“They can do same thing that Abraham Lincoln did about the Dred Scott decision of 1857,” Mike Huckabee, the former governor of Arkansas, said, speaking of what conservatives might do about Obergefell v. Hodges, the Supreme Court decision in favor of marriage equality. “He simply ignored the ruling and said, ‘That’s not correct.’ ” Huckabee wasn’t alone. Rick Santorum, who, like Huckabee, is running for President, said, “Just as they have in cases from Dred Scott to Plessy, the Court has an imperfect track record.” Penny Nance, the conservative activist,* wrote, “This case is about much more than marriage and will go down in history alongside other appalling Supreme Court rulings, like Dred Scott and Roe.” And Roy Moore, the chief justice of Alabama, said, “In the Dred Scott case the Supreme Court ruled that blacks were property, not citizens of the U.S.... Were they right? Of course not.”
The comparison to marriage equality seems odd and forced, yet Chief Justice John Roberts also made it, in his dissent to the Obergefell decision. And even he wasn’t the first: the alarm about a new Dred Scott has been heard, from activists like Ralph Reed and in the columns of the National Review, at least since the Windsor decision did away with the Defense of Marriage Act, two years ago. What is going on here? What does Dred Scott really have to do with Obergefell?
In part, Dred Scott is simply being used to give Obergefell a bad name—as pure invective, another way to call the decision rotten and the Supreme Court deluded. This is low enough; Dred Scott is a truly degraded decision, in a way that no other of the Court, conservative or liberal, has since matched. And, in part, the analogy reflects the notion, held by some contemporary conservatives, that they are now the “real” victims of bigotry. Roberts disparages the Obergefell decision, but he also does something more subtle. His argument is that both Obergefell and Dred Scott are the results of caring too much about “substantive due process.” Due process is the guarantee, made in the Fifth and Fourteenth Amendments, that a person can’t be deprived “of life, liberty, or property, without due process of law”; “substantive” means that this guarantee is more than formalistic (or “procedural”). In Roberts’s view, Justice Roger Taney’s opinion for the majority in the Scott case and Justice Anthony Kennedy’s in Obergefell are of the same ilk. In the first, the Court found that slave owners couldn’t be deprived of slaves; in the second, it found that gays and lesbians can’t be denied marriage—but both, to Roberts, are cases of due process gone wild.
On his side, Roberts says, are history and the democratic process. “A State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational,” he writes, and adds a note of outrage:
And who do same-sex couples think they are, going to the federal courts, when they should, in Roberts’s view, be politely organizing petition drives for referendums in their respective states? Kennedy’s decision means that they will put aside such projects and, with them, the opportunity to win “true acceptance,” as Roberts puts it, in a phrase of stunning condescension, “just when the winds of change were freshening at their backs.”
This brings him back to Dred Scott. He writes, “Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”
This is, to borrow Noonan’s word, an appalling argument, and not only because the results—Dred Scott constrains liberty and Obergefell expands it—are so disparate. Nor is the problem just that Roberts so crudely misrepresents Kennedy’s argument. Rather, Roberts is most wrong when it comes to which side in the marriage debate has inherited the Dred Scott legacy. Kennedy’s opinion, far from being the poisoned product of the Taney majority, is the honorable heir of the Dred Scott dissents.
The vote in Dred Scott was 7-2, and every Justice wrote an opinion. Only one, a concurrence by Robert Grier, could be called short. The others add up to well more than a hundred thousand words. A couple of the majority opinions make different arguments than Taney's does, but they effectively end up at the same place. The tone is often angry; one of the two dissenters, Benjamin Curtis, resigned from the Court a few months after the decision came down, in March of 1857. (A statue of Taney, however, still stands in front of the Maryland State House.) Reading the opinions, one hears, most of all, the rank expressions of injustice that led to the Civil War. But there are also previews of the constitutional questions raised in the marriage debate. And again and again, the opinions for the majority, the ones that are now regarded as discredited, sound the same notes that opponents of marriage equality do today.
One of the strange things about Roberts’s parallel is that it ignores the identity of the plaintiff, Dred Scott himself. He had been purchased by a Dr. John Emerson, in Missouri. Emerson, who was an Army surgeon, brought Scott to Fort Snelling, in what was then part of the Wisconsin territory (now Minnesota) and a place where slavery was forbidden as part of the Missouri Compromise. After a period of a few years, Emerson took him back to Missouri. After Emerson died, Scott sued, arguing that Emerson had effectively emancipated him when he took him into free territory. (There was a body of law saying that this could be the case if a master voluntarily brought a slave to a free state.) After losing in state court, Scott brought it to federal court, on the grounds that he and his putative owner were citizens of separate states. He also sought freedom for his wife, Harriet—whom he had met at Fort Snelling and married after her owner had transferred her to Emerson—and of his two daughters. The elder child, Eliza, had been born on a steamboat named Gipsey as it sailed on the Mississippi, in waters that were free. Lizzie was born after Emerson “removed” her parents back to Missouri—that is, after they believed they ought to have been free. As the historian Lea VanderVelde has noted, Dred Scott only sued after Emerson’s widow, Irene, refused to let him buy his family from her for three hundred dollars. Likely, she thought that the two little girls would be worth more on the market.
Justice Taney’s first finding in Dred Scott was that Scott had no right to sue in federal court because, although he was born in the United States, he was not a citizen. This was not because he was a slave—Scott said that he wasn’t one, after all—but because he was a black man in America, whose ancestors were “of pure African blood” and had arrived in America as slaves. This is part of what makes the Dred Scott case so shocking: it is about race as much as it is about the legal institution of slavery. According to Taney’s ruling, a black man born free in Brooklyn was not a United States citizen, even if New York said that he was a citizen of that state. (Taney offered some pained digressions about “mulattoes.”) This hardly seems like an excessively strong due-process ruling; really, it is a pathetically weak one. To read it otherwise is to write out Scott and his family as surely as Taney did. The case only appears to turn on the deprivation of the slave-owner’s property if one ignores the deprivation of Scott’s right to not be property.
Why shouldn’t Scott have been a citizen? Because of history and the democratic process, Taney claimed; because of what the word citizen meant to the founders, and because of their views of black people, who, he wrote, “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” He added that the fact that they could be bought and sold was “regarded as an axiom in morals as well as in politics.” Taney was shameless enough to quote the Declaration of Independence’s words about all men being created equal, and then to write that they would “seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included.” His judicial hands, therefore, were modestly tied. No “change in public opinion” about the races “should induce the court to give to the words of the Constitution a more liberal construction.”
Who, Taney asked, do we think we are, to question what the Founders—men “high in literary acquirements, high in their sense of honor”—intended? “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power.” And so the Court left slavery up to the states; the federal government’s only role was “protecting the rights of the owner.”
It was only at this point that Taney and others in the majority became fixated with the question of whether a slave owner should lose his “property” if he decided to settle out West. This led to the second part of the decision: stamping as unconstitutional the section of the Missouri Compromise that kept slavery out of the territory north of Missouri—including Fort Snelling. As Taney saw it, the compromise would have foreshortened the “democratic” processes by which states carved out of that territory should be able to decide if they wanted to keep slaves. In a practical sense, such processes had already done their work: three years earlier, the Kansas-Nebraska Act had invalidated those sections of the Compromise, by saying that the “popular sovereignty” of white men should decide the slavery question in those territories.
In the Fourteenth Amendment, which was added after the Civil War, the due-process clause is followed, in the same sentence, by the equal-protection clause, which says that a state cannot “deny to any person within its jurisdiction the equal protection of the laws.” The Roberts Court was considering Obergefell as a Fourteenth Amendment case. Kennedy, after arguing, based on a long series of Court precedents, that marriage is a fundamental right, relies on both clauses. He writes that they inform each other, a line of reasoning that Roberts refuses to deal with by saying that it is “quite frankly, difficult to follow.” It is not. The Fourteenth Amendment, with its joining of these concerns, was consciously framed as a riposte to Dred Scott; and this is Obergefell’s lineage. But there are even more ways in which, after reading the Dred Scott opinions, that one can see that Roberts got it backward.
Every Court has its Antonin Scalia. In 1857, it was Peter Daniel, of Virginia. He was the one who went on about how giving a black person citizenship would degrade the institution. But he was no better at explaining this contention than are those who have maintained that marriage equality is an insult to heterosexual unions. He wrote, “It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property.” Daniel’s decision is worth reading only if one thought that a Justice couldn’t be worse than Taney (or Scalia), and maybe for the long block quotes from Gibbon’s “The History of the Decline and Fall of the Roman Empire.”
Roberts called Kennedy’s rhetoric “glossy”; both he and Scalia mocked his talk of the plaintiffs’ eternal love as lofty. But why shouldn’t it be? Romance has its place. After reading all seven majority opinions in Dred Scott, it is a balm to come across two sentences in John McLean’s dissent that read like a plea: “A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man, and he is destined to an endless existence.”
McLean acknowledged both the sorry racial views of the Founders’ time and the allowance for slavery in the Constitution, but he suggested that the language used could have a better meaning in a freer era. Madison, he noted, was careful to keep out of the Constitution words that “convey the idea that there could be property in man.” (Indeed, the Constitution never refers to a “slave” but to a “person held to service or labor.”) There was always more of a debate about slavery, and a consciousness of wrong, than Taney let on. The Constitution has, built into it, a hope for change.
As McLean put it, “I prefer the lights of Madison, Hamilton, and Jay as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground.” He added, “If we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right.”
McLean was born in 1785; he turned seventy-two a few days after the Dred Scott decision was issued. The other dissenter, Curtis, was, at forty-seven, one of the youngest members of the Court. He, too, argued that the Founders intended for their conception of freedom to unfold further:
This is the living Constitution of the liberals on today’s Court, not the entrenched document of the marriage dissenters. Curtis also called Taney on his view of the past, which was simplistic to the point of being an ahistorical lie. Free-born black New Yorkers had, since the founding, at least been citizens of their state, for example; the Taney majority, by saying that this did not make them American citizens, recognized them as having only what Ruth Bader Ginsburg might call skim-milk citizenship.
The circumstances of slavery are more extreme than anything we’ve faced in this century. Dred Scott, though, is a reminder of why Justices can’t always sit happily ensconced in original intent and wait for every state to come around. The decision, where it mattered most, was not judicial overreach; it was judicial underreach. It cut off the possibility that, through mechanisms like lawsuits brought by a middle-aged black man living out West, American slavery might be checked as the country grew, or at least have its character changed—that we were on the road to freedom. It was a decision that attempted to make the status quo of chattel slavery untouchable and beyond debate. (It failed: outrage over the decision in the North helped get Lincoln elected.) And yet Roberts cites Dred Scott as a hard lesson in “the need for restraint,” one that he believes Kennedy dangerously ignores as he “exalts the role of the judiciary in delivering social change.” But Dred Scott didn’t deliver social change; would that it had.
Reading the Dred Scott dissents also provides reminders both of the ways in which marriage has changed and what it means to say that it is a fundamental right. For example, Harriet Scott was, in some ways, in a different legal position than her husband—she was “sold and delivered” to Emerson in what ought to have been free territory—but under the principle of coverture, by which a wife’s interests were subsumed in her husband’s, her case was folded into his, and his became the guiding one. That they had, while at Fort Snelling, contracted a legal marriage was in itself unusual—slaves were generally not allowed to marry—and it inspires some of the strongest passages in Curtis’s dissent. Their wedding was performed with Emerson’s permission and, Curtis wrote, this was a material fact in deciding Scott’s “status”: “there can be no more effectual abandonment of the legal rights of a master over his slave than by the consent of the master that the slave should enter into a contract of marriage in a free State, attended by all the civil rights and obligations which belong to that condition.” Marriage made Scott free, and from that state there was no going back:
Curtis asked, “Does any law of the State of Missouri impair the obligation of that contract of marriage, destroy his rights as a husband, bastardize the issue of the marriage, and reduce them to a state of slavery?”
One hears an echo of this question when Kennedy writes about the plaintiff James Obergefell, who married John Arthur, in Maryland, and then, when Arthur died, in Ohio, had his widowhood denied by that state. (In Obergefell, the Court was actually considering two questions: first, whether there was a fifty-state marriage right, and, second, whether states had to recognize out-of-state marriages.) One hears it, too, when Kennedy writes of how laws banning same-sex marriage “harm and humiliate” children who “suffer the stigma of knowing their families are somehow lesser.” They are not, thankfully, harmed in the same way that Eliza and Lizzie Scott were. Being unable to give a legal meaning to the relations between family members was one of the central traumas of the slave experience. It is why Roberts’s assertion that the Court’s precedents on a right to privacy have nothing to do with access to marriage—“because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits”—is so hollow. There are material benefits to marriage, and marriage equality secures them, but a wedding isn’t crucial just because people can show off and get stuff; marriage is part of people being secure in their families and homes and having a recognized private space. It is, as Curtis put it, a status and a condition. Slavery is a battle we’ve won, and the fights that are left are hopefully lesser ones. But that defining victory can still instruct us, among other things, about the link between marriage and liberty.
Perhaps the best response to the attempts to besmirch Obergefell by associating it with Dred Scott comes in the form of a question. We all agree that the Taney majority decision is something to be ashamed of. So what would a Dred Scott decision we could be proud of look like? It might go even further than McLean and Curtis did. It would refuse to be constrained by the prejudices of the past in reading the Constitution’s promises. It would worry about the dignity of Eliza and Lizzie, and recognize that their father, in his suit, deserved due process, even if the law had previously excluded him. It might even be lofty and immodest. It would be concerned with the ideal of full citizenship and with the ways this country still falls short of it. It might look a lot like Kennedy’s decision.
*Nance was misidentified in an earlier version of this sentence.
