted in this period newspaper there. Dred Scott lived in Missouri. Now he had a number of masters during his lifetime. One of these masters was a doctor and actually a surgeon for the United States Army. So he's an army doctor. And as often is the case when you are in the armed services you can be sent you know from different places. You can be transferred to different posts. And his master this this army surgeon was transferred first to Rock Island Illinois and then to Fort Snelling in Minnesota Territory. Now you don't need to know those details but what you what's significant about that is that his master took Dred Scott with him. Now Illinois was a free state. Minnesota territory was a free territory. Slavery was not allowed in either of those places. But he took Dred Scott with him.

And here was kind of an ambiguous ambiguous. Why can't I pronounce things. This is an ambiguous area within the law.

There was a general principle that slave owners were allowed to quote unquote sojourn with their slaves. They could bring slaves along with them on a trip. And so a Southerner going to New York City might bring along a man servant or a maid or something like that or someone like that.

It's an interesting question you know this the surgeon has been stationed at military outposts in a free state in a free territory. Is that soldier earning or you know is he breaking the law by owning a slave. Well his master came back from those those outposts. He came back to Missouri. And actually Dred Scott went through a number of different masters but he found folks who were willing to present a legal challenge on his behalf that would help him sue for his freedom to go to court saying I was taken to a free state. I was taken to a free territory. Places where slavery was not allowed. I should be free.

So this is the case. This is the matter that was going to go for the Supreme Court.

The case is known as Dred Scott v. Sanford Dred Scott. As we identified he is the enslaved man in question. Sanford was one of his owners actually. That spelling is misspelled. But the court misspelled it in the official records. That First D shouldn't be there. But that's how the Supreme Court wrote it. The case is going to be heard by a Supreme Court headed by Chief Justice Roger B. Taney . Taney was a loyal member of the Andrew Jackson administration and late in Jackson's term Jackson successfully nominated him. For chief justice of the Supreme Court.

Taney was a Marylander. He's from a slave state. He's a little bit complicated in that he had previously defended slaves in court cases early in his career. But he's not going to help the plight of enslaved Americans with this decision. So Scott is suing for his freedom. How does Taney and his fellow court members rule. Well this is a 7 2 decision. Seven justices wrote or agreed on a majority opinion to Moore wrote dissenting opinions 7 versus to seven wins.

So what what ruling did the court hand down. Well first of all the court under Taney ruled against Dred Scott. The first finding of the court was that quote not quote sorry persons of African descent cannot be nor were ever intended to be citizens under the U.S. Constitution. Therefore Dred Scott has no standing to sue. Let me unpack this idea standing to sue. That means whether or not you're allowed to bring a case to court in the first place.

Taney 's position is Scott was a slave when he sued. Slaves aren't citizens they're not allowed to sue. So your your your claim is rejected.

Now Taney could have authored a limited decision he could have authored a very narrow decision he could have simply said he's a slave he can't sue. And it's story. It also would've been easy to dismiss the case because there was a precedent that if you so journey with your slave and brought that slaves back to. A slave state. You were kind of back in and you basically reasserted ownership as it worked. So you brought it back to Missouri. These bees definitely a slave. That would have been the easy way for Taney to dismiss the case. What it seems though is Taney . Well Taney definitely issued a very activist decision if I may say. He authored a very expansive very aggressive decision. He didn't simply leave it at Dred Scott has no right to sue on this first bullet point. The wording is careful there. Notice I said no. I did not say.

Slaves cannot be citizens. Chief Justice Taney said that slaves or their descendants i.e. African-Americans could not be citizens and never were intended to be. Not if you are a slave not not free versus slave. If you're black basically.

Now Taney and his decision says you know I'm just going by the Constitution. If you look in the Constitution you won't find any mention of race or color. When I do modern U.S. history and talk about Plessy v. Ferguson Plessy v. Ferguson allowed segregation to continue. And there was a justice in that case John Marshall Harlan who disagreed who dissented and said the Constitution is colorblind. Well he didn't read the same way that Harlan read Chief Justice Taney. Chief Justice Taney I would say out of nowhere he's claiming he's claiming that African-Americans can not be citizens not just because they're slaves just because they were slaves or descended from slaves. A quick note here. Citizenship was largely a state issue during this time but there were definitely places in the north in which. Free African-Americans had some rights and liberties as citizens. So Taney is really stepping out on a ledge here. What else does he say in this ruling.

Here's a big one. Congress cannot ban slavery in territories. The Missouri Compromise is or was unconstitutional.

Now in one sense that's moot because we have dissolved the Missouri Compromise we've we've raced that line. Remember the Kansas Nebraska act but it's significant all the same Taney is saying. The Congress cannot restrict slavery in the territories cannot ban it and the whole question. The fundamental question. That the nation is arguing about touring this time is should slavery be allowed to expand. Here's Roger Taney saying you can't stop slavery from expanding. Congress doesn't have that authority over the territories.

So this has huge implications. He's basically saying the entire platform of the Republican Party or at least the key plank of the Republican platform is unconstitutional.

Taney also ruled. That the due process clause of the Fifth Amendment the due process clause states that you cannot be deprived of life liberty or property without due process of law. And he says this part of the Fifth Amendment means you can not prohibit someone from taking slaves into a territory like Kansas or Nebraska or anywhere else. Not just places. Covered by the Missouri Compromise somewhere like Minnesota that had been. Anti-Slavery essential as long as it was a territory.

He's saying that.

Telling a slave owner he can't take his slaves into a federal territory that's depriving him of his property. Without due process of law no no you can go. This is me now talking. You can go to Kansas. You simply can't take your slaves with you. But in Tommy's logic this is a violation. Perhaps the most infamous line from the Dred Scott decision reads. They referring to African-Americans had for more than a century before been regarded as beings of an inferior order and altogether unfit to associate with the white race either in social or political relations. And so far inferior. That they had no rights which the white man was bound to respect.

Now the way Taney couched his decision the way he wrote this decision. He doesn't state it in such a way that this is what I Roger Taney believe. He's essentially hiding behind history. He's saying you know all we want. We wish we could be nice to the slaves. You know we there's people with humanitarian impulses but sorry. The framers of the Constitution believed they were inferior and never could have the same rights as us white people.

I'm going to take issue with that claim in the next slide. He's not saying that this is his opinions. This is just you know this is what the framers said and that's how the Constitution has to be interpreted. Now Taney  probably thought you know most people act you know for what they think are good reasons. Right. Taney probably thought what he was doing here was. Making peace that this he was going to act as a judge to settle this dispute. We're arguing over whether slavery can expand. And here's the Supreme Court saying yes slavery can expand. In fact you cannot prohibit slavery in federal territories.

This. Court case is a bombshell because here here's the Supreme Court weighing in. Again saying you cannot ban slavery from the territories. That means there's almost no way at the territorial level of containing slavery of stopping it from expanding. This is a bombshell. It angers many many people in the free states.

Few statesmen were upset as upset.

As Abraham Lincoln. Abraham Lincoln Illinois politician and lawyer. And he's going to take apart this decision as a lawyer. Lincoln knows the law. Lincoln knows his American political history. Lincoln admires the founding fathers. He esteems. He highly esteemed both the Declaration of Independence. And the Constitution. Lincoln's position is that the Dred Scott decision is wrong is fundamentally wrong. It's wrong politically it's wrong. Historically it's wrong. Morally Taney has gotten it wrong. Taney and six other justices on the court don't know what they're talking about. And by implication Lincoln also says that we shouldn't obey this we should ignore this ruling. Lincoln had some very firm opinions about the Supreme Court. This is a genuine quote from Lincoln. We are the people we the people are the rightful masters of both Congress and the courts not to overthrow the Constitution but to overthrow the men who would pervert the Constitution.

Many people argue they'll Saturday though referred to a Supreme Court decision as the law of the land. And some scholars and I would count myself one of them would say that that's erroneous. The Supreme Court can interpret the law. It interprets the Constitution but it's not the final authority on the Constitution. There are two terms I'm going to use law of the land and law of the case. Law of the land implies that whatever the Supreme Court says applies to the whole country. That's kind of a de facto position. Lincoln is arguing for the law of the case that whoever appears before the court in it for a given ruling they are bound by the rules of that court. But what about everybody else. Do they have to automatically recognize Taney's position is right simply because he said so. Lincoln says no Lincoln would agree with Andrew Jackson. That just because the Supreme Court says so doesn't make it true. The Supreme Court can be wrong. The Supreme Court can be fallible.

And if the Supreme Court is wrong you should disregard the decision. Now later when Lincoln. Debates Stephen Douglas. We've been talking a lot about him. Stephen Douglas will attack Lincoln for his opposition to the court and to the Dred Scott ruling. Here's a quote from Stephen Douglas. The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine expound and enforce the law. Hence whoever resists the final decision of the highest judicial tribunal aims a deadly blow to our whole Republican system of government. A blow which if successful would place all our rights and liberties at the mercy of passion anarchy and violence.

Douglas is taking the law of the land position in fact in another quote another statement he defines it as the law of the land. Douglas is saying how dare you question the court our highest tribunal. The court has spoken. That's the law. And if you reject the court's ruling you are basically embracing anarchy and chaos.

Lincoln's position is no I'm rejecting guys who don't know how to interpret the law and the Constitution and history correctly. Can you tell him on Lincoln's side here.

Lincoln gave a great speech in 1860 at a place called the Cooper Union in New York City. And I encourage you to read the Cooper Union Address. It's not an assignment but it's a remarkable document. And the first half of the document it reads somewhat like a legal brief. It's Lincoln the lawyer taking apart. The Dred Scott decision he wipes the floor with Justice Taney's argument. Lincoln uses historical arguments. Remember the Northwest Ordinance. We talked about that many lectures back before there was a constitution under the Articles of Confederation. The Continental Congress. Including men who went on to draft the Constitution banned slavery in the Northwest Territory in the Great Lakes states. And that to Lincoln 1 showed a precedent. It showed a precedent that many of the founders as I talked about were squeamish were ambivalent about slavery and some of them hoped that they could put slavery on a path to extinction especially if you did not allow slavery to grow.

So Lincoln has the Northwest Ordinance which predates the Constitution on his side. And the basic idea why cannot Congress regulate the territories. Lincoln also argues from history against Chinese notion. When Taney claimed that well we feel more kindly towards African-Americans today in eighteen fifty seven. But back then their their attitudes were were far harsher towards blacks. And Lincoln says no. If anything our our racial philosophy has gotten worse. And remember how I talked about the change in slavery as we see slavery expand in eighteen twenties and thirties. Some Americans attitudes toward slavery changed. We see Americans stopped saying slavery is a necessary evil. And maybe someday it'll be gone. Instead we see too many Americans slipping. Slavery is a positive good and it's good for white people and it's good for our black slaves. So Lincoln argues no you've got your history wrong. I can point to founding fathers who said slavery was bad. And now the same things that they said in the 1780s would get you tarred and feathered in parts of the south today. So. I definitely think Lincoln had the far stronger argument here. Needless to say the Dred Scott decision has gone down in history as one of the most notorious Supreme Court decisions. And I would go further and say a wrongly decided decision. Here's something interesting. Lincoln had to say about the Dred Scott decision.

He almost makes kind of a if you will a conspiracy theory or a slippery slope argument as if to say what will happen next. Right. Could this lead to something still worse. In one speech he declares. Put this and that together and we have a nice little niche which we may ere long see filled with another Supreme Court decision declaring that the Constitution of the United States does not permit a state to exclude slavery from its limit. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their state free and we shall awake to the reality instead that the Supreme Court has made Illinois a slave state.

So Lincoln's obviously a guy who wants slavery to be rolled back who wants it to recede to end eventually. Lincoln says OK. Justice Tawney has done something outrageous. And said that Congress cannot ban slavery in the territories. By the way this court case made his history in the sense that this was only the second time in 70 some years that the Supreme Court had overturned any kind of federal law. Lincoln says OK first Taney tells us that we can't ban slavery in the territories. What happens if there's a future Supreme Court case and the court tells us that we can't have free states that we can't ban slavery in our own states that we all have to allow it.

Lincoln feels.

Like many North very threatened by what some have called the slave power that the slave states are out to force their agenda on us. You might have heard about Southern grievances about how the South feels aggrieved feels put upon by the free states and they do. But make no mistake many northerners also felt aggrieved. Many northerners felt put upon because it was always the slave states. A fraction of the American union. Always clamoring for special protections and the pro-slavery demands of their section their region being met.

So there's this clear idea that the southern states with their pro-slavery agenda. Represent a threat to the free states and to American liberty and self-government itself. And this is a big deal about what drives Lincoln's return to politics and Lincoln's politics. His return to politics. I should say is where we will be picking up our third lecture looking at this exciting dynamic contentious decade. That was the 1850s. Until then stay safe stay healthy. And tune in to the next election.