A House Divided (Dred Scott v. Sandford) | The Equal Protection Clause, Pt. 1

Alex retells the dramatic story of Charles Sumner’s fiery Senate speech, the brutal caning that followed, and the Supreme Court’s infamous Dred Scott decision, showing how these events set the stage for Abraham Lincoln, the 14th Amendment, and the fight for equality in America.

Transcript

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Hello, I'm Alex Ackerbon, and you're listening to season two of May Please Record. It was May 19, 1856, and Massachusetts Senator and known abolitionist Charles Sumner delivered what would become his most famous speech to Congress. He accused his fellow senators of committing a crime against Kansas, which was on the verge of becoming the 34th state to join the United States. The crime he was talking about was the Kansas-Nebraska Act, which had allowed the people of Kansas to choose whether they wanted to be admitted as a free state or as a slave state. That choice resulted in a series of violent political confrontations, and Senator Sumner blamed the Democrats in Congress who had supported the Act, saying that the blood in Kansas was on their hands. Sumner himself had recently joined with other politicians to form a brand new political party that was designed specifically to oppose the Kansas-Nebraska Act. That party became known as the Republican Party. But Charles Sumner would stand out as one of the few who wanted to do much more than limit slavery. In fact, Sumner not only wanted to abolish slavery, but he was also one of the few members of Congress to advocate full equality for all citizens, regardless of race. But on this particular day, in this particular speech, Sumner got personal. His hatred for slavery could not be contained, and he started calling out individual senators by name. Specifically, he referred to Illinois Senator Stephen Douglas as a noisome, squat, and nameless animal, and not a proper model for an American senator. Then he turned to South Carolina Senator Andrew Butler, who was absent that day, and used this prolonged metaphor, effectively calling Butler a pimp, who is lusting after a mistress that seems lovely to him but is ugly to others. And that mistress, in Senator Sumner's words, was that harlot slavery. Sumner spent five hours, over the course of two days, using deliberately provocative language to express how evil of an institution slavery was. It wouldn't take long for word of the speech to spread around the nation, and it was widely praised throughout the North. But as you might guess, it did not go over very well in the South. Tensions over slavery were nothing new, but Sumner's personal attacks had earned him new enemies. One of them was a congressman named Preston Brooks, who decided to take matters into his own hands. Like Senator Andrew Butler, Brooks represented South Carolina and was actually related to Butler. His immediate thought was to challenge Sumner to a gentleman's duel, but ultimately decided that if Sumner was going to stand in the way of slavery, then he did not deserve to be treated like a gentleman. So just a couple of days after Sumner gave his speech, Brooks walked into the Senate chamber of the U.S. Capitol building and found Sumner at his desk taking notes. There were a handful of other politicians in the room, but Brooks went right up to Sumner and said, Senator, I have read your speech twice over, and it is a libel on the state of South Carolina and on Senator Butler, who is a relative of mine. Before Sumner could respond, Brooks hit him over the head with his cane. Sumner hit the ground immediately, and Brooks began beating every inch of Charles Sumner that he could reach. Sumner tried hiding under his desk, but that meant he was locked in with nowhere to escape. Eventually he was able to pry the desk off its hinges that had been bolted to the ground in an effort to run away. But that made him an easier target for Brooks, who knocked him right back down and restarted the beat. A few congressmen tried to intervene, but were blocked by Brooks' cohorts. One of those cohorts even drew a gun, demanding that the men let them fight it out. Blinded by his own blood dripping down his face, Charles Sumner was trapped. At some point, Brooks' cane snapped in half, but that didn't stop him. He continued to beat Sumner with the top half of his cane until finally two congressmen broke through and held him back. Sumner's blood, meanwhile, continued to seep into the Senate floor. He lay unconscious, beaten to the brink of death. But Charles Sumner, who is far too important for history, did not die that day. He would survive and would go on to represent Massachusetts in the Senate for the next two decades. In fact, Charles Sumner and his colleagues would prove to be responsible for another vital sentence in the US Constitution. A sentence that has grounded Supreme Court debates over race for the last hundred and fifty years. A sentence that would go through its own journey, through Reconstruction and the era of Jim Crow segregation, through World War II and the internment of Japanese Americans, to the growth of the women's liberation movement and the gay rights movement. And finally to today, as the Supreme Court continues to deliberate over cases involving affirmative action and others designed to heal the wounds of the past. This season is the story of that sentence. This is the story of the Equal Protection Clause of the Fourteenth Amendment.

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The decision of whether to extend special protections under state law on the basis of homosexual or bisexual conduct or orientation.

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These distinctions have a common place.

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Things had changed a lot in the United States after the Mexican-American War had ended in 1848. After losing the war, Mexico had conceded the territories of Alta California and Santa Fe of New Mexico, in addition to all its remaining claims in Texas. Altogether, this land would one day make up 10 U.S. states, including California, Nevada, Utah, Arizona, Texas, parts of Kansas, Colorado, Wyoming, Oklahoma, and New Mexico. Now, up until that point, one of the biggest issues in federal politics had consistently been the expansion of slavery. When the country adopted the Constitution in 1789, its drafters had an opportunity to form a nation without slavery. But they didn't take it. And as the original 13 colonies gradually pushed further and further west, northern and southern politicians would constantly argue about whether slavery would be allowed in the new territories. One famous compromise had come in 1820, when Congress agreed to allow Missouri into the Union as a slave state and Maine as a free state, on the condition that the remaining federal territories would stay free. This became known as the Missouri Compromise. But all of a sudden, after the war with Mexico, we were talking about a lot of federal territory. And it could not have come at a better time. Settlers struck gold, literally, and over 300,000 people flocked to California for what became known as the California Gold Rush. Many of those settlers had wanted to bring their slaves, but Northern influence saw that California would be admitted to the Union as a free state. But that still left a lot of federal territory. So many Democrats in Congress, like Illinois Senator Stephen Douglas, thought it was time to revisit the Missouri Compromise. So that's why they had passed the Kansas-Nebraska Act, to give Kansas the option of becoming a slave state, despite the earlier promise that those territories were supposed to stay free. And that's what had outraged Senator Charles Sumner, leading to his now famous crime against Kansas speech, and eventually his attack at the hands of Preston Brooks. The caning of Charles Sumner would become a tale of savage brutality in the North, but in the South, Brooks became a hero. Since he'd broken his cane when assaulting Sumner, many of his constituents sent him new canes, one of which had the words hit him again engraved on it. To this day, Brooks County, Georgia is named after him. Sumner, meanwhile, never really recovered and needed to spend months away at a time for his physical health, which Southerners viewed as a sign of weakness and hypochondria. But what's extraordinary about these events is the timing. In May 1856, Sumner delivered the crime against Kansas Beach, Brooks beat him to the brink of death, and the US Supreme Court was deliberating over what would become its most infamous case of all time. The case was called Dred Scott vs. Sanford. And in many ways, the Fourteenth Amendment would be a direct reaction to the decision in that case. Today it is generally remembered as the worst Supreme Court case of all time. But what's really remarkable is that it didn't really have to be a case at all. Dr. Emerson was an army officer, so he often traveled to different army postings, frequently bringing Dred Scott with him. At some point, he brought Dred Scott into Illinois, which was a free state. So the question was, if everyone in Illinois is supposed to be free, then how could Dred Scott have been in Illinois and still be a slave? There was a solid argument that once a slave is taken to a free land, that slave is entitled to their freedom. In fact, Dred Scott's situation had come up many times before, and courts often agreed with that argument. All over the country, former slaves sued for their freedom, arguing that they had been transported to a free territory, and they usually won. This became known as the once-free, always free legal doctrine. So that's why it was odd when Dred Scott lost in front of the Missouri Supreme Court. The court overturned its own precedent and said that Scott was not entitled to his freedom. Now the reason for this shift was likely politically motivated. But regardless, Scott lost in Missouri and had to appeal to the US Supreme Court. It went against all odds that the justices of the Supreme Court would ever know Dred Scott's name. And even once they had taken the case, there was still no objective reason to think that this case would be so consequential. It seemed like there were really only two ways it could go. Either the court would say that Dred Scott was legally free when he entered Illinois, which was totally plausible, or they would say that the Missouri Supreme Court can interpret Missouri law however it wants and that Dred Scott would have to stay a slave. But as it turned out, the Supreme Court had far more ambitious plans. Pro-slavery lawyers had argued that this was the court's chance to make a statement. Politicians were beating each other up, literally, over the issue of slavery. It was pretty obvious that the compromise from 1820 was falling apart. So they needed a clear, decisive opinion about the expansion of slavery into the new federal territories. And in November 1856, Americans would go to the polls to elect the next president. James Buchanan emerged victorious, giving the Democrats the White House along with both houses of Congress. Slavery was on the offensive. And as Senator Sumner's physical wounds began to heal, the Supreme Court prepared to deal a fatal blow to his vision for racial equality in the United States. Justices John Campbell, Benjamin Curtis, Robert Greer, Samuel Nelson, John Catron, Peter Daniel, James Wayne, John McLean, and Chief Justice Roger Tawney. They had been nominated by Presidents Franklin Pierce, Millard Fillmore, James Polk, John Tyler, and Martin Van Buren. You know the hard part when you're trying to list the U.S. Presidents in order off the top of your head. But four of the justices had been nominated by President Andrew Jackson, which meant that they'd been on the court for over 20 years. It would be Jackson's choice for Chief Justice, who would write the majority opinion in Dred Scott versus Sanford. Chief Justice Tawney would write an opinion so shocking that it still haunts the Supreme Court's legacy today. Instead of deciding whether Dred Scott was legally entitled to his freedom or not, Tawny asked whether Dred Scott was legally allowed to sue for his freedom in the first place. He argued that only citizens of the United States could bring a case to the Supreme Court. But he said that Dred Scott was not a citizen. He was a slave. He was not a person, he was someone's property. And on top of that, Tani went on to argue that no black person could ever be considered a citizen of the United States, and that the words we the people in the Constitution were not intended to include the black race. Now, even for the time, that was considered particularly cruel. Freemen in many states not only were legally entitled to sue in courts, but voted in state elections. How could they vote if black people could not be citizens? But Tawney argued that the Constitution allows for slavery. And if someone can be a slave, then how could they have any constitutional rights? This is the part of the case that we tend to focus on when we teach American history. The court had taken racism to a whole new level. Tawney's opinion literally spent over 25 pages arguing the inherent superiority of the white race. And most famously, he actually wrote a sentence that said, No black man is entitled to any rights that the white man ought to respect. But what also makes this case so outrageous from a legal standpoint is that Tawney went on to make a ruling about slavery laws. Now typically, when a case is dismissed for lack of standing, it ends right there. If the Supreme Court found that no black people can sue for anything, then the case should be over. But Chief Justice Tawney wanted to take a stand. So he went ahead and declared that the Missouri Compromise that had outlawed slavery in the federal territories was unconstitutional. He said that Congress was not allowed to regulate slavery. Slavery was a constitutional right. Only the territories that existed when the Constitution was written could stay free, but all the ones acquired since would have to allow slaves. Otherwise, Tawny argued, a slave owner could be deprived of his property without due process of law, in violation of the Fifth Amendment, arguably planting a seed that would one day become substantive due process like we discussed last season. So Tani had taken a case that really should have been resolved at the state level and made it massive. He simultaneously struck down a federal law, which the court hadn't done in decades, legalized slavery in all federal territories, and told an entire race that they were not people and not entitled to constitutional rights. Only two justices dissented, Justice McLean and Justice Curtis, who eventually resigned after being bullied for not going along with the majority. The other justices had been convinced either by their own views on race or the Chief Justice, or even by the President of the United States. It came out years later that new President Buchanan had used his influence to gather more support for Tawney. In his inauguration speech, he promised that he would accept a ruling on Dred Scott either way. But the truth is, he knew what the ruling would be and helped make it happen. As for Dred Scott himself, the person who lost the case in the most horrific way imaginable, he would eventually settle with his legal owners, and the friends who had funded his lawsuit helped him secure his freedom. He would end up living out the rest of his days as a free man, but sadly, he passed away one year later at the age of 59. Meanwhile, for Senator Sumner, who was still recovering from his beating, the Dred Scott case was rock bottom. Sumner had not only envisioned the end of slavery, but also advocated for full equal rights for all citizens. But the court now explicitly said that black people could not be citizens, with Congress and the President on their side. All three branches of US government were poised to take slavery national. But the thing with hitting rock bottom is that there's nowhere to go but up. Chief Justice Roger Tony had thought he had solved the slavery issue for good. There would be no more bickering about what to do with the federal territories. He had saved a country that was growing apart by taking a hard line and opening up the doors for slavery to expand west along with the rest of the nation. But what he didn't anticipate was that he had just created a new political platform. Striking down the Missouri Compromise, denying citizenship to the entire black race, refusing to recognize Dred Scott as a person were such extravagant moves that would inspire a powerful response. Just a few months after Tawney issued his opinion, a former congressman decided to come out of retirement and re-enter politics. He was an Illinois man and decided to challenge Stephen Douglas for his Senate seat. In opposition to the Dred Scott decision would become his rallying cry. The Democrats had a new Republican to start worrying about, and his name was Abraham Lincoln. On june sixteenth, eighteen fifty-eight, ex-Congressman Abraham Lincoln delivered his own powerful speech that directly aimed at Chief Justice Tawney and the Supreme Court. It would eventually be remembered as his famous house divided speech. It's famous because everyone remembers this part when he said, a house divided against itself cannot stand. But what people don't tend to realize is that the speech was specifically about Dred Scott. Lincoln called the justices out for going way too far. He argued that Chief Justice Tawney had now pushed the US into a point of no return. If he was so willing to strike down federal anti-slavery laws, how long before he struck down state laws and forced all the free states to allow slavery too? Now, up until Dred Scott, Lincoln was much more of a moderate. He opposed slavery, that was clear. But unlike Sumner, he wasn't that vocal about abolition. He tended to oppose things like the Kansas-Nebraska Act, prioritizing how to limit slavery, but not necessarily end it. But everything was different now. Lincoln foresaw that thanks to the court, it now had to be all or nothing. The nation would have to make a choice in the next decade. Either we would be a nation with slavery everywhere or with slavery nowhere. Because a house divided against itself cannot stand. That speech would launch his Illinois Senate campaign, triggering the famous Lincoln Douglas debates, aka The Great Debates of 1858, where Lincoln and Douglas argued about the issue of slavery in various different cities over the course of two months. And if you love drama, the two of them also had quite the personal history. In fact, back in his youth, Senator Douglas had courted a young woman named Mary Todd, the very same Mary Todd that ended up marrying Abraham Lincoln. So Lincoln had got the girl, but now he wanted the Senate. But Douglas would not give up his seat so easily. He argued passionately against Lincoln in each city, and the Dred Scott decision was at the heart of all their arguments. Douglas would try to paint Lincoln as a radical, who didn't just want to end slavery, but would also want full equal rights for all black people, because apparently that was considered radical to voters at the time. Meanwhile, Lincoln kept the issue focused on slavery and how the court was now threatening to bring slavery into free states like Illinois. And it was during one of these debates that Lincoln was able to pin Douglas into a corner. He got Douglas to say on record that he didn't advocate forcing slavery on any state. He just wanted states like Kansas to be able to choose for themselves. This position would eventually lead to a split between Douglas and the more extreme members of his party. Finally, after the great debates were done, voters went to the polls. And back then things worked a little differently. Today, voters directly elect their state representative and state senators, along with their U.S. representative and U.S. senator. But back then, in many states, voters elected their state politicians who would then choose the U.S. Senator. So Lincoln really needed his new Republican Party to get a majority in the Illinois legislature. But he couldn't do it. The Democrats kept control over Illinois and re-elected Stephen Douglas. But it was certainly not the end for Abraham Lincoln. Rather than give up hope, Abraham Lincoln took his anti-Dred Scott platform national. He had built up quite an audience after debating Douglas for the last year. So Lincoln made a decision that would ultimately change the world. He decided to join the race for President of the United States. And if you thought his rivalry with Senator Douglas was already dramatic, it turns out that once again the two of them would be running against each other. This time for the most important job in the land. And with political tensions ever growing, thanks in large part to Dred Scott, the Republican Party gradually began to adopt a platform that did more than oppose the Kansas-Nebraska Act. It would be a platform for full abolition. Three years after Dred Scott, Abraham Lincoln made the outright prohibition of slavery not only a political position, but also a plausible reality. So unsurprisingly, Southern Democrats hated him. So you would think that they would all band together around Senator Douglas, who had just beaten Lincoln, to make sure that Lincoln was never elected president. But history can surprise you. Despite supporting slavery, Douglass all of a sudden became too moderate for the increasingly erratic Democratic base. Douglas had not wanted to force Kansas to have slavery. He merely wanted to give them the choice. And so he had opposed Democratic efforts to intervene directly. That hesitation led to an all-out rift within the Democratic Party, leading many politicians to walk out in sensational protest during the Democratic National Convention, and declare their support for their own candidate. The Democratic split would pave the way for Lincoln. Had it been just Lincoln and Douglas, the Democrats may have successfully opposed Lincoln, which, if you think about it, would have created a whole different world than the one we're in. But instead, there were four candidates for president. Lincoln, Douglas, Vice President John Breckenridge, who ended up representing the Southern Democrats, and finally John Bell representing the Constitutional Union. Lincoln would have to rally all the Northern states and California to get the minimum number of electoral votes needed to win the presidency. And that's exactly what he did. On November 6, 1860, Americans went to the polls to decide perhaps the most consequential election in history. Stephen Douglas ended up only winning one state, while John Breckinridge won the whole South. But former congressman Abraham Lincoln would emerge victorious with 180 electoral votes, nearly 30 more than the minimum required, and 39.5% of the popular vote. The United States had a new president-elect who had spent the last few years condemning the Supreme Court for its decision in Dred Scott v. Sanford. So you can imagine the tension in the air on the day that Abraham Lincoln swore his oath of office. Because, after all, as per tradition, the person who administers the oath is the Chief Justice. So that meant that as Lincoln was officially becoming the 16th president of the United States, he was looking Roger Tawney right in the eye. Tensions were so high, in fact, that they would soon go from heating up to boiling over. Because within weeks, President Lincoln would face a challenge that no president has faced before or since. Fighting a war against his own countrymen.