Republican Reactions

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The next day, Justices McLean and Curtis read their dissenting opinions, both of which ruled in favor of Scott. They immediately released the text of their decisions for publication in print, but Taney withheld his for revising until late May; the only record the public had of the majority opinion was a short Associated Press article. This gave the Republicans a decided advantage over the Democrats in the "war of words," because the Republicans had the full text of the two pro-Scott dissents, while the Democrats had to rely on simply a paragraph not even written by one of the Court's justices. [18] The "Republican assault" began as early as March 7, the day after Taney read the majority opinion, when the New York Tribune pronounced that "The decision, we need hardly say, is entitled to just as much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room." The Chicago Tribune added on March 12:

We must confess we are shocked at the violence and servility of the Judicial Revolution caused by the decision of the Supreme Court of the United States. We scarcely know how to express our detestation of its inhuman dicta or fathom the wicked consequences which may flow from it . . . . To say or suppose, that a Free People can respect or will obey a decision so fraught with disastrous consequences to the People and their Liberties, is to dream of impossibilities. [19]

Democratic newspapers were as quick to defend the decision as Republicans were to assault it. On March 12, the (Washington DC) Daily Union urged the country to respect the decision and unite under it:

We cherish a most ardent and confident expectation that this decision will meet a proper reception from the great mass of our intelligent countrymen; that it will be regarded with soberness and not with passion; and that it will thereby exert a mighty influence in diffusing sound opinions and restoring harmony and fraternal concord throughout the country . . . . It would be fortunate, indeed, if the opinion of that court on this important subject could receive the candid and respectful acquiescence which it merits.

The Cincinnati Daily Enquirer of March 8 was not as optimistic about how the antislavery public would receive the decision:

While thus anticipating a general acquiescence in the decision of the Supreme Court, it would be too much to expect that it will escape attack and censure from disappointed and embittered partisans, whose political capital and hope of office will wither before it. [20]

The withholding of Taney's decision created two major other problems. First, it created a schism between Taney and Justice Curtis, one of the dissenters. Curtis had the misfortune of being one of the youngest members of the Court, as well as a native of Massachusetts, a state Taney detested because it epitomized Northern hypocrisy over the issue of slavery. Curtis further angered Taney by requesting to see his majority decision as soon as he released it. Curtis wanted to see the text of Taney's majority opinion because many parts of his dissent tied into it. During the spring and the summer of 1857, Curtis and Taney exchanged angry letters, and by September Curtis found the situation so uncomfortable that he handed in his resignation from the Court. [21] The second problem that the withholding of Taney's decision produced was that when he released it, he had obviously added parts that were direct replies to the dissents of McLean and Curtis. Curtis estimated that Taney had appended "upwards of eighteen pages" since he had read the decision in court and added that "No one can read them without perceiving that they are in reply to my opinion." [22] Relationships between Northerners and Southerners were already tense, but the withholding of Taney's opinion served to further polarize the two sides.

Many northerners felt that parts of Taney's decision, specifically the invalidation of the Missouri Compromise on constitutional grounds, were extrajudicial because they were not necessary for arriving at a decision in the case. They charged that after Taney had shown that Scott, as a Negro, had no right to bring a case into a federal court, he should have ended his decision, instead of going on to declare that the Missouri Compromise was unconstitutional. Taney defended his decision by saying that the Supreme Court had the right to correct all the errors committed during the Circuit Court trial, including the constitutionality of the Missouri Compromise and the question of Negro citizenship:

It has been said, that as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement [which decided whether or not the Court would consider the question of Scott's citizenship], it has no right to examine any question presented by the exception; and that anything it may say upon that part of the case will be extra-judicial, and mere obiter dicta.

This is a manifest mistake; there can be not doubt as to the jurisdiction of this court to revise the judgment of the Circuit Court, and to reverse it for any error apparent on the record, whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this, too, whether there is a plea in abatement or not. [23]

This explanation was not satisfactory for many northerners, who became angry because Taney, by extending his opinion to include issues that did not have much of a bearing on the case, had unjustly set new precedents. Southerners, of course, stood firmly by the decision of the Court, refusing to concede that any part of Taney's decision had been extrajudicial. This disagreement led to further division between North and South.

The decision placed the anti-slavery Republicans in a very difficult situation. They had the choice of either agreeing to honor the decision, implying an acceptance of slavery, or refusing to respect it, which would go against the Constitution's definition of Supreme Court's decisions as the "law of the land." Not surprisingly, Republicans found ways to discount the opinion without disrespecting it outright, usually by reasoning that the declaration of the unconstitutionality of the Missouri Compromise was not law. One of their main arguments was that after Taney, speaking for the Court's majority, had decided that Scott was not a citizen and therefore did not have the right to be in a federal court, anything else he said was obiter dictum and therefore not law. Although this conceded the Democrats a small victory in upholding the non-citizenship of Negroes, this argument threw out the Court's ruling that the Missouri Compromise was unconstitutional, a major victory for the Republicans. One writer of the time declared that "the members of the most ultra school of that [Republican] party . . . admit, that the question of the citizenship of persons of African descent was the only question authoritatively decided, in the case of Scott." [24] Following a similar line of reasoning, Republicans also argued that a judicial majority had not decided on the unconstitutionality of the Missouri Compromise and that therefore it was not law. George Curtis, one of Scott's attorneys, argued that

. . . it appears that six of the nine judges expressed the opinion that the [Missouri] Compromise Act was unconstitutional. But, in order to determine whether this concurrence of six in that opinion constitutes a judicial decision or precedent, it is necessary to see how the majority is formed . . . . If . . . the judicial function of each judge who held that the Circuit Court was without jurisdiction [because Scott, as a Negro, was could not be a citizen of the United States] . . . was discharged as soon as he had announced that conclusion, and given his voice for a dismissal of the case on that grounds, then all that he said on the question involved in the merits was extrajudicial, and the so-called "decision" is no precedent. [25]

Republicans also attempted to portray the decision as a proslavery conspiracy, one that included members of the Supreme Court. J.T. Brooke noted in his analysis of the case that "it has been repeatedly alleged that the Dred Scott decision was a `got-up case,' contrived by interested politicians to secure a judicial decision of a political question." [26] Many Republicans noticed a brief intercourse at Buchanan's inauguration between the President and the Chief Justice, who administered the oath of office, and took that as a sign of a conspiracy between the executive and judicial branches. Senator William H. Seward, a New York Republican, noted in a widely distributed speech that Scott "had played the hand of a dummy in this interesting political game." [27] Senator William Pitt Fessenden, a Republican from Maine, declared that

. . . what I consider this original scheme to have been, was to assert popular sovereignty in the first place with a view of rendering the repeal of the Missouri compromise in some way palatable; then to deny it and avow the establishment of slavery; then to legalize this by a decision of the Supreme Court of the United States, and claim that it had become established. I sincerely believe that decision of the Supreme Court of the United States was a part of the programme. [28]

Some more radical Republicans simply invalidated the entire decision. One writer went so far as to say after the case had been decided that the question of Negro citizenship "never has been judicially decided by any court of competent jurisdiction." Statements such as this, however, generally "surprise[d] even Republicans." [29]

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