Алистер Смит - The Spoils of War - Greed, Power, and the Conflicts That Made Our Greatest Presidents

EVERY NATION’S HISTORY IS PUNCTUATED BY EVENTS SO MEMORABLE that the mention of a date is sufficient to invoke the facts of the time. The United States has its share of such dates—July 4, 1776; April 14, 1865; December 7, 1941; November 22, 1963; September 11, 2001.14 Unlike other nations, however, the history of the United States also turns on those few placid days when nine justices of the Supreme Court hand down technical and yet momentous opinions. May 17, 1954, was such a day. On that day the court ruled on Brown v. Board of Education of Topeka , marking the beginning of the end of segregation, the undoing of the “separate but equal” doctrine supported in Plessy v. Ferguson (1896). Brown tore apart the era of racial oppression that had been enshrined in the Constitution and then had been expanded upon in Dred Scott v. Sandford (March 6, 1857). The Dred Scott decision is widely regarded as the worst ruling the Supreme Court ever made. Of that there seems little doubt. The awful clarity of the court’s opinion in the Dred Scott case, however, was also the making of Abraham Lincoln. Without that horrendous ruling, would we have had—could we have had—Abraham Lincoln as president of the United States? We think the answer is no and we believe Mr. Lincoln would have agreed.

To understand the significance of the Dred Scott ruling, it is useful to summarize the issues before the court. Dred Scott, a slave, was taken by his owner, John Emerson, an army surgeon, into the Wisconsin territory (in a portion later to be part of the state of Minnesota) when Emerson was assigned to an army fort there. Under the terms both of the Northwest Ordinance of 1787 and the Missouri Compromise, passed in Congress in 1820, Scott had been transported into free territory several times in the 1840s. Arguably, once transported to free territory, an enslaved person was no longer a slave. Nevertheless, Emerson leased Scott out as a worker. This was arguably a violation of the free-state designation of the Wisconsin territory. Scott and his wife were moved again, eventually to the state of Missouri where he, with the help of abolitionist advisers and with financial backing from his original owner, Peter Blow, sued for his freedom after repeated efforts to purchase his freedom (and after Emerson had died and Scott’s ownership had been passed on). The basis of his case was that because he had resided in a free territory, Scott had been emancipated. Missouri seemed like a good venue for the suit as there were numerous precedents in which state courts had ruled in favor of slaves who were in fact judged to have been emancipated by dint of their having been taken to a free territory. As expected, the Missouri lower court found in Scott’s favor but the Missouri Supreme Court did not. Eventually the case made its way to the Supreme Court of the United States, where Scott’s future—and we believe, Lincoln’s—was determined.

In the Dred Scott decision, the court, in a 7–2 vote, concluded that no black person, whether slave or free, could be a citizen of the United States. And since no black person, whether slave or free, could be a citizen of the United States, then it followed that no such person could have standing to sue in an American court or to enjoy any of the other rights and privileges of a citizen of the United States, and that this was true even if a state or territorial government conferred citizenship on such a person. The chief justice of the Supreme Court, Roger Taney, in expressing the court’s majority opinion, observed that all of Europe, and England in particular (the court cases we referred to earlier notwithstanding), considered the people of Africa and their descendants to be “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; and that the negro might justly and lawfully be reduced to slavery for his benefit . . .”

Hence, while slavery was sliding into oblivion in “the civilized portion of the white race,” the court ruled to the contrary. Having denied the possibility that Dred Scott could be a citizen and therefore have the right to bring suit, the court nevertheless went on to rule on the rest of the case. While finding against all of Scott’s claims, the court then proceeded—only for the second time in US history—to overturn a law passed by Congress on the grounds that it was unconstitutional. Specifically, the Supreme Court overturned the Missouri Compromise of 1820. As Justice Taney opined,

an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. . . . [I]t 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.

And so, voilà, in this one major decision the Supreme Court destroyed the nation’s delicate compromise between the divisions of opinion over the multitude of questions related to slavery. It did so by the simple mechanism of concluding that those of African descent were not people, but purely property. The logic was simple. Suppose someone decided to move to a territory of the United States. He would pack his few sticks of furniture, perhaps a bag or two of flour, maybe a horse and some oxen, and perhaps a few slaves and move them all to the territory in which he was going to settle. Now obviously, the sticks of furniture remained the property of the person who packed them and moved them. No one could lawfully take that furniture from its rightful owner. And likewise with the bag or two of flour, the horse and oxen, and, of course, because they were nothing more than property, the slaves! Poof, the Missouri Compromise was gone and so too was the idea that Congress could regulate the spread of slavery.

The Missouri Compromise had been intended to maintain balance between slave states and free states by establishing the principle that for every new slave state to enter the Union there would also be a new free state. In overturning this law, the Supreme Court held that Congress did not have a constitutional right to dictate whether a territory had to be slave or free as a condition of its becoming a state. The decision went still further. The Kansas-Nebraska Act of 1854, promoted by Senator Stephen Douglas of Illinois, advanced the idea of popular sovereignty in the territories as an alternative to the by-then foundering Missouri Compromise. The act granted to the people in each territory the authority to determine for themselves whether their territory was to be free or slave. That is, Douglas advanced the idea that policy decisions, including decisions regarding slavery, should be made through democratic practices—through popular sovereignty—and not by fiat by some remote body of legislators. However, the Dred Scott ruling dictated that the territories did not have the constitutional right to ban slavery, thereby undoing the idea of popular sovereignty. Again, the logic was straightforward. Popular sovereignty violated the property rights and entitlement to due process of American citizens who might move to a free territory with their property, including their slaves, whose ownership remained sacrosanct. Thus, according to the Supreme Court, there was no constitutional restriction on the spread of slavery in the territories of the United States. This opened the floodgates to the spread of that “peculiar institution” throughout the territories, each expecting eventually to become a state.