Dred Scott, America’s Breaking Point

A Supreme Court tried to settle the slavery question and instead set the country ablaze. We unpack Dred Scott v. Sandford with Dr. Beinberg, tracing how a case about one man’s claim to freedom morphed into a sweeping judgment that denied Black citizenship, stripped Congress of authority over the territories, and elevated slaveholding to a protected property right. Rather than take a narrow path, the Court chose a maximal ruling that collided with text, history, and public sentiment—and pushed a polarized nation closer to war.

We walk through the three pillars of the decision and why they mattered far beyond the courtroom. You’ll hear how Justice Nelson’s technical route could have ended the case quietly, and how Chief Justice Taney’s opinion reached for a national answer that rested on brittle historical claims. The dissents by Justices McLean and Curtis provide the corrective: evidence that free Black Americans were citizens and voters in multiple founding-era states, and that Congress’s power over the territories was broad and longstanding. That clash between original public meaning and speculative intent reveals how bad history can become bad law.

The political stakes were enormous. With James Buchanan signaling deference to a decision he seemed to expect, the North saw a “slave power” at work as the ruling effectively declared the Republican platform unconstitutional. Yet within a decade, the 13th and 14th Amendments erased the decision’s core, establishing birthright citizenship and ending slavery’s legal foundation. We connect those dots to show how constitutional failure can prompt constitutional repair, and why the case still shapes debates about judicial overreach, historical method, and national power.

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Chapters

• 0:00 Setting The Stage: 1850s Tensions
• 3:05 Fugitive Slave Act And Polarization
• 3:50 Dred Scott: Facts And Stakes
• 4:57 The Three Legal Prongs
• 7:02 Nelson’s Narrow Path vs Taney’s Reach
• 8:51 Declaring The GOP Platform Illegal
• 10:40 Original Meaning Clash In The Dissents
• 12:46 Evidence Of Black Citizenship In 1780s
• 14:52 Territorial Power And Bad History

Transcript

SPEAKER_00: 1:33

Welcome back to Civics in a Year. Today we are talking about the Supreme Court case, Dred Scott versus Sanford. And we have Dr. Beinberg with us. Dred Scott versus Sanford is a landmark Supreme Court case. Why is this case so important in Supreme Court history?

SPEAKER_01: 1:51

Right. So, I mean, in some ways, I think even more important in American political history because less about the doctrine and more for sort of what its political implications are. So, to back up a little bit before that, obviously during the 1850s, the divisions over slavery in the United States are becoming more and more hardened. So you see probably the beginnings of this with the compromise of 1850, which in some ways is an effort to forestall this, but in other ways exacerbates it. So, for example, the Fugitive Slave Act of 1850 requires, effectively requires northern states to actively participate in the suppression of escaped slaves in a way that they had never had to do that before. And so Northerners begin to feel, ironically, in some ways, both on a state's rights claim that they're getting pushed around by the federal government, but also that their own institutions are being turned against them. And at the same time, the South is becoming more and more committed to the sort of positive good vision of slavery. So we've talked about an earlier podcast, the sort of consensus of everybody is sort of saying slavery is an evil, how necessary the North and South disagree. That is sort of shifting. So slavery in the 1850s is getting more and more polarized. And so there are efforts to sort of deal with that, ramp down the conflict, but this again sort of backfires in some sense with bleeding Kansas. And the fear increasingly becomes that slavery is going to become nationalized. And Dred Scott effectively ends up being application of that fear, the vindication of that fear. Because the Dred Scott case effectively holds that for the Republican Party, for example, its effort to deal with slavery, which was to say slavery can continue to exist in a state where it exists, but we want to restore the Missouri Compromise type rule that we can, and more importantly, the Northwest Ordinance rule, that Congress can suppress its expansion. That's what they want to do. And James Buchanan sort of, how do I put this delicately? Seemingly there's, I think, some merit to Abraham Lincoln's fear that the Buchanan administration is basically collaborating with the Supreme Court. And so Buchanan's running around saying, everybody, we just got to wait for the Supreme Court to tell us what to do when he sort of knows what the Supreme Court is going to do. So the Dred Scott case, when it comes down, has effectively three major prongs. And the first two, I think, are the the third one is con law and erdy, but the first two I think are sort of more politically important. The first is the case reaches out and holds that blacks can never be citizens, even free ones under the United States. So they cannot be citizens of the United States. And that's important because one of the issues in the Dred Scott case is effectively Dred Scott had been a slave. He had been taken to free territory in the Northwest Territory and in free states, and then returned back to a slave state. And so he's suing for freedom in that slave state, arguing that his time in the North had basically freed him. And so the question ends up being sort of a complicated federal jurisdictional case. So in order for the court to even hear the case, he has to have U.S. citizenship. So that's issue number one. The second issue is could Congress, if it wished, prohibit slavery in the territories? And the third is effectively is somebody losing their due process rights if they're forbidden from taking their property, which slaves were at the time under local law, into a territory. And so those are the sort of the main issues. And the striking thing is that Justice Tawney tries to basically maximally reach each of those issues. There's a case to be made that just as a very technical legal position, the sort of legally correct case is the really boring technical concurrence by Justice Nelson. And Justice Nelson says, we don't need to decide whether blacks can be citizens. We don't need to decide whether the Missouri compromise can be constitutional or not. All we need to decide is does this guy have standing? And he wants to make it really, really straightforward and say, no, because Missouri says he doesn't. We can't have Illinois law on citizenship dictating Missouri law because conversely, we also don't want to have Missouri law dictating Illinois law, right? So he wants to take effectively the position that neither state's rulings on citizenship are binding on another state. So this would effectively just say Missouri says he's not a citizen, so he doesn't have standing case over, right? And there's evidence that that's actually what the original opinion was supposed to be. But Tawney seemingly wants to settle the dread the slavery issue. And so he reaches out and writes this very, very sweeping and really, really long, which is unfortunate because it's also really, really wrong in terms of its legal history in so many places, as we'll talk about. But Tawny reaches out to this sweeping opinion that says, no, blacks cannot base were not and cannot ever be citizens of the United States, maybe of a state, but not of the United States. That Congress has no authority to regulate slavery anywhere other than the original Northwest Territories. Basically, any territory that the, excuse me, any territory that Congress had at the founding. So any new territory that's added, Congress cannot regulate slavery. And that there is a property right that is no longer simply local, but could also travel to a territory. So that basically the property right that you have in Alabama should also be honored in a territory. And so that's a due process argument. And so for the Republicans, for critics of slavery, this has effectively declared the Republican Party platform illegal. And in effect, particularly because of that last piece, has now threatened to completely nationalize slavery and make almost the entire country, if you're thinking true sword, what's the implication of this precedent? That's a very possible, uh possible argument. While also holding that, you know, he well, the dissenters aren't saying slavery is inherently unconstitutional, but they're just saying if the North wants to not have slavery, they can suppress it. And they can black, free blacks can be, in fact, free black American citizens. And the Tawney opinion is basically making that effectively impossible. So it effectively really radicalizes everybody and tries to settle something, but in a way that is, in some sense, so heinously wrong as a legal matter that it becomes increasingly clear to northerners that the sort of conspiracy theory of almost a slave power, a slaveholder's power, is in fact becoming true.

SPEAKER_00: 8:40

So looking at this then, the Dred Scott decision, what are some of the longer-term consequences of this decision on American society and its role leading up to the Civil War? Right.

SPEAKER_01: 8:54

I mean, in some senses, the longer-term implications of on American society are fairly minimal with the asterisk of the Civil War because its most significant parts are clearly overturned by the 14th Amendment. And so to understand sort of why on that, I do want to detour briefly to the dissenting opinions, Justice McLean and Justice Curtis. Tawney professes to be doing sort of original understanding constitutionalism. Again, that's the predominant method of interpretation for almost everybody at the time. And Tawney's opinion is really long, but the short version is he says, effectively, we think that we have we think that blacks could not be citizens in the states at the time. And he says basically there's two pieces of evidence for that. One, there were laws that were racist. And two, and this is the really interesting one, he says, he recognizes that the Declaration of Independence, which is sort of the frame that people would use to interpret the Constitution, it he says explicitly it doesn't say white people, right? He makes this concession because the people pointing text at him are saying it doesn't say, you know, we the white people of the United States in the Constitution or all men are created equal, asterisk, except, right? And so he recognizes that. And he's getting hammered for it by the dissents who are saying, look, under original meaning understanding of like what text is, it doesn't say white people. It doesn't say black people, it just says people. But Titanni says effectively, if we interpreted it according to what the seemingly normal reason way to interpret this text is, that would make the founders either morons or hypocrites. Because there's no one in the South that would have basically stood signed off on a position that says that, for example, a freed black or somebody who could become a free black, a former slave could become a citizen. He says there's no way that would ever happen. But he recognizes he's actually reading against the text. But he's basically trying to say an original intent versus original meaning. We presume that they would have meant this, even though the evidence seems to suggest otherwise. And so the dissenters really nail into the wall on this. Justice Curtis, for example, goes through a list of five states that he says, in fact, we have evidence that not only were free blacks American citizens or citizens of those states participating in the ratifying conventions, et cetera, or one of the free citizens, they were electors. They were voting, which is the sort of apex of citizenship, right? Because at the time, for example, women couldn't vote, but that didn't mean that people didn't think they were citizens. And so he goes through his list of five of five states, uh, as he says, uh, for example, at the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the states of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, those descended from African slaves, were citizens of those states but had the necessary qualifications. Uh, other historians have gone through and suggested that list is under-inclusive, that, for example, Pennsylvania and Connecticut at least probably should also have been in that list. Vermont also is an asterisk because it was sort of a quasi-territory-ish thing and it had suffrage. Certainly did at the time of when Vermont becomes a state. And there's a more sort of questionable, but some have suggested even in Maryland. So at the very least, even if you exclude Vermont, even if you exclude, even if you exclude Maryland, a majority of the states clearly had that. Clearly had basically not only black citizenship, but black suffrage. And it's also worth noting in some of these states still had slavery at the time. It was moving toward gradual emancipation. But strikingly even, North Carolina is on that list. So Curtis basically says, you say the founders could never have envisioned having black citizens, but in fact, a majority of the states did. So just Tawney on the merit, like they agree that Tawney is using the right method to interpret the Constitution, how would this have been sort of popularly understood? But they're hammering him for, I think quite rightly, for just utterly atrocious and tangentious history, which is ignoring like the actual legal arguments. So the case is also just offensive, not only to northerners, not only to anti-slavery people, but to like anybody who can like look at history. It's just an offensively bad argument across the board. And that further exacerbates. And the other argument that's that he gets hammered for is he basically says Congress can't regulate slavery in the territories. And Curtis and McLean say Congress has an enumerated power to set all necessary rules for the territories, which is to say they basically can govern it with the police powers like a state would govern itself. And they say it doesn't say only in the territories we had at the time of 1787 or 1789. It just says Congress shall have power to regulate this in the territories. Tani goes through this really, really convoluted argument to say why that seemingly very obvious reading doesn't apply. And so it's bad enough from the northern perspective that they're basically having slavery shoved down their throats, but that they're having that they're being told that on incredibly dubious history that's torturing the Constitution and constitutional history is sort of another thing entirely. So the opinion is really infuriating to the North. And so unsurprisingly, one of the things that they're very explicit about in the 14th Amendment debates is that it is overturning the Dred Scott case and holding that effectively everyone who is born in the United States with the little asterisks about jurisdiction and Indians and so on, but other than that asterisk, other than that, everyone who's born in the United States is a citizen, sort of period. And that's clearly overturning the Dred Scott case. And obviously, the implications about whether Congress can regulate slavery in the territories is taken care of with the 13th Amendment, which not only Congress would continue to regulate that even in the territories without the 13th Amendment, but the 13th Amendment also sort of settles that question. So those two amendments are basically designed to ensure that the Dred Scott case is wiped out. So in terms of it's so it obviously it triggers in some sense, I'm not gonna say it triggers the civil war, but it heightens the tensions in a way that makes the civil war almost inevitable. But then sort of its effects are minimized by those by those constitutional amendments. Now there's a longer case, and I know we're gonna do a whole bunch of things on reconstruction, et cetera, about to what extent those are actually then implemented faithfully, but it does uh the Dred Scott case does effectively have its legal, its sort of legal implications are more or less completely wiped out within a decade.

SPEAKER_00: 15:30

Okay, wonderful. Well, again, like you said, we are gonna be digging more into this, Dr. Beinberg. Thank you so much.