Transcripts For CSPAN3 Dred Scott And The Supreme Court 2014

Good evening. I am glad to be here with you for the first lecture in the Supreme Court Historical Societys series, this Supreme Court and the civil war revisited. The timing is just right, for this year marks the 150th anniversary of the war between the states. A bit about the society which i joined many years before i got this good job. And i remain among the legions of supporters of the societys many endeavors. Some of them dorothy mentioned. This society has been a key player in improving public understanding of the court and its role in the constitutional framework of our government. Regular attendees of these lectures know how engaging they have been. And i appreciate, too, Something Else dorothy mentioned. The societys preening program for high schoolteachers and the books produced by the society are works well conceived and good to read. Among my favorites, claire cushmans court watches, eyewitness accounts in Supreme Court history. It is a collection of welltold anecdotes about people and events in the life of the court. Also, the 2nd edition of Supreme Court decisions and womens rights, milestones to equality, a book designed for secondary school and college age readers. In 2012 the society updated the Supreme Court justices illustrated biographies so that now that volume includes four new entries, the chief justice, justices alito, sotomayor and kagan. Last, i cannot resist again speaking of chef supreme. It is a collection of my late husbands recipes created with love and care by that amartha a alita with contributions from all of the current Supreme Court spouses. Tonights lecture, the dred scott family and the civil war, could not be presented by a better, informed lecturer, or of the mrs. Dred scott, a life on slaverys frontier, printed in 2009 by Hofstra University press. Leah vandervelde has served on the faculty of the university of iowa college of school. Shes published audibles by the score. She regularly lectures in the United States and abroad on topics drawn from her teaching specialties, employment law, property law, legal history, and constitutional law. She has served as visiting professor or scholar, a scholar in residence at the law faculties of yale, university of pennsylvania, nyu, and university of vienna. Her Current Research centers on the law of the frontier 18001857. And she visits in her work the most modern electronic tools. Her next book titled redemption songs, suing for freedom, is based on a discovery in which she participated, the discovery of nearly 300 freedom suits brought by slaves in the st. Louis court. Professor vandervelde, was, as dorothy just announced, the awardee of the prestigious guggenheim fellowship in constitutional law in 2011. In the spring semesters of 2011 and 2012, she was a visiting scholar at the American Bar Foundation and during that time she convened a meeting of experts on the american law institutes propose restatement of employment law. Her works and progress include the master narrative of 19th century american law, the significance of slavery, and its abolition for the law of employment. Professor vandervelde is a graduate of the university of Wisconsin Law school where she had a nearperfect academic record. And before beginning her law teaching career, she served as senior law clerk to Southern District of iowa, u. S. District judge harold d. Vitor. I invite you now to join me in welcoming professor vandervelde and ask her to tell us about dred scotts family. [ applause im going to adjust there a little. Im honored to be here in this eminent place. I want to thank Justice Ginsburg not only for her remarks today but for the inspiration that shes been to me for my entire professional life. I was telling her that she was one of only two women lawyers who i even knew the name of when i went to law school. I want to thank miss goldman for her devotion and compliment to preserving Historical Documents of the court and the constitution. I thank the Supreme Court Historical Society for the invitation. And, of course, jennifer low for her thoughtful assistance in organizing this event this evening. My topic today is dred scott in context. Today the dred scott case is universally condemned by jurists, lawyers, historians and the american public. In preparation for this talk, i viewed some of my predecessors at this lectern and i noted how very often it came up in histories and lectures about the courts history. Justice Sandra Day Oconnor described it as that terrible case, and other justices in this series have spoken about it similarly. Dred scott is the archetypal case that symbolizes injustice. It is one of the cases most widely invoked in making comparisons about failures of justice. Scholars count the ways that the decision went wrong. As you will recall, the case contained three rulings blocking dred scotts claim to be recognized as a free man. There were a pair of rulings about the legitimacy of the congressional power to prohibit slavery in the territories. And a third very clear holding that as a black person, dred scott was precluded from utilizing the federal courts. To assert his freedom regardless of the validity of his claim under diversity jurisdiction to be heard in federal court, he had to be the citizen of some state. Or perhaps some foreign jurisdiction, such that the diversity of citizenship existed between the parties, thus justifying federal jurs digisdi. In a 72 decision, the Supreme Court decided that as a black men dred scott was not a citizen of missouri or any state. The decision faced dred scotts african aen vncestry. Had that given him citizenship in some foreign state, he would have satisfied diversity jurisdiction as well. But the court ruled that dred scott was a man without citizenship anywhere. The scotts based their case on a fairly common rule at the time freedom by residence. This rule maintained that if a slave lived for a time on free soil, where the bonds of slavery were banned, that residence freed the slave and changed the persons status unalterably. Such that if the slave entered a jurisdiction again where slavery was legal, the irreparably broken bonds would not reattach. Once free, forever free. Freedom by residence was widespread in its acceptance particularly in the missouri courts for three decades until the missouri Supreme Court reversed itself in dreds very case. In 1852, the missouri Supreme Court declared that no longer would it follow the rule of freedom by residence and the scotts had only one option to file suit in federal court in st. Louis. On appeal, the United States Supreme Court issued these three rulings that blocked dred scott out on every possible basis. Even if he had had some valid claim to freedom, he had no standing to get into federal court to make such an argument. And although he had lived in two places purportedly free by congressional designation, neither designation was constitutional. Congress had no power to outlaw slavery in the territories. Now one might think that this is a case of only antikwarian interest, but then we would lose the lessons that this case offers us and perhaps be unaware of the consequences of the events that remain with us today. The 13th amendment will be 150 years old next year in 2015. The dred scott was was a catalyst in that constitutional reformation. The dred scott decision not only catapulted lincoln, but it also served as a springboard for the 13th and 14th amendments. They were necessary not only to validate the emancipation proclamation but also to repudiate the harm reepd by the dred scott decision and fix the flaws that our constitutional had revealed in the process of the decision. Now my wish today is to set the case in context in order to more clearly understand some of its lessons. Given the limitations of time with being i will not address how the case led to the civil war except to note that it not only further polarized the sides, the decision implied that any future congressional moves towards emancipation would be futile. Because the court had signaled that congress had no such power you should the constitution, even in the territories. Given this topic, i will not address the many divisions among the members of the court, although there were very many. Given this topic, i will not address chief Justice Taneys views on slavery except to note that he was not completely unfamiliar with freedom suits. Marylanders will know that his law partner was Francis Scott key. Francis scott key took several freedom suits on behalf of slaves. Each of us here tonight has some image of the contest in the dred scott case that it involves a slave suing his master who lost. Yet even for very close readers of the 241page opinion, the dimensions of that dispute are unclear. That a slave would lose does not seem surprising. That a slave would sue at all does. After all, what could slaves do anyway . They had no agency. They were born, died, had children, and worked for others gain. But far more often they were persons who were acted upon. They were bought, sold, transported, sent, bequeathed and inherited. But they themselves did not buy, sell, contract, send or inherit themselves. And, most importantly, slaves did not sue. Slaves inhabit their masters agendas during enslavement. The subject and quality of their lives was overtaken by their existence as objects and as objects that belong to someone else with a subject of life. Slaves were often unnoticed and usually described in the passive voice as having the characteristics of objects. But in this case a, an enslaved man filed a lawsuit. One cannot overstate how rare this is in this species of cases, particularly in this court. This court decided other slavery cases but those cases took place between free persons suing over the heads of slaves. Dred scott is the only case to reach the high court that pits a slave directly against his master. The case that comes closest is the case than concerned its ship and cargo and the issue of freedom was derivative. A slave sues his master. Ironically, paying close attention to the stipulated facts does not bring the image into focus. It renders the image less clear. That a missouri slave would sue a new york master for freedom is baffling, to say the least. Even more perplexing is the question of how the case ever happened at all. Among the famous and famously notorious cases, the circumstances of dred scott are the least well understood. The facts are stipulated on appeal. Reading them leaves the unsettling sense that there was something missing. Several justices in the opinions written by each of them repeat the fact statement verbatim in texts of their several opinions. And this choice to repeat the stipulated facts verbatim in the texts signals that perhaps the justices themselves found the facts somewhat incongruous because they did not paraphrase the salient features. They simply repeated the whole. By the time that this case reached the United States Supreme Court, it had been screened and studio worked by the advocates to the point that the facts had become cartoon representations of the realities of the dispute. The surrounding circumstances were bleached out. The actual parties motives were so blunted by the trial and appeals so as to prevent such starkly highlighted competing claims. This happens to a certain extent in every appeal. The point that i am making is different than when each viewer raets facts and circumstances from their own perspective. That is true to a certain extent in every collective experience, a more singular claim can be made about this case. That is, the stipulated statement of fact is so opaque and seems so incongruous as to make little sense from any perspective. If the justices themselves could not condense or isolate the s salient facts, then the resulting pictures one draws from the case is necessarily incoherent. Relying on the stipulated facts alone, it is hard to see why the parties would continue to fight for 11 years. The chain of events that brought dred scott and john sanford into conflict simply doesnt ring true. Why and how did this litigation ever come about, and how did it stay on the rails as long as it did without meeting some other sort of ending. There is no way to see the actual dynamic behind this conflict. The dispute only makes sense if it is stripped down to such a primitive, almost prosaic dynamic that be slaves will always seek freedom from their masters, and masters, in turn, will always wish to control sav slaves who represent wealth for them and hence resist. And at that level the case is so overdrawn as to make it only about exploitation, pure and simple. There are a parade of questions why. Why did this enslave man ever return to a slave state once he had lived in free land . Was he drugged and kidnapped like solomon northrop was . Was he strongarmed and shackled . Was he tricked or was he a fool . The answer is none of the above. There were extenuating circumstances that one cannot read in the case. Winter was coming. The troops with whom dred could have found employment were being withdrawn from minnesota. But in advance of their removal, the troops were ordered to engage in a scorched earth policy. Stripping the roofs off and burning down the remaining cabins in order to evict squatters from all of the surrounding land. Dred returned to slot. Louis, a any reasonable man would have, because he could not survive the winter, and because there was no place on the upper mississippi for him to fall back to. All steamboats led to st. Louis. Second, why would a slave ever hold fast why would a slave owner ever hold fast to a slave who suffered from illness and had reached the end of his productive life . And how could a slave owner ever hold on to a resistant slave from the distance of 1,000 miles away. The logistics are baffling and the motives incomprehensible. Further, if dreds value was so reduced by his diminished capacity, why didnt the case simply settle . Could it be, as generations of dred scott scholars speculated, tlat litigants were ideologically driven by Strong Political views on the subject of slavery, or, on the other hand, was this a grudge suit between parties whose personal relationships had degenerated to such a point that neither would settle. The answer is none of the above. Neither of the parties were ideologically driven and the men did not know each other well enough to make a lawsuit personal. John f. A. Sanford was a successful financial businessman. He was a washington lobbyist, extremely effective at obtaining lucrative government contracts and government franchises that benefited his familyowned company. He was ceo of one of the nations largest and most globally integrated companies for the time, the american fur company. John jacob astor had made a fortune in that company before him and sanford was on his way to making a sizable fortune himself. But with the exception of lobbying congress to benefit his investments in both the indian trade and the illinois central railroad, he appears to have had little interest and no participation in the politics of the day. I should add that neither plaintiff nor defendant was supported by ideological factions until the very day that the appeal was filed to the United States Supreme Court when it drew public attention. Nor could this case have been based on a personal grudge. It is highly unlikely that the two named parties ever met. And certainly not at any time when their personalities could have collided because they were almost never in the same place at the same time. While sanford was in st. Louis, dred was serving masters in mill their outposts far away and by the time dred scott returned to st. Louis, sanford lived almost exclusively in new york city. Eliminating ideology and grudge suit as the motives sustaining litigation for 11 years, one must consider its economics. But that factor is no more telling. Paradoxically etch focus drilling down into the particular details of the circumstances of these two men leads to further cases about the incongruity of it all. Economic theory would predict the kate to have settled. Dred will d attempt to buy his freedom. Dred was not a particularly valuable slave. Young, strong, healthy and skilled slave men were highly valued at the time. Yet, dred had none of those attributes. Aging, male slaves without strength or specialized skills, dred had only ever worked as a valet. Were seen by mast earls as more of a financial liability and extra mouth to need, an extra body to clothe. Someone not worth their keep. Dred also suffered from tuberculosis. He almost died the winter before the Supreme Courts decision and the longer the lawsuit lasted the more weakened dred became. He did, in fact, die within 18 months of the decision. Moreover, with a master as far away as new york, and he living within sight of free soil just across the river, from the free state of illinois, why didnt he simply make his move by attempting escape rather than going to court . At time that he chose to sue, he might have gotten caught but there was no fugitive slave act. That didnt come until later. Third, what did he expect to be the outcome of this case . Was it a lawsuit by a slave against a master doomed to fail . Even if dred scott didnt know the law, certainly members of the bar would so who would take his case . And yet he did get a lawyer. In fact, he got several. How did he get even one lawyer to represent him . To find the answer to this case, it must be said in three broader context. First, national geography. Second, local law. And third, personal relationships. The first context is geography on the national scale. Slaves played a larger role in the nations expansion and western migration during the period of the frontier than we may have thought. And for slaves, geography was destiny. The second context is local law. Aspects of the missouri statute authorizing freedom suits were not invoked in the case once it was filed in federal court but affecting the case creating expectations in the local community that slaves could sue for free