Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (21 page)

Throw into the mix the ongoing tension in Congress over settlement of
the western territories and you have a powder keg of sectional hostility.
Presidential ambition made it more likely that the powder keg would be lit.

Legal Latinisms

Obiter dictum: Language in a judicial
opinion utterly unnecessary for the decision of the case.

In 1854, Illinois senator Stephen Douglas proposed the KansasNebraska Act. It negated the Missouri Compromise's exclusion of slavery
from most of the Louisiana Purchase territory and substituted what Douglas called "popular sovereignty." Douglas, a Democrat who needed
Southern support, adopted the Jeffersonian principle of home rule: the
people in Kansas and Nebraska should decide the slavery issue for themselves.

President Franklin Pierce (a great-uncle of Barbara Bush) signed the
Kansas-Nebraska Act into law. Pierce was from New Hampshire, but the
act was immediately unpopular in the North and was responsible for the
founding in 1854 of today's Republican Party.

Originally, the Republican Party was a single-issue party opposed to
slavery's expansion. In 1856 it nominated a virtual political unknown,
John C. Fremont, for president. The Democrats countered with James
Buchanan, who had been governor of Pennsylvania, a senator, a cabinet
member, and a minister to Britain. Buchanan won-narrowly.

This, then, was the political milieu in which the most significant of Chief
Justice Taney's rulings, in political terms, would be made. From
Buchanan's point of view, as from the intensely partisan Taney's, something
had to be done about the slavery issue. Republicans had made no pretense
of appealing to the entire country; they were frankly anti-Southern, they
had nominated a nobody for president against an extremely qualified
Democrat-and they had almost won. Buchanan and Taney feared the
Republicans might destroy the Democratic Party and the Union.

President-elect Buchanan and Chief Justice Taney engaged in extensive correspondence about the issue. Taney thought he had a solution. If
the pending case of Dred Scott v. Sandford were decided in the "right"
way, it could resolve the issue once and for all. Besides agreeing that this must happen, Buchanan and Taney also lobbied the other Democrats on
the Supreme Court extensively to secure this outcome. They succeeded,
but the results were devastating.

Dred Scott was a slave. He had been taken into free territory by his
master and then returned to his home state of Missouri. He sued in federal court to establish that he was a free man because of his sojourn in
free territory. Under Missouri case law, Scott was entitled to his freedom.
In the context of the growing turmoil over slavery, however, the top Missouri court reversed the lower court's ruling freeing Scott.

Scott brought his appeal under the federal courts' diversity of citizenship jurisdiction. That is, he claimed that he was a citizen of one state,
his owner (by now living in New York) a citizen of another, and so the
federal courts were empowered to hear the dispute between them. The
Supreme Court ultimately denied that Scott's assertions about citizenship
were true.

Why? Because Scott was black. According to Taney, there had been a
consensus in the country at the time of the Constitution's adoption that
black people had "no rights that a white man is bound to respect," and
thus the makers of the Constitution had not intended to allow blacks to
become citizens of the United States. They could be citizens of particular states, he said, but not of the United States. Thus, Scott was not entitled to bring a federal appeal under the federal courts' diversity
jurisdiction.

Now, if Taney had simply, at the beginning, denied that the case fell
under the federal courts' jurisdiction, that would have been that. Since
they have only limited jurisdiction, federal courts typically begin by asking whether they have jurisdiction over a particular case, then close the
books if they don't. But Taney's primary interest was to make a political
point and help the Democratic Party, so although he had already concluded that the Court had no jurisdiction, he took up other issues surrounding the case.

Taney wrote that Scott remained a slave because Congress had no
power to exclude slavery from federal territory. Slaves were property protected by the Constitution, and to prohibit citizens from taking them into
federal territory was a violation of the Fifth Amendment's prohibition of
deprivation of property without due process of law. The provision of the
Missouri Compromise purporting to exclude slavery from the remaining
portion of the Louisiana Purchase north of Missouri's southern border
was therefore unconstitutional.

Taney also pointed out that the status of a person like Scott in Missouri
was entirely a matter of Missouri law. If Missouri considered him to be a
slave, a slave he was. This was not a federal issue.

For some reason, Buchanan and Taney expected this decision to quiet
the roiling waters of American slavery politics. Among other things, Dred
Scott had declared the Republicans' platform-"no slavery in the territo-
ries"-unconstitutional. So, they thought, there would be no further Fremont scares for hyper-qualified Democratic presidential nominees like
Buchanan.

In dissent, however, justice Benjamin Curtis had a field day with
Taney's opinion (which, it should be noted, did not command a majority
among his colleagues in all its particulars). Among other things, he said,
"When a strict interpretation of the Constitution, according to the fixed
rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we
have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."

Does Justice Curtis's lament in dissent that the Court is not relying on
"a strict interpretation of the Constitution, according to the fixed rules
which govern the interpretation of laws" sound familiar?

Before 1857 passed into the history books, Dred Scott was joined by
two other notable events in sparking northern anti-Democratic outrage. First, President Buchanan reneged on his pledge to give Douglas's popular sovereignty formula a fair trial in Kansas. Instead, he threw his weight
behind the Lecompton Constitution, which pro-slavery forces had
adopted through a transparently corrupt process. As a result, Douglasthe leading Democrat in the Senate-broke with Buchanan.

Second, South Carolina congressman Preston Brooks used a cane to
beat Massachusetts senator Charles Sumner silly on the Senate floor, for
the crime of viciously mocking South Carolina senator Andrew Butler.
Northern newspapers, clergymen, and others responded with outrage,
while Brooks received a supply of fresh canes from across the Southincluding one from students at the University of Virginia inscribed "Hit
Him Again!"

One legacy of Dred Scott v. Sandford was that after 1857, virtually any
Republican candidate was sure to beat Buchanan for president in 1860which would almost certainly mean the dissolution of the Union. Republicans, despite their advantages, opted not to nominate one of their
established statesmen, but chose instead someone nearly as obscure as
their 1856 candidate had been: Abraham Lincoln.

he Republican platform of 1860 was anathema to Southerners.
It called for a high protective tariff, it opposed the Dred Scott
decision, and it implicitly raised the question of how federalism
could survive a federal administration hostile to the South.

As a politician in the 1850s, Lincoln had said excluding slavery from
the United States' western territories was the first step to abolishing it
everywhere. Further, he said that the deportation of all blacks from the
United States would be a "glorious consummation."

Southerners feared that a Republican president would circulate antislavery literature among southern slaves, refuse to enforce the Fugitive
Slave Law, bar slavery from the territories, and generally make their situation very dangerous. Not a single southern state had voted for Lincoln,
and between his election in 1860 and his inauguration in 1861, the seven
Deep South states seceded from the Union.

The seceding states justified their actions chiefly on the basis that the
northern states were unwilling to comply with the Constitution-and thus
were a threat to slavery in the South. South Carolina, following Calhoun's
teaching and the example of 1832's Nullification Convention, seceded
through exactly the same type of convention as had ratified the Constitution in the first place. In the spirit of the Declaration of Independence, the people had decided that the federal government was not protecting their
rights, and so they were reclaiming their powers from it.

Guess what?

-.' Republicans argued
that secession was
impossible-but
then set conditions
(ratifying the
Fourteenth Amendment) before allowing the Southern
states back into a
Union they allegedly
had never left!

-sW The Fourteenth
Amendment was
never constitutionally
proposed to the states
by Congress and
never constitutionally
ratified by the states,
and yet today it
stands as one of the
most significant parts
of the American legal
system.

Other Deep South states seceded in different ways, including referendum and legislative enactment. Some, such as Virginia, convened secession conventions and decided, for the moment, not to secede.

Then, shortly after his inauguration, Lincoln declared a blockade of
southern ports. Under the law of nations, only a country could be blockaded, which raises the question of whether Lincoln was implicitly recognizing the Confederacy's independence. He next called for volunteers to
invade the states of the Deep South and force them back into the Union.
At that point, Virginia's secession convention reconvened and opted to
secede, as did Arkansas, Tennessee, and North Carolina.

Initially, many northerners conceded the validity of secession. In fact,
some abolitionists had been calling for northern secession for years. In
Congress, several congressmen from northern states proposed amendments to limit the right of secession, de facto conceding that the right of
secession already existed. And, logically, it had to exist, because without
such a right, the American colonies/states could not have seceded from
the British Empire.

The Federalists always insisted during the ratification debates-knowing
they had to in order to win approval for the Constitution-that the states
were individual parties to a federal compact. Spelling out the logic of the
compact, three states-Virginia, Maryland, and Rhode Island-explicitly
reserved (in the act of ratifying the Constitution) their right to secede from
the Union. And one can easily deduce a right to secession from the language of the Tenth Amendment: because the Constitution does not prohibit secession, that power, like all the other "powers not delegated to the
United States by the Constitution, nor prohibited by it to the states," is
"reserved to the states."