A while back, I re-wrote the Dred Scott decision. What the Judge should have said. Decision of the Court, by C.J. Taney: Dred Scott is a free man. He was always a free man, but now the Law and Constitution so declare. This Court has jurisdiction on many grounds, including that Dred Scott is a person, a citizen, and has resided in several states, as has the Defendant, giving diversity jurisdiction. The Constitution recognizes that all men are persons, not property or things, and so recognizes in express words. Persons, real persons, have rights under our Constitution. A person is not and never can be mere property. This is a Christian nation, in which every person, created by God, has an immortal soul, and in which no man is the superior of any other man. Dred Scott is a person. In America all persons are free. Dred Scott is a free man. The American Declaration of Independence declares that “All men are created equal.” This right is universal and precedes governments. More specifically, it is the basis for the American government, and one of its key values. It is, simply, an “unalienable” right. A man may be made a “slave,” as we make a convict a slave after trial and due process for a period of years, because he has forfeited his citizenship by his own vile acts, but his being made a “slave” can only be by “due process of law” under the 5th Amendment. It is never a permanent or inherent state, and never the essence of a man. Dred Scott is a free man. At the time of the Original Constitution, at least five States allowed black men to become citizens, with all rights, including the rights to marry, contract, and vote, the unalienable rights of free men. The Founders , the same who wrote the Constitution and approved it, also passed the Northwest Ordinance, making it clear they believed they could, under the Constitution which they made themselves, prohibit slavery in the Territories, and they did so. The States into which Dred Scott went, and which confirmed his free status, were all parts of the Northwest Territories, and each of them prohibited slavery in their Constitutions and Laws. Dred Scott, were he somehow considered not free, became free once he entered those states, by the law of the land, national and state. In the United States no man, once having acquired a status, including this sacred status, can have it taken away except by due process of law. There is no law which permits re-enslaving a person, except, as noted, for a felony conviction after due process of law. This was not done in Dred Scott’s case. Dred Scott is a free man. Critics tell us that Slavery is a recognized fact. We note that it is not recognized in the Constitution, and that there is no procedure for enslaving a man. There are specific provisions against punishing a person by also punishing his children or family. Those who read the Constitution to support Slavery read it wrongly. In the clearest terms, it does not permit slavery or the imposition of any punishment or adverse status without due process of law, without, according to our legal philosophy, history, and tradition, the existence of express written provisions which so punish an individual for good cause. I challenge any one to read our Constitution in good faith, and show me any provision which approves Slavery. There being no such provisions, Dred Scott is a free man. The Congress of the United States passed the Missouri Compromise, under which Slavery was forbidden in the States into which Dred Scott was taken. This Compromise, a law of Congress, was passed with the consent of all of the States, including the Southern States, and they and we are bound to enforce at least those provisions which prohibit slavery. Dred Scott is a free man. Dred Scott’s owners took him into free states, and allowed him to marry, thus acknowledging that he was a free man, and are bound forever to that acknowledgment. Slaves cannot marry. Slaves cannot contract. The laws of those States made him free, or recognized him as free. Dred Scott is a free man. Dred Scott was taken into several Southern States, whose law clearly provided that a slave, once made free, remained free. The laws of those States, including Missouri and Louisiana, made him free.Law to be law must apply equally to all, and these States have set a precedent which they must honor or themselves be outlaws. Dred Scott is a free man. Slavery is not found in express terms in the Constitution. We are a people of laws. It is firm principle of a nation of laws that no one shall be punished by a “law” which is unwritten. “No punishment without law” has been a universal maxim since the time of the Romans. Every lawyer learns it from his cradle. It is a principle of contracts, for centuries, that a provision which is “understood” but not written into the document is not enforceable, whether by this we understand the Parole Evidence Rule or, more grandly, the rights of Due Process, or of “No punishment without law.” Surely Slavery is a grand punishment, one of the worst, and it can be imposed on no man legally or morally, except for his own grave evil, unless he is convicted, by published law and after fair trial, of crime. Dred Scott is a free man. Slavery is also, plainly and simply, morally wrong. It is contrary to the founding values of this country. From the time of Aristotle and the Greeks to today, it has been a principle of Western law, and of Anglo-American law, that the law will not be used to do evil. Equity and Law alike proclaim that no one can claim a relief in our Courts with unclean hands or against public policy. What hands could be more unclean that those of a Slaver or Slave-Holder? What could be more again public policy, our basic values, that a state of Slavery which belies the very God-given rights set forth in our Declaration. Dred Scott is a free man. How could anyone dare to enter a Court of the United States, a nation devoted to liberty, and claim to make a slave of another man? Even to file such a lawsuit is a libel upon America, as if to say that it is possible that such a lawsuit would be entertained in the “Land of the Free.” It is a shame for this country that anyone could even dream of making such a claim, much less that he should hope to prevail and make a slave of another. Dred Scott is a free man. As Chief Justice of this Court, I am bound by oath to the Constitution and Laws of the United States, which declare Dred Scott and all persons, even “slave” to be free men. But even if the Constitution and Laws of the United States were to the contrary, Slavery would still be wrong. The law of Nature and of God, as expressed in the Declaration, are the eternal and unalienable law, to which I must first and always adhere. As a Judge, I swear to uphold the Constitution, but the moral law is always superior to the written law, and even if my country should command me to do wrong, I should, in the face of God and men, refuse. I would resign my office, before I would declare a man a slave. We live, in this country, by the Golden Rule: Do unto others; and by the Two Great Commandments: Love thy neighbor as thyself. They are much a part of our law as if they were engraved in all our monuments. How could I return to my family and teach my children if I confirmed a man in slavery. We are not mere agents of the law, though we are that, but we are teachers of the law as well, selected for the wisdom we pray we might show in our decisions. We have been selected to be wise, and must strive to be wise. If I could enslave Dred Scott, I would thus enslave myself, and lose my soul, which I would not do for all the world and its glories. I do not believe my countrymen would think I had not upheld my oath if I found that men are always and everywhere free. If our Constitution means anything, it means that. Dred Scott is a free man. For all of these reasons, Dred Scott is declared a free man, not by the power of this Court—we only recognize God-given rights; we do not create them-- but by the power of Nature and Nature’s God, whom we humbly serve by this Declaration. Our Declaration and Constitution, and the laws of this land, of Congress and of the several states and territories, forbid slavery and find it repugnant. Slavery everywhere, in all times and places, is wrong, and we so declare it. Dred Scott was and is a free man and, as such, a citizen of the United States, worthy of the full protection of its laws. Dred Scott is a free man. IT IS SO ORDERED, this 25th day of December 1857, on the day of the birth of Jesus, who announced that all men were free and that all men were equal before God. Justice Roger Taney, Chief Justice of the United States Supreme Court.
Posted on: Mon, 10 Mar 2014 12:58:23 +0000
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