Dred Scott v. Sanford (Part III)

Taney places “property” above “liberty” in the Fifth Amendment due process clause: “Persons should not be deprived of life, liberty, and property without due process of the law.” If liberty were emphasized than slaves should be provided due process of the law since the Fifth Amendment does not mention citizenship, just persons. Remember, Taney’s argument is that both free-Negroes and Slaves are not Citizens of the United States and can never be Citizens of the United States. He never argues that they are not persons, but he does suggest they have a duality of purpose being both persons (not citizens) subject to laws of the land and property. Once again the logic does not work. In science, when something has a duality purpose, it is more powerful. One would assume that Negroes having a duality purpose would make them much more powerful than Whites. For instance, light can be a particle or wave making it one of most powerful phenomenon in the mysteries of the universe. In legal terms, money has both the purpose of being property and free speech. This makes money even more powerful in political spectrum. Since Taney emphasized the word “property” in the Fifth Amendment he placed the onus of his decision on protecting a slaveholder’s property without due process of the law. However, the question should not have been whether slaves were “property”, but instead if they were deprived “liberty” without due process. The Fifth Amendment’s due process clause protects all persons, even those who are not citizens. The word slave is never mentioned in the Constitution. The Constitution is “colored blind” as declared by Justice Harlan in Plessy v. Fergusson in 1896. The “Three-Fifths” clause refers to persons, not property. The “Fugitive” clause refers to persons, not property. Remember, this clause included indentured servants who had to work off debts most notably for their passage to immigrate to America. The “Migration and Importation” clause referring to “slave trade” also talks about persons and not property. In fact, President Jefferson signed into law an Act prohibiting the importation of slaves in 1807. It took effect in 1808 at the earliest date allowed by the Constitution in the “Migration and Importation” clause. It is also important to note in Barron v. Baltimore (1833) the Marshall Court said the Bill of Rights in the Constitution did not apply to the States, but only the Federal Government. Therefore, Taney was treading in deep waters when he applied the Fifth Amendment’s due process clause to this case. The Fifth Amendment certainly did not apply when Dredd Scott was temporarily taken to Illinois. On the other hand, the Fifth Amendment could have applied when Dred Scott was taken into Wisconsin Territory which was federal land. But Taney specifically states that Congress has no power to deny slavery in the territories. And by proclaiming the Missouri Compromise is unconstitutional, Taney is saying Congress has little authority in both States and Territories. Hence, his Fifth Amendment argument makes little sense based on both precedent and his own reasoning. If Congress has no Constitutional authority to prohibit slavery in the states and territories then the Fifth Amendment argument does not work.

Taney’s dual citizenship theory in his opinion changes the meaning of privileges and immunities clause from “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states” to “the citizens of each state, who are also citizens of the United States, shall be entitled to all the privileges and immunities of citizens in the several states”. In 1839 the Taney Court issued a decision that held corporations were citizens within the meaning of the privileges and immunities clause. Five years later in Louisville, Cincinnati, Charleston Railroad v. Letson the Taney Court held that corporations were citizens in that they can sue and be sued in a federal court under the Diversity-Citizenship Clause. The Taney Court made a similar ruling in Marshall v. Baltimore and Ohio Railroad (1853). In other words, corporations were citizens in some respects but not in others. The same can be said of women and children during the founding era. Women and children were not given the same privileges and immunities given to men but were still considered citizens. Free-Negroes were no different. They had some rights, but even in free-states they were denied many privileges and immunities such as the right to bear arms. Only in Maine where free-Negroes considered equal to Whites in terms of privileges and immunities. But in most free-states, free-Negroes had the right to marry, sue in federal courts, and own property. This was enough for them to be considered citizens of free-states and should in turn be considered citizens of the United States. The Taney duality citizenship argument makes little sense.

Finally, Taney argues that the militia requirement for “free able-bodied white male citizens” placed in a 1792 Act is evidence that Negroes were not citizens. However, if free Negroes were never considered citizens, then the “white” reference would not have been necessary.

The implication of the Dred Scott decision was vast especially in the North. Most Northerners felt the ruling would ultimately violate state sovereignty over the issue of slavery. After all, if slaves were property then how could any state or territory in the Union forbid or prohibit it? They couldn’t and thus they feared that slavery would not only spread throughout new territories, but perhaps through established free-states. What was to stop the nationalization of slavery? To complicate matters, shortly after the Dred Scott decision there was a bitter battle over Kansas statehood: would it be admitted as a slave or free-state? Furthermore, the Ableman v. Booth (1858) decision continued the fear and grew animosity further in Northerners. In this decision, it should come as no surprise that the Taney Court upheld the Fugitive Slave Act in Wisconsin territory. It is no wonder historian Charles Warren said “that Chief Justice Taney elected Abraham Lincoln to the Presidency.”