The Dred Scott Decision

Author:   Roger B. Taney


In March 1857, the Supreme Court answered a question that Congress had evaded for decades: whether Congress had the power to prohibit slavery in the territories. The case originated in 1846, when a Missouri slave, Dred Scott, sued to gain his freedom. Scott argued that while he had been the slave of an army surgeon he had lived for four years in Illinois, a free state, and Wisconsin, a free territory, and that his residence on free soil had erased his slave status.

All nine justices rendered separate opinions, but Chief Justice Roger B. Taney (1777-1864) delivered the opinion that expressed the position of the court’s majority. His opinion represented a judicial defense of the most extreme proslavery position. The Chief Justice made two sweeping rulings. The first was that Scott had no right to sue in federal court because neither slaves nor free blacks were citizens of the United States. At the time the Constitution was adopted, the Chief Justice wrote, blacks had been “regarded as beings of an inferior order” with “no rights which the white man was bound to respect.” (In fact, some states did recognize free blacks as taxpayers and citizens at the time that the Constitution was adopted).

Second, Taney declared that any law excluding slaves from the territories was a violation of the Fifth Amendment prohibition against the seizure of property without due process of law. The Missouri Compromise was unconstitutional, he announced, because it prohibited slavery in the Louisiana Purchase north of 36º 30′.

The Dred Scott decision was a major political miscalculation. In its ruling, the court sought to solve the slavery controversy once and for all. Instead, the court intensified sectional strife, undercut possible compromise solutions to the issue of slavery’s expansion, and weakened the moral authority of the judiciary.


Mr. Chief Justice Taney delivered the opinion of the Court….

In the opinion of the Court the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people nor intended to be included in the general words used in that memorable instrument….

They 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; and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race….

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country should induce the Court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted….

And upon a full and careful consideration of the subject, the Court is of opinion that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States and not entitled as such to sue in its courts….

We proceed…to inquire whether the facts relied on by the plaintiff entitle him to his freedom….

The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude and not included within the limits of Missouri. And the difficulty which meets us…is whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution….

As there is no express regulation in the Constitution defining the power which the general government may exercise over the person or property of a citizen in a territory thus acquired, the Court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decisions must be governed.

Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a territory…cannot be ruled as mere colonists, dependent upon the will of the general government, and to be governed by any laws it may think proper to impose….

For example, no one, we presume, will contend that Congress can make any law in a territory respecting the establishment of religion…or abridging the freedom of speech or of the press….

These powers, and others…are…denied to the general government; and the rights of private property have been guarded with equal care….

An act of Congress which deprives a citizen of the United States of his liberty or property, without due process of law, merely because he came himself or brought his property into a particular territory of the United States…could hardly be dignified with the name of due process of law.

The powers over person and property of which we speak are not only not granted to Congress but are in express terms denied and they are forbidden to exercise them…. And if Congress itself cannot due this…it could not authorize a territorial government to exercise them….

It seems, however, to be supposed that there is a difference between property in a slave and other property….

Now…the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every state that might desire it, for twenty years. And the government in express terms is pledged to protect it in all future time if the slave escapes from his owner. This is done in plain words–too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection than property of any other description….

Upon these considerations it is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner with the intention of becoming a permanent resident.


Source: Gilder Lehrman Institute