Transcripts For CSPAN Landmark Cases Landmark Cases - Scott V. Sandford 20180217

Quite often, most of our most famous decisions are ones that the court took that were unpopular. Lets go through a few cases that illustrate dramatically and visually what it means to live in a society of 310 million different people who stuck together because they believed in the rule of law. Cspan and the National Constitution Center Welcome you to the landmark cases. We explore the people and stories behind some of the Supreme Courts most famous decisions. Tonight you will be learning more about the dred scott decision. Let me introduce you about the two guests about the history. A professor and coeditor of a book of the dred scott case. Welcome to our program. Thank you for having me. Martha jones is from the university of michigan and the chair of the Africanamerican Studies Program at the law school. They can for having me. Blacks, whether free or slaves werent citizens of the United States. And they limited the spread of sliverry and saying congress didnt have the authority. So im going to set the table for us in the mid what was the 1860s. Background that gave rise to this case . There are a few things that are important for dred scott. 1850 marks a turning point in the nations thinking about slavery. What do i mean . Here the fugitive slave act is only totood through not enable southern slave holders to reach into the north, but it is said to nationalize slavery once again and make northerners complicit in the constitution. In the institution, even in those states that abolished slavery. Its probably the most important context. The Supreme Court decides which cases it will here. Why does it decide to take on the case of dred scott . . Saying, as she was this is a period of proslavery nationalism. This case allows the court to take on one of the most decisive questions of the day. Is america going to be a nationally slave state . The court can decide its questions but this is one that was going to be an issue for the court or the legislature or the president Going Forward and an opportunity to answer one of the more difficult questions. We are trying to find connectivity between the cases. Last was marbury versus madison , and this is 50 over 50 years later, and the first time the first time that the court uses the judicial review process, is that correct . That is correct. Recognizing that was a big step. It took 50 years for the court to do it again. Notice how the court does it within the most dramatic fashion. What really sets dred scott apart is the fact that it is the ultimate antipresident ial case. It is what you dont want to do. A cautionary tale. For the court to step in and exercise judicial review in this particular way in striking down the compromise in this climate, it was a bad political decision. Is it correct to say that, it even inside the Supreme Court the dred scott decision is one of the worst . Absolutely. You can talk to scholars and most will agree this was probably the most infamous Supreme Court decision. Critics say this was a court of the court overreaching and one, it doesnt have the capacity to resolve and in doing so, really damaging the courts reputation for years to come. There are consequences on the nation on the issue of slavery , but there are consequences on the court Going Forward. We are going to your a lot of names during the next 90 minutes, among them, a couple of dredost important are scott and hariot scott who were they . Dred scott was a slave to the blow family in the Hampton Roads family. They moved and he moved toll alabama to become farmers to buy cotton plantations and doesnt work out well. He moved to st. Louis missouri, in they move them to missouri 1830. And opened up a boarding house. The next year, Elizabeth Taylor died. In the following year, blow passes as well. Before he does, he make arrangements to sell dr emp d to dr. Emerson and the doctor connects him. We would get a chance to get in more detail and why they became the crux of this case and i will ask you briefly, and we will spend more time on it later, who was rodgeer taney . And taney is a former slave holder, a marylander, states map man ande man states Held Public Office in the state of maryland. He was attorney general for the state of maryland and attorney general for the United States and by the 180s, he becomes chief justice of the United States Supreme Court. He is a colonization and someone who advocates that a former slave cannot live peacebly in the United States and should be removed voluntarily to places like liberia. He is a catholic living in maryland and i think most important thinking about credit dred scott, before we get to 1857, it has beenal question on his mind since the 1820s and 1830s when as attorney general, he had begun to work out his theory about black citizenship, and we know his conclusion that black people cannot be citizens of the United States. But give some background to tell its a bit more about the United States. The total population in the 31 million plus people and there were about half a million free blacks in the United States. And today, the free blacks live in a certain part of the country . Free blacks, there were free blacks in the south and the north. A lot of times after emancipation, if a slave was emancipated, they would leave the jurisdiction, but they had family that kept them in the same place where they were slaves. It was not uncommon to find free blacks in the south and the north. In urban centers like st. Louis, like baltimore, we have across the increasingly across the country we have increasingly growing population of of africanamericans. Taney has the largest population in the country, 25,000 people. That helps us to begin to understand his touchspoken. And the decision they would make would affect the free states as well. Absolutely. These are men and women, and boys and girls who have been free who have been themselves claiming the status of citizens throughout the early decades of 19th century which makes it a terrible blow. They were not only claiming to be citizens, they voted for ratification of the constitution. It comes as quite a blow. Later on, we will involve you in the series that makes it interesting for us and the questions on your mind. And you can send us a tweet at cspan and hues the hashtag landmarkcases and be part of the facebook conversation and finally there will be phone lines where you can call in and we will put those numbers periodically. We will probably take calls within about 15 more minutes or so. The important part of the decision, with his master, he traveled into the territories that were declared free. We are going to learn about his time of that life. Our cameras went on location to the site that is located outside of st. Paul, minnesota and where this is where dred scott lived in free territory and married. Lets watch. During the timeframe of the scott being here, of the scotts being here you can , imagine, the soldiers drilling and muskets firing. I like to envision harriet was standing outside of the store over here. Maybe dred was walking over here and saw here. Saw her. Maybe wanted to introduce himself to her. The thing i like about that is we continue to put them and other enslaved people as people rather than obvious. Rather than objects. They had a ceremony that was off yated. The fact that dred and harriets marriage, was officiated, that is rare, it makes this place significant in that regard. Dred and harriet were enslaved people here on land where slavery wasnt legally recognized and that was one of the pieces of information that they used as the basis of their court case when they sued for their freedom in st. Louis. This is the place that we speak about. We refitted and outfitted the room. In accordance to what it would have what we believed it would have looked like. This room is actually their living quarters and interesting it is interesting because their living quarters are located directly under emerson space. So the master, his space is right above them. All the noise of what is happening upstairs, they could here it. We understand dred to be the personal valet or man servant , so he was the one who would emersons needs. Various types of duties that we find that he was possibly doing. Harriet, anything from cooking, sewing the laundry. That is what you found her doing as well. This was about 1836 or so and the scotts were living in this area. What is significant to know about that the world . When we talk about that timeframe, you talk about a. In which slavery still exists and people have a presumption of slavery. That hasnt changed. When they meet each other, they are both slaves to their masters. If they fall in love, they get married, there is an ambiguity there because they recognize they are enslaved, and yet, they are carringying on as if they are free. It is the time of almost transition. Not quite transition. As martha said earlier the , fugitive slave act of 1850 is really the point of which you saw sectional tension begin to rise. The beginning of that crescendo. This unusual for the time to agree to perform a marriage was this unusual for the time to agree to perform a marriage ceremony between them . I dont think so. Marriage cuts two ways. It is the affirmation of two individuals, the beginning of a life together, the making of a family, children, they know their story and it cuts two ways because marriage is a mechanism of social control. Perhaps, a slave is less inclined, for example, to run away if he or she is connected to a family unit and tied to other people. It is not a marriage that has legal weight, which is to say these two cannot claim ownership of their children, they cannot inherent from one another or enjoy the privileges of marriage and they develop a bond that is deep and lasts for decades. Dred scott, we left the story with emerson and he was in the military and traveled a lot which is one of the reasons that dred scott traveled a lot. Dred scott had many masters, would that have been common . That was less uncommon. He was a body man and a personal servant and those relationships tend to be more enduring. I think it would be unusual to see him hired out as he was hired out. Their first child was named after elijah. Dred scott was living a very different kind of life with dr. Emerson. Somewhere along the way, its got offered to buy his freedom from dr. Emerson. Slave would have where would of slave have gotten the means to do that . That is a great question. Legal knowledge between many enslaved people is circulating. Manyve freedoms slaves are producing their own freedoms with freedom suits. They learn about how to challenge it within their own circumstances. There is no formal mechanism for self purchase in a jurisdiction like missouri. To buy ones freedom requires the consent and accord with owner. Or emerson declined. Where were they gotten the information about filing the lawsuit and the money to do such a thing . Its an interesting thing. Freedom suits were not that uncommon. The antislavery bar, the lawyers that were litigating these cases, they were nonideological cases in many instances. ,hey were doing litigation almost like criminal defense work or Public Interest work today. The kind of work lawyers do, that not everybody does, that is part of the litigation experience. Saying, people are relatively sophisticated in missouri on the slavery question. That everybody is in support of slavery. Air having real conversations about what opportunities these people have to be free. Harriet received support from her reverent from her church who to give information about how to file the lawsuit. On twitter said, did his journey to educate him along the way . Do you think he had the opportunity to talk about people in different parts of the United States and the territory . I think yes. I think that begins at Fort Snelling when they are alone, that is not to say in the that is to say not in the company of the emersons. They are hired out to another household at Fort Snelling and while they labor and their wages go to the emersons, they enjoy an autonomy that speak to it. An economy that gives them the opportunity to speak to people. On the one hand, Fort Snelling is in minnesota, near st. Paul and terribly remote for people like harriet and dred, but it is on the other hand, it is an extraordinary crossroads where merchants, and native people are trading stories, trading information, and i wouldnt be surprised if thats where their Legal Education begins. Dred scott takes us to what court . Missouri state court. He originally files with the state court and its a fairly , typical cause of action. It. E are two elements to he claims, number one, that he is free and second, that he is being falsely imprisoned. There is an assault component that you claim you are being threatened and imprisonment and being held against your will. That was the typical format. Its the kind of case that was almost boiler plate. And you would go to court and out under the old writ system different that we would legitimate today. That we would have today. It didnt do his case so he wasnt able to file. Take youby video, we to the courthouse where they first fought the legal address. We welcome you to the same those old courthouse. The place where harriet and dred find a way through the legal system. We are in one of the grander courtrooms that survived in st. Louis old courthouse. We know in both of the dred scott trials, the same judge presided. He was the judge of the Circuit Court of st. Louis at the time and was being known as being somewhat favorable to these cases of enslaved persons who were suing in the courts to gain their freedom. It was a jury of 12 men and all of these men would have been white. Some of them may have been and probably were slave owners. So we have to think when the scotts came here in 1850 for a second trial and when the jury, having listened to the evidence decided that they should be set free, that the evidence must have been very persuasive. There was one of actually a little over 300 cases that were heard in the st. Louis courts about this same matter of enslaved persons trying to become free by petitioning the legal system. When the slaves came into the court and we know they were allowed to come into the court , by law, and sometimes people ask is that question, but this side of the room is where the prosecution would sit and this is where the slaves would have been. We are looking at the original petition that dred and Harriet Scott made to the court. Dred and harriet had separate petitions and they were put to go into one case that bore his name. And, an interesting thing the way the law was written at the an interesting thing in the way the law was written at the time, it specified some sort of abuse may have taken place and it was a thing where they may have been abused and enslaved by their owner. The bottom were there their signatures are marked. Neither dred nor harriet could read or write. So the person who drafted the petition would write their name and put his mark and then dred would put his cross or x in that space and the same with harriet. You can see they did the same thing over here with her mark. One of the places, if you are the road and in st. Louis you , can visit to learn more about the dred scott case. Ofant to show you a timeline the legal challenge in the state of missouri. First, 1846 is when it was in the county court. That is what we just saw. It was retried in 1850 in the same courtroom. Then it went onto the missouri Supreme Court in 1852 and then , finally 1854, it moved to the federal courts in st. Louis area for both of you, that set a question decided by the lower courts. What were the important aspects of the case for people to understand . The first part i would emphasize is the the lower court cases. The first trial, where there is a technicality. We need to understand the technicality. There are three different lawsuits. One for dred, one for harriet and one for the other two kids. The claim that dred made was that he was being falsely held against his will. Mr. Russell testifies, yes, i hired dred from mr. Emerson for a set amount of money. Held against hs will. On examination, it was revealed, it wasnt him but his wife. It was his wife, mrs. Russell hadnt testified at trial. Mr. Russells testimony was struck as hear say. There was no evidence that he was treated as a slave. So the case was dismissed. But the judge was sympathetic. The judge was sympathetic, so there was a retrial. At retrial, mr. Emerson testified he paid the mr. Emerson testified he paid the money. Mrs. Russell testified that she made the arrangements and dred scott was able to prevail at the state court level. Why did it go on to the missouri Supreme Court . That takes us back to a fundamental question why 1846. What is happening that the scotts waited to bring this freedom suit and i think there is a confluence of things. But for me, the most powerful thing is those girls. They had two young daughters. Something changes and throughout the litigation, the scotts keep the girls in hiding. They are prepared if necessary to defy a court order rather than to see them enslaved or at rifbling sold away. They are terribly vulnerable. Vulnerable being separated from their parents and sexual assault. There is something going on. What happens is that they win the second trial. The jury of white men in st. Louis white men declare them as free men. There is a lone dissenter who says, not so fast. We have decades of a precedent here and i at least for the dissenting view, argue that we should follow precedent and they should be free. Generally, the role of law in missouri is, once an enslaved person has lived on on free soil, they become a free person, even when they return to the slave state of missouri. Once free, always free. Why didnt it ended there . It is a great lesson in why people wait to bring freedom suits. They are not a sure thing. They never are. The changing politics of issouri, a high court that increasingly interested in closing the door to these sorts of suits. What we get, at the high court in missouri, a split decision. On the one hand, the majority of no, we are not obligated as the state of missouri to honor the loss of what was the wisconsin territory or the state of illinois where the scotts had been on free soil. Were not obligated to extend and hour laws dictate they should be reslaved. Theres one person that says, not so fast. We have decades of a president i argue that we should follow precedent. They should be free. Was, as clear as a bell. He said circumstances may have changed but our principles shouldnt. The next part of the story, we go on to the federal courts and, ultimately, the Supreme Court. It is time to start taking your calls. We begin with a call from joe, youre on the air. What is your question . Im interested in the two attorneys that defended dred scott, Montgomery Blair and roswell field, who was from st. Louis. Im going to ask our guests to spend a little time, because when we get to that part of the story, we will spend more, but Montgomery Blair the more famous of the two. I want to point out, quickly, that Montgomery Blair is a maryland. A former slave holder who has a different view of how dred scott should turn out. When we get to the Supreme Court, it is a contest. Marylander against marylander. Jim is watching us in california. Jim, you are on the air. Thank you for this series. Thanks specifically to the two guests. You are doing very interesting. Im a former retired attorney and last time i looked at dred scott was in law school about 50 years ago. My question, is the worst case that the Supreme Court has decided . I would have said plessy versus ferguson because it continued longer. Dred scott died with the civil war, unfortunately. Also i dont know if you can , answer this. I dont believe you are doing plessy in this series. I want to know why you arent doing that case . I would be curious. Ive a very simple answer to that. We have 12 weeks and thousands of cases. With the Constitution Center as our partners, we have spent a a lot of time arguing over which cases would be our landmark cases knowing we couldnt do all. We are thinking about next year. But plessy versus ferguson, was it more impactful in the end . I think the caller is right, plessy versus fug uson was a plessy versus ferguson was a terrible decision. I think dred scott did more damage to the courts. The expectation was that most people were not being overly political, and not that these cases arent political at time but engage in politics and what we see in dred scott is really a court reaching out and deciding a political question and deciding it wrong. Plessy versus ferguson has a lot has its faults. Maybe we might have a lot to say topic comeshen that along. But i would stand pat on my claim that dred scott is the most atrocious of the Supreme Court decisions. One person said on twitter there were 331 freedom cases in missouri, how many or what percentage of them were successful . That is a good question. I dont know the answer, and i should. But, i will say there are sore there are dozens of cases brought on the very same terms that are successful. There is almost every reason to think they should succeed. 20s in particular, that was decided a couple years before the dred scott case, rachel versus walker, there was a female slave that was taken by an army officer and the court held when that army officer took the slave in the free territory he took. It wasnt was a lone case. I think my that is exactly right. Glenn is watching us. You are a plan. Thank you all very much. I question is, there were a lot of european groups, italians, jews, irish, templates, immigrating here at the time. I was wondering, what exactly defines citizenship back then . The dred scott case make it an ethnic group thing or was there some sort of fast rule question rule . Good question. The u. S. Constitution is nearly silent on who is a citizen. There is a hint and qualifications for the office like the president that there might be Something Like a natural born citizen in the United States. There is certainly technology and an ecologist at touche and that constitution constitution. At the same time, there is an extraordinary hold in our understandings of citizenship in the 19 century. The turns to the case of former slaves. They are no longer slaves. They are free people, but there is a spirited debate about whether they stand and choose lint to those of white americans during this. Dred scott appears, and i say appears, to close the door on that question. In that light, William Hamilton on facebook writes, the problem with dred scott is that it brought in the ability to maintain maintain free slaves. You shouldnt lose your rights by crossing the state border. And the case of slavery, it cause huge problems. The fugitive slave act caused issues already. He is right. Part of what dred scott did, the Lower Court Decision created a bubble and space and that was the basic tension, whether or not that was permissible, the missouri compromise said that shouldnt be possible. And the decision for the missouri Supreme Court created that possibility. We move onto the important part, the reason for the program, the federal court and the Supreme Court. Once again, i want to show you of his address to the Supreme Court and how long it argued and have it decided. In 1854, it was decided by the federal courts, and then in 1856, it was argued for the first time before the supreme Supreme Court, and argued once again in the same year, 1857, and then the decision was handed down. 1857, dred and harriet were freed so ultimately from the first petition in the st. Louis county court until the Supreme Court heard the case, it was 11 years. Is that typical today . To go to the Supreme Courts . Is that a long time . There are cases that go on for a decade today. But a freedom suit shouldnt have taken that long. Its remarkable in its length , really. And the fact it was contested so thoroughly, i mean, you have to realize, by the time this case gets decided, dred scott is an old man. He is as far as his value of a , slave, he is diminished value , he is sick, and yet, they are he continuing to fight. And his daughters. And his daughters. One of the keys to this story, about the daughters. Not only do have they have a value as property to their parents, they are precious. And when we try to understand the longevity, not only how long the suit takes but the tenacious ness to pursue it out of the state courts and into federal courts and we appreciate how keenly the scots felt the stakes were. , the moved to where roger chief justice of the Supreme Court appointed by by andrew jackson. And we are going to learn more about learn more about his background and what he brought to this case and what the makeup of his court was like. We went to annapolis to learn more about taneys early career. It is through these doors that taney would have walked walked when he served on the Supreme Court. And severed a time in the Maryland Senate and it was inside this room where the Maryland Senate met. In the mid19 century, 1816, the members of congress would sit in an arc of desks facing the president of congress who would have been seated on the president s desk. The business of the senate, it would have been looking out for land interests in the county and this is the. , within 10 years after the war of 1812, so there was still a lot of building of American Government at that time. Foundational work was underway in the senate and across the hall and house of delegates. While he was serving here, he was operating his law practice and frederick. It was also serving on the board of directors on the in the bank of frederick which was incorporated at that time. After leaving the Maryland Senate, he came back to service in the state in 1827 as attorney general and it was from that post that he left in 1831 to begin serving in the federal government. Martha jones, you started us on the story of roger tony. What else do we know about this man about how he ran this court and wrote the decision in this case . One of the interesting facts about being a Supreme Court justice in this period is that you are not excused from serving on trial courts as well. Taney rides circuit, as we say, and goes back to baltimore, regularly, to sit on trials in that Federal District court. And so he is on the one hand, engulfed in this world of baltimore. He is a patron to free africanamericans in that city and he is in washington thinking on a very different scale about the status of slavery and the standing of africanamericans Going Forward. To understand you have to understand the world. Ways, not quite a recluse, but he is somewhat reserved. He takes his seat on the bench very seriously. Want to appear to be tainted by popular opinion or politics. But he continues to be an active member of the bar in baltimore, to preside over proceedings there in his local Catholic Church. He is a figurehead, much soughtafter. S a mashed you mashed emeshed in this social world, not simply in an ivory tower in washington. Ms. Swain here is an interesting biographical fact about roger taney. In 1818, he freed his own slaves. Prof. Bracey he did, before he became a judge. But there is Something Else about roger taney. While he was a bit of a recluse, he was not afraid to stake out in ideological position. There was a case decided in 1842, involving a slave clause. A slave that escaped to pennsylvania. Pennsylvania refused to turn the slave back over to the catchers who had gone to pursue the slave. The Supreme Court decided to question how to interpret it, and what it would impose on the state of pennsylvania, the quaker state, in terms of supporting slavery and the return of the slave to its master. Taney did not write the majority opinion of the court. That was done by the chief justice. The court said, in effect, we have to return the slave as part of our constitutional obligation. We will be forced by the slave to assist in returning the slave. Taney went further in the concurrence, arguing it will be much more substantial, that they have an obligation to have their local authorities deputized by federal marshals, in the delivering up of slaves. In other words, he was really pushing a proslavery, nationalist position, years before dred scott him around. But you could see it coming. Ms. Swain i will take two calls, and she the makeup of taneys court, and how the nine judges were allocated, since this is all about sectionalism. So you know what kind of court is receiving the case of dred scott. Lets listen to harry who is watching us from oakland, maryland. Caller hello. There were movements at that time, even in some slave states toward abolition. I think virginia, in the mid1850s, had an election on that, and i am not sure if it is the legislature, but it was closer than you would think. The question i have, how much weight did this really have how did it relate to the civil war . Could the war have been avoided if they had ruled differently on this particular matter . Prof. Jones that is a great question, and one of the overstatements about dred scott is the claim that the case gives us the civil war. As chris said, sectional tension is already very high by the time we get to 1857. Probably, we would ascribe the rising of that tension in the mid1850s to the situation in kansas, and the debates over whether or not kansas will be admitted as a slave state in the mid1850s, probably much closer to helping us understand how we get to the breaking of sectional ties in the civil war, then dred scott. Dred scott is great propaganda for political leaders who want to demonstrate or waive the threat of the slaveocracy. Im not sure the Court Decision was not enforced to any significant degree. Which was not, in fact, and forced to any significant degree, im not sure it had the force of giving us a civil war. Ms. Swain here are the names of the nine Supreme Court justices. They are broken down by sections of the country. Tawny, of course, was the chief. Five of the nine. The northerners, john maclean of ohio, Samuel Nelson of new york, Robert Breyer of pennsylvania, and curtis of massachusetts. It was logically a 54 decision. The odds were stacked against dred scott. Prof. Bracey absolutely, it was worse than that, you had 79 who are democrats. The five a southerners ec, that you see there, are also the five that descend from slave owning families. Really, you have serious author against dred scott. Ms. Swain and that was ultimately the bow, the two the vote on the case, the two northerners were whigs who voted with dred scott. We have video of the old Supreme Court chamber in the u. S. Capital which is where the case was argued. We will show you that. And we set the stage for the case being heard. What was alike the first time around . Prof. Jones i think that in some sense, it is a case that his muchanticipated by the time it reaches the court. Taney himself is eager to take on these questions, and dred scott provides him with his only opportunity in this critical period not only to impact the jurisprudence, but in effect, to have a role in the political questions that are set to entrench the nations. The court is poised, would you agree chris . Prof. Bracey i do. And you have roswell, who was dred scotts lawyer. And the superstar Montgomery Blair to argue before the Supreme Court. Representing the sanfords, you have grier and Liberty Johnson and also from maryland. And you have a running mate with him. You have the makings of an interesting case that is going to be argued before the court. Ms. Swain how did dred scott find these superstar attorneys to represent him . Prof. Bracey you have the family providing support to him. Ms. Swain the original owners. The descendents, the children of peter and Elizabeth Taylor blow are now abolitionists. Charlotte has married and editor of an abolitionist newspaper. One of the sons becomes a u. S. Congressman, the other daughter marries a u. S. Senator. They get together and provide the Financial Security to support the litigation. Another connection i have not fully validated, Montgomery Blair has a brother in missouri. Frank blair is a conservative unionist. It is possible that there is some connection there, as well, which would explain why Montgomery Blair gets involved. And as you know, Benjamin Curtis brother joins the Litigation Team on behalf of dred scott for the second round of moral arguments to argue the validity of the missouri compromise. Ms. Swain and who is Benjamin Curtis . Ms. Swain the brother of a sitting jurist argued before the court. Prof. Bracey i think there were be a conflict of interest today. Ms. Swain was he paid . Professor jones blair was not, and neither is curtis. But, by the time we are approaching the u. S. Supreme court, these are men who are taking this case because the reputation called for it. I think it would be a mistake to characterize them as hired guns. There is a great deal of press prestige in arguing these cases. Blair never meets the family. He takes the case in washington and argues it there. Ms. Swain was it dred scott in the courtroom when this was argued . Prof. Jones the scotts are in st. Louis, in the formal custody of the court, the sheriff, and they are hired out and laboring, and their daughters are in hiding. Ms. Swain this case is important, i want to ask one question from twitter, which plays into this as well. One of our collars, when we were talking about roger taney, would you talk about his role as a catholic on the court, when that was unheard of in politics . Its a great question, because taney does not come out of the religious communities that we would associate with the critique of slavery. He does not come out of that tradition, even if he does not even if he is a colonization colonizationist, he does not have a growing critique of slavery, the way we associate it with quakers and baptists during that period. And remember, he exerts an extraordinary kind of cultural power through his association in the Catholic Church in a city like baltimore. Even as he is perceived as a minority. Ms. Swain by the time he got to the Supreme Court, its docket was, dred scott v. Sandford. Who was sandford, and had his cash how did his and how did his name get attached to the case . Prof. Bracey he is emersons brother. Mrs. Emerson is tiring of litigation, and transfers title. The record is very clear, he she she very clear that transfers title. It is somewhat clear that she transfers title to her brother. John sanford is in new york. He is a businessman. But he has ties to st. Louis. One of those ties, was by marriage. His earlier wife was now deceased, and the daughter, the largest slaveowner in the city of st. Louis. And thats one of the reasons that might explain why the litigation persisted under his name for so long because he was protecting his familys business interests as well as his own by ensuring the longevity of slavery. Ms. Swain we will see when we have a picture of sandford, it is spelled differently on screen. That is the correct spelling of his name. It was recorded incorrectly and throughout history and the Supreme Court record. Just a little historical side note. Who argued for sandford . Prof. Bracey we have johnson, who was going to bring an extraordinary reputation with him. He is an official, a friend, and intellectual ally to roger taney. And they were going to argue many the points that we see, made by taney in his final opinion. I would just point out that they , his views are not a secret at this time. I think they see the chief justice, the types of arguments they know he is receptive to. It is not the first time they would offer up the view that no black person can be a citizen. Ms. Swain the next question comes from larry in colorado. Caller hello. I wonder if the scotts lived as free persons during this litigation. They were lett out. Im wondering what their status was during this prolonged period of time. Prof. Jones the scotts are slaves, enslaved people throughout this period. It is not unusual in a city like st. Louis, it is not unusual for enslaved peoples to be hired out seasonally, or for yearlong contracts. Owners took advantage of enslaved peoples labor in many ways, sometimes using them in their own households. The emersons have no direct need for the labor of the scotts, but they look forward to or anticipate the income generated by their labor. One of the remarkable twists, is that the scots would labor and earn as much as 1000 during the course of the litigation. Those funds were held and finally turned over to the family when the scotts received their freedom. Prof. Bracey they married, and at the end of the litigation, having won, willing to transfer title to the family, under the condition she receives of those proceeds. I think it was in the range of 750. She did request the money. Ms. Swain michigan, youre on the air. Caller hello. I just want to say, that during his stay at Fort Snelling, he married harriet by her own owner, a justice of the peace. The ceremony would be unnecessary if dred scott were a slave . Slave marriages had no recognition in law. Also, in 1837, the army ordered emerson to the military posts south of missouri, when emerson left, he left his wife and daughters at Fort Snelling. Released their services have her profit. By doing that in a free slate, he was effectively bringing the institution of slavery into a free state, which is a direct violation of the missouri compromise, and the enabling act. Prof. Jones can you tell me how much you know so much the details of this case . Caller i am taking ap u. S. History. And i read ahead in the text. Ms. Swain what year are you in school . Caller 10th grade. Ms. Swain thank you so much for being part of our discussion. Anything more to add for her . Prof. Bracey those are the big questions, it was whether creating that bubble of slavery violated federal law. That was the question wrestled with the by the court, and ultimately in dred scott, Justice Taney said no, because the law that created that free territory was unconstitutional. Click so, there were four ms. Swain so there were forming four questions about the Supreme Court review. The first, the abatement, subject to appellate review. Put that in terms of the public can understand. Prof. Bracey whether or not this is an appealable issue. Diversity being a circumstance in which a citizen went to another state, whether they would have access to those courts. Three, did number congress have the power to enact . He missouri compromise this gets down to the question of judicial review. Is, does theon sort of regulation congress is empowered to do it include regulation of property, property such as slaves. That is where the issue comes up , because you have the right to own property, and it is unclear if congress can aggregate that right and not aggregate other property as well. At one point, the court was going to issue a narrower decision. Why did they decide to take this nationalhat would have consequences . Wrecks two justices announced they were going to dissent. Going to not only declare that dred scott should be free, they were going to say that in their view, the missouri compromise was constitutional, even though there was some doubt whether it was constitutional. And they announced this before the case was heard . X before it was decided. Which you can imagine, justices talking about how they are going to rule in a case, to said two said we are going to come out strong that the missouri compromise was valid. The other thing going on behind the scenes is that was reachinghanan out president elect buchanan at this point. And wanting to know what the outcome is going to be. And he is leaning on these justices. Ofs today would be out bounds. Probably was even out of bounds in the 19th century. Understand the political pressure going on behind the scenes. This was the headline. There were four legal questions before the court. Obviously, number two and number thee were significant for case. The 1856 election and the beginning of verizon of the whig party, and also president buchanan and wanting to make political hay of this, how does impact the outcome of this case . In the fall. On is so, there is a question as to whether the Supreme Court could decide the case before the election to influence the election. They didnt want to throw the election. They announced that they would have a second round of arguments that would occur in december, after the election. At that point, we have president buchanan having conversations with the justices about what the outcome ought to be. Host did he tried to influence the decision . What was his role . Christopher initially, it was about timing. Later, he began to talk more substantively about what the nature of the decision might be. Or should be. Host here is something we would find absolutely outrageous today. I read that before the swearingin, he wanted to announce the outcome of the case for his inaugural address. Martha he is deeply invested in this question about congresss authority, and the question about to what degree slavery was will or will not be able to continue and to spread the Federal Territory and he doesnt quite take that thunder and we can imagine taneys sense of propriety over the court and over, what, in the 19th century, is its own dramatic scene, the reading of these opinions from the bench of the Supreme Court, lasting many hours. It was an important theater and an important status in the court. Posts it is important to note that they resisted the pressure from president elect buchanan to announce the decision before his inaugural. But, they announced it just after. Christopher the inaugural address does Say Something. You have the president elect saying that he expects that there will be a decision that will resolve this question in a way that is consistent with what he had been running on, which was a nationalist agenda. He did telegraph the outcome which signaled to his stories that he knew. He knew the outcome at the time. Host we cannot imagine that happening. Do people assume today that they will be conversations to find out what might be going on . Is there a real division between the two branches today . Christopher people in washington talk but i imagine that this is the kind of a when kind of thing where, when folks are taking their jobs seriously, these the conversations that are closely held. I would not expect that kind of influence from the white house on a Supreme Court decision. Certainly not on the chief justice of the court. Martha on the other hand, if we fastforward to the 20th century and the new deal, there is another moment when we dont exactly tell the story of the president really picking up the phone, but he has the capacity to telegraph quite clearly to the court what is on his mind and what he is prepared to do if the court doesnt begin to turn its views and to support his policy shift. Host we are going to learn about a case when harry truman was perhaps tipped off incorrectly about the outcome of his case and so, it continues to some degree. There are more instances of the court and the appointees overtly or covertly communicating about directions of cases. An interesting aspect of this. Next, we will hear excerpts from the decision. First, lets hear from roberto. Caller i want to commend you for putting on this wonderful series. I think it is very educational. I have two questions. My first question is, is the dred scott case an example of an originalist interpretation . Last month, mike huckabee, while defending kim davis refusal to issue marriage licenses, he said quote that the dred scott case is still the law of the land. Is that true . Thank you. Host is it . Christopher no, it is not. It was overruled by the 13th amendment ratification. 14th amendment ratification. And a whole host of civil rights legislation. A lot of that has been laid to rest. The original question the majority opinion expresses some originalism. It is not a hard textual list originalism, but you have the judge imagining what the framers may have thought. If you read justice tenneys ys opinion hee , talks a lot about the framers, what they were thinking at the time of the declaration, what they were thinking of the time of the constitution, he called the man high in literary accomplishment. At no point did they believe that blacks would be citizens in the United States and he says that these were not his views but the views of the framers. This is a classic instance of what i would call soft originalism. Host public attention grew enormously. For the second set of arguments, the court room was packed with people. Members of members of congress, abolitionists, media, states right supporters, all so interested in the outcome. When it was finally handed down, many people were urgently wanted to hear what the outcome would be. You told us that this was read nine different opinions were issued. People are still trying to dissect what the meaning of it is. It was a 72 vote. The dissents were red over the course of two days. Can you imagine what it mustve been like in this capital city for that . What is extraordinary about dred scott is that it comes at a moment in which the technologies of newspaper reporting have really improved. And so it is possible in a way that it hadnt been to get the news out of washington to baltimore, st. Louis, new york with great efficiency. When we look back at the period newspapers we can see how local papers like the Baltimore Sun are digesting this decision, bullet pointing them for readers, precisely because not only is washington poised, much of the country is poised. Eager to know the courts reasoning in dred scott. Word gets up very quickly. There is a lot of partisanship in newspapers. In a paper like the sun, there is a great deal of boosterism for taney and his views but very quickly, americans have the news of the decision and are able to judge for themselves. Host the decision runs 255 pages, so obviously we can only take a short excerpt. Here is some of what roger taney who wrote the opinion had to say on the question of citizenship. The legislation and histories of the time in a language use in and the language used in the declaration of independence show that neither the class of persons who had been imported as slaves, nor their descendents, whether they had become free or not, were then acknowledged as part of the people nor intended to be included in a general word used in that memorable instrument. On the missouri compromise, here is his language. The act of congress which prohibited a citizen from holding and owning property at territory kind in a in the United States north of the line therein mentioned is not warranted by the constitution and is therefore void. So, help us understand the implications of these parts of his opinion. Christopher the first part is really a dramatic statement. It is true that this was not a new idea. To say that the declaration of independence did not contemplate blacks as citizens, to say that under the constitution they were never thought to be part of the relevant political community. He uses the Word Community and a flash in the opinion elsewhere community in the opinion elsewhere in a very powerful way. That is a dramatic claim to make because Justice Curtis writes in his dissenting opinion quite persuasively that in five out of 13 states, you have lax blacks exercising the right to citizenship, many of whom had voted on the ratification of the constitution. What you see him doing in the words of Frederick Douglass is making a brazen misstatement of history. That is what i think was particularly galling and shocking to the public. And even to jurists and Justice Curtis. Martha at this point, i would say that roger taney knows that in his home state of maryland, africanamericans voted at the end of the 18th century in the era of the constitutions ratification. He knows that even as he tells a different story. Host so he is twisting history. Martha he tells a story that suits his conclusion but it is not one that i think even he could ultimately defend. Host the Constitution Center is tweeting, two of the fiercest Supreme Court dissents come from dred scott. The justices read their dissents out loud over the course of two days and ultimately, Justice Ferguson resigned in protest. Christopher a very short time on the court, six years. He was very upset. You read his opinion, it is not a typical dissent, it is an angry dissent. You get the sense that he is saying more than i disagree. He is saying more than, i think you are wrong. Look at the record, look at all of the data. Look at the arguments that i have presented to you. It is not just that. The real problem is that Justice Curtis used Justice Taney. To move forward a political agenda. That strikes and institutional cord within Justice Curtis that he cannot stomach. Host the important legacy of this case shows that the reaction to the courts decision was explosive on both sides of this. Soon thereafter, the famous lincolndouglas campaign were for senate in illinois, almost the entire debate was argued over the dred scott case. I am going to have you tell the story of the dissent of the whigs and the rise of the Republican Party. Christopher you have lincoln who is now in a position to take the moral high ground. He can Say Something new, in the public discourse, that slavery is evil. That gives him a new standing. He argued with douglas on this point. He says, just because i dont want a woman to be my slave doesnt mean that i also want her to be my wife. She can be left alone. He is beginning to change the discourse. He is not saying slavery is morally evil, but he is hedging he isbit on the suggesting that slavery is morally evil, but also hedging on the citizenship question. He is suggesting that maybe conservative unions are right, that emancipation doesnt necessarily mean equal citizenship. Host what about dred and Harriet Scott . Martha it ends with them ultimately winning their freedom, not a way of the court but by way of their longstanding relationship with the blow family. Ultimately, emersons family will feed their property interest in the scotts back to the blows. They will take their compensation for giving up the property interest. The family will settle back into life as free people in the city of st. Louis. Dred becomes a minor celebrity. He resisted enticements. Someone at him to go on the speaker circuit. The case was that important. He had become a household name in many ways. Someone who might be very useful for the ongoing antislavery work in the United States, but they resist that. He accepted an appointment as a doorman in a hotel in st. Louis. Harriet herself goes back to the work she has always done but this time she is able to work and control her own wages and they continue to raise their girls. They are soughtafter from time to time by curious journalists. We are grateful to some of them because of the photographs that we have of the scotts result from a curious and persistent journalist who bring them to a photo studio to have their portraits taken. For me, one of the most poignant encounters with Harriet Scott and a journalist comes as dred himself is ailing. He will die within 18 so this months of this decision. She tells the reporter, just leave the old man alone. Just leave them at ease. Peace. Part of what we want is to be out of the limelight, to be away from the strife and to live as a private family. Host so, if you go to the part of the country to learn more about this, you will find out that the great great granddaughter of dred scott is involved in preserving their history. You are going to meet her next. We are standing at Calvary Cemetery at dred scotts final resting place. He was originally buried at the corner of grand and laclede. He was buried there in 1888. 1858. Taylor blow, who frayed hem, decided that he did not want him to stay unmarked and unknown. He moved him here and he actually bought three plots so that he could be properly buried, properly meaning that a black person could not be buried next to a white person. So the two plots next to him guaranteed that. His wife died 18 years later and she is not very here. Buried here. She is buried in greenwood cemetery. Greenwood was only two years old when harriet died in 1876. A brandnew cemetery, primarily for africanamericans, and it was an honor for her to be there. Prior to knowing where she was buried, this was placed here. This honors her as a coplaintiff of the dred scott decision, a mother, and a patriot. Host those of the closing days and the memorial of the scotts. What happened to roger taney . You will listen to a clip of the president of the National Constitution center talking about the rest of Justice Taneys life. Roger taney is a constitutional tragedy. He is viewed as being moderate when it came to the balance between state and federal power and was well thought of until dred scott. As Justice Scalia said, the drama of how dred scott tarnished his reputation Justice Scalia invokes a portrait in the Harvard Library that shows him with sad eyes. Reflecting on the great tragedy of this decision, showing us how important this case was. By the end of his career, he was reduced to wandering the streets of washington, personally handing out copies of the decision, checking lincolns power to suspend the right of habeas corpus. He had printed them himself. Host one other thing to talk about was roger taney and his memory is that today, he continues to be controversial. If you go to the statehouse in annapolis, there is a statue of him at the entrance to the statehouse. There is a debate going on about whether or not that should be moved or removed. We found over the weekend from frederick, maryland, headline that the statue that they have outside city hall over the weekend was vandalized with red paint. What are your thoughts about taneyong legacy of roger and how he is viewed in American Society . Martha this takes us back to dred scott because it is not only in the 21st century that his memory is controversial. Charles sumner, after roger tenneys death in 1864, commits himself to defeating any attempts to appropriate funding that would provide for the bust of roger taney to be placed in the u. S. Supreme court. Sumner fights those attempts time and again in congress. Today, these questions are of course cloaked in 21st century terms, a movement called black lives matter, controversy over the flying of the Confederate Flag in the United States, and taneys likeness is once again said by some to symbolize or glorify a past that should not be honored in this public way. At this statehouse in maryland, we have dueling monuments, if you will, because in 1996, we get thurgood marshall. And so now, the two of marilyns great Supreme Court justices are sidebyside, but clearly somebody over the weekend in frederick had a different idea about how to publicly enact their critique. Host what should his legacy be . Christopher he doesnt have a choice in the matter. After dred scott, he has tied himself to this proslavery nationalist movement so tightly, that movement dies with the confederacy and so these are forever linked. Roger taney engaged in fairly dishonest representations of history at the highest levels of government, at the highest level of the court. That cannot be undone. He has ruined to the reputation thate Supreme Court during period by signaling the audacity that he and the rest of the justices could decide the most volatile political question in a way and end up in the wrong side of history. I have a portrait similar to the one that you showed earlier in my office. It is one that i show my students every time that i teach the dred scott decision mainly because it does demonstrate just how much of the weight it weighed on this man. Host on facebook, the very makeup of the u. S. Constitution led to the civil war, the Founding Fathers kicked the down the roadon until the issue finally boiled over. Do you agree . Martha slavery is in the constitution at its inception. Provisions like the fugitive slave cause, the 3 5 clause, the ban on interference with the International Slave trade, so yes, as president obama has put it, our original sin and body in bodied in the constitution, and there is no question that 19th century americans confront again and again and again, including in dred scott, the profound moral, political, but also legal dilemma that is slavery. Host Justice Curtis, who was one of the dissenting justices, resigned from the court. From twitter, the other dissenting justice was a leading president ial candidate for the Republican Party in 1856. So much interesting stuff going earlier, a caller mentioned the on with this. Blair. Ery he went on to serve in lincolns cabinet as postmaster general. We have a call from maryland. Caller i just had a quick question. In what ways has the decision influenced how the Supreme Court rules decisions today . Thank you. Host is there an influence . Christopher absolutely. As i said, in some ways, dred scott is the ultimate antiprecedent. It is a lesson in terms of what you shouldnt do as a court. What kind of mistakes you ought to avoid. Justice breyer has spoken to that as well. At the same time, the Supreme Court has to decide difficult questions from time to time, whether it is gay marriage, partialbirth abortion, these are difficult cases and issues that the court has to decide, many of them are political questions or have a political valence, but the court knows to be very careful and cautious in how it precedes dealing with those typical cases obama care is another one, these are cases that are challenging, politicallycharged question the cash questions and the court knows it can only do so much in that regard or risk making the same mistakes. Martha you mentioned Justice Breyer host our final clip is just as is Justice Breyer on the legacy of the dred scott decision. Do not try the politics. There is a theory that what taneyney tenney was trying to do was avoid the civil war. His friends in congress had been telling him that if you can get this thing decided once and for all by an institution with the prestige of the Supreme Court, people will accept it. It will bring peace to the nation. He believed that. Perhaps, if he was being political. To me, what it suggests is do not be political. Three good one, it is wrong. Two, the whole point of the institution that hamilton set up was to have a group of people who were not politicians who would be deciding it because if he wanted politicians to decide it, give the job to congress. But third, if judges are going to decide things on a political basis, they are terrible politicians. There is and one i have ever seen that is any good at it. There are good politicians but they are not judges. They have life and politics. If he was being political, he is about the worst politician you ever saw, because he brought about the exact opposite of the objective that he was trying for. If he wanted a peaceful nation, if anything, he helped produce a war. Host did roger taney and the dred scott decision produce the war . Christopher as martha said earlier, sometimes that can be overstated but heres what we know. We know that Justice Taney rejected the idea of black citizenship. He did that unapologetically. That enraged people who were abolitionists and enraged the supporters of free blacks and the secessionist were emboldened by the decision, the once he succeed,ho wanted to wanted to push even harder on nationalizing slavery were emboldened by the decision, it raised in the temperature of sectional politics. He created the preconditions necessary to be able to establish black citizenship, the 14th amendment, the civil rights act. Of 1866. So, did it bring about a civil war . No, there were many other contributing factors but it certainly elevated the temperature and was a contributing factor and gave us the preconditions for equal citizenship. Host one last call and then we will get closing comments from you on the significance of this case. Lets hear from david in rochester. Caller yes, i have a book called the dred scott case, which won the pulitzer prize. Is that book still relevant or are there more uptodate books . Martha just today, i tweeted out that i was rereading the book this afternoon and it continues to be a masterful treatment of the dred scott case. There are questions. Among those are these much more Human Dimensions of the case, the story of the family, was not one that fehrenbacher really told any particular detail. We know a great deal more about the today. I would say that for me, it was a book you go back to. Christopher it is an excellent text. It captures the politics masterfully. Another thing that he continues to write elsewhere, to mark the of theentennial decision, he has written essays that are available as well. He made a significant contribution to thought on dred scott. Host if you dont have time to read the books on the case, we do want to tell you about this series. It is landmark cases, the 12 cases in this series. You can get a summary of each case as we progress through the series. You will also see much more of the videos then we were able to show you tonight of all the places that we visited attached to the 12 cases so if you wanted to dig in deeper, there are opportunities to do it. Martha jones, you have the floor. What should people think about this case . After spending 90 minutes, summarize what we should take away . Martha there are two things to take away. We dont have to look backward to appreciate what a failure dred scott was. Taney himself knew this. He pens what was called the secret opinion, he writes his second dred scott decision, hoping that another case will, will, and that he can clarify his position and that he can make good. The case might not have given us the civil war, but it required a constitutional revolution. It set in place this bar against free black citizenship that had to be resolved. It was the civil war that gives us the 13th, 14th, and 15th amendments, but whatever the course of history might have been, that revolution was for the nation to go forward. Host that is it. Thank you for being here. Thank you for your questions. We will be back next week for the third in our landmark cases. Announcer cspans history series, landmark cases, season two, will look at the significance of the Supreme Court decision heard in 1819. Are anng this case associate law professor at the university of virginia, and the university of arkansas professor. Watch landmark cases live monday, february 26, at 9 00 p. M. On cspan, or listen with the free cspan radio app. For a background on each case, order the landmark cases book at cspan. Org landmarkcases. For an additional resource, there is a link on our website to the Constitution Centers interact of constitution. Interactive constitution. On president s day, we will show you the portrait unveiling ceremony for barack obama and michelle obama. They were joined by the artists at the National Portrait gallery , the only complete collection of president ial portraits outside the white house. Heres a preview. Michelle each of these artists had to walk into the oval office and i almost wanted to start off each conversation by apologizing for putting them through this process. They had to come to the oval office and be grilled by the president and first lady. I am sorry. I am totally sorry. On us how lost unnerving this experience was for each and every one of them. When amy came in and it was her turn, i was intrigued. I was intrigued before she walked into the room. I had seen her work, and i was blown away by the colors and her subjectf matters. I was wondering, who is this woman . Obama i am someone who does not like posing. I get impatient. I look at my watch. One of those pictures must have worked. Long . This taking so it is pretty torturous trying to take a picture of me, much less paint a portrait. I will say that working with him was a great joy. He and his team made it easy. In the tradition of a lot of , he actually cared to hear how i thought about it before doing exactly what he intended to do. [laughter] you can watch the entire portrait unveilings monday night on cspan. The weekly message from the democrats focuses on the recently signed tax till with video excerpts from three democratic senators. Since republicans jam to this massive Corporate Tax cut through congress, major corporations have spent over 120 billion on stock buybacks. This is a problem for the middle class. Members of this committee promised that middleclass paychecks would be bulging early in 2018. Instead, ceos are funneling the tax windfall into buybacks that inflate the value of stocks held by affluent executives and wealthy shareholders. Meanwhile, recent public announcements by companies have foundt