Republican Justices Dissented from the Dred Scott Decision

In his inauguration address, Democrat President James Buchanan hinted that he had been tipped off that the Supreme Court would soon render a decision that he believed would settle the question of slavery in the territories.  Two days later, on this day in 1857, the Supreme Court did indeed announce its infamous Dred Scott v. Sanford decision.  The slave, Dred Scott, having travelled in northern states, where he was free, was suing for his freedom after returning to Missouri.  The Justices had been wrestling with how a person could be a slave, then free, then a slave again depending where he was.

The solution for the seven Democrats on the Supreme Court (the two Republicans dissented) was that blacks could not be citizens anywhere, North or South, so they had no standing to sue in court for anything.  This was despite the fact that free blacks had fought in the Revolution and the War of 1812, voted for five of the state conventions that ratified the Constitution, and could vote in several northern states.  Chief Justice Roger Taney, who had been Andrew Jackson's Attorney General, wrote: "A black man has no rights a white man is bound to respect."

Atrocious as that was, the really explosive part of Dred Scott decision was striking down of a federal law for the first time since Marbury v. Madison in 1803.  The majority opinion declared unconstitutional the Missouri Compromise of 1820, which banned slavery in the territories north of Arkansas.  Congress, Taney wrote, did not have the authority to ban slavery anywhere because to do so would violate the Bill of Rights, specifically the 5th Amendment's safeguard against being deprived of one's property without due process.

Justice John McLean, one of the two dissenters in the 7-2 decision, had sought the 1856 Republican presidential nomination and would vie for the 1860 Republican nomination.

Every Republican could see that the Democrat Justices were violating the Constitution in order to impose their pro-slavery agenda.  If the weak Congress under the Articles of Confederation could ban slavery in the territories and the first session of Congress after ratification could ban slavery in the territories, then surely such a measure was constitutional.  Still worse, the Supreme Court went far beyond the Constitution in asserting that slaves were property, hence not fully human; though the Constitution mentioned "Person held to Service or Labor," it nowhere said that masters actually owned their slaves as property.

Republicans believed that President Buchanan and the Democrat Justices were in league to destroy their principal opposition party by declaring unconstitutional its central tenet: NO SLAVERY IN THE TERRITORIES.  By the Democrats' logic, if a constitutional ban on slavery violated the 5th Amendment, then Republicans had reason to fear that the Supreme Court was just one step away from declaring slavery legal in every state from Maine and California.  A vote by no more than five Justices transforming the entire country into a slave society could come at any time.  And, if the Supreme Court could revoke the citizenship of free blacks, why not naturalized citizens, or any citizen at all?

For the infuriated Republican across the nation, the stretching and twitching of the Constitution by the Democrats had gone too far.  Less than three years later, pledging to block the Democrats' pro-slavery agenda, Republican candidates would win the presidency and a majority in the U.S. House of Representatives.

This article is based on Back to Basics for the Republican Party, Michael Zak's history of the GOP from the civil rights perspective.  See Grand Old Partisan  for more information about the heritage of the GOP.