Why Dred Scott v. Sandford Matters
On 6/8/2021, Jeannie Suk Gersen, a professor for Harvard Law School published an article for The New Yorker with the headline “The Importance Of Teaching Dred Scott.” Specifically, she’s referring to teaching it to students of Law Schools, saying in the article:
[D]uring the nationwide grappling with racial injustice that followed the murder of George Floyd, I saw a striking Twitter discussion among professors of constitutional law, a course that I also teach. They were debating whether much of the Supreme Court case of Dred Scott v. Sandford should be excised from constitutional-law courses. In the case, which Scott brought in federal court to assert his freedom from enslavement, the Supreme Court held, in 1857, that Scott did not have the privilege to bring the suit because, as a Black person, he could not be a “citizen” within the meaning of the Constitution. Matthew Steilen, a law professor at the University at Buffalo, launched the Twitter thread and advocated for editing the case down to a minimalistic page or so, to omit text that is “so gratuitously insulting and demeaning.” He wondered whether assigning that material is asking students “to relive the humiliation of Taney’s language as evidence of his doctrine of white supremacy.”
Dred Scott v. Sanford is commonly considered the worst Supreme Court case in United States history. Its ruling both that Congress cannot ban slavery in federal territories (states were still allowed to have prohibitions on slavery after Dred Scott) and that black people were not even citizens of the United States under the Constitution remain some of the most infamous words ever muttered by the Supreme Court.
The article goes on to talk about how different law schools teach it and what it means for Constitutional Law. Specifically, how many law schools use it as a way to teach that the Constitution and the methods of understanding it we use today can be used to encourage evil actions. However, some law schools are now removing it from their curriculum, along with other Supreme Court cases which allowed white supremacy to rule. Going back to the article:
Steilen, who wrote the initial tweet about teaching the Dred Scott case, doesn’t disagree [that racism plays an important part in United States history] and has worked to add more content on slavery and the Civil War in his course. But, he told me, “George Floyd has changed everything. . . . I wasn’t sure I could muster the moral authority to stand up there and teach this case.” He explained that omitting it entirely would be “a bridge too far,” but he thought it best to assign just “two paragraphs and move on.” He said, “Taney is making the case that Black people who were enslaved were never part of the people of the United States and could never be citizens. . . . It’s just painful. I’m white and I’m going to stand up there and talk with the students, including Black students, about this stuff? I would be dragging them through stuff that was hurtful to them. . . . It just felt indefensible.” Steilen feels that Taney’s language “gratuitously traumatizes” readers: “I wasn’t comfortable giving his words to my students because I was afraid it would hurt them and destroy the kind of community I want to foster in class.” This year, Steilen also skipped teaching Plessy v. Ferguson, which held that segregation did not imply Black people’s inferiority, and instead only mentioned its ideas in discussing Brown v. Board of Education, which overruled it.
Can we just take a minute and talk about how backwards Steilen’s approach is? After the death of George Floyd, which brought racism in United States history to the forefront, Stelin decided to remove several cases related to racism from his Constitutional law class. Basically, his response to George Floyd’s death was to deprive his students of the needed tools to understand both the event and the reaction to the event.
Ever since George Floyd’s death, the history of black Americans has seen a renascent of interest the likes of which it has never seen before. Events like the Tulsa Massacre, Juneteenth, and the Tuskegee experiments are now much more well-known than they were just a year and a half ago, and it makes sense as too why. If George Floyd were just some black man who was killed by a police officer, the story would have likely gotten little traction. However, George Floyd’s death became the subject of national controversy because of both the obvious brutality and the fact that so many black Americans related to George Floyd’s experience.
The late Congressman John Lewis compared the death of George Floyd to the 1955 death of Emmett Till — and I think that’s a very good comparison. Again, it was not just the brutality of Till’s death that caused so much public backlash, it was also the fact that so many Americans lived in fear of becoming exactly like him due to the color of their skin. If George Floyd now and Emmett Till then were the exception, they would be unremarkable — it’s the fact that they are the rule that makes them so shocking.
However, going back to Dred Scott, the most shocking thing about it is that — from a legal perspective — it could have been decided correctly. One would expect the majority opinion of Chief Justice Roger B. Taney to be the deranged ramblings of a racist. While Taney was a racist, he was far from a deranged and rambling one. Here’s how Gersen summarizes Taney’s opinion that those with a darker skin are not citizens of the United States:
To arrive at the conclusion that Scott was not [a citizen], Chief Justice Roger B. Taney zeroed in on the statement in the Declaration of Independence that it was “self-evident” “that all men are created equal” and “endowed by their Creator with certain unalienable Rights.” If the Founding Fathers intended to include Black people in that declaration while personally enslaving them, Taney reasoned, that would mean that the Founding Fathers were hypocrites who “would have deserved and received universal rebuke and reprobation.” But Taney found it impossible that these “great men” acted in a manner so “utterly and flagrantly inconsistent with the principles they asserted.” So he concluded, instead, that their intent was to exclude Black people from the American political community. Of the two possibilities, grotesque hypocrisy or white supremacy, Taney found the latter far more plausible.
If one were to make this argument today, they would be considered some kind of radical leftist who hates America. In fact, the idea that White Supremacy is part of the American founding was an important part of the controversial 1619 Project — named after the year the first slaves arrived in the United States — makes exactly that point.
And Taney is right, the man who wrote the phrase “all men are created equal,” was Thomas Jefferson, who owned six hundred slaves during his lifetime. Of course, Jefferson also believed that slavery would fade away naturally within his lifetime and wrote in favor of abolitionism later in his life, but the overall point still stands. The fact is, Jefferson was a gross hypocrite who believed that all men were created equal, except for the men that he happened to be the owners of.
Would a country that truly believed that all men were created equal even have allowed Taney to live the life he did? Taney was a slave-owner in his home state of Maryland, although he did emancipate his own slaves and give pensions to those who were too old to work. He was also nominated to the Supreme Court by his good friend Andrew Jackson, who was the only President in United States history to actively participate in the slave trade. Taney also served as Jackson’s Attorney General and Secretary of Treasury.
However, I want to stress the point that Taney had not owned slaves personally in many decades. In 1819 — thirty-eight years before his infamous words — Taney called slavery “a blot on our national character” while defending a minister who was being indited for inciting a rebellion. This was not something he had any personal stakes in, instead, Taney was taking a principled decision based on his best understanding of the law. You have to admit, it’s not everyday that you see someone make a principled defense of slavery — but that is what happened all the way back in 1857.
Taney’s opinion obviously must have held some weight considering we had to amend the Constitution in the form of the fourteenth amendment to repeal it. That’s the other thing, many people believe that Abraham Lincoln ignored the ruling. Although Lincoln did have fights with the Supreme Court during his administration, especially regarding his tactics during the Civil War, this is not one of them. Lincoln never tried to make slavery illegal in any territories, nor did he try and use Congress to make slavery illegal in certain states, nor did he try and make all men equal regardless of the color of their skin. (Although, Lincoln was going to encourage Congress to pass the 13th Amendment after the war and their is some evidence he was going to pursue full Civil Rights as his second term moved forward. Sadly, his death at the hands of John Wilkes Booth ended up screwing up those plans.)
Even though the decision is awful, Dred Scott v. Sandford is awful, it should be taught in law schools. In fact, it is its awfulness that should make it one of the most important cases to teach in a law school. It’s important to remember that law is not as just, nor is it always going to make you look good to history. Sometimes, even making what could be a principled and legally sound decision will not turn you into the hero — but instead into the biggest villain ever to sit on the court.
Obviously, slavery is evil. However, sometimes the law can not only be used to justify evil, it can sometimes have evil as a core institution. That’s an important thing for people to understand, and that alone makes Dred Scott one of the most important cases to ever come out of the Supreme Court.
