Panel to deliberate on Dred Scott decision

Banner Staff

By most accounts, the decision rendered by the U.S. Supreme Court in the 1857 case of Dred Scott v. Sandford was one of the worst in American history.

It involved the question of whether a man born in slavery was entitled to become free if he lived in territories that prohibited slavery.

To commemorate the 150th anniversary of that decision, Harvard Law School professor Charles Ogletree Jr. has enlisted a panel of legal thinkers to retry the case in a scholarly effort to determine whether the Court made the right decision given the laws, customs and thinking at the time.

Panelists include U.S. Supreme Court Justice Stephen G. Breyer, New York University law professor Derrick A. Bell, Harvard law professor Mark Tushnet and John Payton, a partner with the law firm WilmerHale.

Sponsored by the Boston law firm Bingham McCutchen LLP, the two-day conference starts on Friday and is hosted by the Charles Hamilton Houston Institute for Race and Justice.

“It’s important to remember that we are not deciding how the case would be resolved on today’s laws and social norms,” said Ogletree, executive director of the Institute.

It was a completely different time in America in the 1850s.

Scott was the property of John Emerson, a U.S. Army surgeon who was transferred to Fort Armstrong, Ill., where slavery was against the law. Emerson was later transferred to what is now Minnesota. The Missouri Compromise of 1820 banned slavery in that territory. Like most slave owners, Emerson believed that he had a right to own slaves regardless of state laws.

When Emerson died, Scott and his wife became the property of Emerson’s wife. The Scotts sued for their freedom in Missouri and won in a lower court ruling. Mrs. Emerson appealed that decision to the Missouri State Supreme Court, which ruled that the Scotts were still property and should be returned to slavery. After a few legal maneuvers, the case ended up before the U.S. Supreme Court.

It is there that Justice Roger B. Taney issued his infamous ruling. At the time, the case was considered to be a major test on the slavery question and whether the practice could be expanded into new territories.

Taney was a staunch supporter of slavery and intent on protecting southerners and their peculiar institution. He wrote in the Court’s majority opinion that because Scott was black, he was not a citizen and therefore had no right to sue.

The framers of the Constitution, Taney wrote, believed that blacks “had for more than a century before been regarded as beings of inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”

Taney argued that since slaves were property, they could not be taken from their owners, regardless of whether they had crossed into free territory. He further argued that the U.S. Constitution never intended blacks — even free blacks in free states — to be citizens.

Eight years after the ruling, the U.S. Congress ratified the 13th Amendment abolishing slavery. In 1868, the 14th Amendment declared all persons born or naturalized in the United States to be citizens.

Both of those constitutional amendments were considered to be direct refutation of the Dred Scott decision.