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The Logic and Legacy of Dred Scott: Marshall, Taney, and the Sublimation of Republican Thought

Published online by Cambridge University Press:  16 December 2008

Robert Meister
Robert Meister
Affiliation:
University of California, Santa Cruz
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Extract

The continuing repression by jurists and scholars of the role of Dred Scott in our constitutional history has given that case a pervasive influence that is rarely, if ever, acknowledged. The following discussion will abstract from the moral embarrassment of Dred Scott in order to treat its jurisprudence as the missing link that connects the underlying framework of Marshallian constitutionalism with later struggles over the meaning of the Fourteenth Amendment. Without such a link the Civil War is left as a constitutional silence, perhaps a second American Revolution, separating two discontinuous systems of government. That silence can be filled only by acknowledging the fundamental continuities between our present conceptions of constitutional equality and the system of government that could permit the existence of slavery.

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Articles
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Studies in American Political Development , Volume 3 , Spring 1989 , pp. 199 - 260
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Copyright © Cambridge University Press 1989

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References

Early research on this paper was supported by fellowships from the Rockefeller Foundation and the Harvard Law School. The preparation of the manuscript was funded by grants from the Academic Senate of the University of California, Santa Cruz, and from the Law, Society, and Ethics research group on the Santa Cruz campus. I am grateful to Karen Orren, Stephen Skowronek, Ann McConnell, Jerome Neu, Grant McConnell, Joel Yellin, and an anonymous reviewer for helpful comments on an earlier draft. Douglas Reed and Melody Rose provided able research assistance.

1. The works of Edward Corwin are seminal in all discussions of the continuing significance of pre-Civil War constitutional jurisprudence. See , Corwin, The Doctrine of Judicial Review (Princeton: Princeton University Press, 1914)Google Scholar. That collection reprints his important article “The Dred Scott Decision in the Light of Contemporary Legal Doctrines.” American Historical Review 17 (October 1911): 52–69. For the foundation of the analysis attempted in this essay, see , Corwin, “The Basic Doctrine of American Constitutional Law,” Michigan Law Review 12, no. 4 (1914): 247–76;CrossRefGoogle Scholar “The Doctrine of Due Process of Law before the Civil War,” Harvard Law Review 24 (1911): 366–485, 460–79.

2. I rely on Bestor, Arthur, “State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 1846–1860,” Illinois State Historical Society Journal 54 (Summer 1961): 117–80;Google Scholar and, “The Civil War as a Constitutional Crisis,” American Historical Review 69, no. 2 (January 1964): 327–52. A less persuasive effort to deal with the same area is Russel, Robert R., “Constitutional Doctrines with Regard to Slavery in Territories,” Journal of Southern History 32, no.4 (11 1966): 466–86CrossRefGoogle Scholar.

3. Dred Scott v. Sandford 19 Howard 393 (1857).

4. See Fehrenbacher, Don E., The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978), chap. 10Google Scholar; Ehrlich, Walter, They Have No Rights: Dred Scott's Struggle for Freedom (Westport, Conn.: Greenwood Press, 1979), pt. 2Google Scholar. These are the best recent historical sources on Dred Scott. In general I rely on Fehrenbacher, who provides a broader and more nuanced account of the case.

5. Scott (a man of color) v. Emerson, 15 Mo. 576 (1852). This case, and the precedent case, Rachel v. Walker, 4 Mo. 350 (1836), are summarized in Caterall, Helen Tunnicliff, Judicial Cases concerning American Slavery and the Negro, 5 vols. (Washington D.C.: Carnegie Institute, 1926–1937), 5:148, 185Google Scholar, and discussed in Fehrenbacher, ch. 10. In overturning Rachel v. Walker, the Emerson court said, “Times now are not as they were when the former decisions on this subject were made. Since then not only individuals but States have been possessed with a dark and fell spirit in relation to slavery, … whose inevitable consequence must be the overthrow and destruction of our government” (Caterall, 5: 185).

6. The issue of ownership is clouded by the fact that after the Supreme Court decision, and Sanford's death, Emerson's widow, now Mrs. Chaffee, sold Dred Scott in Missouri. The buyers were members of the Blow family, which had originally sold Dred Scott to Emerson between 1830 and 1833. Since this family had apparently financed his freedom suit for over a decade, and since they eventually freed him, it remains a puzzle why they did not purchase his freedom to begin with. The ownership issue may not, however, be legally relevant since, under Missouri law, freedom suits could be brought against persons who did not claim to be the legal owners of the slaves under their control.

7. This prompted Taney to suggest that the case should have come before the Supreme Court, if at all, on direct appeal from the state court decision, rather than as a new case based on issues already adjudicated (Dred Scott v. Sandford 19 Howard 393, [1857] at 453).

8. Dred Scott v. Sandford 19 Howard 393 (1857) at 452–53.

9. Several justices concur with Taney that the State Supreme Court decision that Scott was still Mrs. Emerson's slave under Missouri law (Scott v. Emerson 15 Mo. 576 [1852]) would require that his federal case be dismissed on the grounds that no slave under Missouri law could sue in federal court as a citizen of Missouri. This would preclude a federal test of whether the Missouri Supreme Court had the discretion under the U.S. Constitution to reverse itself on the effects of Illinois or federal law on Missouri slaveholders. Taney relies here on his prior decision in Strader v. Graham 10 Howard 82. See Dred Scott v. Sandford 19 Howard 393 at 452, and especially, the concurring opinion of Nelson beginning at 457. For a critique of Taney's use of Strader, see Fehrenbacher, pp. 385–87.

10. The essential continuity between the two analogous models of law can be put more broadly. On the one hand, we often justify the remedial powers that individuals seek in court by invoking the public interest. From this perspective individual right-holders have been delegated the ability to bring public power to bear on other individuals. On the other hand, we often justify public interest legislation on remedial grounds. From this perspective public law is largely an effort to shift the burden of harm from some social groups to others.

11. It had already done so in Prigg v. Pennsylvania, and would do so again in Ableman v. Booth, as we shall see below.

12. Dred Scott v. Sandford 19 Howard 393 (1857) at 405–07. In his twelfth edition of Kent's Commentaries (1873) Oliver Wendell Holmes approvingly cites both Dred Scott and the Fourteenth Amendment on this point. My reference comes from Kent, James, Commentaries on American Law, 13th ed. (Boston: Little, Brown, 1884)Google Scholar, vol. 1, Lee. XIX, *424—which incorpo-rates Holmes's note. For the previously established view of naturalization, see Story, Joseph, Commentaries on the Constitution of the United States, 3 vols. (Boston: Hilliard and Gray, 1833), 3:1–15Google Scholar.

13. See Dred Scott v. Sandford 19 Howard 393 at 419, along with Curtis's factual refutation of Taney's claims at 581, 586.

14. Dred Scott v. Sandford 19 Howard 393 at 583–84.

15. For a postwar literary reenactment of that transition see Mark Twain's Pudd'nhead Wilson. For an appreciative, but critical, contemporary discussion of the various opinions in Dred Scott on these points, see Hurd, John Codman, The Law of Freedom and Bondage in the United Stales, 2 vols. (Boston: Little, Brown, 1858, 1862)Google Scholar, chaps. 16, 23, 24. For a discussion of the legal treatment of fugitives see chaps. 25–26. Hurd points out, for example, that the novel step of considering slaves as federal common law property under the Fifth Amendment was unneccessary in view of Taney's earlier assumption that the liberty of freed slaves—who were clearly not property—could not be protected under the due process clause (para. 507). The legal disabilities of freedmen and their descendants before the Civil War are extensively discussed in Berlin, Ira, Slaves without Masters (New York: Pantheon Books, 1974)Google Scholar.

16. The legal framework for this technique of racial domination was largely in place by the time of the Civil War. Hurd adapts the concept of “domestic alienage” in private international law in order to explain the American law of slavery from its origins in the British Empire to its place in the antebellum Constitution. His treatise expounds the theory that the British Empire developed a form of “quasi-international” private law, allowing British subjects basing legal claims on positive law elsewhere in the empire to be treated as “domestic aliens” in all courts under the Crown. The clear implication of Hurd's view is that under the federal supervention of imperial law the descendants of chattel slaves within the empire would, as a class of domestic alien, become “subjects” in American law, without thereby being citizens of the United States. (See Law of Freedom and Bondage, vol. 1, chaps. 2–9; vol. 2, pp. 222ff.).

17. See, for example, Frederickson, George, White Supremacy (New York: Oxford University Press, 1981), chaps. 4, 6Google Scholar.

18. Louis Hartz is the leading proponent of the view that American political culture is based on a Lockean consensus. See The Liberal Tradition in America (New York: Harcourt, Brace, 1955). For expressions of the revisionist view that the American Revolution was based on classical republican ideas, see Bailyn, Bernard, Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967)Google Scholar; Pocock, J. G. A., The Machiavellian Moment (Princeton: Princeton University Press, 1975)Google Scholar; and Wood, Gordon S., The Creation of the American Republic (New York: W. W. Norton, 1969)Google Scholar. Diggins, John P. provides a stimulating historiographical critique of these debates in The Lost Soul of American Politics (New York: Basic Books, 1984)Google Scholar.

19. See, for example, Greenstone, David, “Political Culture and Political Development: Liberty, Union and the Liberal Bipolarity,” Studies in American Political Development 1 (1986): 1–49, espec. 6CrossRefGoogle Scholar.

20. Gordon Wood describes both of these tendencies in detail. See The Creation of the American Republic, chaps. 1 and 2.

21. The refusal to reduce law to politics is consistent with the high tradition of republican theory which has always viewed “who gets what?” as a question of “housekeeping” which should be kept out of politics. In our country this has been taken to justify consigning issues of distributive justice to the courts. See Arendt, Hannah, The Human Condition (Chicago: University of Chicago Press, 1958)Google Scholar; see also Pitkin, Hanna, “On Relating Public and Private,” Political Theory 9, no. 3 (1981): 327–52CrossRefGoogle Scholar.

22. The locus classicus for all discussions of the role of popular sovereignty and the rule of law in U.S. constitutional thought is Corwin, Edward, “The Basic Doctrine of Constitutional Law,” Michigan Law Review 12, no. 4 (1914): 247–76CrossRefGoogle Scholar. (See also Corwin, “We, the People,” in The Doctrine of Judicial Review.) My own thinking about republican theory and its relation to Marshallian jurisprudence was stimulated by interactions with Professors Duncan Kennedy and Morton Horwitz in 1979. At this stage I am not sure how many of my specific ideas were influenced by their rich interpretations of American legal history, although I doubt that either of them would agree with my overall theoretical framework. I am especially grateful for access to Professor Kennedy's unpublished manuscript, “The Rise and Fall of Classical Legal Thought” (1975), a prolegomenon to which has been published as “The Structure of Blackstone's Commentaries,” Buffalo Law Review 28 (1979): 209.

23. Republican theory is notably silent on how membership in the political community is determined. Most accounts of popular sovereignty assume that the boundaries of the political community are fixed according to settled normative or geographical criteria. The rule of law is also centrally concerned with relations among citizens, although its protections extend to aliens and newcomers, and to potential citizens of communities in the process of formation and expansion.

24. See, for example, Bork, Robert, “Styles in Constitutional Theory” South Texas Law Journal 26 (1985): 383Google Scholar; Cf. Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977)Google Scholar.

25. For a contemporary treatment of this issue, see Barry, Brian, “The Public Interest,” in Quinton, Anthony, ed., Political Philosophy (Oxford: Oxford University Press, 1967), 112–26Google Scholar.

26. A metaphorical development of this problem of legitimating majority rule is in Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974)Google Scholar, especially the “Tale of the Slave,” 290f.

27. See, for example, Bailyn, Ideological Origins, and Wood, The Creation of the American Republic. Cf. Walzer, Michael, “A Theory of Revolutions,” in Radical Principles (New York: Basic Books, 1980), 201–23Google Scholar.

28. Taney's opinion revolved around another issue on which Republican theory is silent— whether membership in the community is a political or a legal issue. Before Dred Scott, Congress had always assumed that both the naturalization of U.S. citizens and the initial terms of popular sovereignty in the territories were political questions to be addressed by federal legislation. Taney explicitly recognized that Congress was constitutionally limited by the Bill of Rights in legislating for the territories, even if it was acting in lieu of a state government, which would not, at that time, have been so limited. These issues are discussed more fully below.

29. See, for example, the fascinating discussion in Benton, Thomas Hart, Historical and Legal Examination of That Part of the Decision of the Supreme Court of the United States in the Dred Scott Case Which Declares the Unconstitutionality of the Missouri Compromise Act, and the Self-Extension of the Constitution to Territories, Carrying Slavery Along with It (New York: D. Appleton and Co., 1857)Google Scholar. See also the speech of Judah P. Benjamin, quoted in Hurd, The Law of Freedom and Bondage, para. 521ff.

30. For a detailed and sympathetic discussion of American ideas of revolutionary legality in the late eighteenth century, see Wood, The Creation of the American Republic, and Bailyn, Ideological Origins.

31. There is something initially plausible in the republican distinction between natural and vested rights. At first glance it seems to capture the fact that we can make two quite different points in asserting our rights: sometimes we assert our rights to claim a powerful and universal reason for getting what we want; sometimes we assert our rights to deny the relevance of the otherwise valid reasons that might justify interfering with us. But, as I suggest above, this conceptual distinction can be made independently of the republican view that we are necessarily referring to different kinds of rights, distinguishable on the basis of whether they can be changed by fresh legislation.

32. For an elegant discussion of the pre-constitutional relationship between private and public law, see Duncan Kennedy, “The Structure of Blackstone's Commentaries.”

33. Fletcher v. Peck 6 Cranch 87 (1810) was the first case in which state legislation was invalidated under the U.S. Constitution. There, Chief Justice Marshall held that the repeal of prior state legislation granting title to land effectively violated a contract between the state and the grantees enforceable under the U.S. Constitution.

34. For a discussion of English legal doctrine at the time, see Kennedy, “The Structure of Blackstone's Commentaries.”

35. These are the underlying issues in Chisholm v. Georgia 2 Dall. 419 (1793) and Calder v. Bull 3 Dall. 386(1798).

36. See, for example, Fehrenbacher, chaps. 1–3.

37. See Roper, Donald M., “In Quest of Judicial Objectivity: The Marshall Court and the Legitimation of Slavery,” Stanford Law Review 21 (1969): 532–39CrossRefGoogle Scholar.

38. See Goeebel, Julius Jr, Antecedents and Beginnings to 1801, vol. 1 of the Oliver Wendell Holmes devise, History of the supreme Court of the United States (New York: Macmillan, 1971)Google Scholar.

39. Before Marshall's tenure, the case of Chisholm v. Georgia had definitively interpreted the Constitution as the direct creation of a sovereign people rather than as a treaty among sovereign states.

40. We should not minimize the contribution to “Marshallian” jurisprudence made by Joseph Story, Marshall's colleague on the Court, and also the great antebellum American scholar on choice of law and conflict of law in the international context. An interesting test of the thesis above would be to compare the jurisprudential techniques of Story's Commentaries on the Constitution of the United States with those of his treatise on the conflict of laws. See , StoryCommentaries on the Conflict of Laws, Foreign and Domestic (Boston: Little, Brown, 1857)Google Scholar.

41. Hurd argues that most federal law in the United States is an extension of the concept of domestic alienage under private international law to issues of civil rights under municipal law. In his view most domestic aliens, those who are citizens of other states and nations, may be accorded civil rights out of judicial respect for the positive law of other jurisdictions. By parallel reasoning, however, other domestic aliens, especially slaves, must be denied civil rights out of judicial recognition of their antecedent disabilities under the positive law elsewhere. Hurd's numerous scholarly objections to specific points in Dred Scott are frequently responses to the Taney Court's departure from the apparent evenhandedness of the model of “quasi-international” law in favor of the theory, discussed below, that the Constitution requires affirmative steps to equalize between slave and free states. (See Law of Freedom and Bondage, vol. 1, chaps. 2–9; vol 2, pp. 222ff.)

42. While all state constitutions embodied the separation of powers, the jurisprudence of whole versus part was developed in the federal context by John Marshall, and only later became a model of constitutional adjudication. For an example of the emergent problem of reconciling Marshallian jurisprudence with republican models of constitutional thought in the states, see Kent, James, Commentaries on American Law, 4 vols. (New York: O. Halsted, 1826–1830)Google Scholar, and subsequent editions. Kent's discussion of Marshall's reversal of Kent's own opinion in Gibbons v. Ogden, 9 Wheat. 1 (1824), is especially interesting. See Lee. XIX, 404ff.

43. 1 Cranch 137 (1803).

44. Marshall's Court was being asked to intervene in this suit against Marshall's own successor as secretary of state, who was charged with failing to deliver a commission that Marshall himself had signed before leaving office.

45. Marbury at 176.

46. See Snowiss, Sylvia, “From Fundamental Law to the Supreme Law of the Land: A Reinterpretation of Judicial Review” Studies in American Political Development 2 (1987): 1–67CrossRefGoogle Scholar.

47. After Marbury, Marshall confined his exercise of federal judicial review to state legislation, focusing primarily on the contracts clause—a technical area in which the judiciary could make a special claim to legislative deference.

48. This concession is especially salient in Gibbons v. Ogden 9 Wheat. 1 (1824) at 196–212.

49. , Marshall defended the neutrality of his analytical framework in a series of pseudonymous articles, reprinted in , Gunther, ed., John Marshall's Defense of McCulloch v. Maryland (Stanford: Stanford University Press, 1969)Google Scholar.

50. 4 Wheat. 316(1819).

51. Charles Black, however, interprets this argument as a rebuttal to those who argued that the clause places judicially enforceable limitations on Congress. In Black's view Marshall believed that establishing a bank is an inherent power of Congress. See Black, Charles L. Jr, Structure and Relationship in Constitutional Law (Baton Rouge: Louisiana State University Press, 1969), 14Google Scholar.

52. McCulloch at 430.

53. Marshall adapted this phrase from Webster's brief. Cf. McCulloch at 327, 427.

54. 15 Pet. 449(1841).

55. See Wiecek, William M., “Slavery and Abolition before the United States Supreme Court, 1820–1860,” Journal of American History 65, no. 1 (1978): 34–59CrossRefGoogle Scholar; and Bestor, “The Civil War” and “State Sovereignty.”

56. 41 U. S. 1.

57. Cf. the later rulings in the Insular Cases. These were published in vol. 182 of U.S. Reports with additional materials published separately as a book. See especially De Lima v. Bidwill 182 U.S. 1 (1901), which cites Dred Scott as authority for the proposition that the United States can have subjects who are not citizens. See also Downs v. Bid-will 182 U.S. 144 (1901). Note, however, that Taney's opinion in Dred Scott explicitly denies that Congress has the power to establish colonies (at least if bordering on the Unites States) which can be governed without the ordinary limitations imposed by the Constitution. See Dred Scott v. Sandford 19 Howard 393 (1857) at 446–48.

58. 7 How. 1 (1849). The Court's decision in effect upheld the power of Rhode Island to maintain severe limitations on suffrage that had been in effect since the colonial period, and long before “republican” government had been constitutionally required. See Wiecek, William, The Guarantee Clauseofthe U.S. Constitution (Ithaca: Cornell University Press, 1972)Google Scholar; [note] “Political Rights as Political Questions: The Paradox of Luther v. Borden,” Harvard Law Review 100, no. 8 (1987): 1125–46.

59. Much to the disappointment of Stephen Douglas. See Fehrenbacher, 195–97, 206–07.

60. Taney explicitly embraced the Marshallian framework in Dred Scott: “The principle on which our governments rest, and upon which alone they continue to exist is the union of States, sovereign and independent with their own limits in the internal and domestic concerns, and bound together as one people by a general government, possessing certain enumerated and restricted powers delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it.” (Dred Scott v. Sandford 19 Howard 393 [1857] at 447–48).

61. Taney never went so far as to fully accept Calhoun's theory that in regulating the territories Congress was merely a trustee for the states. See Bestor, “State Sovereignty” and “The Civil War as a Constitutional Crisis.”

62. On this point Curtis clearly has the better of the argument. See Dred Scott v. Sandford 19 Howard 393 (1857). See also 419–20, 571–78. Hurd confirms that some free Negroes were U.S. citizens in The Law of Freedom and Bondage, para. 371. For a capsule discussion of the state of law on this question leading up to Dred Scott, see Kent, Commentaries, 13th ed., vol. 2, [320]–[333].

63. In “The Rise and Fall of Classical Legal Thought,” Duncan Kennedy argues that, building on the post-Civil War jurisprudence of Cooley, late nineteenth-century legal thinkers such as Tiedeman attempted to constitutionalize the entire legal system by extrapolating from Marshall's reasoning as described above. I owe much of my formulation of the Marshallian model of “powers absolute within their sphere” to the Kennedy manuscript. See Cooley, Thomas, Treatise on Constitutional Limitations (Boston: Little, Brown, 1868)Google Scholar; Tiedeman, Christopher, A Treatise on the Limitation of Police Power in the United States (St. Louis: F. H. Thomas, 1896)Google Scholar; , Tiedeman, The Unwritten Constitution of the United States: A Philosophical Inquiry (New York: G. P. Putnam's, 1890)Google Scholar.

64. See, for example, Cohens v. Virginia 6 Wheat. 264 (1821). Note, however, that conflicts between the individual and the federal judiciary have never been fully integrated into the Marshallian scheme. Assertions that the courts must recognize constitutional defenses when individuals are charged with contempt of federal court orders continue to raise deep problems for the framework of the separation and division of powers. See United States v. United Mine Workers 330 U.S. 258 and Walker v. City of Birmingham 338 U.S. 307 (1967).

65. See Horwitz, Morton, The Transformation of American Law (Cambridge: Harvard University Press, 1977)Google Scholar. For an attempt at the state level to reconcile Blackstone's view of individual rights with a republican theory of popular sovereignty and a Marshallian view of federalism, see Kent's Commentaries.

66. 3 Dall. 386(1798).

67. Tribe, Laurence, American Constitutional Law (Mineola, N.Y.: Foundation Press, 1978)Google Scholar, chap. 6, sec. 32.

68. Barron v. Mayor of Baltimore, 7 Pet. 243 (1833).

69. For a discussion of the pre–Civil War cases on privileges and immunities up to and including Dred Scott, see Hurd, The Law of Freedom and Bondage, chap. 24.

70. 12 Wheat. 213 (1827). For Marshall the threshold constitutional question was whether a state bankruptcy law, releasing debtors from the legal enforcement of contractual obligations, was valid legislation at all, rather than a legislative usurpation of judicial power.

71. 4 Wheat. 122(1810).

72. According to Trimble (Ogden v. Sounders, 317–24, 327), state bankruptcy laws can never affect the natural obligations of contracts, since these arise out of the moral relation between debtor and creditor. Arguing that the state legislature has no role in this moral relation, Trimble concluded that contract law is merely concerned with when the moral obligations created by contracts will be enforceable through legal remedies. Note that nothing in this argument justifies the Sturgis Court in striking down the application of bankruptcy laws to preexisting contracts, a problem that Trimble takes pains to overcome in the remainder of his opinion.

73. The theory of vested rights was, thus, a severe limitation on the use of substantive state law as a source of federally enforceable constitutional rights, as Corwin points out in the three seminal articles cited in note 1 above. For a recent elaboration of Corwin's point, see Kainen, James L., “Nineteenth-Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights against the State,” Buffalo Law Review 31 (1982): 381–480Google Scholar.

74. See Kennedy, “The Rise and Fall of Classical Legal Thought.”

75. Stated generally, this issue may have been spurious, as Fehrenbacher points out (pp. 277–78). In previous cases dealing with corporations the Taney Court had not required U.S. citizenship of those seeking federal diversity jurisdiction. Alien corporations were customarily allowed access to the federal courts in disputes with state citizens without claiming to be U.S. ctizens for all purposes. The clear implication was that the degree of U.S. citizenship necessary for federal diversity jurisdiction was less than that required for full protection under the “privileges and immunities” clause. Fehrenbacher suggests that the lower federal court may have had this distinction in mind in accepting jurisdiction of Dred Scott. Interestingly, Hurd also gives evidence that the general issue of diversity jurisdiction for Negroes may have been pretextual. He points out that, even after Dred Scott, free Negroes domiciled in the United States could be treated as citizens for purposes of federal diversity jurisdiction (but, presumably, only in cases where their freedom was not at issue.) See The Law of Freedom and Bondage, para. 371–72, including 1:437., n 1.

76. Modern scholarship on the laws of slavery rests heavily on the research of Caterall, Judicial Cases concerning American Slavery and the Negro. Her conclusions regarding Dred Scott are summarized in “Some Antecedents of the Dred Scott Case,” American Historical Review 30 (1924–25): 56–71. See also Hurd, The Law of Freedom and Bondage in the United States. Further detailed discussions of the American law of race and slavery are in Stampp, Kenneth M., The Peculiar Institution (New York: Vintage Press, 1956)Google Scholar; Higginbotham, A. Leon, In the Matter of Color (New York: Oxford University Press, 1981)Google Scholar; and Tushnet, Mark, The American Law of Slavery, 1810–1860 (Princeton: Princeton University Press, 1981)Google Scholar. See also Davis, David Brion, The Problem of Slavery in the Age of Revolution (Ithaca: Cornell University Press, 1975)Google Scholar. The peculiarities of the American law of race and slavery are put into comparative perspective in Patterson, Orlando, Slavery and Social Death (Cambridge: Harvard University Press, 1982)Google Scholar, and George Frederickson, While Supremacy.

77. The various Black Codes governing freed slaves did provide, however, for reenslavement under some circumstances. In some instances this reenslavement appears to have been a specific legal punishment, applicable only to blacks, which was a form of term bondage rather than chattel slavery. In other instances, however, the return to chattel slavery appears to have been the legally prescribed punishment for offenses applicable only to blacks, such as failing to leave the state after being freed. The possibility of reenslaving freed slaves is mentioned throughout Berlin, Slaves without Masters, chaps. 1–3, 6, 8‐11, and the Epilogue. For cases, see the index to the five volumes of Caterall, Judicial Cases. For commentary, see the index to Hurd, The Law of Freedom and Bondage.

78. The conditions of one's entry into the United States continue to have constitutional significance for one's rights against being held in captivity under federal law. The recent treatment of the Mariel Cubans and Haitian refugees makes it clear that persons captured in the process of making illegal entry have few, if any, legal rights of due process against federal detention while they remain in the United States. Under the recently enacted immigration law, suspected illegal aliens apprehended in the United States who cannot prove birth, naturalization, or legal entry may also be subject to summary deportation proceedings. Such a shift in the burdens and presumptions regarding proof of citizenship raises issues of procedural due process similar to those addressed in Dred Scott, and in the fugitive slave cases discussed below—especially if summary deportation procedures are triggered by grounds of suspicion based largely on ethnicity and language. A state court, confronted with these issues, might conceivably view the use of summary proceedings predicated on race or ethnicity as a violation of the U.S. and state constitutions, and extend full due process rights under state law to persons who cannot prove their claim of birth in the United States, and who might otherwise be deported under federal law. In such circumstances the U.S. Supreme Court could find it difficult to overturn the state's interpretation of the U.S. Constitution without citing Dred Scott as valid precedent for the claim that naturalization cannot take place as an indirect effect of state laws and procedures (Dred Scott v. Sandford 19 Howard 393 [1857] at 405–08).

79. See, for example, Zilversmit, Arthur, The First Emancipation: The Abolition of Slavery in the North (Chicago: University of Chicago Press, 1967), 7Google Scholar.

80. See Hurd, Law of Freedom and Bondage, vol. 1, para. 163–168; Dred Scott v. Sandford 19 Howard 393 (1857) at 403–04. Civil freedom in America has always been contrasted with the slavery of blacks, on the one hand, and the savagery of Indians on the other. See Gary F. Reed, “Freedom as the End of Civilization” (Ph.D. diss., University of California, Santa Cruz).

81. Mashpee (West Franklin, N.H.: Amarta Press, 1979) chaps. 1 –5. In exercising this “freedom,” many New England mulattos went to sea. The maritime jurisdiction of the federal courts covered the crews of ships in U.S. ports. In practice, however, federal courts were reluctant to protect free Negro seamen on U.S. ships from the operation of local law in southern port cities. The most vivid description of the seafaring mulatto is in Melville's Moby Dick.

82. See , Patterson, Slavery and Social Death, chaps. 4, 10; and Buckland, W. W., The Roman Law of Slavery (Cambridge: Cambridge University Press, 1908)Google Scholar.

83. 16 Pet. 539(1842).

84. Dred Scott v. Sandford 19 Howard 393 (1857) at 582.

85. Corwin first noted this in “The Dred Scott Decision,” 67.

86. For Story's view, see Conflict of Laws, sec. 114; Commentaries on the Constitution, vol. 3, chap. 40; and his opinion on Circuit in La jeune Eugenie 26 F. Cas. 832 (No. 15, 551) (C.C. Mass. 1822). For Marshall's view, see The Antelope 10 Wheat. 66 (1825). Marshall's opinions on slavery are discussed in Donald M. Roper, “In Quest of Judicial Objectivity,” 532–39. For a broader discussion reaching into the Taney era, see Wiecek, “Slavery and Abolition.” See also Noonan, John T. Jr, The Antelope: The Ordeal of Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (Berkeley: University of California Press, 1987)Google Scholar.

87. In Alexander Bickel's colorful phraseology. See “Citizen or Person,” in Morality of Consent (New Haven: Yale University Press, 1975). Fehrenbacher (pp. 51–58, 396–98) provides an excellent account of the distinction between “reversion” and “reattachment.” See, more generally, Cover, Robert, Justice Accused (New Haven: Yale University Press, 1975), chap. 5Google Scholar.

88. Somerset v. Stewart 98 Eng. Rep. 499 (K.B., 1772).

89. 166 Eng. Rep. 179 (High Court of Admiralty, 1827).

90. Art. IV., sec. 2.

91. 35 Mass. (18 Pick.) 193 (1836).

92. Strader v. Graham 10 How. 82 (1850). Strader formed the basis of Justice Nelson's concurring opinion in Dred Scott at 457 (Fehrenbacher, chaps. 12, 17).

93. For a view of how the conventional application of private international law would bear on Dred Scott, see the concurring opinion of Nelson at 457, 460–66. This was to have been the opinion of the Court after the case was originally argued, but Taney assigned to himself the majority opinion after reargument. For the dissenting view of the bearing of conventional principles of international law on Dred Scott, see the opinion of Curtis at 595–605. He differs from Nelson in believing the “international law” favors Dred Scott on the merits, and does not deny the U.S. Supreme Court jurisdiction to review the negative ruling of the Missouri Supreme Court on the merits.

94. For historical discussions of Taney and his Court, see Carl Brent Swisher, The Taney Period, 1836–1864, vol. 5 of the Holmes, Oliver Wendell devise, History of the Supreme Court of the United States (New York: Macmillan, 1974)Google Scholar. See also , Swisher, “Dred Scott One Hundred Years After,” Journal of Politics 19, no.2 (05 1957): 167–83CrossRefGoogle Scholar. The continuities between , Taney and , Marshall are stressed with special vigor by Wright, Benjamin F., The Contract Clause of the Constitution (Cambridge: Harvard University Press, 1938)Google Scholar, and Frankfurter, Felix, The Commerce Clause under Marshall, Taney, and Waite (Chapel Hill: University of North Carolina Press, 1937)Google Scholar. A fine recent overview of the Taney Court's views on the issues addressed in this article can be found in Hyman, Harold and Wiecek, William, Equal Justice under Law: Constitutional Development, 1835–1875 (New York: Harper & Row, 1982), chaps. 1–6Google Scholar.

95. I owe much of my account of this matter to Arthur Bestor, “State Sovereignty.” He points out that the pre-Civil War doctrine of equal state sovereignty, embraced in Dred Scott, was an alternative to secession rather than a justification for it, and that, after secession, the constitution of the Confederacy had no further use for the doctrine (pp. 174–78).

96. 21 Howard 506 (1859).

97. Ironically, Taney's defense of national authority against states' rights would be cited a century later against Governor Faubus's resistance to desegregation in Cooper v. Aaron 358 U.S. 1 (1958) at 18.

98. Dred Scott v. Sandford 19 Howard 393 (1857) at 432–42.

99. Story, Conflict of Laws, sec. 114; Kent, Commentaries, vol. 2, Lee. 26. The issue was not finally decided until Reynolds v. United States 98 U.S. 145 (1878).

100. Interstate disputes over child custody today pose many of the conceptual problems of reversion, reattachment, and comity that appear in Dred Scott. Another related issue: can children who are legally emancipated under the laws of one state become again subject to their parents under the laws of another state?

101. This suggestion was picked up in Catron's concurring opinion, which summarized the implication of Taney's ruling for constitutional jurisprudence as follows: “We must meet the question whether Congress had the power to declare that a citizen of a State, carrying with him his equal rights secured through his State, could be stripped of his goods and slaves, and deprived of any participation in the common property. … The Missouri Compromise violates the most leading feature of the Constitution—a feature on which the Union depends, and which secures to their respective States and the citizens an entire equality of rights, privileges, and immunities” (Dred Scott v. Sandford 19 Howard 393 [1857] at 528–29).

102. In Dred Scott the Court struck down the Missouri Compromise on these constitutional grounds without considering the statutory question of whether the prohibition on slavery above 36'30” could be enforced by emancipation—and, if so, whether emancipation in the federal territory occurred as an automatic effect of the statute or only as the consequence of an adjudicated dispute in which the issue was raised. See Fehrenbacher, chaps. 5–7, 14, 21.

103. Taney treats this latter point as a constitutional limitation, but he offers highly unconvincing arguments based only on custom and usage, as Curtis points out in dissent (Dred Scott v. Sandford 19 Howard 393 [1857] at 419–20 and 571–82). Taney gives no reason for his apparent assumption that a Negro who was a citizen of another country could not be naturalized under existing federal law.

104. As Hurd points out in The Law of Freedom and Bondage, para. 507.

105. The Supreme Court had already recognized this point in, for example, The Antelope 10 Wheat. 66 (1825) and Prigg v. Pennsylvania 16 Pet. 539 (1842).

106. 19 U.S. 164 at 389–410.

107. For an extensive defense of the constitutional rationale of secession and the Civil War, see Stephens, Alexander Hamilton, A Constitutional View of the Late War between the States: Its Causes, Character, Conduct, and Results (Chicago: Ziegler and McCurdy, 1868, 1870)Google Scholar.

108. My discussion in this section draws on Kennedy, “The Rise and Fall of Classical Legal Thought,” chap. 2.

109. 16 Wall. 36(1873).

110. The exception was Wynehamer v. People 13 N.Y. 378 (1856) in which a state prohibition law was struck down as an invasion of the constitutionally protected property rights of distillery owners without due process of law. Wynehamer was decided while Dred Scott was being reargued, and may have influenced Taney to refer (at 450) to the due process clause of the Fifth Amendment in striking down the Missouri Compromise as a violation of individual property rights (as well as the sovereignty of the state that had established them). J. C. Hurd gives explicit consideration to, and rejects, the analogy between Wynehamer and Dred Scott in The Law of Freedom and Bondage (para. 512 n 1, 520). For further discussions of Wynehamer and Dred Scott as precursors of the doctrine of substantive due process, see Corwin, “The Basic Doctrine” and “Dred Scott.”

111. As a consequence of the Slaughterhouse Cases constitutional “privileges” and “immunities” are still largely interpreted in a manner that is consistent with their pre-Civil War meaning. Despite periodic calls for a more expansive interpretation, the Fourteenth Amendment “privileges or immunities” clause is not to this day an active source of federally protected constitutional rights. See Tribe, American Constitutional Law, chap. 6, sec. 32–33 and chap. 7, espec. sec. 4.

112. 109 U.S. 3 (1883). The resemblance is strongly suggested by Justice John Marshall Harlan in dissent, at 30–37.

113. The Civil Rights Cases at 27.

114. 163 U.S. 537 (1896). The source of the “separate but equal doctrine” was Massachusetts Chief Justice Lemuel Shaw's opinion upholding school segregation in Roberts v. City of Boston, 5 Cush. 198 (1849). In that opinion Shaw anticipated the views of Bradley (and Curtis) mentioned above. See Levy, Leonard W., The Law of the Commonwealth and Chief Justice Shaw (Cambridge:Harvard University Press, 1957), chap. 7, espec. p. 114Google Scholar.

115. The crucial cases in the development of this line of reasoning were Munn v. Illinois 94 U.S. 113 (1877), Barbier v. Connolly 113 U.S. 27 (1885), and Allgeyer v. Louisiana 165 U.S. 578 (1897). This development culminated in Lochner v. New York 198 U.S. 45 (1905), which is often taken to stand for the doctrine of substantive due process. The issues presented by using private law as a source of constitutional rights are sketched in Tribe, American Constitutional Law, chap. 8, and fully developed in Kennedy, “The Rise and Fall of Classical Legal Thought.”

116. 347 U.S. 483 (1954). See Swisher, Carl Brent, “Dred Scott One Hundred Years After,” Journal of Politics 19, no. 2 (05 1957): 167–83CrossRefGoogle Scholar; cf. Mason, Alpheus T., “Understanding the Warren Court,” Political Science Quarterly 81, no. 4 (1966): 523–63CrossRefGoogle Scholar.

117. Dred Scott v. Sandford 19 Howard 393 (1857) at 403, 407.

118. There is a voluminous literature on whether (and in what ways) the equal protection clause requires the judiciary to give special scrutiny to laws that have an adverse impact on blacks. See, for example, Dworkin, Ronald, “Bakke's Case: Are Quotas Unfair?” and “How to Read the Civil Rights Act,” in A Matter of Principle (Cambridge: Harvard University Press, 1985)Google Scholar.

119. See, for example, Wasserstrom, Richard A., “Preferential Treatment, Color Blindness, and the Evils of Racism and Racial Discrimination,” Proceedings and Addresses of the American Philosophical Association, supp. to 61, no. 1 (1987): 27–42Google Scholar.

120. Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1980)Google Scholar.

121. 410 U.S. 113(1973).

122. The fact that all humans are mortal would tend to exclude the dead, like the unborn, from consideration as a group that deserves constitutional protection. Among the living, however, age-based discrimination might be constitutionally disfavored under the due process clause, even if age groups, as such, could not be constitutionally protected under the equal protection clause.

123. 376 U.S. 398 (1967). State unemployment benefits may not be withheld from a person refusing a job requiring work on the Sabbath.

124. See, for example, Rehnquist, dissenting, in Wallace v. Jaffree 472 U.S. 38 (1985).

125. See Wisconsin v. Yoder 406 U.S. 205 (1972). Amish children have a right to exemption from the last two years of the compulsory school attendance requirement. Also see Pierce v. Society of Sisters 286 U.S. 510 (1925). These issues are discussed in Mozert v. Hawkins County Public Schools 827 F. 2d. 1058 (1987), cert, denied 56 U.S.L.W. 3569 (1988).

126. See, for example, Jaffree v. Board of School Commissioners of Mobile County 544 F. Supp. 1104 (1983), and Smith v. Board of School Commissioners of Mobile County 665 F. Supp. 939 (1987).

127. For some further thoughts on this general subject in the context of a comparison of reverse discrimination polices in the United States and India, see Meister, Robert, “Discrimination Law through the Looking Glass,” Wisconsin Law Review, no. 4 (1985): 937–88Google Scholar.