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Originally Posted by RebProf The Dred Scott decision has been misrepresented by those who claim only one finding, namely that Scott was not a citizen and had no right to sue. That is the first part of the finding. The majority also ruled that a stay on free soil did not make one a free man. That part of the decision validated the Fugitive Slave Law and overturned the Missouri Compromise. If the president and congress cannot eleminate slavery in the 1820 bill, what does that say about their ability to end slavery?
This was the meaning of the decision as understood at the time and by most historians since. The "obiter dictum" in the case was the comment that slaveowners could go anywhere they chose taking slaves with them and do so for any length of time. This comment caused the Republican Party to fear the Court was about to use another case to overturn state laws prohibiting slavery.
Any standard history of the Scott case makes clear the importance of both parts of the majority finding. |
Wrong again.
First of all, let's be clear on our terms. Obiter dictum is "An assertion made in an opinion of a court which is not pertinent to the decision made in the case." [Harold J. Spaeth,
An Introduction to Supreme Court Decision Making, Revised Edition, p. 79] Obiter dictum, because it is not pertinent to the decision, is not considered law.
"In his 'opinion of the Court,' Chief Justice Taney had emphatically excluded Negroes from citizenship and denied Congress the power to prohibit slavery in the territories. But were these declarations part of the
ratio decidendi [This is the basis of the decision, or the grounds upon which the case was decided. This is considered to be law.] and therefore authoritative? Concerning the first, there was no doubt that it had the support of a majority of the justices, while the second was promptly challenged with the label, '
obiter dictum.'" [Don E. Fehrenbacher,
The Dred Scott Case: Its Significance in American Law and Politics, p. 322]
When the opinion was announced, no less an authority than Judge Timothy Farrar, one of the foremost constitutional scholars of the day, was clear about the decision: "if persons of African descent were not citizens and could not sue, that necessarily would be the end of the Dred Scott case. 'There is nothing afterwards before the court to be judicially adjudicated or considered.' Any argument beyond that would be obiter dictum." [Kenneth M. Stampp, "Comment on Earl Maltz, 'The Unlikely Hero of Dred Scott: Benjamin Robbins Curtis and the Constitutional Law of Slavery,'"
Cardozo Law Review, Vol 17, No. 6, May, 1996, p. 2020]
Not only Farrar, but several on the Court:
"Justice Campbell stated in 1870 and 1874 that a majority of justices (McLean, Catron, Nelson, Grier, and himself) had held 'that there was nothing in the plea of abatement [concerning the Missouri Compromise] before the court for review.' Taney's holding on that point was obiter dictum, in other words.
"While contemporaries, as well as the great majority of historians since, have considered it obiter dictum, there has been some recent dissent led by Professor Edward S. Corwin, who argues that, if five justices held the plea of abatement to be before the court, and held the Missouri act unconstitutional, it cannot be said that this part of the argument was any more obiter dictum than any other part. The argument is logical, but rests on the assumption that a majority of the court did hold the plea of abatement to be before the court. Corwin names Campbell as among the 'majority' of five that so held. [As we see from the above, though, Campbell is NOT a justice who held it was before the court, and Corwin is thus mistaken.] Those of Corwin's persuasion disparage Campbell's above-quoted testimony to the contrary in 1870 as the faulty reminiscence of an 'old man.' But Campbell's statement, hitherto solitary, and isolated by the intervening years, is verified by the testimony of Justice Catron, who wrote to Judge Samuel Treat of Missouri on May 31, 1857, just after the decision was rendered:
" 'On returning home from Frankfort yesterday, I found the 19 How[ard] here--and last 'Union' has in it Chief J. Taney's opinion in th eDred Scott case. The Ed. says that he will publish one more of the opinions of the majority and one of the minority opinions. Now as I openly disagreed with the Ch. J. as to whether the plea in abatement was in the Case: and also as to the source of power conferred by the Constitution on Congress to govern Territories, I take it that my opinion will hardly be allowed a place in the Union newspaper. You'll see that I disavow any power in the court to deal with the matter in abatement; and in this position Campbell, Grier (in fact, Nelson, McLean & Curtis) agree, making the Chief's opinion a dictum.
" 'It cannot stand a moment in face of the dissenting opinions on this point. And as to the source of power, only three originally disagreed with me. The Ch. J., Daniel & Campbell. Wayne came in, in the face of his opinion to the contrary in Cross vs. Harrison. 16 How.' [Justice Catron to Treat, May 31, 1857]
"This seems to give final approval to the view, as expressed by Professor Frank H. Hodder, that, 'The only point decided by the judgment of the Court was that the status of a slave, leaving a slave state and subsequently returning to it, was determinable by the courts of that state. The case was resented, not for what it decided, but for what the opinions portended.' The people might well have misconceived what was done, when Taney's opinion was miscalled the 'opinion of the court.'" [E. I. McCormac, "Justice Campbell and the Dred Scott Decision,"
Mississippi Valley Historical Review, Vol XIX, No. 4, Mar., 1933, pp. 575-577]
Once Taney ruled that Dred Scott was not a citizen and therefore had no standing, that was all that was needed for the decision of the court. The case was over at that point. Everything that followed was obiter dictum and not law. A majority of the Justices on the Court of the time even agree with that.
Regards,
Cash
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