March 13, 2013: Supreme Contexts: Dred Scott and Definitions

[Later this month, the Supreme Court will hear its next two landmark cases, these related to the issue of same-sex marriage. So this week I’ll be highlighting five significant 19^th century SC decisions, and more exactly analyzing one key contextual frame for each. That’ll lead up to a special weekend post on the upcoming decisions. Add your judicious thoughts and takes in the comments, please!]

On the horrifically misguided decision that ironically illustrated one of the Court’s most significant powers.

I doubt I have to remind many readers why the Supreme Court’s decision in Dred Scott v. Sandford (1857) represents one of the institution’s lowest points. Far from simply rejecting the arguments made on behalf of Scott, a slave who had been taken into Illinois (a free state) and was suing for his freedom as a result of the move, Chief Justice Roger Taney and the rest of the six Justices who sided against Scott went a good deal further. They ruled that the 1820 Missouri Compromise (which had prohibited the expansion of slavery into new territories) was unconstitutional, amplifying the era’s violent debates over territories such as Kansas and contributing to the rampup to the Civil War. And, most broadly and destructively, the majority also ruled that slaves were not citizens, and so had no legal standing before the Court—or anywhere else.

To quote Taney’s decision: “The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.” While Taney attempted to couch these lines behind the usual questions of precedent and the like, the truth, both legal and human, is that his Court’s decision went far past any prior rulings in this moment—and, just as importantly, that had the Constitution not itself been amended to outlaw slavery (the 13^th Amendment) and define African Americans as citizens (the 14^th), that the Dred decision would itself have constituted a substantial precedent, would have made it very difficult for ex-slaves (and perhaps even their descendents) to be legally considered citizens, Americans, or people.

Beyond the simple awfulness of the decision, however, Dred also reveals a subtle but crucial part of the Supreme Court’s power, as it had evolved into the mid-19^th century and has continued to evolve into our own era. What Taney’s Court did in this moment was, quite simply, to define: to define an American community; to define American citizenship; to define, even, personhood. Of course those definitions already existed in American society, politics, and narratives more broadly—but such existing definitions were always and would always be both potentially contested and subject to change. Whereas when a definition receives the Supreme Court’s approval, it becomes, again, significantly more difficult for alternative voices and concepts to make their way into our legal system—and, I would argue, our social and political and communal ones. I have argued elsewhere in this space that the Supreme Court has become increasingly politicized—but Dred reveals that the Court has long taken a key, in fact a defining, role in our political issues.

Next landmark case tomorrow,

Ben

PS. What do you think?