Dred Scott v. Sanford (Part IV)

The Missouri Compromise:

The Missouri Compromise of 1820 admitted Missouri into the Union as a slave-state, but no other state above the latitude of 36’ 30” would be admitted into the Union as a slave-state. All territories above the 36’ 30” line would prohibit slavery.

Article Four Section Three of the Constitution is the Territory Clause and it reads: Congress has the power “to dispose of and make all needful rules and regulations respecting the territory or other properties belonging to the United States”. Taney’s decision claims the clause only affected territories owned by the United States in 1789 (at the founding) and “other properties” included only ships, arms, and munitions inherited by the new government. In his dissent Justice Curtis points to the North Carolina and Georgia cessions of Western lands to rebuke Taney’s claim that the Territory Clause only affected territories in 1789. Taney also believed that the words “all needful rules and regulations” in the clause did not amount to much meaning or plenary power for Congress. When, in fact, it combines the word usage of two of the most powerful clauses in the Constitution: “Necessary and Proper” (needful) and to (regulate) “Commerce”. James Madison said on the power of the federal government under the Territory Clause was to “institute temporary governments”. Justice Daniel concurs with Taney and believes the Territory Clause “did not extend to political rights of citizens and settlers” it merely affected land grants. Justice Campbell argued that the American Revolution was fought over British imperialism and he doubted that the Founders wanted to create a United States imperialistic or colonial system throughout its territories by using the Territory Clause to create new governments without the consent of the people. This is somewhat similar to most Territory slave policies by Congress: Laissez Faire or in these instances called popular sovereignty to let the democratic majority to decide political questions regarding slavery. However, popular sovereignty does not mean that democratic majorities will make correct constitutional judgement or decisions. Our history is filled with unconstitutional popular sovereignty decisions. Besides, it is also a bad assumption to think that our Founders did not learn their lesson from English colonialism to govern U.S. Territories correctly. I also find it ironic that Justices are concerned about Colonial tyranny when Southern tyranny towards a specific race of people dominates their laws.

The Missouri Compromise making slavery illegal above the latitude of 36’ 30” did not penalize slaveholders any more than any unique state or territory law which may impact new citizens. For instance, people who moved from a state where gambling was legal into a territory or state where gambling was illegal could be fined or imprisoned for violating the law. Any prohibition on slavery was no different. It is argued that the government cannot confiscate or prohibit personal property. That is not true. Money is property and any fine or tax levied by a government is the confiscation of property. Furthermore, States and municipalities prohibit all types of livestock and domesticated or wild animals.

Slavery and the Missouri Compromise are both political questions that the Supreme Court lacks jurisdiction to decide. In 2006, John Finn defined a political question as: “The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.” In Luther v. Borden (1848) the Taney Court ruled that only the President and Congress can settle the political question over the Guarantee Clause in the Constitution: the “Guarantee of a Republican form of government” for each state (territory) in the union. So long as state and territory governments are Republican then the issue of slavery should be settled by the sovereign states or by territory governments set up by Congress. And this asserts that Congress, not the judiciary, can settle government issues regarding territories.

Remember, Congress may not have the power to prohibit slavery but the Constitution does not forbid it nor does the Constitution allow slavery in states or territories. And if Dred Scott is a slave with no rights as Taney proclaims, then he has no jurisdiction to sue for his freedom and the Court therefore lacks jurisdiction to decide the case and instead should have reverted to the decision of the Missouri Supreme Court. If the Court did this then they could have avoided the embarrassing opinion concerning free-Negroes and the Missouri Compromise. Unfortunately, this approach by the Court would have still left Dred Scott a slave.

A pivotal case for the legality of the Missouri Compromise was American Insurance Company v. Canter (1828). Chief Justice Marshall said “Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution which empowers congress to make all needful rules and regulations respecting the territory or other property belonging to the United States.” This sentence conflicts with Taney’s assertion that the Territory clause did not affect territories acquired after 1789. Marshall also said in the opinion “In legislating for them, Congress exercises the combined powers of the general, and of the state government.” In other words, Congress had both federal and state power over Territories. Thus, even if Congress did not have the authority to allow or disallow slavery in territories based on its enumerated powers in the Constitution, Congress had the authority to do so as acting as a state government.