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Higher Law and the Dred Scott Case

The antislavery bar offered the higher law principle as a response to judicial formalism. Senator William Henry Seward grabbed public attention with the concept in a political speech in 1850, although he was merely voicing a proposition that went back to the American Revolution. "There is higher law," Seward intoned to Senate colleagues

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with quasi-religious fervor, "than the Constitution." 38 Even if the Fugitive Slave Act of 1850 was constitutional, an issue that Seward and other moderate antislavery proponents rejected, the law of conscience overrode it. Such sentiments, of course, posed a direct challenge to established authority and, given the delicate nature of the sectional balance, threatened to divide the Union.

The Supreme Court thoroughly refuted higher law notions in Dred Scott v. Sandford ( 1857). The case required more than a decade to work its way through state and federal courts. Scott with his wife and children had traveled with their master, an army surgeon, to the Minnesota territory (where slavery was forbidden by the Missouri Compromise of 1820) and then returned with him to Missouri, a slave state. The precise legal issue before the Court was whether Scott could sue for his freedom in a federal court based on being a citizen of Missouri. Counsel for John Sanford, Scott's owner by the time the case reached the Court, insisted that a black had no capacity to be a citizen, either of the state or the nation. The justices could have settled the issue of pleading without ever reaching the merits of Scott's case--especially the question of whether Scott and his family had become free as a result of having sojourned in territory declared free under the Missouri Compromise.

Although each of the nine justices wrote separate opinions, that of Chief Justice Roger B. Taney was authoritative. Taney rejected every argument made in Scott's behalf, denying him citizenship in both the United States and Missouri. Neither free nor slave blacks, according to Taney, could be citizens. "[In 1776]," the chief justice explained, "they had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect." 39 Taney held that the Missouri Compromise of 1820 was unconstitutional and asserted that Congress had no power to deny slaveholders control over the use of their peculiar property. Rather, the federal government had a positive duty to protect the property rights of all citizens, including masters, and the mere sojourn of a slave in free territory did nothing to disturb those rights. Taney, in effect, directly refuted Somerset and all of the constitutional principles upon which the moderate antislavery bar had stood.

Taney did not blunder into the Dred Scott decision, even though his opinion was filled with historical errors and flawed reasoning. He invoked federal judicial power to assert the right of slaveholders to their property and, even more important, to establish conclusively in the law the degraded legal position of blacks. For the first time in their history, "the American people had to consider the meaning and consequence of judicial review actually executed at the federal level." 40 Taney's opinion threw the weight of national legal authority squarely on the side of slaveholders, effectively nationalizing what had previously been a local institution. Taney attempted to substitute the force of law for political accommodation, but once the Court made clear that it favored the interests of one section over another, the remaining ties of political unity snapped, leaving the sectionally based northern Republican party to claim control of the national government in 1861.



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Date: 2015-01-29; view: 804


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