Civil War History 50.3 (2004) 229-260
On March 6, 1857, Chief Justice Roger B. Taney lashed out against the antislavery movement and simultaneously reaffirmed his court's support for the emerging corporate order. He did both in Dred Scott v. Sandford when he declared, accurately, that the Constitution recognized no black person as a citizen of the United States. The Dred Scott case, which also found that the federal government possessed no authority to limit the expansion of slavery into the territories, has long invoked contempt. As the antislavery lawyer John Appleton wrote shortly after the decision, "that the law has been disregarded or rather trampled under foot few will doubt." Appleton's perception of a "mutilation of fact [and] subversion of the law" in Dred Scott anticipated the stance that underpins recent investigations into the citizenship question, which scholars now realize raised fundamental questions concerning race relations within American society. By law, citizenship signified a legal relationship in which purportedly free individuals gave their allegiance to a sovereign community in exchange for the protection of a shifting bundle of rights that varied by race, gender, and jurisdiction. According to Taney, however, no such relationship existed between the federal citizenry and free blacks: "They are not included and were not intended to be included." To the contrary, they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race . . . and had no rights or privileges but such as those . . . the Government might choose to grant them." The chief justice supported his contentions with a lengthy historical argument that Appleton, among others, described as "falsified."
The most striking aspect of Taney's argument involved not so much what he said but rather the excessive manner in which he said it. The assertion that the constitutional order existed for white people only was hardly a novel stance. Taney expressed a belief—widely held at all levels of society and throughout every region of the Union—that the perceived inherent inferiority of black people rendered them unfit for citizenship. Taney himself began working out his thoughts on the subject as early as 1832, when, as Andrew Jackson's attorney general, he defended South Carolina's policy of imprisoning every free black sailor that entered the state. Despite its widespread character, the ideology of white superiority became increasingly contested in the antebellum period. Even in the Jacksonian South, as Lacy K. Ford has argued, the question of citizenship for free blacks remained open and deeply contentious; the debate was even more intense in the North and West. Taney's analysis in Dred Scott was sophisticated enough to handle the resulting ambiguity and in fact represented an accurate reading of American law and history. Even so, the chief justice went out of his way to stress what he saw as the inferiority of African Americans before the law and within society. He could have presented the substance of his argument in a paragraph or two—perhaps in five pages if he wanted to be thorough. Instead, he allotted more space (twenty-four pages) to the citizenship question than he did to any other, including the explosive territorial issue (twenty-one pages). In those two dozen pages A. Leon Higginbotham counted twenty-one separate references to either black inferiority or white superiority.
Behind the excessive display lay a pro-Southern political agenda. Taney's opinion, according to historian Don E. Fehrenbacher, expressed "the southern mood—fearful, angry, and defiant—in the late stages of a national crisis," and it launched "a sweeping counterattack on the antislavery movement." This interpretation contains merit. The Taney Court's members, with a few exceptions, revealed little patience for antislavery legal arguments, and they had no qualms about undercutting antislavery litigation strategies. Taney's opinion closed a jurisdictional pathway that the Court's previous rulings unintentionally had left open to free black people, but this interpretation does not explain fully why Taney devoted nearly half of his opinion to what scholars characterize as a "rambling and repetitious argument" or, even less charitably, a "tortuous forced march." In contrast to the territorial question, the...