Dred Scott

A single Supreme Court opinion tried to quiet a nation by declaring the Constitution pro-slavery—and instead lit a fuse. We revisit Dred Scott v. Sandford with fresh eyes, tracing how Chief Justice Roger Taney’s majority opinion denied Black citizenship and elevated slaveholding to an untouchable property right under the Fifth Amendment. We connect the legal dots from the Missouri Compromise to Kansas-Nebraska, then follow Dred Scott’s journey onto free soil to understand why his claim forced the Court to confront the meaning of liberty, federal power, and personhood.

With historian Dr. Paul Carrese, we break down the majority’s sweeping logic and the fierce pushback it received. Justice McLean’s dissent dismantles the case’s historical claims and points to ignored precedent, while Justice Curtis charges the Court with violating separation of powers by erasing decades of congressional authority. Their arguments preserve a constitutional path not taken—one that treats slavery as surviving only by explicit local law, not by national principle, and that reads due process as legal procedure, not a shield for human bondage. We also highlight Abraham Lincoln’s careful response: accept the ruling’s narrow force on the parties, reject its power to bind the nation’s future, and restore Congress’s authority to halt slavery’s spread.

This story isn’t just exam fodder; it’s a lesson in how dissents plant seeds for change, how common law traditions of liberty shape outcomes, and how constitutional meaning is forged in the tension between text, precedent, and moral reality. We also honor Harriet Robinson Scott’s parallel petitions, too often dropped from the headline but central to the fight for freedom. Listen for clear takeaways, plain-language explanations, and the historical through-line from Dred Scott to the Civil War Amendments. If this helped clarify a tough case, follow the show, share it with a friend who’s studying APUSH or civics, and leave a review so others can find it.

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Transcript

SPEAKER_00 0:46

Welcome back to Civics in a Year. Dr. Paul Kreese is back with us. And today we're actually going to be talking about the Supreme Court case, Dred Scott versus Sanford in 1857. This specific episode, we want to make sure for our friends taking AP US history and AP government, definitely, you know, made sure that the questions and the topic were going to be appropriate for you. So if you're studying for a test, this is for you. So Dr. Caree's Supreme Court case in 1857 of Dred Scott versus Stanford is often said to be the cause of the Civil War, which breaks out in 1861. Can you tell us what was the case about and why is it so significant in American history?

From Missouri Compromise To Bleeding Kansas

Dred Scott’s Path Through Free Soil

Taney’s Sweeping Majority Ruling

Due Process And Slavery As Property

SPEAKER_01 1:34

Thank you, Liz. Yes, it is a significant case, this Supreme Court ruling from 1857. But it certainly is reasonable to say it's a cause of it in this march, as we look back, this march across the 1850s toward dissolution of the Union or a civil war. The immediate context of the case, as we've talked about in other episodes, is the Missouri Compromise of 1850, saying that the northern sort of two-thirds of the Union should be free of slavery, but the southern third of the Union going westward toward the Pacific Ocean could have slavery, then the effectively the repeal of that compromise in 1854 with the Kansas-Nebraska Act, saying under popular sovereignty, let the people of the territories decide whether slavery spreads or not, and violence that breaks out. So there's some historical argument that this was a kind of rigged case, cooked up and brought to the Supreme Court so that the Supreme Court could make the sweeping ruling it does in 1857 about slavery. But whatever the particulars are of whether it was rigged or not, this man, Sanford, is a slave. He's brought to free territory and a free state, first to Illinois and then into what was this Wisconsin Territory, now Minnesota. And under the Missouri Compromise of 1850, these had been designated as free territory. And that had a significance under American law, that if you were an enslaved person brought into free territory, the law presumed you were free. This goes back to the English common law. William Blackstone writes about this from the Commentaries on the Laws of England in the 1760s, the framers of the Constitution, Declaration on the Constitution know about this. It's part of the importance of the Northwest Ordinance of 1787, repassed in 1789, declaring all these northern northwestern parts which become multiple states, five or six states, because if a slave can make it onto free soil, the common law, now the American principles of common law is the common law is the law of liberty. And so if you're an escaped slave or even a slave with your master and you go onto free soil, you are presumed to be free. If you can get to a court of law or get to some law enforcement person, you could be declared a free person, no longer slave. And so Sanford, when the slave, when he gets back, when he's brought back to Missouri, he gets to a court of law and says, I'm a free person because my owners, whoever the the ownership had changed hands, I was brought onto free territory in Illinois and the Wisconsin Territory. I'm now back in Missouri. And even though Missouri is a slave state, I was liberated just by being brought onto free soil. And so the, you know, it goes back and forth in the lower courts. The Supreme Court of Missouri says no, but the case makes its way up to the United States Supreme Court, and there the Chief Justice is Roger Tawney. It's a peculiar pronunciation. It sounds like T-A-N-E-Y-Taney, but it's pronounced Roger Tawney, a very distinguished jurist. He had been appointed to the to the Supreme Court and as Chief Justice by President Andrew Jackson. Jackson himself, of course, is not anti-slavery by any means, really pro-slavery, in effect. Tawney rules for a total of six justices, including himself, so it's a six to two ruling, in a in an incredibly sweeping way. That what's really at stake here is the status of the meaning of the term citizen and citizenship in the Constitution in relation to this question of slaves, and even slaves or the descendants of slaves who are free, whether they can be citizens. Right? So in a way he makes the most he and you know, for total six justices makes the most sweeping possible ruling of the meaning of the Constitution about this, to rule that under the clear meaning of the Constitution of 1787 and looking back to the Declaration of Independence, it's simply impossible to see that the word citizen ever could have included slaves or former slaves now freed, or the descendants of slaves who are now free. In no way can they be considered citizens under the meaning of the Federal Constitution. And then they say what do states do about this? Well, in effect, they're saying it doesn't really matter. States could say this freed slave or descendant of former slaves is a citizen of our state, and they might let that person vote. But it does not have any status for the federal constitution. That person cannot vote in a federal election, go into a federal court, hold office. They are nothing to the Federal Union and the Federal Constitution. So this comes about because of a certain reading of the compromises that were made in 1776 and in 1787 about not abolishing slavery. In order to have 13 United Colonies rebel against the English crown, the Southern states are not going to accept they're not going to accept abolition of slavery. And in 1787, the same story. To keep that union together, weak as it was, to keep all the original slaveholding states in among the 13, it's not going to be abolition of slavery. And the Tawney Court for Six Justices reads this as saying, see, they obviously thought that slavery was just fine. And we can't accuse them of being hypocrites, our framers and our founders. They must have strongly intended the position that there's a superior race, the white people, there's an inferior race that was brought to this continent as slaves. And under no terms should the term citizen ever be meant have been intended originally to include either slaves or their descendants, even if they've been freed. And the a crucial hook to this is the reading of the Fifth Amendment to the Constitution, which has a clause in it that's called the Due Process Clause. The Fifth Amendment protects states and citizens against actions of the Federal Government. The Federal Government cannot deprive any person of life, liberty, or property without due process of law. That's the clause in the Fifth Amendment. This version of the same language is in the Fourteenth Amendment after the Civil War. But this is the Fifth Amendment, just against the Federal Government. Well, what does that mean? It would seem to mean process, procedure. No person can be deprived by the Federal Government of life, liberty, or property unless a recognized legal procedure has been followed. What does that mean? Well, it's complicated. Under the common law, there's a tradition of meaning of what due process means. Tawney, and for a total of six justices, reads this in the most sweeping possible way. The right of property is absolute. There's actually what they're saying is there's no procedure that can be followed that deprives somebody of their individual property. And in this case, obviously, the crucial property is holding a slave as property. So, from that view, plus the compromises made about slavery in the Declaration of the Constitution, these six justices say the only way to read the Constitution and the Fifth Amendment is to say the Federal Government has absolutely no power whatsoever to restrict slavery in any way, because slavery is a property-owning activity. So we'll get to what the dissents say about this, but at least the majority of successes is candid enough to say what this means is that the Missouri Compromise was never constitutional. It was never constitutional in 1820 for the Congress and President Monroe, who by the way fought in the Revolutionary War, knows something about the founding, knows something about the Declaration and the Constitution, right? Knows something about the North Coast ordinance. Anyway, getting ahead of myself, I'm getting to the dissents. Because slavery is a property right of the slave owner. Okay. And they are so this is just sweeping and categorical and no compromise whatsoever on the question. And in a way, what they're doing implicitly is saying we, the Supreme Court, this is not an opinion, this is my right. We, the Supreme Court, can settle this whole national turmoil we're going through and all the violence. We've settled it. The union is pro-slavery, the Constitution is pro-slavery. There's very little the states can do about it. Even even free descendants of these of slaves, these Negroes, they can't really be citizens. There can be some comical mock citizenship a state gives them, but there's no way the federal government's. So we've basically solved it. We've given this sweeping decision from the Supreme Court, and now, again, I'm interpreting, and now everyone should obey.

Declaring Federal Limits Unconstitutional

SPEAKER_00 11:59

In 1857, Justice Tawney writes this majority opinion. It's a seven-two split that slavery is a protected property right under the Constitution, and that the federal government therefore has no power under the Constitution to limit what the states or territories do about slavery, and even the states and territories can't effectively abolish slavery because it's a property right.

McLean’s Fact-Check And Precedent

Curtis On Separation Of Powers

Lincoln’s Rebuttal And Strategy

SPEAKER_01 12:26

Yes. So the the the depth of this is the meaning of the word citizen is fixed. No state and no federal government can change the meaning of that. The only people who can be citizens are white people. So the slaves, former slaves, descendants of slaves, now considered free, they can't be citizens. So the the dissents take up this question, a series of questions. There are two separate dissents. Justice McLean, and then a longer dissent by Justice Curtis. And and Abraham Lincoln will later refer to these dissents as the basis for his view that the Supreme Court majority opinion written by Justice Chief Justice Lawney is completely illegal or invalid in its reasoning. Lincoln is careful to say, I'm not being rebellious or revolutionary. Mr. Sanford, the slave, he's cooked, in effect. All these courts, including the Supreme Court of the Land, had made this ruling about him. The parties to the case, Lincoln. Lincoln's a lawyer. Parties to the case are bound by the case. But the larger constitutional meaning of this ruling from the Supreme Court, Lincoln says it's totally illegitimate and bogus. It goes against so much history, so much legal precedent, and Lincoln then quotes passages from the dissents by McLean and Curtis. So it's important to understand these dissents. McLean basically says right up from the gate, this uh majority opinion is simply factually wrong. That there was an overwhelming view that Negroes, as the term was used then, black people could never be free as citizens. States in the in the North in the Union are abolishing slavery and making black people citizens, you know, from the 1770s and the 1780s. So just factually, this view that citizen could only be read in one way is just completely factually wrong. And then there's an 1842 Supreme Court case, Prig versus Pennsylvania, which takes, as I was mentioning earlier, the more traditional common law view that the American states and the American Union have have uh adopted the common law. They practiced the common law since 1620, whatever, right? And the common law is the law of liberty. And the Supreme Court ratifies that in the Prigg case, making a presumption about the law of liberty for slaves and former slaves. So Curtis, McLean, I'm sorry, basically calls out the majority, says, you didn't even mention one of our Supreme Court precedents, Prigg versus Pennsylvania, you just ignore it. But you've got a problem with that. So then McLean goes through, you know, James Madison knows something about the founding and the Constitution. What did Madison do as president? And James Monroe knows something about the founding and the declaration of the Constitution. What did he do in signing the Missouri Compromise, right? What did George Washington do when signing the Northwest Ordinance of 1787 into law again as the Northwest Ordinance of 1789? Didn't he have a view on what the Constitution meant, what the Declaration of Independence meant? So all of these ways in which the court majority makes this sweeping set of interpretations, McLean just calls it out one by one and says, that's bogus, that's bogus, that's bogus. There's no way that, or at least there's no way it could be read so easily as the only rational way to read these elements of the Constitution and American history. Trevor Burrus, Jr. And the fact that state laws have declared the common law principle as their state law. You bring a free you bring a black a black slave into this state, whoever you are, that slave is free the moment their foot hits the ground. So I'm sounding kind of heated about this, and McLean doesn't pull any punches, but then Justice Curtis comes along, and you could see why. When you first encounter this case, you wonder why didn't McLean and Curtis just write one dissenting opinion? Because and so my interpretation is the answer is Curtis goes one step further, and basically by the end of this dissent, which is about twice as long, basically is calling Tawney, Chief Justice Tawney, and the majority of the Supreme Court, they're basically lawless. They have invented these readings of the law, they have violated Supreme Court precedent, they have violated principles of the common law, they've violated obvious common sense historical readings of historical facts. And Curtis goes back to the Declaration of Independence and then to the Constitution and then to reading the Due Process Clause to the Northwest Ordinance, to the Missouri Compromise. And so the a crucial part of Curtis's dissent is that the separation of powers principle has also been not only the sort of moral history of the United States regarding slavery, that it made compromises about slavery. It wasn't pro-slavery the way the majority is saying America was. Not only that, but the this other important principle of our constitutional order, the separation of powers. Who is this set of six justices to completely rewrite our legal and constitutional history and say multiple presidents and multiple Congresses have been acting blatantly unconstitutionally by limiting slavery in any way? That is a violation of separation of powers. And they're basically assuming executive and legislative powers by doing so. And so he calls out by the end of the opinion that there should have been a strict interpretation of the Constitution, this is Curtis, according to the fixed rules which govern interpretation of laws. And this has been abandoned by the Chief Justice and majority. And then the conclusion is, you know, pulls out all the stops as an organ, you know, the old organ metaphor, invokes the principle of the prig case from from 1842. Slavery is contrary to natural right. That's what the Supreme Court held in 1842, totally ignored by the majority. It's only s able to survive in the United States by what's called municipal law, local law. So, yes, if a state is pro-slavery, okay, it's gonna be very hard for the Union government to overturn that. It's got to be a constitutional amendment. You know, it's got to get through two-thirds of the Senate and the House and or Convention of the States, right? It's gonna be very hard. But slavery is only protected by explicit municipal local law. Otherwise, slavery is a dead letter anywhere in the United States, because the United States is the land of liberty, it's the law of liberty, it's the common law of liberty, and this has been the law even of the precedent of this United States Supreme Court. So it it's it's stronger in its tone, and really you could say Abraham Lincoln draws on both McLean and Curtis in the subsequent years. He he's he starts making speeches about Dred Scott. Lincoln does, but later in 1857. Trying to hold to this Republican Party middle ground. He's denouncing the political relevance and any larger legal constitutional precedent of Dred Scott. It's legally bogus. It's a political opinion, it has no larger precedent for any state, for the federal government, and it only binds the parties to the case. That's Lincoln's very strong argument. But he's saying, I'm not, therefore, an abolitionist in the sense that the federal government could abolish slavery right now like that. He's holding to that Republican Party middle ground. The federal government has the power it's had since 1787 and 1789. The Federal Government can restrict the spread of slavery, and the Federal Government ought to go back to that principle. And nothing that this Supreme Court majority opinion in Dred Scott has offered has any legal standing against against that view.

SPEAKER_00 20:58

Dr. Kreese, I appreciate that you talked about the dissents because I think sometimes we only think about the majorities, but dissents are important in Supreme Court cases because even though, you know, they're not siding with the majority, they still are putting things in. And so these two separate dissents in the Dred Scott case, they're separate dissents because both of these justices are arguing two different things, correct?

SPEAKER_01 21:25

They're arguing basically the same thing, McCain and Curtis. It's just that Curtis wants to go a bit farther and make it a bit more strongly as an argument as to how bad, and he literally says how illegal the Chief Justice and the other five justices in the majority are. And McLean, I guess, didn't want to go that far. But substantively, they they're in agreement with each other. And it is a great point, Liz, that you know, we think about the separation of powers and federalism as complicated. But we tend to think that doesn't apply to the judiciary, the same principle that complexity is better.

unknown 21:59

Trevor Burrus, Jr.

Why Dissents Matter Over Time

SPEAKER_01 21:59

It applies within the judiciary as well, that you've got multiple justices on a court, and the American state judges and the federal courts, once they start, they keep that common law principle that you have multiple judges, and each judge can cast their own vote and write their own opinion. John Marshall tries to get an unwritten principle put across that the Supreme Court will have more authority if we don't all, you know, six of us or seven of us at the time, if we all don't write a separate opinion on every case, right? So he tries to get a norm put across. Let's have as many unanimous majority opinions as we can, and then as few separate concurrences, you agree with the result, but you don't quite agree with majority reasoning, as few separate concurrences and dissents. But there's still that sort of legal privilege, so to speak. speak, of a of a federal judge to say, no, I don't quite agree with the majority, even though I agree with the result, or I completely disagree with the majority ruling, I'm going to write a dissent. And that makes these constitutional law cases more complicated, but but it is part of the richness of our common law constitutional tradition. And by the way, dissents now, part of what they're doing, all these judges, they know dissens now could be the majority opinion. Two years later, five years later, ten years later, a hundred years later. Right? You never know. You've got to put it down in writing now and make it public and people may agree or disagree at the time with you, but you you're going to put it down there as a marker and we know that that happens that what was a dissent becomes a majority opinion layer.

SPEAKER_00 23:39

Yep, I'm thinking Plussy versus Ferguson that ends up becoming kind of the standard then or the argument that Thurgood Marshall uses for Brown versus Board of Education.

SPEAKER_01 23:51

Exactly.

unknown 23:52

Yeah.

Harriet Scott’s Fight And Closing

SPEAKER_00 23:53

Dr. Creese, thank you so much. I do also want to call out that although this case is called Dred Scott versus Sanford, Dred Scott's wife Harriet Robinson Scott also had her own suits because at the time marriages were not seen as valid between enslaved persons. And so she actually had her own cases that she was working on and they were trying to kind of go up through the system. But in 1850 the lawyers for the Scots decided that they were going to just merge the two petitions into one and Harriet's name was dropped in favor of her husband's but I do want to name that because I think that's a such an interesting thing that both of them were fighting for their freedom for so long. But Dred Scott is the one that is named in the case. So Dr. Freeze thank you thank you so much.

SPEAKER_01 24:48

Thank you, Liz