INTRODUCTION TO THE COURT OPINION ON
THE DRED SCOTT CASE
Dred Scott's case holds a unique place in American constitutional history
as an example of the Supreme Court trying to impose a judicial solution
on a political problem. It called down enormous criticism on the Court
and on Chief Justice Roger Brooke Taney; a later chief justice, Charles
Evans Hughes, described it as a great "self-inflicted wound."
Scott, born a slave, had been taken by his master, an army surgeon,
into the free portion of the Louisiana territory. Upon his master's death,
Scott sued for his freedom, on the grounds that since slavery was outlawed
in the free territory, he had become a free man there, and "once free
always free." The argument was rejected by a Missouri court, but Scott
and his white supporters managed to get the case into federal court, where
the issue was simply whether a slave had standing -- that is, the legal
right -- to sue in a federal court. So the first question the Supreme Court
had to decide was whether it had jurisdiction. If Scott had standing, then
the Court had jurisdiction, and the justices could go on to decide the
merits of his claim. But if, as a slave, Scott did not have standing, then
the Court could dismiss the suit for lack of jurisdiction.
The Court ruled that Scott, as a slave, could not exercise the prerogative
of a free citizen to sue in federal court. That should have been the end
of the case, but Chief Justice Taney and the other southern sympathizers
on the Court hoped that a definitive ruling would settle the issue of slavery
in the territories once and for all. So they went on to rule that the Missouri
Compromise of 1820 was unconstitutional since Congress could not forbid
citizens from taking their property, i.e., slaves, into any territory owned
by the United States. A slave, Taney ruled, was property, nothing more,
and could never be a citizen.
The South, of course, welcomed the ruling, but in the North it raised
a storm of protest and scorn. It helped create the Republican Party, and
disgust at the decision may have played a role in the election of Abraham
Lincoln in 1860.
For further reading: Don E. Fehrenbacher, The Dred Scott Case (1978);
Walter Ehrlich, They Have No Rights: Dred Scott's Struggle for Freedom (1979).
DRED SCOTT V. SANDFORD (1857)
Chief Justice Taney delivered the opinion of the Court.
The question is simply this: Can a negro, whose ancestors were imported
into this country, and sold as slaves, become a member of the political
community formed and brought into existence by the Constitution of the
United States, and as such become entitled to all the rights, and privileges,
and immunities, guarantied by that instrument to the citizen? One of which
rights is the privilege of suing in a court of the United States in the
cases specified in the constitution...
The words "people of the United States" and "citizens"
are synonymous terms, and mean the same thing. They both describe the political
body who, according to our republican institutions, form the sovereignty,
and who hold the power and conduct the government through their representatives.
They are what we familiarly call the "sovereign people," and
every citizen is one of this people, and a constituent member of this sovereignty.
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. On the contrary, they were at that time considered as a subordinate
and inferior class of beings, who had been subjugated by the dominant race,
and, whether emancipated or not, yet remained subject to their authority,
and had no rights or privileges but such as those who held the power and
the government might choose to grant them.
It is not the province of the court to decide upon the justice or injustice,
the policy or impolicy, of these laws. The decision of that question belonged
to the political or law-making power; to those who formed the sovereignty
and framed the constitution. The duty of the court is, to interpret the
instrument they have framed, with the best lights we can obtain on the
subject, and to administer it as we find it, according to its true intent
and meaning when it was adopted.
In discussing this question, we must not confound the rights of citizenship
which a State may confer within its own limits, and the rights of citizenship
as a member of the Union. It does not by any means follow, because he has
all the rights and privileges of a citizen of a State, that he must be
a citizen of the United States. He may have all of the rights and privileges
of the citizen of a State, and yet not be entitled to the rights and privileges
of a citizen in any other State. For, previous to the adoption of the constitution
of the United States, every State had the undoubted right to confer on
whomsoever it pleased the character of citizen, and to endow him with all
its rights. But this character of course was confirmed to the boundaries
of the State, and gave him no rights or privileges in other States beyond
those secured to him by the laws of nations and the comity of States. Nor
have the several States surrendered the power of conferring these rights
and privileges by adopting the constitution of the United States...
It is very clear, therefore, that no State can, by any act or law of
its own, passed since the adoption of the constitution, introduce a new
member into the political community created by the constitution of the
United States. It cannot make him a member of this community by making
him a member of its own. And for the same reason it cannot introduce any
person, or description of persons, who were not intended to be embraced
in this new political family, which the constitution brought into existence,
but were intended to be excluded from it.
The question then arises, whether the provisions of the constitution,
in relation to the personal rights and privileges to which the citizen
of a State should be entitled, embraced the negro African race, at that
time in this country, or who might afterwards be imported, who had then
or should afterwards be made free in any State; and to put it in the power
of a single State to make him a citizen of the United States, and endue
him with the full rights of citizenship in every other State without their
consent? Does the constitution of the United States act upon him whenever
he shall be made free under the laws of a State, and raised there to the
rank of a citizen, and immediately clothe him with all the privileges of
a citizen in every other State, and in its own courts?
The court think the affirmative of these propositions cannot be maintained.
And if it cannot, the plaintiff in error could not be a citizen of the
State of Missouri, within the meaning of the constitution of the United
States, and, consequently, was not entitled to sue in its courts.
It is true, every person, and every class and description of persons,
who were at the time of the adoption of the constitution recognized as
citizens in the several States, became also citizens of this new political
body; but none other; it was formed by them, and for them and their posterity,
but for no one else. And the personal rights and privileges guaranteed
to citizens of this new sovereignty were intended to embrace those only
who were then members of the several State communities, or who should afterwards
by birthright or otherwise become members, according to the provisions
of the constitution and the principles on which it was founded. It was
the union of those who were at that time members of distinct and separate
political communities into one political family, whose power, for certain
specified purposes, was to extend over the whole territory of the United
States. And it gave to each citizen rights and privileges outside of his
State which he did not before possess, and placed him in every other State
upon a perfect equality with its own citizens as to rights of person and
rights of property; it made him a citizen of the United States...
In the opinion of the court, the legislation and histories of the times,
and the language used in the declaration of independence, show, that neither
the class of persons who had been imported as slaves, nor their descendants,
whether they had become free or not, were then acknowledged as a part of
the people, nor intended to be included in the general words used in 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; and instead of the sympathy of mankind,
to which they so confidently appealed, they would have deserved and received
universal rebuke and reprobation...
But there are two clauses in the constitution which point directly and
specifically to the negro race as a separate class of persons, and show
clearly that they were not regarded as a portion of the people or citizens
of the government then formed.
One of these clauses reserves to each of the thirteen States the right
to import slaves until the year 1808, if it thinks proper...And by the
other provision the States pledge themselves to each other to maintain
the right of property of the master, by delivering up to him any slave
who may have escaped from his service, and be found within their respective
The only two provisions which point to them and include them, treat
them as property, and make it the duty of the government to protect it;
no other power, in relation to this race, is to be found in the constitution;
and as it is a government of special, delegated powers, no authority beyond
these two provisions can be constitutionally exercised. The government
of the United States had no right to interfere for any other purpose but
that of protecting the rights of the owner, leaving it altogether with
the several States to deal with this race, whether emancipated or not,
as each State may think justice, humanity, and the interests and safety
of society, require. The States evidently intended to reserve this power
exclusively to themselves...
Upon a full and careful consideration of the subject, the court is of
opinion, that, upon the facts stated...Dred Scott was not a citizen of
Missouri within the meaning of the constitution of the United States, and
not entitled as such to sue in its courts; and, consequently, that the
circuit court had no jurisdiction of the case, and that the judgment on
the plea in abatement is erroneous...
We proceed...to inquire whether the facts relied on by the plaintiff
entitled him to his freedom...
The act of Congress, upon which the plaintiff relies, declares that
slavery and involuntary servitude, except as a punishment for crime, shall
be forever prohibited in all that part of the territory ceded by France,
under the name of Louisiana, which lies north of thirty-six degrees thirty
minutes north latitude and not included within the limits of Missouri.
And the difficulty which meets us at the threshold of this part of the
inquiry is whether Congress was authorized to pass this law under any of
the powers granted to it by the Constitution; for, if the authority is
not given by that instrument, it is the duty of this Court to declare it
void and inoperative and incapable of conferring freedom upon anyone who
is held as a slave under the laws of any one of the states.
The counsel for the plaintiff has laid much stress upon that article
in the Constitution which confers on Congress the power "to dispose
of and make all needful rules and regulations respecting the territory
or other property belonging to the United States"; but, in the judgment
of the Court, that provision has no bearing on the present controversy,
and the power there given, whatever it may be, is confined, and was intended
to be confined, to the territory which at that time belonged to, or was
claimed by, the United States and was within their boundaries as settled
by the treaty with Great Britain and can have no influence upon a territory
afterward acquired from a foreign government. It was a special provision
for a known and particular territory, and to meet a present emergency,
and nothing more...
We do not mean, however, to question the power of Congress in this respect.
The power to expand the territory of the United States by the admission
of new states is plainly given; and in the construction of this power by
all the departments of the government, it has been held to authorize the
acquisition of territory, not fit for admission at the time, but to be
admitted as soon as its population and situation would entitle it to admission...
It may be safely assumed that citizens of the United States who migrate
to a territory belonging to the people of the United States cannot be ruled
as mere colonists, dependent upon the will of the general government, and
to be governed by any laws it may think proper to impose. The principle
upon which our governments rest, and upon which alone they continue to
exist, is the union of states, sovereign and independent within their own
limits in their internal and domestic concerns, and bound together as one
people by a general government, possessing certain enumerated and restricted
powers, delegated to it by the people of the several states, and exercising
supreme authority within the scope of the powers granted to it, throughout
the dominion of the United States. A power, therefore, in the general government
to obtain and hold colonies and dependent territories, over which they
might legislate without restriction, would be inconsistent with its own
existence in its present form. Whatever it acquires, it acquires for the
benefit of the people of the several states who created it. It is their
trustee acting for them and charged with the duty of promoting the interests
of the whole people of the Union in the exercise of the powers specifically
But the power of Congress over the person or property of a citizen can
never be a mere discretionary power under our Constitution and form of
government. The powers of the government and the rights and privileges
of the citizen are regulated and plainly defined by the Constitution itself.
And, when the territory becomes a part of the United States, the federal
government enters into possession in the character impressed upon it by
those who created it. It enters upon it with its powers over the citizen
strictly defined and limited by the Constitution, from which it derives
its own existence, and by virtue of which alone it continues to exist and
act as a government and sovereignty. It has no power of any kind beyond
it; and it cannot, when it enters a territory of the United States, put
off its character and assume discretionary or despotic powers which the
Constitution has denied to it. It cannot create for itself a new character
separated from the citizens of the United States and the duties it owes
them under the provisions of the Constitution. The territory, being a part
of the United States, the government and the citizen both enter it under
the authority of the Constitution, with their respective rights defined
and marked out; and the federal government can exercise no power over his
person or property, beyond what that instrument confers, nor lawfully deny
any right which it has reserved...
These powers, and others, in relation to rights of person, which it
is not necessary here to enumerate, are, in express and positive terms,
denied to the general government; and the rights of private property have
been guarded with equal care. Thus the rights of property are united with
the rights of person and placed on the same ground by the Fifth Amendment
to the Constitution, which provides that no person shall be deprived of
life, liberty, and property without due process of law. And an act of Congress
which deprives a citizen of the United States of his liberty or property,
without due process of law, merely because he came himself or brought his
property into a particular territory of the United States, and who had
committed no offense against the laws, could hardly be dignified with the
name of due process of law...
It seems, however, to be supposed that there is a difference between
property in a slave and other property and that different rules may be
applied to it in expounding the Constitution of the United States. And
the laws and usages of nations, and the writings of eminent jurists upon
the relation of master and slave and their mutual rights and duties, and
the powers which governments may exercise over it, have been dwelt upon
in the argument.
But, in considering the question before us, it must be borne in mind
that there is no law of nations standing between the people of the United
States and their government and interfering with their relation to each
other. The powers of the government and the rights of the citizen under
it are positive and practical regulations plainly written down. The people
of the United States have delegated to it certain enumerated powers and
forbidden it to exercise others. It has no power over the person or property
of a citizen but what the citizens of the United States have granted. And
no laws or usages of other nations, or reasoning of statesmen or jurists
upon the relations of master and slave, can enlarge the powers of the government
or take from the citizens the rights they have reserved. And if the Constitution
recognizes the right of property of the master in a slave, and makes no
distinction between that description of property and other property owned
by a citizen, no tribunal, acting under the authority of the United States,
whether it be legislative, executive, or judicial, has a right to draw
such a distinction or deny to it the benefit of the provisions and guaranties
which have been provided for the protection of private property against
the encroachments of the government.
Now, as we have already said in an earlier part of this opinion, upon
a different point, the right of property in a slave is distinctly and expressly
affirmed in the Constitution. The right to traffic in it, like an ordinary
article of merchandise and property, was guaranteed to the citizens of
the United States, in every state that might desire it, for twenty years.
And the government in express terms is pledged to protect it in all future
time if the slave escapes from his owner. That is done in plain words --
too plain to be misunderstood. And no word can be found in the Constitution
which gives Congress a greater power over slave property or which entitles
property of that kind to less protection than property of any other description.
The only power conferred is the power coupled with the duty of guarding
and protecting the owner in his rights.
Upon these considerations it is the opinion of the Court that the act
of Congress which prohibited a citizen from holding and owning property
of this kind in the territory of the United States north of the line therein
mentioned is not warranted by the Constitution and is therefore void; and
that neither Dred Scott himself, nor any of his family, were made free
by being carried into this territory; even if they had been carried there
by the owner with the intention of becoming a permanent resident.
Source: 19 Howard (1857), 393.