As previously noted, I have been doing some historical reading of late, including respecting the Lincoln/Douglas debates and the Dred Scott Case. Some time ago, I did a report on that landmark case, in part because it is a useful way to look at antebellum history, especially on the issue of slavery. The seminal work on the subject is a book by Don Fehrenbacher, who returned to the general subject of slavery in antebellum United States in the his final book.
The book's interesting premise was that we were a "slaveholding republic," but that the Constitution did not compel this result. The genius of the Framers was their wariness to firmly support slavery, even respecting the few clauses that clearly specifically refer to it (thus citations of "other persons" and the like). Thus, when Republicans pushed the principle that the Framers did want to eventually see the end of slavery, they might have bitten off a bit more than the evidence showed. Nonetheless, the evidence did suggest their path was allowed (Lincoln et. al. firmly noted that they did not support federal interference of slavery in slave states, though allowing abolition literature and so forth would amount to that), and the change of focus rightly made the South very wary.
I referenced a book by David Zarefsky on the Lincoln/Douglas debates. Zarefsky noted that the debates had four main arguments: conspiracy, legal, historical, and moral.* The importance of conspiracy theories in our society, including in political movements, have been covered by many commentators. Certain actions are not seen as based on principled, if at times wrong, actions, but some sort of nefarious scheme by devious actors. It is comforting, in a fashion, that something that is still prevalent today was a common trope in the past -- misery likes company, perhaps. One theme was the "slave power," which was surely not a plain figment of the anti-slavery movement's imagination, but likely to be seen in places where it is not quite present.
Likewise, in a way that will seem familiar, it is likely to make problematic things seem that much worse. Thus, comments in court rulings that probably refer to things like fugitive slaves were interpreted by some as a means to "nationalize" slavery. Forcing the North to help capture slaves and/or allow slave owners to travel with their "property" very well might fit that term to some degree, but some made it seem like the other side was trying to force slave markets on to the streets of Chicago. In the Origins of the Dred Scott Case, Austin Allen tries to guard against this tendency. He, not quite credibly, tries to show how the ruling was not only "plausible" but almost an obligatory result of the "Jacksonian Jurisprudence" (to quote from its subtitle) of the Taney Court.
A useful effort, but aside from almost snide comments on the legal acumen of a few members of the Court, it is too much of a brief as compared to a full and fair reading of the evidence. Fehrenbacher basically ridiculed Taney's opinion, while only briefly discussed Taney Court jurisprudence. He also did not provide much discussion of the concurring and dissenting opinions, dealing with them primarily in a single chapter of the large volume. This is not to say that Allen did more in this respect -- he said basically nothing on McLean's dissent, gave an incomplete and arguably misleading account of Curtis', and didn't really say much more about the rest than DF.
Allen did provide a few interesting perspectives on the other opinions and tried to show how Taney's opinion fit into a broader jurisprudence that was in no way just a pro-slavery apologia. Taney Court was quite "activist" in the sense that it accepted a strong role in the constitutional system, even if its sentiments were different from the more nationalist orientated Marshall Court. Thus, in an important case (Swift v. Tyson), it firmly accepted a role for federal courts, even if it entailed rejecting state courts interpretation of its own laws. [The fact the Missouri Supreme Court ruled against Dred Scott was not conclusive, since the case came up via federal diversity jurisdiction.] Democracy sometimes required judges to overrule the decisions of temporary majorities. Thus, a colleague of Justice Catron when he was on the state supreme court noted:
Let it be answered, once for all, that public opinion may be one thing, and law another. The law of the land is uniform, and operates upon all alike; and every honest man, feeling its influence, pays homage to it. Not so with that law which is based upon public opinion--it is changeable: who shall promulge it--and who shall collect the public opinion, to know if it be that acceptable thing talked about?
-- Judge Peck [lawyer involved in duel can be disbarred even if law expressly does not demand it]
Thus, especially since many people (in particular, the party of seven justices, all strong party men) looked toward the courts to settle the matter, a broad ruling in Dred Scott was not really too shocking. As with certain other opinions, claims that the Court was basically compelled to decide the matter as broadly as it did (as compared to having the authority to do so) rang a bit false. Justice Wayne focused his brief concurrence on trying to answer such concerns, voiced by the dissents among others:
In doing this, the court neither sought nor made the case. It was brought to us in the course of that administration of the laws which Congress has enacted, for the review of cases from the Circuit Courts by the Supreme Court.
In our action upon it, we have only discharged our duty as a distinct and efficient department of the Government, as the framers of the Constitution meant the judiciary to be and as the States of the Union and the people of those States intended it should be when they ratified the Constitution of the United States.
Not quite. Anyway. State law was not necessarily conclusive, though that was a possible way out. Thus, though the Supremes could have decided that it was up to Missouri to determine the status of slaves who resided in free territory but "voluntarily" returned to slave territory, the fact that Missouri Supreme Court until recently had consistently voted for freedom also had to be faced. When Congress in the Compromise of 1850 votes to include expedited review to settle questions of slavery in new territories, it seemed logical for the Court to answer the question ... especially since it was addressed by the lower court. And, if corporations could be citizens in some narrow fashion for sake of federal jurisdiction, a fact three members of the Taney Court were very wary to accept, what about blacks?
Understanding something is not the same thing as justifying it. Thus, saying Taney's discussion concerning Congress' power over the territories (not much, most power in residents, one justice expressly comparing it to the sovereignty of American colonies) is "plausible" and possibly a solution to the current deadlock is not the same as saying it was sound. This is where the book goes wrong imho, including not just saying that Curtis' dissent was not conclusive, but that it was particularly weak. Not true -- Allen underlines how the questions raised by the case were rarely addressed in the past, and the precedents were in no way conclusive. So, like Marshall, there would have to be some appeal to general principles. Since such principles can go both ways, it was not ideal for the Supreme Court to come down on one or the other, better to leave things to the political processes especially given the nature of the question.
Thus, there were competing visions of how Congress should handle territorial government ... the Constitution is mostly silent on the question, leading one to have to reason from basic principles to interpret a few bare phrases. The Taney approach was "plausible," but to assume it was compelled by the Constitution was not. It is useful to understand how it was not just a makeweight attempt to defend slavery; thus, some of the justices opposed court moves against state attempts to limit corporate power on similar federalist grounds. Still, DF was not really wrong to belittle the lengths taken to constitutionalize one side of the question. He did not quite fairly set up the opposite side, appearing at some points to not quite understand it.
Ditto the question of Negro citizenship. Many did believe blacks were not federal citizens, but much fewer thought none were, even for the sake of diversity jurisdiction. This would lead to absurdity -- blacks involved in interstate business could avoid suits in federal courts. DF noted the complexity of the issue, much better than AA, and it is important to remember that even Republicans did not generally seem to care too much about that aspect of the ruling.
Lincoln et. al. could not accept the idea that blacks had "no rights" that a white man need respect, but at issue was federal citizenship. [One might even limit the question even more to involve slaves or former slaves, not free born blacks. Justice McLean on circuit appeared to do so.] Again, the Taney ruling was open to ridicule for its exaggeration, and Allen is especially wrong to not underline the point. For instance, blacks did in a few states have the right to vote for the ratification of the Constitution. To some degree, some were among "We the People."
So, I had a somewhat negative view of the Origins of the Dred Scott Case. It was in various ways useful, though I do not think he showed that corporate citizenship was in Taney's mind when he addressed black citizenship. And, looking at the ruling through the point of view of the majority is a good thing. Still, Allen would have been better off putting them to a more critical test, pointing out how their perceived "inescapable" approach [he also did not really adequately give us the mind-set of the dissenters] clouded their judgment in certain ways. All the same, the ruling is worthy of extended analysis, and is quite fascinating in all its complexity.
This includes the mentality of antebellum judges. For instance, Justice Catron had this (and a lot more) to say about dueling while on the Tennessee Supreme Court:
Who ever heard of a brave and fearless man exciting and urging on another to a duel, to the destruction of himself, his poor unoffending wife, and helpless infants, without using all means possible to adjust it? No one. It is the working of cruelty, insidious cunning, and malice, under the seemly garb of friendship, that does this. Not such as these, but men of great moral worth, fearlessness and independence, should be applied to for advice and aid, who will generally settle the matter with a few words of advice to the parties--perhaps laugh at the trifle that set the passions in commotion; have some silly mistake explained, and end the matter. The brave man is always generous, feeling and just, and others submit to his judgment with pleasure.
-- Smith v. Tenn. (1829)
Replace "dueling" with fighting and overall violence, and his passionate denunciation still has much immediate force. So to speak.
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* Sen. Douglas noted: "I am now speaking of rights under the Constitution, and not of moral or religious rights. I do not discuss the morals of the people of Missouri, but let them settle the matter for themselves." Lincoln took advantage of this "don't care" argument, saying that it simply went against human nature to "not care" about an evil on the level of slavery. The book, which might anger some people, noted this had a flavor of the abortion controversy. Many, again often in the Democratic Party, do not want the national government to interfere. And, some reply that it simply is wrong to "not care" that people are killing human life. The evil is just too great. Personal opposition is not enough.
[The prime example given, more topical at the time of publication, was Gov. Cuomo's principle that though he was personally against abortion, it was not something the government should get involved in. The two cases are not totally connected, since Douglas spoke of local communities voting on an issue, while the general sentiment is that in some fashion at least, abortion rights should not be left to a vote. All the same, even more would put it to a vote, few thinking a national ban is appropriate.]