Stephen Douglas wasn’t surprised that popular sovereignty in Kansas produced competition among settlers. Competition is the norm in democratic politics.
But the violence of the competition was more than he had bargained for. Antislavery groups in the North sponsored emigrants to Kansas who would swell the antislavery population there in preparation for the crucial vote on a state constitution. Proslavery groups in the South countered with backing for proslavery emigrants to Kansas.
The latter groups had the advantage of Missouri’s shared border with Kansas, which allowed gangs of armed horsemen to gallop from the slave state to the territory they hoped to make another slave state. These marauders harassed and intimidated antislavery settlers, burning their homes and businesses.
The antislavery groups had partisan fighters of their own. The one who became most notorious was John Brown, who in May 1856 led a small band that brutally murdered five proslavery settlers on the banks of Pottawatomie Creek.
The grim spectacle of “bleeding Kanas” made popular sovereignty look less promising as a solution to the question of slavery in the territories than it had seemed when Douglas unveiled it. Douglas’s presidential prospects diminished accordingly.
Into the breach stepped Roger Taney. By 1857 Taney had been chief justice for two decades, not as long as John Marshall, his predecessor, but long enough to feel responsibility for the Constitution and the Union it created. Taney was a Marylander who disliked the institution of slavery. He inherited some slaves and promptly emancipated them. Yet he realized his views weren’t universally shared in the South, and he feared that agitation over slavery would destroy the Union.
Observing that political efforts had made matters only worse, with the debacle in Kansas the most recent example, Taney determined to bring the law to bear. A case before the court involved a slave named Dred Scott who had been transported from Missouri by his master to Wisconsin Territory, in the part of the Louisiana Purchase pronounced free by the Missouri Compromise. Scott had subsequently returned to Missouri, where in time he chose to contest his bondage, on grounds that his residence in Wisconsin had made him free.
Taney persuaded the court to decide against Dred Scott. He held that Scott lacked standing to bring a lawsuit because he wasn’t a citizen under the meaning of the Constitution. The Constitution, said Taney, had been written by white men, including many slaveholders, who considered people of African descent inferior—”so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced be reduced to slavery.”
Taney could have stopped there. The Supreme Court typically decides cases on narrow grounds when possible, to keep its future options open. But Taney wanted to make a broad statement about slavery.
He proceeded to declare that the Missouri Compromise’s ban on slavery in the territories was unconstitutional. This was a moot point, given that Douglas’s Kansas-Nebraska Act had repealed the ban. But Taney had a point of his own to make: that the Constitution accorded Congress no power to legislate on slavery in the territories. Indeed, Congress was forbidden from such legislation. “The rights of property are united with the rights of person, and placed on the same ground, by the Fifth Amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property without due process of law,” Taney said. “An act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” The Missouri Compromise ban had been unconstitutional all along.
Taney warned that Congress must not tamper with slavery in any way. “The right of property in a slave is distinctly and expressly affirmed in the Constitution,” he said. Short of a constitutional amendment, this right would remain. The Constitution meanwhile committed Congress to facilitate the return of escaped slaves. “This is done in plain words—too plain to be misunderstood.”
Taney realized he had taken a big step. His negation of the Missouri Compromise marked the first time since 1803—the year of John Marshall’s Marbury decision—that the judiciary so clearly asserted its supremacy over the legislative and executive branches. Marshall’s decision had produced an uncontroversial outcome, so that no one challenged his claim of judicial review. Taney knew his decision in Dred Scott would be exceedingly controversial. If judicial review survived the controversy, Taney would have done even more than Marshall to shift the balance of constitutional power in the American government.
So Taney “disliked slavery,” but made an extraordinary judicial overreach in an attempt to permanently preserve it? Sort of like the myth that Robert E. Lee disliked secession and slavery, but was “honor bound” to lead hundreds of thousands to death to establish both. Sounds like another Lost Cause nod by Professor Brands that will play well with the right wing masters in Texas politics.
I'm having one of those "the internet is listening to me" moments because my DO NOW for my U.S. History class today was Taney's decision in Dred Scott, where I asked them to name an impact of this decision. That you posted this today gives me these vibes. Interestingly enough, I did not know as much about Taney's views on slavery; I suppose I just assumed he was a supporter of it (which is a bit embarrassing, but better late than never).