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Lincolnian Natural Right, Dred Scott, and the Jurisprudence of John McLean

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Polity

Abstract

John McLean's opinion in Dred Scott v. Sandford (1857) has been considered by most scholars as the weaker of the case's two dissenting opinions. McLean's presidential ambitions were well known, and, as a consequence, much of the moral language employed in his opinion has been interpreted as obiter dictum directed at placating the abolitionist sentiment of the emerging Republican Party. In this essay, I argue that much of the contemporary criticism of McLean's opinion is ill-founded. Don Fehrenbacher's observation that McLean's opinion is not as “thorough, scholarly, and polished” as the fellow dissent of Benjamin Curtis seems, in some sense, to be correct; nevertheless, McLean offers a powerful challenge to some key aspects of Curtis's celebrated dissent. Specifically, McLean shares in common with Lincoln a theory of constitutional aspiration and an understanding of natural right that is absent from Curtis's opinion and that compels McLean to differ from Curtis on the Fifth Amendment question.

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Notes

  1. James F. Simon, Lincoln and Chief Justice Taney: Slavery, Secession, and the President's War Powers (New York: Simon and Schuster, 2006), 127.

  2. David M. Potter, The Impending Crisis: 1846–1861, ed. Don Fehrenbacher (New York: Harper and Row, 1976), 278.

  3. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (Chicago: University of Chicago Press, 1985), 279.

  4. Edward S. Corwin, “Dred Scott,” in The Doctrine of Judicial Review, ed. Corwin (Princeton: Princeton University Press, 1914), 145.

  5. Earl Maltz, Dred Scott and the Politics of Slavery (Lawrence: University of Kansas Press, 2007), 132.

  6. Frank H. Hodder, “Some Phases of the Dred Scott Case,” Mississippi Valley Historical Review 16 (June 1929): 22.

  7. Donald Lively, Foreshadows of the Law: Supreme Court Dissents and Constitutional Development (Westport, CT: Praeger Publishers, 1992), 441.

  8. For a history of the case, see Don E. Fehrenbacher, Slavery, Law, & Politics: The Dred Scott Case in Historical Perspective (New York: Oxford University Press, 1981). The parties to the case agreed on these facts: Mr. Scott was a Missouri slave who traveled with his master to the free state of Illinois and the free territories north of Missouri. Scott later returned with his master to Missouri where he sued for his own freedom, alleging that his residence in a free territory effectively manumitted him from his former state of slavery. After his master's death, Scott's ownership was transferred to a citizen of New York, and the case entered the federal court system under the diversity of citizenship requirement for federal law suits (U.S. Const., Art. 3 §2). On the preliminary question of jurisdiction, Taney considered whether Scott was a citizen within the meaning of the word “citizen” as it is used in the Constitution. Because part of Scott's claim to the status of citizen rested on his prior claim that he was made free by his residence in free federal territories, Taney considered whether the piece of legislation (i.e., the Missouri Compromise of 1820) that barred slavery from the territories was constitutional. When considering the constitutionality of the Missouri Compromise, moreover, Taney inquired into whether the Fifth Amendment's protection against deprivation of property without due process of law prevented the national government from prohibiting slave property in the federal territories. Taney argued that it did: Justices Curtis and McLean dissented from Taney's conclusion, but, as I argue, they did so for substantially different reasons.

  9. Roy F. Nichols, review of The Life of John McLean: A Politician on the Supreme Court by Francis Weisenburger, The Mississippi Valley Historical Review 25 (June 1938): 113.

  10. Memorial Biographies of the New England Historical-Genealogical Society, Vol. IV (1885), 275. Quoted in Francis P. Weisenburger, The Life of John McLean (Columbus: The Ohio State University Press, 1937), 187.

  11. Part of my argument is that the influence of legal positivism has led to an unwarranted characterization of McLean's opinion as less “legal” than Benjamin Curtis's opinion. Scholars in the legal positivist school are suspicious of any moral claim made in the process of legal reasoning that is based on an authority collateral to the posited or implied intra-systemic legal rules or principles. Accordingly, many of McLean's arguments are dismissed as “political” or “emotional” or otherwise less than “legal.” McLean's biographer, for instance, asserted that that his “judicial policy implied a flexibility in the application of the law that … left the door open especially to opinions based upon emotional reactions.” See Weisenburger, The Life of John McLean, 228.

  12. See John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 351–67.

  13. Fehrenbacher, Slavery, Law and Politics, 221.

  14. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Have: Yale University Press, 1975), 17.

  15. For an in-depth treatment of the moral–formal dilemma faced by antislavery jurists, see Cover, Justice Accused, 197–267: “… the judge's problem in any case where some impact on the formal apparatus could be expected, was never a single-dimensioned moral question—is slavery or enslavement, or rendition to slavery, morally justified or reprehensible? Rather, the issue was whether the moral values served by antislavery (the substantive moral dimension) outweighed interests and values served by fidelity to the formal system when such values seemed to block direct application of the moral or natural law proposition” (197).

  16. Dred Scott at 562 (McLean, J. dissenting), quoting from the Kentucky Court of Appeals, 1820 (2 A.K. Marshall's Rep.). McLean cites this case within his discussion of the locality of slavery.

  17. See Cover, Justice Accused, Part II: “Rules, Roles, and Rebels: Nature's Place Disputed,” 119–92.

  18. Cover, Justice Accused, 19.

  19. See Thomas Aquinas, Summa Theologica, I–II, Q.95, A.II.

  20. See Finnis, Natural Law and Natural Rights, 364. “For the statement is either pure nonsense, flatly self-contradictory, or else it is a dramatization of the point more literally made by Aquinas when he says that an unjust law is not law in the focal sense of the term ‘law’ [i.e., simpliciter] notwithstanding that it is law in a secondary sense of that term [i.e., secundum quid].”

  21. Finnis Natural Law and Natural Rights, 365.

  22. To demonstrate the analytical separation of these perspectives, consider that Chief Justice Taney and the Garrisonian abolitionists both considered (S2) the right to property in a slave to be “distinctly and expressly affirmed in the Constitution” while disagreeing on the (S1) reasonableness or justness of slavery itself.

  23. Cover, Justice Accused, 209.

  24. For a similar discussion, in a different context, see J.M. Balkin, “Agreements with Hell and Other Objects of Our Faith”, Fordham Law Review 65 (1997): 1703–38.

  25. Lon Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart,” Harvard Law Review 71 (February 1958): 632.

  26. The theory of constitutional aspiration, as it is used in this context, should be distinguished from aspirational theories that self-consciously reject the principles of the Declaration of Independence and the Constitution of 1787 and/or deny the relevance of nature as a source of moral norms.

  27. See, for example, Rogers Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1999) and Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge: Cambridge University Press, 2006).

  28. Dred Scott at 407 (Taney, J.).

  29. Dred Scott at 407 (Taney, J.).

  30. Dred Scott at 575 (Curtis, J. dissenting).

  31. Dred Scott at 575 (Curtis, J. dissenting).

  32. Dred Scott at 537 (McLean, J. dissenting).

  33. Hadley Arkes, “Natural Law and the Law: An Exchange,” First Things (May 1992), 48.

  34. Cf. Lincoln's argument that behind the constitutional compromises with the slave interest was the intention of the framers to place slavery on a path toward ultimate extinction: “I entertain the opinion upon evidence sufficient to my mind, that the fathers of this government placed that institution where the public mind did rest in the belief that it was in the course of ultimate extinction. Let me ask why they made provision that the source of slavery—the African slave trade—should be cut off at the end of twenty years? Why did they make the provision that in all the new territory we owned at that time slavery should be forever inhibited? Why stop its spread in one direction and cut off its source in another, if they did not look to its being placed in the course of ultimate extinction?” Lincoln's speech at Alton, in The Complete Lincoln–Douglas Debates of 1858, ed. Paul M. Angle, 2nd ed. (Chicago: University of Chicago Press, 1991), 384. Cf. Lincoln's speech at Chicago, Lincoln-Douglas Debates, 33, and Lincoln's speech at Charleston, Lincoln-Douglas Debates, 270.

  35. Dred Scott at 538 (McLean, J. dissenting).

  36. Cover, Justice Accused, 29.

  37. Cover, Justice Accused, 30.

  38. Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Chicago: University of Chicago Press, 1982), 308.

  39. Jaffa, Crisis of the House Divided, 309.

  40. Douglas's speech at Galesburg in Lincoln-Douglas Debates, 288.

  41. David Zarefsky, foreword to Lincoln-Douglas Debates, xv.

  42. Douglas's speech at Galesburg in Lincoln-Douglas Debates, 294.

  43. Zarefsky, foreword to Lincoln-Douglas Debates, xvi. See, for example, Douglas's speech at Quincy, Lincoln-Douglas Debates: 351: “I hold that the people of the slaveholding states are civilized men as well as ourselves, that they bear consciences as well as we, and that they are accountable to God and their posterity and not to us. It is for them to decide therefore the moral and religious right of the slavery question for themselves within their own limits … . I repeat that the principle is the right of each state, each territory, to decide this slavery question for itself, to have slavery or not, as it chooses, and it does not become Mr. Lincoln, or anybody else, to tell the people of Kentucky that they have no consciences, that they are living in a state of iniquity, and that they are cherishing an institution to their bosoms in violation of the law of God. Better for him to adopt the policy ‘judge not lest ye be judged.’”

  44. Lincoln's speech at Quincy in Lincoln-Douglas Debates, 334.

  45. Abraham Lincoln, “The Principles of Jefferson: Letter to Henry L. Pierce and Others,” April 6, 1859. In Abraham Lincoln: A Documentary Portrait Through His Speeches and Writings, ed. Don E. Fehrenbacher (Stanford: Stanford University Press, 1964), 120.

  46. Lincoln, “The Principles of Jefferson,” 120.

  47. Lincoln's speech at Alton in Lincoln-Douglas Debates, 393.

  48. Lincoln on the relevant clauses in the Constitution: “Again; the institution of slavery is only mentioned in the Constitution of the United States two or three times, and in neither of these cases does the word ‘slavery’ or ‘negro race’ occur; but covert language is used each time, and for a purpose full of significance… .” [Lincoln goes on to discuss the language used in the 1808 Clause, the 3/5 Clause, and the Fugitive Slave Clause] “… . And I understand the contemporaneous history of those times to be that covert language was used with a purpose, and that purpose was that in our Constitution, which it was hoped and is still hoped will endure forever—when it should be read by intelligent and patriotic men, after the institution of slavery had passed from among us—there should be nothing on the face of the great charter of liberty suggesting that such a thing as negro slavery had ever existed among us.” See Lincoln's speech at Alton in Lincoln-Douglas Debates, 384–85.

  49. Lincoln's speech at Peoria. Quoted in Paul M. Angle, “Introduction” to Lincoln-Douglas Debates, xxv.

  50. Lincoln's speech at Springfield in Lincoln-Douglas Debates, 379: “I think the authors of that notable instrument intended to include all men, but they did not mean to declare all men equal in all respects. They did not mean to say all men were equal in color, size, intellect, moral development or social capacity. They defined with tolerable distinctness in what they did consider men created equal—equal in certain inalienable rights, among which are life, liberty and the pursuit of happiness. This they said, and this they meant. They did not mean to assert the obvious untruth, that all men were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They mean simply to declare the right so that the enforcement of it might follow as fast as circumstances should permit.”

  51. Gary J. Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration (Totowa, NJ: Rowan & Littlefield Publishers, 1986), 8.

  52. Cf. U.S. Constitution, Art. 4 § 2: “No person held to service or labor in one State under the laws therof …” [emphasis added].

  53. Dred Scott at 450 (Taney, J.).

  54. Dred Scott at 621 (Curtis, J. dissenting).

  55. Dred Scott at 627 (Curtis, J. dissenting). Curtis: “I think I may at least say, if the Congress then did violate Magna Charta by the ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slaveholding States which have enacted the same prohibition?”

  56. Graber, Dred Scott and the Problem of Constitutional Evil, 61.

  57. Graber, Dred Scott and the Problem of Constitutional Evil, 62.

  58. Dred Scott at 548 (McLean, J. dissenting).

  59. Dred Scott at 548 (McLean, J. dissenting). Cf. Lincoln at Charleston in Lincoln-Douglas Debates, echoing McLean's argument that a slave is not to be regarded in the same class as other “common matters of property”: “The other way is for us to surrender and let Judge Douglas and his friends have their way and plant slavery over all the states—cease speaking of it as in any way a wrong—regard slavery as one of the common matters of property, and speak of negroes as we do of our horses and cattle” (270). Cf. Lincoln's speech at Quincy, in Lincoln-Douglas Debates, against Douglas's characterization of the nature of this property: “When he says that slave property and horse and hog property are alike to be allowed to go into the territories, upon the principles of equality, he is reasoning truly, if there is no difference between them as property; but if the one is property, held rightfully, and the other is wrong, then there is no equality between the right and the wrong; so that, turn it any way you can, in all the arguments sustaining the Democratic policy, and in that policy itself, there is a careful, studied exclusion of the idea that there is anything wrong in slavery” (334–35).

  60. Dred Scott at 624 (Curtis, J. dissenting).

  61. Hadley Arkes, Beyond the Constitution (Princeton: Princeton University Press, 1990), 44.

  62. See Michael Zuckert, “Legality and Legitimacy in Dred Scott: The Crisis of the Incomplete Constitution,” Chicago-Kent Law Review 82 (2007): 291–328. Zuckert argues that McLean's denial of the constitutional authority of the federal government to make slaves was an implicit denial of the constitutionality of the Missouri Compromise. I do not think this is McLean's claim, but Zuckert raises a strong point: If slavery can be established only by local law—and if Congress makes all “needful rules and regulations” for the territories—then it seems to follow that Congress has no authority to strike a compromise that would maintain a system of slavery in some of the federal territories.

  63. Dred Scott at 549 (McLean, J. dissenting).

  64. Dred Scott at 549 (McLean, J. dissenting). McLean, referring to the U.S. Constitution, Art. 4 § 3: “‘No person held to service or labor in one State, under the laws thereof, escaping into another, shall’ &c.”

  65. The Federalist: A Commentary on the Constitution of the United States, ed. Robert Scigliano (New York: Random House, 2000), 499. Hamilton in Federalist No. 78, speaking of the Federal Judiciary: “The exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing.”

  66. Graber, Dred Scott and the Problem of Constitutional Evil, 62.

  67. Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University Press, 1953), vol. 2, 265–66. Quoted in Arkes, Beyond the Constitution, 43.

  68. Dred Scott at 549 (McLean, J. dissenting).

  69. Arkes, Beyond the Constitution, 43.

  70. Lincoln's speech at Alton in Lincoln-Douglas Debates, 395.

  71. Lincoln's speech at Alton in Lincoln-Douglas Debates, 395.

  72. Lincoln's speech at Alton in Lincoln-Douglas Debates, 394.

  73. Lincoln's speech at Galesburg in Lincoln-Douglas Debates, 309.

  74. Lincoln's speech at Quincy in Lincoln Douglas Debates, 334–35.

  75. Lincoln's speech at Alton in Lincoln-Douglas Debates, 393.

  76. Lincoln's speech at Alton in Lincoln-Douglas Debates, 390.

  77. Lincoln's speech at Springfield in Lincoln-Douglas Debates, 79–80.

  78. Jaffa, Crisis of the House Divided, 313.

  79. Arkes, Beyond the Constitution, 44.

  80. Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration, 2.

  81. Jaffa, Crisis of the House Divided, 11.

  82. See Keith E. Whittington, “The Road Not Taken: Dred Scott, Judicial Authority and Political Questions,” The Journal of Politics 63 (May 2001): 365–91.

  83. J.M. Balkin, “Dred Scott and Kelo,” (August 11, 2005). http://www.balkinization.com. Accessed May 14, 2008.

  84. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (Free Press, 1990), 33.

  85. See Christopher L. Eisgruber, “Dred Again: Originalism's Forgotten Past,” Constitutional Commentary, 10(31) (1993). Eisgruber is sympathetic to arguments based on natural law, and he attributes more natural law legal reasoning to Curtis's opinion than I do. Nonetheless, within a discussion of Joseph Story on natural law and property rights, Eisgruber indicates that the “out-moded language of natural law,” the “rhetoric of natural rights,” and “the Declaration's references to a ‘Creator'” are superfluous and unnecessary to a modern aspirational and justice-seeking constitutionalism (44).

  86. See Sanford Levinson, “Slavery in the Canon of Constitutional Law,” in Slavery and the Law, ed. Paul Finkelman (Madison, WI: Madison House, 1992). “If one wishes to attack Dred Scott, therefore, an obvious question is whether one must go after Taney's originalist modality or, instead, after his specific historical analysis. Many students, for example, endorse Justice's Curtis's dissent, which attacks Taney's history. I ask them if this means they would in fact support Taney if further historical research called Curtis's assertion into question and supported Taney's account instead” (103).

  87. Lincoln's speech at Alton in Lincoln-Douglas Debates, 390.

  88. Harry V. Jaffa, Original Intent and the Framers of the Constitution: A Disputed Question (Washington, DC: Regnery Gateway, 1994), 68.

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I thank Gary Jacobsohn, Hadley Arkes, and the anonymous reviewers at Polity for helpful comments on earlier drafts of this essay.

Dred Scott v. Sandford, 60 U.S. 393 (1857) at 537 (McLean, J., dissenting).

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Dyer, J. Lincolnian Natural Right, Dred Scott, and the Jurisprudence of John McLean. Polity 41, 63–85 (2009). https://doi.org/10.1057/pol.2008.23

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