Thursday, August 2, 2018

Dred Scott v. Sanford (Part V)

In a normal constitutional reading one would interpret the Treaty or War power as how the United States may acquire new territory; the Territory clause as being the power in which the federal government would set up a government in a newly acquired territory; and the Statehood clause as being the power in which the federal government would admit a new state into the Union from the acquired territory. However, according to Taney’s view in his opinion the Statehood clause is the power in which the government would acquire territory, set up a territorial government, and finally admit a state into the union from the territory. There is no way this is possible. For starters, the Territory and Statehood clauses are in the same Article (IV) of the Constitution given equal weight. And there is nothing in the Constitution yielding the Statehood clause a higher hierarchical standing over Treaty or War power.

One major issue with the majority opinion is that they could not agree on a methodology for both its Negro citizenship and Missouri Compromise decisions. And, for this reason, there has been a historical debate over whether there were true majorities over these issues. For example, Taney (Justices Wayne and Grier concur with the entirety of Taney’s decision) mentions the due process clause but Justices Daniel, Campbell, and Catron make no mention of it. All majority justices believe slaves are considered property but Daniel and Campbell claim that slavery is some kind of super property protected extensively in the constitution (Migration and Fugitive clauses). Justice Catron argues the Missouri Compromise violates the Treaty with France for the Louisiana Purchase, but none of the other justices make any mention of this fact. The question of Territorial power over slavery is never decided by the majority: Justice Taney denies this whereas Justice Campbell says it is political question and not up to the judiciary to decide, and Justices Daniel and Catron make no mention of the issue.

Without question, it is easy to poke holes in any Taney or concurring Justice Arguments on either the point of free-Negro citizenship or the Constitutionality of the Missouri Compromise.

Significance and Consequences:

The significance and consequences of the Dred Scott opinion was not so much increasing the divide between Republicans and Democrats as much as the divide in the Democratic Party. Since the Taney decision for the Court was, at best, vague over the issue of Federal Government involvement in slavery in Territories it caused a fracture in the Democratic message. Northern Democrats and Southern Democrats have not always seen eye to eye over the issue of slavery, but the division got much bigger over the Territories question. The Southern Democrat view on slavery in Territories was 1. The Federal Government could not interfere with any citizen taking slave property into any territory; 2. The Federal Government should protect slaveholder’s property if territory protection is deficient; 3. Finally, only when a Territory is admitted into the Union as a State can it decide over the issue of being a free or slave state. The Northern Democrat view is that the Taney Court never resolved the issue of slavery in Territories. They believed that Territory governments could still decide the issue of slavery before statehood. Finally, they believed the Federal Government should not interfere over the protection of slavery in Territories. This fracture in the Democratic Party was significant and by the 1860 election they lost control of the Presidency and the House and they knew it was just a matter of time before they lost control of the Senate and Judiciary. This was a significant reason why Southern states succeeded from the Union and formed their own Nation. The issue over slavery in the Territories as well as Northern States ignoring the Fugitive Slave Act were key reasons for the Civil War.

The last ditch effort to save the Union were six amendments proposed by John Crittenden from Kentucky. The first was to extend the 36’ 30” parallel compromise all the way to the Pacific Ocean. Republicans refused to accept this measure. The other amendments were moot: Prohibit abolition of slavery in slave-states; prohibit abolition of slavery in the District of Columbia; prohibit federal interference over slave trade; Congress to provide compensation for refusal to return escaped slaves to its owner; and the last amendment was to protect the fugitive-slave clause and the three-fifths clause in the Constitution. When Crittenden’s measures failed secession and war were inevitable. Crittenden’s Amendment’s really were not that controversial or radical (they were truly a compromise) since they would have simply guaranteed what had already been accepted the first 75 years of United States history or since the Missouri Compromise (1820) over the issue of slavery. But Southern hypocrisy was too much for Northerners to accept. The first hypocrisy was to reinstate the Missouri Compromise 36’ 30” parallel which the Court said was unconstitutional in Dred Scott and secondly, and the Democrats hypocritical claim the Federal Government has no power over slavery in the Territories except to protect slaveholding. The Dred Scott decision was one of the final tipping points in the division of America and even the Democratic Party.

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