A different Dred Scott decision

What if the USSC ruled that Scott was free but only because he spent time in a Free STATE not a Free Territory. That is congress had no power to restrict slavery in the territories but states could do anything they wanted as regards to slavery.
 
I think this may have staved off the ACW for an election or two as there would be less fear in the North that the South was trying to impose its lifestyle on them. In the long run it doesn't solve the problem of the territories and so I don't think it would go much beyond that.

On the other hand the North would be stronger so the war would be over more quickly and be less bloody.
 
What if the USSC ruled that Scott was free but only because he spent time in a Free STATE not a Free Territory. That is congress had no power to restrict slavery in the territories but states could do anything they wanted as regards to slavery.

The problem is that to decide that Scott's temporary residence in Illinois made him free they would have had to overrule *Strader v. Graham,* 51 U.S. 82 (1850). " Every state has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its territory except insofar as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject. And the condition of the negroes, therefore, as to freedom or slavery after their return depended altogether upon the laws of that state, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for itself whether their employment in another state should or should not make them free on their return."
http://supreme.justia.com/cases/federal/us/51/82/case.html

In other words, you are proposing that the Court overrule its past decisions--and do so in an anti-slavery direction--while simultaneously veering in a pro-slavery direction by saying (unnecessarily) that Congress could not exclude slavery from the territories. (Surely if the Court was anti-slavery enough to overrule *Strader* it would make more sense for it to say "we need not reach the issue of Congress' power over the territories since his residence in Illinois made him free.")
 
The problem is that to decide that Scott's temporary residence in Illinois made him free they would have had to overrule *Strader v. Graham,* 51 U.S. 82 (1850). " Every state has an undoubted right to determine the status, or domestic and social condition of the persons domiciled within its territory except insofar as the powers of the states in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States that can in any degree control the law of Kentucky upon this subject. And the condition of the negroes, therefore, as to freedom or slavery after their return depended altogether upon the laws of that state, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for itself whether their employment in another state should or should not make them free on their return."
http://supreme.justia.com/cases/federal/us/51/82/case.html

In other words, you are proposing that the Court overrule its past decisions--and do so in an anti-slavery direction--while simultaneously veering in a pro-slavery direction by saying (unnecessarily) that Congress could not exclude slavery from the territories. (Surely if the Court was anti-slavery enough to overrule *Strader* it would make more sense for it to say "we need not reach the issue of Congress' power over the territories since his residence in Illinois made him free.")

I admit I never heard of that case. Let's assume that it is a compromise to get the one doughface Northerner to vote for banning congress from having any say over slavery in the territories. He will go along with them about the territories if they overrule Strader.
 
*Strader v. Graham* was a unanimous decision. It was extremely unlikely that the Court would overrule it. The real question is: Why didn't the Court use it to justify a *narrow* decision against Dred Scott--namely, that *Strader* had decided that the decision of the highest court of the state was conclusive as to the status of a slave who had left that state and later returned? There are a number of reasons why this route was not taken, including Curtis' and McLean's insistence on upholding the constitutionality of the Missouri Compromise, and Taney's disastrous belief that he could settle the question of slavery in the territories once and for all. But one other reason is that *Strader* was not really on point (*except* for Scott's residence in Illinois). As I wrote years ago in soc.history.what-if:

***

In *Strader* the antislavery provision of the Northwest Ordinance had
been used to raise a federal claim that the Kentucky slaves in question
were really free, because they had spent some time in Indiana and Ohio.
The court had disposed of this objection by saying the Northwest
Ordinance was no longer in force, because the territories had become
states. This holding could also have been applied to Scott's residence
in Illinois. But it was not true for the area north of Missouri which
had been a territory when Scott was taken there (I believe it was then
part of the Wisconsin Territory; later of course it became the Minnesota
Territory) and which in fact was still a territory when the Supreme Court
heard his case. As Paul Finkelman has written: "while Missouri might
ignore Illinois law on the ground that the jurisdictions were equals and
could not force their laws on each other, Missouri as a member of the
Union was obligated to enforce, or at least repect, federal law. And
even if Missouri chose not to enforce the federal law, the federal courts
could certainly enforce the law, and free Scott. In his opinion in
*Strader v. Graham* Taney had argued that the states did not have to
respect federal law that might free slaves in the territories. But this
was not directly necessary for the holding in that case, and Justice
McLean correctly labelled it dictum, and without legal force. If Taney
were to apply the reasoning to Dred Scott's case, he could not do it
simply by restating or citing *Strader v. Graham.*" *An Imperfect Union:
Slavery, Federalism, and Comity*, p. 278. https://groups.google.com/d/msg/soc.history.what-if/F1dWq3BQh6o/38pCVGD9yYsJ

***
Of course Taney might simply ignore this distinction by treating his *Strader* dictum--that the Northwest Ordinance even if still in effect for the states formed out of the Northwest Territory "could not restrict the power of the [other] States, within their respective territories"--as if it were authoritative, as indeed Justice Nelson did. http://tlc-patch.tourolaw.edu/patch/Scott/Nelson.asp But there was really no prospect of a decision in favor of Dred Scott's freedom by the Supreme Court in 1857. The only question is whether they would decide against him on narrow grounds (e.g., by applying or misapplying *Strader*) or on broad ones.
 
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