AHC Less Sweeping Dred Scott Decision

How could the sweeping rulings in the notorious Dred Scott v Sandford -- specifically that black men were not citizens, and that Congress had no authority to restrict slavery in the territories -- been avoided? What would have been the effects of such a narrower court opinion? (Members of a certain book club will likely know what PoD I have in mind ;))
 
It is often argued that the Court could have decided the case more narrowly by relying on *Strader v. Graham* 19 Howard (U.S.) 82 (1850). However, I wrote some years ago in soc.history.what-if:

***

Incidentally, I am not as sure as I once was that *Dred Scott* would have
been decided on narrow grounds if not for the Kansas controversy. It is
often argued that the simplest way to decide *Dred Scott* would have been
to rely on *Strader v. Graham* 19 Howard (U.S.) 82 (1850), which held
that the US Constitution did not require one state in deciding on the
free or slave status of a person, to enforce a status acquired in another
state. However, a closer look will show that *Strader* was not really a
good case for overruling Scott's claim of freedom based on his residence
in the teritory north of Missouri.

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Ordinance was no longer in force, because the territories had become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.

In short, writing a "narrow" decision against Dred Scott would not be as
easy as is sometimes believed. It may have been this, as much as anything
else, which led Taney to feel he had to decide whether the Missouri
Compromise was constitutional. (Though of course I do not deny that the
situation in Kansas played a role, and that, as I mentioned, the status of
slavery in territories to be acquired in the future was also a
consideration.) Needless to say, his actual decision on that issue was
disastrous. He should have held that of course Congress could prohibit
slavery in the territories, as it had done since the Northwest Ordinance.
But it was most unlikely that the Supreme Court of 1857 would have
accepted that argument, with or without "bleeding Kansas." My point is
that Taney may have been right in thinking that the constitutionality of
the Missouri Compromise was inescapably before the Court, and that instead
of being criticized for having "reached out" to decide an unnecessary
issue, he should be criticized for deciding it wrongly.
 
It is often argued that the Court could have decided the case more narrowly by relying on *Strader v. Graham* 19 Howard (U.S.) 82 (1850). However, I wrote some years ago in soc.history.what-if:

***

Incidentally, I am not as sure as I once was that *Dred Scott* would have
been decided on narrow grounds if not for the Kansas controversy. It is
often argued that the simplest way to decide *Dred Scott* would have been
to rely on *Strader v. Graham* 19 Howard (U.S.) 82 (1850), which held
that the US Constitution did not require one state in deciding on the
free or slave status of a person, to enforce a status acquired in another
state. However, a closer look will show that *Strader* was not really a
good case for overruling Scott's claim of freedom based on his residence
in the teritory north of Missouri.

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.

In short, writing a "narrow" decision against Dred Scott would not be as
easy as is sometimes believed. It may have been this, as much as anything
else, which led Taney to feel he had to decide whether the Missouri
Compromise was constitutional. (Though of course I do not deny that the
situation in Kansas played a role, and that, as I mentioned, the status of
slavery in territories to be acquired in the future was also a
consideration.) Needless to say, his actual decision on that issue was
disastrous. He should have held that of course Congress could prohibit
slavery in the territories, as it had done since the Northwest Ordinance.
But it was most unlikely that the Supreme Court of 1857 would have
accepted that argument, with or without "bleeding Kansas." My point is
that Taney may have been right in thinking that the constitutionality of
the Missouri Compromise was inescapably before the Court, and that instead
of being criticized for having "reached out" to decide an unnecessary
issue, he should be criticized for deciding it wrongly.

Yeah, you shot down my similar idea a little while ago with this. Apparently the court DID back itself into a corner to do something completely stupid.
 
See, the turning point I see most is Justice Grier -- he was apparently the only Northern Justice who signed on to Justice Taney's opinion in full (Nelson, the other Northerner with the majority, had written his own more limited opinion), and he had only done so with much prodding from the Buchanan administration. If he had not budged on this, would all five Southern Justices on the court feel comfortable with such a sweeping decision absent any cover against claims of sectionalism?

My point is that Taney may have been right in thinking that the constitutionality of the Missouri Compromise was inescapably before the Court, and that instead of being criticized for having "reached out" to decide an unnecessary issue, he should be criticized for deciding it wrongly.
This is certainly a fair point.
 
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Dirk_Pitt

Banned
I guess one could argue that the Northwest Ordinance of 1787, passed under the Confederation Congress was no longer legally binding under the new government formed from the Constitution of 1787.

Of course I don't know if the framers had made all the non-contrary confederation laws legally binding under the new government.
 
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