American and the Courts had a moot court in which the question was the inevitability of the Dred Scott decision, overseen by various federal judges (many black), Justice Breyer presiding. The ruling is now 150 years old. In the affirmative, the top legal mind Erwin Chemerinsky, and a top black lawyer not familiar to me, and in the negative, Prof. Amar (a top populist with some liberal leanings) and Prof. Kenneth Starr.
The C-SPAN website has a lot more material, including expert testimony and comments of the "judges" on the proceedings. Since many will not go there, I will focus my remarks on the hour shown on C-SPAN itself. This also is a matter of me not wanting to write a book or anything. But, the additional material is worthwhile and informative, including someone who channelled the views of Frederick Douglas. Also, the presentation on international law -- including the back and forth Q&A -- was probably the best part of the proceedings. Justice McLean's dissent underlined its importance which still holds:
In 1816, the common law, by statute, was made a part of the law of Missouri, and that includes the great principles of international law. These principles cannot be abrogated by judicial decisions. It will require the same exercise of power to abolish the common law as to introduce it. International law is founded in the opinions generally received and acted on by civilized nations, and enforced by moral sanctions. It becomes a more authoritative system when it results from special compacts, founded on modified rules, adapted to the exigencies of human society; it is, in fact, an international morality, adapted to the best interests of nations. And in regard to the States [p557] of this Union, on the subject of slavery, it is eminently fitted for a rule of action subject to the Federal Constitution. "The laws of nations are but the natural rights of man applied to nations." Vattel.]
EC had a dubious argument about how the Constitution compelled the result. It did not. Too much emphasis on the Fugitive Slave Clause (Dred Scott was voluntarily brought into free territory) and the security of slave property, including the submission that it is an either/or question. But, in the Slave South, slaves had some minimal rights, including in some freedom suits. Justice McLean's dissent cited some rulings underlining the point.
Likewise, it is not deprivation of property under due process to regulate property, including seizure when one breaks local law. This is shown in the prohibition of spirits, where a person can have their "property" (alcohol) seized if they violated dry laws. Justice Curtis' dissent does a good job on the due proces point. Finally, see Lincoln's Cooper Union speech, early Congresses -- with various Framers taking part -- regulated slavery in the territories, including having freeing of the slaves as a penalty in some cases. It also notes the Constitution calls slaves "persons" -- they are a mix of person and property. This puts them above let's say a chair.
[As noted in the intro available on C-SPAN.org, the people here are playing parts, per usual moot court technique. But, we can dispute the reasoning used. BTW, on the subject of "voluntary," per McLean, the lesser known dissenter, but worthwhile all the same: "In the year 1838, Dr. Emerson removed the plaintiff and said Harriet, and their daughter Eliza, from Fort Snelling to the State of Missouri, where they have ever since resided." The Scotts therefore didn't somehow waive their right to sue because they waited until they "returned" to Missouri. This implies a choice that is not really there. Starr in effect said this as well.]
The lawyer had an all or nothing argument, using as a text the white supremacist view of an end of the century (19th) top historian. But, it was not "inevitable" that the ruling would have been handed down as it was in all respects because of the racism of the mid-1800s. Justice Breyer cited a French woman's comments on peasants, who she saw as an "other," but did not take the cite (from Tocqueville) for its potential value to the negative -- the peasants were "other" but still free. White supremacists in the late 1800s deprived blacks of many rights, but not all of them. The Constitution of 1787 called them "persons" as well. "Persons" have some rights, even if minimal in nature.
The negative got in trouble with the question. What exactly was "the" opinion at issue? Some tried to point out that "the" decision was that Dred Scott lost. The advocates, rightly, disagreed. "The" decision was its entirety, including no rights for all blacks and the alleged unconstitutionality of the Missouri Compromise. If the ruling was never decided (e.g., dropped as improvidently granted) or decided on narrow comity grounds (Missouri gets to decide the nature of its citizenry), the opinion would not have mattered too much. The new Republican Party focused on the territory issue -- quite honestly, some didn't care about the rights of blacks per se. The extreme nature of the ruling on that ground surely upset Lincoln ("I don't wish to have her as my wife, but the right for her to earn her bread, yes" ... to paraphrase), but the very loss of Dred Scott himself ... slaves loss freedom suits all the time.
[Don Fehrenbacher's book on the case argues that Taney was quite arguably correct that it was proper for the Court to deal with all issues; even if it held that Dred Scott was not a federal citizen, and thus had no right to bring to suit at all, the Court was not necessarily wrong to deal with all the questions raised. As EC notes, we can say Marbury v. Madison was mostly dicta too. But, it was a choice ... often a court narrowly says no standing, but doesn't address the merits at all, or only a narrow number of them.
And, if the Constitution itself said blacks/former slaves cannot become citizens, that is enough. He cannot suddenly become one because Congress uses it to uphold the Missouri Compromise, no more than if they used establishment of religion for that purpose. The choice was in fact supported by many of the era who wanted to punt the problem to the courts, but it was a choice all the same.]
Amar was wrong to imply that the black citizenry ruling was totally bogus. It was, and the Don Fehrenbacher seminal work notes this somewhat in passing, a reasonable approach shared by many legal minds in the mid-1800s. The ruling did have a rather extreme version* of the view, true enough, and the matter was a divided question. But, the Taney approach as to citizenship was not totally unknown at the time. Southern states in various cases did refuse to protect the privileges and immunities of visiting black sailors though such state sovereignty questions are somewhat different than saying federal courts cannot hear diversity of citizenship cases of this sort. If some states gave blacks rights, it would in effect harm whites contracting with them in interstate matters!
Taney relied on the Privileges and Immunities Clause, raising his hackles since it implies visitors from other states have equal rights with resident citizens. Thus, free blacks treated as citizens in the North might have a bundle of rights the South would have to protect. But, this is really a diversity case, and Justice Curtis underlined the narrow nature of the rights necessarily given anyway. If states treat blacks (or women) differently than white, out of state blacks who visit only have the rights of resident blacks. Anyway, diversity jurisdiction is treated differently. After all, corporations can sue on that ground, but have no privileges and immunities of federal citizenship.
Justice McLean underlined the difference: "Being a freeman, and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him." The lower court judge basically accepted that definition. Thus, Missouri law on the point of citizenship of blacks doesn't conclude the matter, especially since federal law can trump state. This Supremacy Clause issue colored his overall view of the case:
If a State court may do this [ignore past precedent], on a question involving the liberty of a human being, what protection do the laws afford? So far from this being a Missouri question, it is a question, as it would seem, within the twenty-fifth section of the Judiciary Act, where a right to freedom being set up under the act of Congress, and the decision being against such right, it may be brought for revision before this court, from the Supreme Court of Missouri.
This comment underlines the fact that the majority did not have to accept the ruling of the Supreme Court of Missouri, especially given the strong "federal common law" sentiment of the era. Swift v. Tyson. One "judge" here queried why the Supremes would have the power to trump Missouri on the issue of state citizenship and freedom. But, that misses the point -- the dissent felt Missouri COULD do that. That is, the Missouri legislature, which could amend the common law (including its international law aspects) in this matter. OTOH, the state courts could not arbitarily suddenly change the rules. Or, at least, the Supremes were not bound by that. McLean, for instance, cites a previous Supreme Court opinion saying just that:
When the decisions of the State court are not consistent, we do not feel bound to follow the last if it is contrary to our own convictions, and much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent.
Finally, there was a dubious argument made by some judges -- a bit ironic given who was the presiding judge here -- that the political branches had "compromises" while the judiciary had to hand down "the law," without compromise. To this respect, the judiciary failed, given the Southern judges were influenced by their social beliefs and so forth. I'd add this is inevitable, but put that aside. The fact of the matter is that any multimember court compromises too. The "judgment" of the Court is a compromise, and experts who have studied the great CJ Marshall made this point as well. There is a reason he nearly never dissented or that so few dissents came out. Compromise ... even if an individual judge given his druthers would have decided otherwise. Some find this messy. Sorry, it is how things work.
Interesting exercise though I do think some of the presentations were somewhat lacking. Me? The immediate result was reasonably inevitable (choice of law grounds, precedent), the race issue once raised not surprising (given the weak position of blacks in the era plus the Court personnel) if blatantly overbroad, and the Missouri Compromise ruling somewhat surprising given many Democrats (admittedly, not too many Southern Democrats, who controlled the Court) didn't really like the breadth of the ruling (it voided popular sovereignty).
The ruling could have gone the other way, see the dissent, or be decided narrowly (see the original Nelson opinion), but there was a strong pressure to decide the Missouri Compromise issue. Given the leadership on the Court, I guess it was not surprising how it came down overall. This applies to the tone too, especially given Taney's history on the subject. I re-listened to Sam Waterson perform Lincoln's Cooper Union Address, which I have on tape, as a sort of July 4th enterprise. Maybe, someone should have channeled him too?!
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* Massachusetts would not even recognize blacks as citizens leading to federal citizenship for let's say a pilot license or security in federal courts of privileges of immunities. For instance, if Maine also recognized blacks as citizens, let's say it then somehow denies equal citizenship rights to black visitors from Massachusetts. This violates Art. IV and might be a question for federal court view. Under Taney's argument, even though both states recognized (state) black citizenship, blacks could not go to federal court, since blacks did not have federal citizenship.
The 14th amendment clearly made all born here (with minor exceptions) federal citizens, which btw was not the general view at the time -- states, so noted Curtis' dissent, controlled who were federal citizens in most respects. That is, other than naturalization of foreigners, including it is assumed foreign slaves. Also, consider treaties, which in effect can involve naturalization too. Recently, the U.S. had obtained territory from Mexico, where slavery was outlawed. The citizenship rights of their members were protected in the treaty arising from the end of the Mexican War, and some Mexican citizens were black. Justice McLean noted the point adding: "They have exercised all the rights of citizens, without being naturalized under the acts of Congress."
Query: if blacks were not "people of the several states" in a national sense, did that mean states could not allow them to vote for federal officials? Some blacks did vote on the ratification of the Constitution ... was this illegitimate? After all, how would slave states allow -- the horror -- blacks to vote on federal matters, including let's say an amendment outlawing slavery!