Monday, March 5, 2018

Dred Scott Strains the Mystic Chords--On 3Quarksdaily

"We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature."
—Abraham Lincoln, March 4, 1861, First Inaugural Address  

Irony. History offers an inexhaustible supply of it. Lincoln stood on the podium that March morning across from the one man who may have most helped put him there—the Chief Justice of the United States, Roger B. Taney. Four years earlier, on March 4, 1857, Taney performed what he considered a far more pleasant duty: to swear in his fellow Dickinson College Alum James Buchanan. Then, just two days after, he lit the first match to Buchanan's Presidency by reading from the bench what was probably the most consequential, and certainly the worst Supreme Court decision ever, Dred Scott vs. Sandford.  

Dred Scott was born a slave in Missouri, owned by an Army Surgeon named Emerson, who often traveled to new postings. For roughly a decade, they lived in Illinois, a state where slavery was prohibited by both the Northwest Ordinance and its own constitution. Later, Dr. Emerson was posted to Fort Snelling in Minnesota, then a territorial area where slavery had been forbidden by the Missouri Compromise. They finally returned to Missouri, and, after Emerson died and "title" to Scott passed to new owners, he sued for his freedom and that of his wife and children. Scott won at the trial court level, then lost in Missouri's Supreme Court. At that point, he turned to the federal courts. Finally, in 1856, the matter reached the U.S. Supreme Court. The question was achingly simple on a human level, yet agonizingly complex from a public policy perspective: Was Dred Scott entitled to freedom by virtue of the amount of time spent in free areas? Scott contended he was. Scott's master insisted that a "pure blooded" African and descendent of slaves could never be a U.S. citizen, and so therefore was not qualified to access the U.S. courts. The case was argued in February of 1856, then reargued en banc that December to specifically address two key points.

No one would argue with the idea that the issues were timely. Slavery was always timely; it was the intractable, incurable American Original Sin. The Constitution itself was jury-rigged to accommodate it, with painful concessions to which neither side ever fully reconciled itself. Conflicts arose continuously, not just over the Peculiar Institution itself, but by anything that it touched—internal improvements, trade and tariffs, even foreign policy. Every few years there would be a flare-up, sometimes resolved by quiet compromise or concession, sometimes by grand bargains, sometimes, as in the case of the South Carolina Nullification and Secession crisis, by the application of a combination of Jacksonian tact and Jacksonian brute force.

And still, it went on. Lynchings, raids, arson, smashing of presses, intimidation. The country seethed, quieted down, then seethed again. Preachers read from different sections of the Bible to claim spiritual support for their sides. Politicians alternated between bile and eloquence; newspapers wrote inflammatory, pointless editorials; and Congress debated endlessly.

The questions remained: Could slavery be regulated or prohibited in the vast new territories? Was a slave entitled to freedom if he resided in a free state or territory? Could a slave be a citizen of the United States, entitled to the protection of its laws? Dred Scott placed these questions before the final arbiters of the law.

Taney answered no to all three, and did so in an emphatic way designed to show the majority's desire to end further discussion. First, he ruled that African Americans could never be citizens of the United States, whether they were slaves or free. At the time the Constitution was adopted, he wrote, blacks were "regarded as beings of an inferior order" with "no rights which the white man was bound to respect." It was clear he believed they still were. Then, he went on to declare that, even though there were individual states where slavery was barred, that did not change the nature of Scott's servitude when he resided at length in a free one—once a slave, always a slave, unless his master decided otherwise. In the Territories, where Congress had authority, that authority was organizational and administrative, and in no way included the right to exclude slavery. Any extant legislation to the contrary, and, specifically, 1820's Missouri Compromise, was unconstitutional, and therefore void. Slaves were property, nothing more, and a property owner could take his property wherever he wanted and use it as he saw fit. To do otherwise was, in Taney's formulation, a violation of the slave owner's Fifth Amendment rights against the seizure of property without due process. With a stroke of a pen, 80-plus years of Constitutional interpretation, political solutions, and actual practice were erased.

But why did Taney do it? Why did he, and the Court, choose the path of a maximalist ruling when the general practice was to find the narrowest grounds to decide? They didn't need to (a simple decision that Scott was subject to Missouri Law would have sufficed), and, initially, it appears they didn't intend to. Six votes for a surgical dismissal of Scott's claim were there from the outset: the five Southern-born Justices (Taney, James Wayne and John Campbell of Georgia, John Catron of Tennessee, and the Virginian Peter Daniel) plus Samuel Nelson of New York.
The conventional explanation has been that a sweeping ruling was Taney's desire all along—that he felt it was necessary to vindicate the rights of those with whom he had always sided: the slave owners and slave states. Dred Scott was an opportunity to settle for all time what the South had previously been unable to achieve either legislatively or judicially.

Some of the focus on Taney is wholly logical and credible—he was the author of the opinion, he was Chief Justice, and it was his language, aloof to human considerations in some places, dismissive and indisputably harsh in others, that defines the tone. He became the lightning rod for Northern anger, dogged by accusations that he had colluded with James Buchanan on both the timing and substance of the decision.

Yet, the Buchanan-Taney conspiracy theory was probably not true, or at least not true in the sense of a binary, exclusive relationship. Other Southern Supreme Court Justices were acting in a manner we would find intolerable today. Wayne was corresponding with fellow Georgian Alexander Stephens (then Senator, later Vice President of the Confederacy). And Catron, rather incredibly, was exchanging correspondence directly with the President-Elect himself.

But the exact "how" a narrow decision became the Dred Scott of infamy is a bit murky. The conferences amongst the Justices began on February 14, 1857, and initially it appeared that taking the narrow route would prevail: Scott had returned to Missouri, Missouri law controlled, and Missouri had decided, so the case was over. Justice Nelson was directed to and actually prepared a draft majority opinion to that end. But Nelson's effort was buried by the strenuous objections of the Southern members, and, in particular, the opportunistic Justices Daniel and Wayne. Wayne was an ardent, dogmatic defender of slavery; Daniel was best described as a fanatic, and extraordinarily undisciplined in his prejudices and language. It was Wayne (encouraged by Alexander Stephens) who pushed the idea of Taney writing a broad opinion.

There is a disagreement among some historians and an ambiguity in the record as to what was ultimately decisive. Taney's defenders later claimed that Curtis and McLean actually induced a broad decision by preparing extensive dissents, including on issues not raised in the narrow Nelson opinion. The Southerners urged Taney not to let those words go unanswered. But this charge makes no sense, either legally or politically. Dissents are just dissents and have no force of law. As for a possible political subtext (supposedly McLean had an itch for office), the claim borders on irrational. Not only was he already 70, but why would he risk encouraging the majority to be even more punitive?

Whatever the actual motive, Wayne won the argument and Nelson's draft was put aside. That left a larger political problem for the Southern Justices. They wanted to win, but didn't want a sweeping decision to be based on a narrow majority where all the votes came from them—they needed the legitimacy that only a Northern vote would give.
They found it through the actions of Justice Catron, who contacted Buchanan again to urge him to get his fellow Pennsylvanian and friend, the amiable but weak Judge Grier, on board. Buchanan agreed, "made the call," and Grier took the hint. He had long known what Buchanan's priority was—the Southern-sympathizing President-Elect wanted finality. A broad Supreme Court ruling would spare him having to do the dirty work himself, all the while, to his thinking, restoring unity to his Democratic Party, and undercutting the Republican Party's very reason for existence. So, quite willingly, Grier became Taney's fig leaf, the sixth vote.

There was one additional peculiarity, which no doubt fed into the idea of conspiracy: By tradition, Opinions and Dissents had been read from the Bench and then immediately filed with the Clerk for formal publication. Curtis did that—he filed his Dissent and then took vacation, leaving a copy with a Boston newspaper. But Taney didn't, giving rise to rumors that his was being extensively revised. When Curtis heard about it, he asked the Clerk for a copy and was refused. It turned out that, once Curtis and some of the other Justices left Washington, Taney, Wayne, and Daniel privately agreed on a special rule that, this one time, the Opinion would be sealed until formal publication in the Term volume. Curtis would not be allowed to see it.

A charged set of exchanges between the Chief and Curtis then ensued, with Taney vociferously insisting that he had merely made modest additions. But when Curtis finally reviewed the published volume in May, he realized Taney had added 18 pages of direct rebuttal to Curtis's dissent, all written after Curtis had filed. That September, Curtis resigned in disgust.

By this time, whatever inside baseball there was amongst the Justices was made irrelevant by the public response, and the enormity of the miscalculation of the winning side. The reactions were swift and often unfiltered; gloating from the South, fulsome praise from Buchanan's closest supporters, and outrage from virtually everyone else.
Nothing worked out the way the "conspirators" expected. Republicans were angry and energized, not neutralized. And Democrats, rather than being unified, split regionally. While Stephen Douglas loyally (and somewhat inexplicably) defended the decision in a widely reported speech that June, Northern Democrats, except for the most loyal Buchananites, realized their party was now openly captive to the South on the slave issue.

Taney, for his part, was appalled, stunned, and angry at the reaction of the general public, and dismayed at the sharp erosion in the prestige of the Court. He seemed not to have grasped the raw emotional value of the issue, nor the impact that the highly charged words in his opinion (and, more particularly, Daniel's lacerating and offensive Concurrence) would have on readers. Perhaps he had spent too much time dealing with abstractions, but, in his desire to seize the moment, he had failed to realize something basic that Stephen Douglas intuited with his now Court-repudiated Popular Sovereignty Doctrine: Slavery would not be welcome in places where people didn't want it. Every attempt to impose it on them, whether that be legislatively by a Southern-dominated government in Washington, or judicially, by a Southern-dominated Supreme Court, would be resisted.

That resistance never abated. Republicans, Free-Soil politicians, and the press picked up the theme, many of them a bit intemperately; The Chicago Tribune predicted a time where slaves would be bought and sold on the streets of its city. "Slavery is now national," the Tribune editorialized. "Freedom has no local habitation nor abiding place save in the hearts of Freemen. Illinois in law has ceased to be a free State!" William Seward made a Senate speech that so angered Taney that he later said he would have refused to administer the Oath of Office, if Seward had been elected President.

Lincoln, as fit his nature, waited until after Douglas committed himself to counterpunch. His speech, given on June 26, 1857, is worth reading on its own. Its power lies not just in its imagery in discussing the plight of the slave, but also its naked honesty. It includes perhaps the plainest statement of Lincoln's core belief about race, about liberty, and about the intent of the drafters of the Declaration of Independence: "I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.' This they said, and this meant."

Dred Scott was an instant and sustained political catastrophe for the Democrats. The harshness of the decision and the insistence of Southern Democrats to refer to it as part of their platform killed chances to appeal to more moderate voices, particularly those who previously had rejected the Abolitionist call as being too radical. Republicans flipped the House in the 1858 midterm elections and picked up five Senate seats. In 1860, Democrats split in three, among Douglas, John Bell, and John Breckinridge, paving the way for Lincoln to be elected without a single vote from 10 states, and bringing us to that indelible Lincoln/Taney Inaugural moment.

Hindsight allows us the luxury of wondering how so many intelligent people could so misjudge the situation. It is not out of the question that some didn't—particularly the Fire-Eaters in the South, who wanted secession anyway and welcomed this as an accelerant. But perhaps the real problem was that too many people subscribed to a certain set of beliefs with such certainty that their ability to feel empathy for those who didn't agree was completely erased.

I'll leave Lincoln, in his Second Inaugural Address, to acknowledge the final irony:
"Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding."

The original of this appeared on March 5, 2018, in
Dred Scott Strains the Mystic Chords