Race, Law and the Struggle for Equality:
Michael A. Wolff, chief justice of the Supreme Court of Missouri, delivered the following speech as the keynote speaker of the Graham Chapel Assembly Series, at the Dred Scott Conference at Washington University on March 1, 2007, in St. Louis.
To get the
exasperated in 1863 by the bitter divisions in
unfortunately, would not live long enough to understand
The Civil War was, of
course, the continuation of politics by other means. It was presaged by the decision of the
Supreme Court of the
The case was, at the time of its initial filing in 1846, rather unremarkable. Dred Scott, his wife, Harriet, and their two children sought judgment that, because they had lived in free territory, they no longer were slaves.6 The decision of the Supreme Court of Missouri in the Scotts’ case 155 years ago was, unquestionably, our Court’s worst decision ever. But if the Supreme Court of Missouri got the decision badly wrong, the United States Supreme Court five years later got the case horribly wrong.7
A study of this case, the subject of this impressive conference, will teach us a good deal about courts, politics (including the politics of judicial selection), the development of law and the fateful role court decisions can play in our society.
Every case is a story. Because some of you are distinguished historians, let me start by saying that we appellate judges are not “primary sources” people. Judges are trained, instead, to take and use facts from prior judicial opinions, and I think all of us should be mindful that sometimes these previously facts may be inaccurate or chosen selectively. For the purpose of putting the Dred Scott case in historic perspective, I have read a good amount of history from secondary sources, some written by those of you at this conference. I am going to be selective, and I hope that my choices will help us set the scene and understand the context of the controversy.
Missouri entered the Union as a result of the Missouri Compromise, a pair of statutes that provided that Missouri would be admitted as a slave state, and Maine would enter as a free state, and in other territories north and west of here in the Louisiana Territory, slavery would be banned.8 Slavery similarly had been outlawed in the Northwest Ordinance of 1787, prior to the adoption of the United States Constitution, applying to territories that included what is now the states of Indiana, Illinois, and Wisconsin.9
From the state’s earliest –
and calmest – times, Missouri courts applied conflicts of laws principles and
held that a slave who had traveled to and resided in a free state or territory,
was freed.17 The basic notion
was that Missouri courts should give respect, or “comity,” to the laws of other
states or territories.18 If a
slave resided in Illinois, for example, he no longer could be considered a
slave because slavery was illegal in Illinois.
The act of bringing a slave to free territory was considered an act that
emancipated the slave, though courts quibbled about whether the slave and
master must “reside” in the
During the state’s first decades, whites in Missouri grew increasingly concerned about the presence of freed Blacks, with many believing that they were responsible for agitating among the slave population and committing crimes, and so forth.20 In 1840, the General Assembly of Missouri made it a crime for free Blacks to enter Missouri.21
So what effect, if any, did all this have on the courts? From 1821 until its 1852 Dred Scott decision, the Supreme Court of Missouri decided 11 cases affirming the notion that a slave who traveled to and resided in free territory was no longer a slave.22 These decisions were driven largely by two judges of the state’s three-judge Supreme Court: the first chief justice, Mathias McGirk, and Judge George Tompkins.23
When Missouri entered the Union, its 1820 Constitution provided that judges were to be appointed by the governor and confirmed by the Senate, reflecting the system of judicial selection the founding fathers adopted in the United States Constitution some 33 years earlier.24 There were no judicial elections.25
Starting in the mid-1840s, however, decisions of the Supreme Court of Missouri became increasingly adverse to slaves bringing freedom suits.26 As we now know from the papers of the judges then serving, Judges William Barclay Napton and James Harvey Birch – who had been appointed to the court for life under the original constitutional scheme – were prepared to overrule the earlier cases and to hold that Missouri need not give comity to the law of the free territories.27 Napton and Birch seemed to be intending to end all freedom suits, to declare that Congress had no power to legislate on the subject of slavery in the territories, and to hold that the Missouri Compromise was unconstitutional.28
Around the same time, a movement began to select judges for terms of years in elections rather than for life through gubernatorial appointments with Senate confirmation.29 Some view this change to judicial elections as a product of the Jacksonian democracy movement.30 There is some basis for believing that, but it is also quite likely that the movement was seen as a way of not having judges for life who were products of a previously dominant political party or a previous governor.31
In many states that were moving to elected judiciaries, there were high profile impeachments of state judges.32 Many prominent lawyers of the era worried about the legitimacy of the courts where they were staffed with judges with lifetime appointments.33 In 1848, at the behest of many of the bar’s foremost members, the General Assembly proposed to the voters to change the Missouri Constitution to establish judicial elections.34 Missouri’s voters approved the constitutional change in 1849.35 The judges of the Supreme Court thereafter were removed by virtue of the constitutional change, and the Court’s judges began to be elected starting in 1850.36
The strongly pro-slavery judge, Napton, did not win election.37 Judge Birch resigned from the Court.38 All three of the judges serving on the court after the 1851 election were natives of Virginia and were considered pro-slavery.39 Judge William Scott, author of the Dred Scott majority opinion, previously served on the Supreme Court of Missouri as a result of appointment in 1841.40 Judge John Ryland had been appointed to the Court in 184941 and was elected in 1851.42 The third judge was Chief Justice Hamilton R. Gamble, a prominent St. Louis lawyer who accepted an invitation from nearly the unanimous bar of St. Louis to run for the Supreme Court.43 Gamble refused to campaign for the job, but he felt that it was his duty to make himself available for the position, especially because he had urged the change to judicial elections.44 He was elected overwhelmingly.45 He was a slaveholder, but he was also a man who put principle above his own preferences and was the court’s lone dissenter in the Dred Scott case.46
Now that I’ve given you some background, setting the stage for the Dred Scott case, let’s turn to their story.
Who was Dred Scott? A slave, originally owned by the Peter Blow family of St. Louis, he was purchased by Dr. John Emerson prior to Dr. Emerson’s 1834 assignment as an Army surgeon to a military outpost in Rock Island, Illinois.47 Dr. Emerson took Dred Scott to the Rock Island post from 1833 to 1836.48 Thereafter, they moved to Fort Snelling, in the portion of the Louisiana Purchase Territory that is now in the state of Minnesota.49 Dr. Emerson and Dred Scott lived there from 1836 to 1838.50
Who was Harriet Scott? Born as Harriet Robinson, a descendent of
African slaves, she was either the servant or a slave of Lawrence Taliaferro,
the Indian agent stationed at Fort Snelling.51 Taliaferro brought Harriet to
Harriet and Dred Scott sued for their freedom in 1846 in St. Louis Circuit Court, and their case was tried to a jury.57 In the first trial, the jury found for the defendant, Irene Emerson, who was the widow of Dr. Emerson.58 The judge in the case, Alexander Hamilton, did something rather unusual: he granted a new trial, apparently believing that the jury had decided the issue wrongly.59 In the second trial – with the jury instructed that, if Dred Scott were living in free territory, he should be considered free – the jury found for the Scotts.60 Emerson appealed the circuit court’s judgment to the Supreme Court of Missouri, which rendered its decision in 1852.61
By this time, Chief Justice McGirk and Judge Tompkins and their pro-freedom jurisprudence were gone from the Court, and three seemingly pro-slavery judges – Gamble, Ryland and Scott – had been elected to the Court.62 It would be easy to say that the switch in doctrine that occurred with the Supreme Court of Missouri’s decision in the Scott case is traceable to the change to an elected judiciary, but unfortunately it is too easy.
Also at this time, slavery
was an extremely divisive issue in
The Scotts’ case was indistinguishable from some of the freedom suits that previously had gone before the Supreme Court of Missouri.66 But because of the changing times, the Court’s majority in the Scott opinion declined to follow the long line of earlier precedent holding that a slave who resided in free territory was no longer a slave.67 Interestingly enough, the Court based its decision only on conflict of laws principles – a decision on Missouri state law that was the prerogative of the Supreme Court of Missouri to decide.68 The Court did not invoke constitutional principles; specifically, the Court did not go where Judge Napton and others had planned to go, that is, to rule that Congress had no power to restrict slavery in the territories and to strike down the federal law known as the Missouri Compromise.69
To Dred Scott, Harriet Scott
and their children, however, the result – whether based on
The dissenting judge, the slaveholder Hamilton Gamble, said the Court should adhere to precedent.70 Addressing the “temporary public excitement” over the issue of slavery that undoubtedly would cloud the people’s judgment, Gamble said: “Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my judgment, there can be no safe basis for judicial decision, but in those principles which are immutable.”71
When the case was returned
to the St. Louis Circuit Court, the Scotts had a new lawyer and a new strategy.72 Because the
In their federal court case,
the Scotts sued
Let me make a civil procedure teacher’s comment here. There is a legal doctrine called res judicata, Latin for “the matter has been decided.” This doctrine prevents relitigation of cases that already have been decided. In a technical sense, because the state court judgment had not been entered, perhaps it might be said that the doctrine, which is premised on respect for an earlier judgment, did not apply. There certainly was enough legal doctrine around in the 1850s that could have been used to preclude the Scotts’ case from being considered a second time in the federal courts. Federal courts in the 19th century felt free to apply general principles of common law and were not obligated to follow the common law of states. So it was possible to hope for a more favorable substantive law by choosing to go to federal court, if there was federal diversity of citizenship jurisdiction.76
Remember that the jurisdiction of the federal courts depended on the fact that the Scotts and Sanford were citizens of different states. The first part of the Court’s majority opinion is premised on the notion that the Scotts, of African descent, were not and never could be considered citizens of the United States or of the state of Missouri, whether they are freed or enslaved.77 Alas, the populism of President Andrew Jackson lived on, though his presidency had been over for 20 years. A strain of that populism is distinctly racist, both as to American Indians and as to blacks.78 Chief Justice Roger Taney’s majority opinion directly addresses the contradiction between the Court’s holding and the language of the Declaration of Independence that states, of course, “that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them there is life, liberty, and the pursuit of happiness; .…”79 The Court’s opinion said that it is “too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; ….”80
As an aside, today we hear echoes of the notion that we ought to look at what the Founding Fathers intended in the words they used. The language I just quoted from the Dred Scott opinion, however, is a stunningly stark warning that we should be careful how we discern the meaning of the original words of the Founding Fathers in the various documents that frame our governmental system.
It was clear from the
language of the Constitution, the Court said in Scott v. Sandford, that
Congress had no power to “raise to the rank of a citizen anyone born in the
By the way, for those of you who adhere to the belief that the Second Amendment to the United States Constitution protects the right of individuals to keep and bear arms, that view is supported by the Court’s reasoning as well, because the majority would not impute to the Founding Fathers the intent that blacks should be given “full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”84 But I digress.
In its majority opinion in Scott, the Court went on to say that a state “may give the right to free Negroes and mulattoes, but that does not make them citizens of the States, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other states, does not apply to them.”85 So the Court concluded that blacks never could become state citizens allowed to sue in the federal courts under the diversity of citizenship statute.86
As startling as the Court’s decision about jurisdiction is, one would think that the decision should stop there, for if the court has no jurisdiction due to a lack of diversity of citizenship, then any other pronouncements in the opinion are what we lawyers call obiter dictum, that is, words that are not necessary to the holding in the case. Dictum is just the court talking. It is not law. But of course, lawyers can discuss at some length whether particular phrases in judicial opinions are dicta or part of the holding that expresses the law of the case.
Despite its professed lack of jurisdiction, the Supreme Court plunged forth, justifying its further “opinion” as being necessary to correct all errors in the lower court’s judgment so that other courts might not be led to “serious mischief and injustice in some future suit.”87 The Court wrote that slaves are property, the same as any other property, and that Congress, therefore, has no power to interfere with the rights of property owners.88 It then held that the Missouri Compromise, which outlawed slavery in some of the territories, was unconstitutional.89 Moreover, it wrote, states that had outlawed slavery could not interfere with the property rights of slaveholders.90 By this logic, I would infer that Missouri’s statute that allowed slaves to sue for their freedom also must be void.
The Court’s pronouncement was as deeply political as any in our history. Edward Bates, a Missourian who competed with Lincoln for the 1860 Republican nomination, scorned President James Buchanan for urging the Court in a speech in 1857, while the Court was deliberating on the Dred Scott case, to strike down the Missouri Compromise.91 Bates concluded that President Buchanan, by asserting that the Missouri Compromise unconstitutionally prohibited slavery in the territories, had reversed his narrow Jacksonian concept of the Supreme Court’s role and had exercised a corruptive influence on the justices to win a decision for the slaveholders in his party and to preserve his own political position.92 The greatest danger to the Union, Bates declared, was that “corrupt and dangerous party” – the Democratic Party – because of its “insistence on keeping the slavery issue in public view.”93
Across the river in Illinois, that state’s great lawyer, Abraham Lincoln, delivered his “House Divided” speech in June 1858.94 After his famous opening lines that “a house divided against itself cannot stand” and that “this government cannot endure permanently half slave and half free,” Lincoln launched into a history, discussion and analysis of the Dred Scott decision.95 His single-sentence summary of the entire decision shows his lawyerly gifts; his “brief” of the case was: “If any man choose to enslave another, no third man shall be allowed to object.”96
During the Civil War, which followed Lincoln’s 1860 election as president and his taking office in 1861, Missouri was split deeply. Its governor, Claiborne Fox Jackson, called a constitutional convention to decide whether Missouri should secede from the Union and join the Confederacy.100 By then, Hamilton Gamble, the Missouri dissenter in Dred Scott, was a private citizen, having left the Supreme Court of Missouri in 1855 because the job didn’t pay enough.101 Gamble, a convention delegate, argued strenuously in favor of staying in the Union, though he himself owned slaves, as did many Union loyalists in Missouri.102 When the convention voted to stay in the union, Governor Jackson and other Confederate sympathizers in state government fled the state for Texas.103 The convention elected Hamilton Gamble as Missouri’s provisional governor – though by what authority I do not know – and he served as governor until his death in 1864.104
As an aside, I should note that Governor Jackson and his confederates were not the only ones to flee. Near Hannibal, Missouri, at the outbreak of the Civil War, a young man named Samuel Clemens joined a local Confederate militia unit.105 After about two weeks of field service, during which he nearly was captured by Union forces led by Colonel Ulysses S. Grant, Clemens resigned, explaining that he was “‘incapacitated by fatigue’ through persistent retreating.”106 Clemens left the state and spent the duration of the war in Nevada and California.107 For American literature, it was a fortunate choice, for otherwise we might not have Tom Sawyer and Huck Finn to explain us to ourselves, nor would Grant have had Mark Twain’s help in editing and publishing his great Memoirs shortly before Grant’s death in 1885.108
So what about the Missouri judges? The author of the majority opinion, Judge William Scott, was removed from the Supreme Court of Missouri in 1862 because he refused to swear allegiance to the Union.109 In fact, three years later (and one year after Hamilton Gamble’s death), one Supreme Court judge resigned, and the state’s provisional governor ordered that the remaining two disloyal Supreme Court judges be thrown out of office.110 In his order, the governor charged the commanding brigadier general “with the execution of this order, and will employ such force for that purpose as he may deem necessary, and arrest all persons who may oppose him.”111 He continued that the general should “avoid the use of violent means; but, if in your judgment necessary, do not hesitate to employ all the force it may require.”112
The judge who dissented in the state Supreme Court’s Dred Scott decision, Hamilton Gamble, spent the Civil War years as provisional governor until his death in 1864.113 He proposed a gradual emancipation of slaves in Missouri that would be complete by 1870.114 That was too slow for President Lincoln, who also was impatient with the radicals’ demand for immediate emancipation.115 Remember the Emancipation Proclamation did not apply to Missouri, this state was in the Union and not “in rebellion.”
Governor Gamble went to Washington to win Lincoln’s support for the conservative plan. When he failed to get it, Gamble attacked Lincoln as “a mere intriguing, pettifogging, piddling politician.”116 Lincoln did not believe he could solve Missouri’s slavery question to anyone’s satisfaction, including his own, according to Lincoln biographer David Herbert Donald. Lincoln had, he told Attorney General Edward Bates, “no friends in Missouri.”117 Bates, by the way, was Governor Gamble’s mentor and former law partner.118
And what of Dred and Harriet Scott and their family? In the court record, Harriet was described as a washerwoman, and her husband was a porter.119 Taylor Blow, the son of original master Peter Blow, helped pay for the Scotts’ suit for freedom.120 After the U.S. Supreme Court case was lost, Blow purchased freedom for the Scott family.121 He posted bond for the Scotts in St. Louis, which was required for freed blacks to remain in Missouri.122 Dred Scott died the next year, 1858.123 Some of the Dred and Harriet Scott’s descendants are with us today.
We are all heirs to the legacy of Dred and Harriet Scott. Their case is an important reminder, in the words of Judge Gamble, that there is “no safe basis for judicial decision, but in those principles which are immutable.”124 Dred and Harriet Scott are simple symbols of our greatest failure. Past struggles for freedom and equality echo today. History judges courts harshly when they abandon principle under undue political influence.
Let none of us forget our history.
* Judge, Supreme Court of Missouri. Judge Wolff (A.B.,
1. There is a good description of some of the guerilla
activities during the Civil War in
2. David Herbert Donald, Lincoln 452 (Simon & Schuster 1995).
5. David Thomas Konig, The Long Road to Dred Scott: Personhood and the Rule of Law in the Trial Court Records of St. Louis Slave Freedom Suits, 75 UMKC L. Rev. 53, 58-73 (2006).
6. Scott v. Emerson, 15 Mo. 576, 582 (
7. Scott v. Sandford, 60
8. The statutes known as the Missouri Compromise (1820) were
struck down in Dred Scott v. Sandford, 60
9. The Northwest Ordinance 1787.
“Population of the
11. Dennis K. Boman, The Dred Scott Case Reconsidered: The Legal
and Political Context in
13. Konig, supra note 5, at 68.
14. Boman, supra note 11, at 406.
16. Konig, supra note 5.
17. See, generally, Boman, supra note 11 and Konig, supra note 5.
18. Konig, supra note 5, at 70.
19. Boman, supra note 11, at 414.
20. Boman, supra note 11, at 414-15.
26. Joseph Benson, Quest for Freedom: The Dred Scott Cases
28. Boman, supra note 11, at 420-23.
29. Friedman, supra note 24, at 323-24.
30. Adam Goldstein, Judicial Selection as it Relates to Gender Equality on the Bench, 13 Cardozo J.L & Gender 369, 373 (2007).
31. F. Andrew Hanssen, Learning
32. Friedman, supra note 24, at 325.
33. Hanssen, supra note 31, at 448.
34. Judges of the
Supreme Court of
37. Boman, supra note 11, at 423.
41. Judges of the Supreme Court, supra note 34, at 246.
42. Boman, supra note 11, at 423.
43. Dennis K. Boman,
46. Boman, supra note 11, at 426.
47. Paul Finkelman, 150th Anniversary of the Dred Scott Decision: Article: Scott v. Sandford: The Court’s Most Dreadful Case and How it Changed History, 82 Chi-Kent L. Rev. 3, 13-15 (2007).
51. Lea Vandervelde and Sandhya Subramanian, Mrs. Dred Scott, 106 Yale L.J. 1033, 1041 (1997).
57. Finkelman, supra note 47, at 22.
59. Affidavit filed by Samuel M. Bay, 10 Jul. 1847; and George W. Goode’s appeal to the Missouri Supreme Court to overturn Judge Hamilton’s decision for retrial; Dred Scott documents.
60. Boman, supra note 11, at 421.
61. Scott v. Emerson, 15 Mo. 576, 582 (
62. Bowman, supra note 11, at 408, 413, 423.
63. For a description of the split in Missouri’s Democratic Party on the issue of states’ rights and slavery, a controversy that centered for a time on Senator Benton, see DENNIS K. BOMAN, ABIEL LEONARD: YANKEE SLAVEHOLDER, EMINENT JURIST, AND PASSIONATE UNIONIST 145-58 (Edwin Mellen Press Ltd. 2002).
64. Boman, supra note 11, at 417.
68. Scott v. Emerson, supra note 61.
69. Boman, supra note 11, at 422.
70. Scott v. Emerson, 15 Mo. 576, 589.
72. Finkelman, supra note 47, at 23-24.
73. The Scotts had many lawyers over the years, many of them
prominent in the bar in
74. The defendant is identified by the Supreme Court as John
F. A. Sandford. His name was
75. Finkelman, supra note 47, at 23-24.
76. Cf. Swift v.
77. Scott v. Sandford,
78. See, generally, Gerard N. Magliocca, Preemptive Opinions: The Secret History of Woocester v. Georgia and Dred Scott, 63 U. Pitt. L. Rev. 487 (2002).
79. Scott, 60
80. Scott, 60
86. See generally Scott v. Sandford, 60 U.S. 393 (1857).
91. Marvin R. Cain, Lincoln’s Attorney General: Edward Bates of Missouri 101-102 (U. of MO Press 1965).
94. Albert K. Woldman, Lawyer Lincoln 258-59 (Carroll & Graf 1936).
97. David Herbert Donald, Lincoln 454 (Simon & Schuster 1995).
99. Woldman, supra note 94, at 259.
100. Dennis K. Boman, Lincoln’s Resolute Unionist – Hamilton Gamble, Dred Scott Dissenter and Missouri’s Civil War Governor, SUPRA nOTE 43, at p. 99.
103. BOMAN, supra note 43 at p. 114.
104. Boman, supra note 43 at 115, 236-37.
105. The Autobiography of Mark Twain 133-34 (Charles Neider, ed., Harper Perennial 1999).
107. See Neider, supra note 105.
108. Neider, supra note 105 at 310-16.
109. See Judges of the Supreme Court of Missouri, supra note 34.
110. Preface, 35
Mo. v-viii (1865) contains the Ordinance of the Convention, which was
authorized by a vote of the people to amend the state constitution. The Ordinance vacated the offices of the
Supreme Court judges as of
111. Special Order, 35 Mo. at vii.
112. Letter from Gov.
Fletcher to Gen.
113. Bowman, supra note 100, at 116.
115. David Herbert Donald, Lincoln 453 (Simon & Schuster 1995).
118. See Marvin R. Cain, Lincoln’s Attorney General: Edward Bates of Missouri (U. of MO Press 1965).
119. May Term of Court,
120. Lea Vandervelde and Sandhya Subramanian, Mrs. Dred Scott, 106 Yale L. J. 1033, n. 141 (1997).
123. Paul Finkelman, 150th Anniversary of the Dred Scott Decision: Article: Scott v. Sandford: The Court’s Most Dreadful Case and How it Changed History, 82 Chi-Kent L. Rev. 3, n. 82 (2007).
124. Scott v. Emerson, 15 Mo. 576, 592 (1852).