Dred Scott and the Existence of Some Civil Rights

Strict Scrutiny Podcast had the author of Before the Movement: The Hidden History of Black Civil Rights on in a recent episode. 

He discusses how black Americans had some civil rights even in slavery days. The fight for equality should not lead to an "all or nothing" understanding. I discussed Kat Masur's book on the antebellum civil rights movement. This book provides a more complete look, helped by in-depth research of the available legal records.  

We should not frame things like Chief Justice Taney in Dred Scott. Blacks did have some rights white men had to respect. The very litigation underlines the point. Missouri gave blacks the right to bring freedom suits. The law involved not only allowing court-appointed attorneys but also protections from retaliation for bringing the suits. 

The two dissents provided another framing of the constitutional reality. Justice McLean's dissent is broader while Justice Curtis (who opposed multiple Lincoln policies during the Civil War) had a somewhat more conservative approach.  McLean was a President Jackson appointee while Curtis was an appointee of Millard Fillmore. 

Both offered the possibility of black American citizens. McLean argued for purposes of diversity jurisdiction (a suit between states), freedom and residency (domicile) was satisfactory.  He did make this dubious claim:

In the case of Groves v. Slaughter [cite] Messrs. Clay and Webster contended that, under the commercial power, Congress had a right to regulate the slave trade among the several States; but the court held that Congress had no power to interfere with slavery as it exists in the States, or to regulate what is called the slave trade among them. If this trade were subject to the commercial power, it would follow that Congress could abolish or establish slavery in every State of the Union.

The Court only ruled that the state did not enact legislation to enforce a ban on the importation and sale of slaves. Therefore, the challenged contract was valid. The wider constitutional question was avoided. 

Other justices went further. Nonetheless, there is no clear reason why there should be a slavery exception to the Commerce Clause.  There was a general belief that the federal government could not interfere with slavery in slave states. The Constitution itself left that open. For instance, Congress could regulate the mail.

It does not necessarily follow that regulation of commerce means Congress could abolish or establish slavery in each state. The regulation of territories or the nation's capital was broad indeed. The regulation of interstate commerce was more limited.  

Why would Congress not have the power to regulate one aspect of trade when regulating interstate commerce? The limited references to slavery did not remove that power. The prudential avoidance of doing it does not mean the power was not present. 

The potential for mischief here -- in the view of some -- factors into why the election of Abraham Lincoln was so much a concern. Don Fehrenbacher argues the point in his final book. The federal government had multiple powers that could limit slavery.

To sum up, the fact that blacks did not have full citizenship rights (or slavery was supported in various ways) left open some paths for civil rights. Slaves themselves even had limited rights, clearly granting in practice this left a lot to be desired.  

For instance, a dog could simply be shot dead if they killed someone. A slave was tried with minimal due process rights in place. The Constitution says a slave is a "person," not mere property, even if there was a habit to suggest otherwise. 

As Justice McLean noted:

A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.

The overall lesson here is that we should be careful about extreme statements regarding the lack of rights. We can do so without artificially providing an optimistic view of the current situation.* 

People work within the art of the possible. And, this has and continues to include doing the best you can, even if the situation is far from ideal.

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* For instance, medical exceptions to abortion bans often apply extremely sparingly. We saw this when Texas rejected a suit trying to give them some teeth. 

The rule is doubly bad. First, there should be a general right to choose. Second, the exceptions are more generous in theory than in fact. 

Nonetheless, we should be careful when declaring such exceptions are meaningless. There will be cases when people will benefit, especially in liberal jurisdictions such as Houston, Texas.