In March 1857, the US Supreme Court announced their decision in Dred Scrott v. Sandford, written by Chief Justice Taney, a decision that I suppose has long been in the lead on most people’s “worst decisions” lists. It “settled” the issue of slavery in favor of the pro-slavery argument, finding slavery enshrined in the US Constitution.
I put “settled” in scare quotes because, of course, this decision did not at all settle the issue, though Taney hoped it would. The same year as the decision, Frederick Douglass gave a speech, “The Dred Scott Decision,” in which he mocked the very idea that the issue had been settled, because in fact the slavery issue had been “settled” many times before (by the Missouri Compromise, by the Kansas-Nebraska Act, etc.). Douglass remarked: “The fact is, the more the question has been settled, the more it has needed settling” (p. 252).
Like most of what Douglass wrote, it’s a wonderful speech, eloquent, hopeful, scathing, Christian.
You will readily ask me how I am affected by this devilish decision—this judicial incarnation of wolfishness! My answer is, and no thanks to the slaveholding wing of the Supreme Court, my hopes were never brighter than now.
I have no fear that the National Conscience will be put to sleep by such an open, glaring, and scandalous tissue of lies as that decision is, and has been, over and over, shown to be.p. 253
Douglass calls Taney’s decision full of lies. He means that Taney has misinterpreted the Constitution, and he will explain in what ways the Chief Justice has done so. But first he has some things to say about how Taney might be the highest law in the land, but not in the world.
Your fathers [Douglass says to his white audience] have said that man’s right to liberty is self-evident. There is no need of argument to make it clear. The voices of nature, of conscience, of reason, and of revelation, proclaim it as the right of all rights, the foundation of all trust, and of all responsibility. Man was born with it. It was his before he comprehended it. The deed conveying it to him is written in the centre of his soul, and is recorded in Heaven. Th sun in the sky is not more palpable to the sight than man’s right to liberty is to the moral vision. To decide against this right in the person of Dred Scott, or the humblest and most whip-scarred bondman in the land, is to decide against God. It is an open rebellion against God’s government. It is an attempt to undo what God [has] done, to blot out the broad distinction instituted by the Allwise between men and things, and to change the image and superscription of the everliving God into a speechless piece of merchandise.p. 253
I am glad to say that Douglass does not find slavery instituted in Scripture nor in the US Constitution. This is important, because plenty of people in his day, including his fellow abolitionists, said that it was instituted in both. A couple of times near the end of the speech (p. 267), he puts Chief Justice Taney side-by-side with William Lloyd Garrison as twin advocates for the view that the Constitution enshrines slavery. (As Gordon Wood reminds us, Garrison described the Constitution as “a covenant with death” and “an agreement with hell.”)
Garrison’s solution was disunion, emancipating the northern states from the pro-slavery Constitution. Douglass objected to the solution, and spends several pages urging against disunion, before turning to the main point of the speech, the lies in Taney’s decision (lies with which Garrison, apparently, agreed). In fact, the Constitution does not guarantee the right to enslave others.
When I admit that slavery is constitutional, I must see slavery recognized in the Constitution. I must see that it is there plainly stated that one man of a certain description has a right of property in the body and soul of another man of a certain description. There must be no room for a doubt. In a matter so important as the loss of liberty, everything must be proved beyond all reasonable doubt.p. 260
Of course, the Constitution never mentions slavery or white people or black people, as Douglass points out. (Douglass never in this speech brings up the 3/5 clause, which, in any case, would not have overturned his point.) In fact, several pronouncements in the Constitution are incompatible with slavery, such as the prohibition of a bill of attainder (p. 262). Taney knows that the Constitution on its surface cannot support slavery; he says as much in his decision. But, he says, you have to look at the intention of the Constitution. Douglass quotes and paraphrases Taney’s decision to establish this line of reasoning (pp. 263–64).
It is this line of reasoning that Douglass declares to be a lie. Taney said that slavery was everywhere accepted at the time of the ratification of the Constitution. Douglass demonstrates the falsehood of the claim. He first cites statements from churches from the 1780s. Then the Founding Fathers themselves.
Washington and Jefferson, and Adams, and Jay, and Franklin, and Rush, and Hamilton, and a host of others, held no such degrading views on the subject as are imputed by Judge Taney to the Fathers of the Republic.
All, at that time, looked for the gradual but certain abolition of slavery, and shaped the constitution with a view to this grand result.p. 266
On this account, Douglass prevails over Taney. The Chief Justice did, in fact, misrepresent the early history of the United States in order to substantiate his specious interpretation of the Constitution. Douglass’ account of the views of the Founding Fathers (at least the ones he names) stands in harmony with modern historical accounts, such as in Joseph Ellis’ book Founding Brothers.
In conclusion, let me say, all I ask of the American people is, that they live up to the Constitution, adopt its principles, imbibe its spirit and enforce its provisions.
When this is done, the wounds of my bleeding people will be healed, the chain will no longer rust on their ankles, their backs will no longer be torn by the bloody lash, and liberty, the glorious birthright of our common humanity, will become the inheritance of all the inhabitants of this highly favored country.pp. 267–68
Douglass’ speech fits into a broader discussion on the interpretation of the Constitution, one set out in brief in this book review by Gordon Wood on a book by James Oakes that gives much more detail.
UPDATE: this post was updated on 25 Jan. 2021.