I recently had some free time in St. Louis, Missouri. Among other tourist attractions, St. Louis’s own “Old Courthouse” is the birthplace of the famous — and infamous — Dred Scott case.
If it’s not perched on the first tier of Supreme Court landmark cases, beside the likes of Brown v. Board of Education, or Roe v. Wade, the Dred Scott case surely is on the second tier, still well known to the legal community, and to students of history, but perhaps less memorable to the public in modern times.
As with all history’s enduring legal monikers, Dred Scott is both a case and a person. The case, Dred Scott v. Sanford (1857), is remembered as perhaps the worst Supreme Court case ever. The most wrongly decided. The most tragic misuse of judicial power. As with many low points in American history, Scott involved slavery. Scott was a slave who had been taken to a free state, and sued to obtain his freedom on this basis. Though there was legal precedent for this basis, the Supreme Court, in essence, held that Scott had no right to sue because blacks were not ‘persons’ under the Constitution and not entitled to any of its rights or privileges.
As deep a wound on the American soul as slavery was, Scott made it worse. At least for a time. By seeming to close the door — more like slamming it shut and wedging a chair under the doorknob — on any hope that abolitionists had of using the Bill of Rights to undermine slavery, the Supreme Court became a focal point on the issue.
Prior to the decision, the battle was on Capital Hill, as pro-slavery and anti-slavery states struggled not to lose control of Congress: the Missouri Compromise and the Three-Fifths Compromise, to name two examples.
Keep in mind that although the Supreme Court had established the concept of judicial review–the ability to declare an act of Congress unconstitutional–in Marbury v. Madison in 1803, it had never done so since Marbury and it seldom weighed into volatile politically weighty issues of the day. Also, in the mid-1800s, before FDR’s New Deal, the Great Society, Obamacare, and before the Commerce Clause’s reign of terror, state’s rights had not sunset on the American legal landscape. This made Dred Scott v. Sanford a federal power grab – casting doubt a state’s ability to declare as free those within its borders.
The case became a flashpoint for the abolitionist movement. It was a topic in the Lincoln-Douglas debates and contributed to launching Abraham Lincoln’s career. Following the war, the Thirteenth and Fourteenth Amendments effectively overturned the Dred Scott decision.
After losing in the Supreme Court, Sanford sold the Scotts to their original family, who had helped to finance their litigation. He, in turn, granted the Scotts their freedom. Dredd Scott died eighteen months later.
Sir Issac Newton is credited with the quote: “If I have seen further it is by standing on the shoulders of giants.” Newton was lauded and famous in his time. In our time, we have recently popularized and praised the accomplishments of Abraham Lincoln and Jackie Robinson in film (both great movies). Had they been asked to consider Newton’s quote, I wonder if either would have gazed down upon the shoulders of Dred and Harriet Scott.