Confederate "Heritage" Month 2022, April 8: The Dred Scott decision and radical-right judicial activism

Given the radical shift of the Supreme Court against voting rights in recent years, it’s worth recalling what was surely the most destructive and radical decision of the Supreme Court, the Dred Scott decision of 1857.

Dred and Harriet Scott

In that case, the Supreme Court ruled that Black men and women “had no rights which the white man was bound to respect“ in the US Constitution.

The decision written by Chief Justice Roger Taney denied that even free African Americans in free states had any right to citizenship. (Technically, his statement announced the outcome; the 7-2 decision on the case included other concurring statements. But concurrence is concurrence.)

The case involved a married couple, Dred and Harriet Scott, both of whom were slaves. Their master/owner had taken them for a time into a free state. They argued that after they had lived in a state and a territory in which slavery was illegal, they should be considered legally free.

The special twist here is that the Scotts were not fugitive slaves. Their owner had taken them there on his own volition. The Constitution recognized that fugitive slaves could and should be returned to their legal owners.

The Dred Scott decision was part of long series of events in which the defenders of slavery sided with the power of the federal government against “states rights“. It had the practical effect of killing off the possibility that slavery could eventually be ended in the US by peaceful, legal means like compensated emancipation.

Because if slaveowners could bring their human property into a state or territory in which slavery was outlawed and still have their ownership protected, that radically undercut the ability of even free states to outlaw the Peculiar Institution (slavery). It blew the Missouri Compromise of 1820 - which set a geographical line banning slavery in territory north of it - out of the water.

It’s worth noting that the Scotts had a daughter, Lizzie Scott, who lived until December 12, 1945. She was alive at the time of the Dred Scott decision and lived through the times of the Civil War and the First and Second World Wars. That means that most people who turn 75 or older in 2022 were her contemporaries. The past isn’t always so far away as we tend to think.