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Black Pawn On A Field Of Peril
DRED SCOTT v. SANFORD
December 1963 | Volume 15, Issue 1
It is clear enough now that in making this remark the Chief Justice was in no sense laying down a rule of law tor his own day; he was simply expressing what he believed was the prevailing opinion of Americans in the latter part of the eighteenth century. But his use of these words, embedded in an opinion which antislavery people were going to object to in any case, was in the highest degree unfortunate. To many people in the North it seemed that the Chief Justice had officially declared that the colored man had no rights which the white man was bound to respect. President Buchanan’s pious hope that all good citizens would willingly accept the Court’s finding in the Drecl Scott case was bound to run onto this reef if on no other.
Only two other justices, Wayne and Daniel, joined with Taney in the opinion that no Negro could be a citizen. Justices Curtis and McLean dissented vigorously, and the remainder kept silent on this particular question. This made very little difference. The Missouri Compromise was unconstitutional—the first act of Congress to be declared unconstitutional since the famous Marbury v. Madison case in 1803 (see “The Case of the ‘Missing’ Commissions” in the June, 1963, A MERICAN H ERITAGE )—and Dred Scott was still a slave; the net effect of the decision was to give an immense impetus to the furious arguments over slavery and to help materially to make this issue so acute and so emotion-laden that it was too explosive for political settlement.
To the rising Republican party the ruling was simply a challenge to renewed struggle. This party was dedicated to the conviction that slavery must not be allowed to expand; now the High Court was formally saying that there was no legal way by which it could be excluded from the territories. Congress could not do it; a territorial legislature, as a creature of Congress, could not do it either. Only when the people of a territory drafted a constitution and prepared to enter the Union as a state could they adopt an effective antislavery law. To many northerners it seemed that, logically, the next step would be for the Court to declare that no state could outlaw slavery and that the institution must be legalized all across the country.
Free-soil adherents in the North promptly accepted the challenge which they found implicit in the decision. They expressed profound contempt for the Court itself, asserting that it was wholly biased in favor of the southern sectional interest and that its decision in the Dred Scott case had no moral substance and could not be permanently binding. For the moment, to be sure, the ruling was legally valid, but in effect the antislavery people of the North defied the Court. Seeking to take the territorial issue out of politics, the Court had instead put itself squarely and disastrously into politics. Never before had there been such a profound and widespread revulsion against a finding of the nation’s highest judicial tribunal.
To the northern wing of the Democratic party—the wing that followed Senator Douglas—the ruling was equally disturbing, because it knocked the props out from under the doctrine of popular sovereignty. Douglas, to be sure, defended the Court against Republican criticism, declaring that “whoever resists the final decision of the highest judicial tribunal aims a deadly blow at our whole republican system of government,” and expressed the conviction that the decision must not be made a political issue. But he was breaking with the Buchanan administration on the Kansas issue—the administration was accepting a rigged election which would give Kansas a constitution permitting slavery even though a majority of the voters obviously were antislavery. Douglas was fighting hard for popular sovereignty, and the Dred Scott decision simply accentuated this issue by splitting the northern and southern wings of the Democratic party farther and farther apart.
For while the Douglas Democrats in the North continued to rely on popular sovereignty as the answer to the territorial problem, the southern Democrats were led by this decision to press forward in complete opposition to popular sovereignty. Now they demanded positive protection of the slaveowner’s right to take his chattels with him when he moved into a territory. The decision said that nobody could outlaw slavery in a territory: the southerners felt it was only logical that the federal government act to protect slavery there by formal legislation. The northern and southern wings of the party could never agree on any such formula. In substance, the Court’s decision was a weighty factor in determining that no Democrat who had any chance to carry the North could also carry the South, which meant that the presidential election of 1860 would be won by the Republicans, after which the discordant sections would find themselves at the parting of the ways. The irreconcilable sectionalism which would bring the country to civil war was accentuated by this ruling of the High Court.