“Full Faith and Credit”—

The Dred Scott Decision

 

Clifford F. Thies

      Clifford F. Thies is a professor of economics and finance at Shenandoah University, Winchester, VA. cthies@su.edu.

      Because of Vermont’s law concerning civil unions (or, gay marriages), the “Full Faith and Credit” clause of the U.S. Constitution has again been invoked. The last time this section of the Constitution was invoked, it was in the Dred Scott decision of 1857, the absolutely worst decision in the history of the U.S. Supreme Court, the only decision that was followed by a resignation in protest by one of the Associate Justices of the Court, and the only decision of the Court to be overturned by a Civil War.

      Back then the question was whether—under our Constitution—the decisions by some states to maintain slavery imposed slavery upon the other states. Similarly, today, the question is whether the decisions by some states to recognize civil unions impose civil unions upon the other states.

      And, bigger than the issue of civil unions, there is the issue of judicial activism. When our Justices go beyond interpretation of the law, and start to write the law. When they subvert the plain meaning of the law, and its long-established and widespread practice. When they act, not like a court, but like an unelected super-legislature, and use their power to overrule the will of the majority through judicial edict. Regarding the bigger issue, the Dred Scott decision shows just how badly judicial activism can muck things up.

      The Full Faith and Credit clause of the Constitution requires that states respect the public acts, records and judicial proceedings of the other states. For example, if two parties enter into a contract in one state, then, within certain limits, that contract is to be upheld elsewhere. The Dred Scott case supposedly involved the application of Full Faith and Credit to the “movable property” involved in slavery. Was Dred Scott, a person born into slavery, free by reason of his “passing through” or even “temporary residence” in a free state?

      According to the well-established doctrine of Full Faith and Credit, when property is “movable,” the law of its “domicile” is to apply, even though it might be “temporarily” in another jurisdiction. Therefore, according to the Supreme Court in the Dred Scott decision, if a slave were only temporarily in a free state, his status as property would be maintained by the law of his state of domicile.

      But, the Supreme Court was wrong—and terribly wrong—in the Dred Scott decision. First of all, by the time of the decision, the application of Full Faith and Credit to slaves “passing through” free states had been long established. By 1857, there had been hundreds, perhaps even thousands of “freedom lawsuits” similar to that of Dred Scott. Included among these freedom lawsuits were a number that had been appealed to the supreme courts of several states (included among them, several slave states), and upheld.

      Furthermore, in an 1850 decision, the U.S. Supreme Court itself considered the matter of freedom lawsuits. In that case, the Court ruled that when slaves had returned to a slave state, the law of that state was to govern the issue of “domicile.” To illustrate, if a slave innocently found himself in Ohio, a free state, and therein sought emancipation, the law of Ohio regarding domicile would apply (which, we might presume, would be that one instant on free soil establishes domicile). But, if this slave sought emancipation after returning to Kentucky, a slave state, the law of that state would apply (which might require a year’s residence to establish domicile).

      Thus, well before the Dred Scott decision, the courts had resolved the application of Full Faith and Credit to the issue of slavery in a way that preserved, as much as possible, the seemingly contradictory provisions of our federal republic, in which sovereignty is shared among the states, the federal government and the people. The Dred Scott decision did not apply Full Faith and Credit to the issue of slavery, but involved a radical intervention into the established order of things. The purpose of the Dred Scott decision was not to resolve a “gray area” of the law, but to overturn what had previously been well established and, through judicial edict, enable slave-owners to bring their slaves wherever they wanted in our country and to open up the territories for slavery.

      The Dred Scott decision involved two wild statements. The first, that persons of African descent were not and could never be citizens of the United States, and the other, that the U.S. Congress has no authority over Territories of the United States.

      Regarding the first “fact” cited by the Court, that persons of African descent were not and could never be citizens of the United States, I must—because it is so unbelievable—quote the decision of the Court directly:

The question is simply this: Can a Negro . . . become a member of the political community formed and brought into existence by the Constitution of the United States . . .

We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority. . .

      By the time of the Dred Scott decision in 1857, it was well established that within the free (or Northern) states, slavery did not exist. And, that any person within these states was free, except that, under Clause 3 of Article IV Section 2 of the U.S. Constitution, runaway slaves were to be returned to their owners. Indeed, this clause—referred to as the Fugitive Slave Clause—is a carefully-worded clause that presumes that a slave who innocently finds himself in a free state would be set free by the laws of that state, but that runaways nevertheless would not be free.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

      The first Dred Scott-type case appears to have arisen in 1791, roughly contemporaneous with the adoption of the Constitution. I came across this case while reading the Cincinnati Gazette of 1841, it being discussed in the June 1, 1841 issue. A certain master while journeying from Virginia to Kentucky, took up temporary residence in Washington, Pennsylvania, on ground claimed by both Virginia and Pennsylvania. The Pennsylvania court that considered the matter allowed that, since the ground was disputed, the master could elect to consider himself subject to the laws of Virginia and remain in possession of slaves, and, so, did not intervene to free the slave. Notice that the Pennsylvania court was not inhibited by the supposedly well-known fact that persons of African descent could not be citizens of this country.

      Through an internet search, I came across a database of 300 “freedom lawsuits” from the state of Missouri, the earliest dating back to 1814. In addition to compiling statistics of freedom lawsuits from the state of Missouri, the website has images of many of the documents involved. It makes for a fascinating account of this part of our country’s history. Possibly the most significant of these cases is that of a woman of color named “Winny,” as her case was the first of these cases that was appealed to the Missouri state supreme court.

      Winny claimed to be free because her master had taken her to Missouri via Illinois in which place, by reason of the Northwest Ordinances, slavery was forever banned. Having been in a place where there was no such thing as slavery, she had to have been free. Being free, her subsequent status in Missouri, as a slave, was in reality kidnapping. On this basis, she petitioned the court for her freedom. In circuit court, a jury upheld her claim. On appeal, the state supreme court upheld the circuit court decision. Notice that the state supreme court was unbothered by the so-called fact that everybody knew that a person such as Winny could never have the right to petition our courts.

      In Louisiana, the courts considered a number of similar cases. In 1836, a person named Maria Louisa petitioned the court for her freedom on the basis that her master had taken her on a trip to France, where slavery was not tolerated. The court decided that upon “being free for a moment in France, it was not in the power of her former owner to reduce her again to slavery.” Notice that this court, too, was unbothered by the so-called fact that everybody knew that a person such as Maria Louisa could never have the right to petition our courts. Notice also that this court, the court of a slave state, held that “a moment” in a free jurisdiction was sufficient for a person to be emancipated.

      Cases from yet other slave states could be mentioned, but, then, something changed in our country. As we entered the late antebellum period, the South, and especially the deep South, turned very racist. Whereas, at the Founding, most Southerners held slavery to be something like a necessary evil, by the late antebellum period, the South came to view slavery to be good.

      In one after another state of the South, state constitutions were changed to take away the rights of free men of color, such as the right to vote, to keep and bear arms, and to own property. Manumission was made illegal without the approval of the state legislature, and if a slave was freed, he was required immediately to leave the state. Freedom of speech was abridged so that anybody speaking against slavery could be fined and imprisoned.

      The ill-temper of the South was shown specifically in the case of freedom lawsuits in the state of Missouri. In a Missouri case cited by Justice McLean in his dissent in the Dred Scott decision, the state supreme court said, “times are not as they were when the former decisions on this subject were made.” No longer would the courts of Missouri recognize that slaves innocently brought to free states gained their freedom by reason of the laws of those states. Instead, the courts of Missouri would disregard the laws of the free states.

It does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit [abolition]. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others.

Thus, state supreme courts of Missouri and of other slave states threw down the gauntlet. They were going to disregard the laws of the free states, no matter that the U.S. Constitution requires each of the states to give Full Faith and Credit to the laws of the other states, and no matter what the consequences might be.

      In addition to their disregard of the Full Faith and Credit clause of the Constitution, the Southerners started to tell lies about the Founding. They started saying that the Founders were just as racist as they were. In the South, where the slave-owners imprisoned those who disagreed with them, this lie eventually became “the truth.” But, in the North, the lie was seen to be not merely historically inaccurate, but an ugly slander upon the Founders of our country.

      In the Dred Scott decision, the Supreme Court promulgated these lies. The Court said that the Declaration of Independence, where it says “that all men are created equal,” could not have referred to Africans because otherwise why would they not have been freed? The expression, “all men are created equal,” the Court said, must not refer to the entire family of mankind, but only to Europeans, because the slaves were not freed.

      But, the Supreme Court was wrong, for the slaves were freed in half of the states as a consequence of the Revolution.

      And, here, in Virginia, the legislature granted freedom to the many men of color who had joined our Revolutionary Army. Our legislature ceded its claim on the Northwest Territories on condition that slavery would never be allowed in that place. And, George Washington, in his will, freed his slaves. But, in spite of the obvious meaning of the words, “that all men are created equal,” the awful truth is that we did not free the slaves. And the reason was not, as the Supreme Court said, that everybody knew that Africans were inferior beings. It was because our state had too much invested in slavery.

      The Supreme Court, in support of its version of the meaning of the word “citizens” at the Founding, relied upon a few odd laws. For example, the Supreme Court said that Congress’ first naturalization act restricted the grant of citizenship to “free white persons.” Notice that, in this act, Congress uses the distinct words “free,” “white” and “persons.” Therefore, when people of that day wanted to refer to white people, they said “white people.” With this in mind, recall the words of the Declaration of Independence, “all men are created equal.” The word “white” is not found in these words.

      In contrast to the obtuse references of the majority decision, Justice McLean in his dissent refers to the debates at the Constitutional Convention as recorded by James Madison, to the arguments of Madison, Alexander Hamilton and John Jay in the Federalist Papers, to major acts of the Continental Congress and the early U.S. Congress, to the long-standing practices in many states, including several slave states, of treating native-born, free men of color as citizens, and to the grant of citizenship to people of various races in the acquisitions of the Louisiana Territory and other places.

      Even so, Justice McLean writes, “On the question of citizenship, it must be admitted that we have not been very fastidious.” In some states, native-born, free men of color were treated as second-class citizens, or even as resident aliens. The checkered history of our country on this subject cannot be denied by an honest person.

      But slave-owners on the Supreme Court did not have to deal with any facts inconvenient to their revisionist history. They were in the majority, so they could rewrite history along with rewriting the Constitution.

      Abraham Lincoln spoke very plainly about the Dred Scott decision. He said,

And now as to the Dred Scott decision. That decision declares two propositions—first, that a Negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories . . .

Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

We believe . . . in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it to overrule this.

      With regard to the decisions of the Supreme Court nowadays that we find, as Lincoln puts it, “erroneous,” we need only do what he advises. We should seek to have the court overrule itself. It should be just as obvious, today, to the left-wing minority in our country, that their rule through judicial edict is as tenuous as the Dred Scott decision was shrill.      Ω

“What experience and history teach is this—that people and governments never have learned anything from history, or acted on principles deduced from it.”—Georg Wilhelm Hegel, German Philosopher, 1770-1831