Steve Dillard asked me for my thoughts on his post regarding Bush’s comments about Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). No, it’s not particularly impressive that Bush would refer to this—all it requires is to read Bork’s book, which is very readable, or to be told it by a Borkian lawyer, and we know they surround Bush. So, no, the reference isn’t impressive.
More importantly, is Bork right about Dred Scott? Bork says that a constitutional right to “slave ownership…is nowhere to be found in the Constitution,” but that Taney “was passionately convinced that it must be a constitutional right,” and therefore “transform[ed]…the due process clause from a procedural to a substantive requirement” in order to protect slavery as a constitutional right. This, says Bork, “was the first appearance in American constitutional law of the concept of ‘substantive due process….’”
Almost none of this is true, however. First of all, recognition of slave property is found in several places in the Constitution. It refers to the “importation” of slaves, for instance; it apportions representation on the basis of the “federal ratio”; it includes a fugitive slave clause; and it holds that the government may not deprive any person of property without due process of law. As Harry Jaffa has put it, “[t]he recognition of the right of slave ownership is massively present within the Constitution of 1787.” Jaffa v. Bork: An Exchange, National Review, Mar. 21, 1994 at 56 (1994 WL 13456356). The content of the “property” protected by the Fifth Amendment was set, then as now, by the “background principles” of state law, just as American citizenship derived from citizenship in a state.
Secondly, it is not true that Dred Scott is the “first appearance” of “substantive due process” in American law, as this list of sources makes clear. The term “due process,” the founding generation understood, was derived from the “law of the land” clause of the Magna Carta. To them, it made no sense to say that a law could deprive a person of life, liberty or property by its mere enactment. Rather, a person must have done some wrong, and must have an opportunity at a hearing, before such a deprivation occurred. If a person could be constitutionally deprived of a right by the mere enactment of a law, then the will of the lawmaker would be the sole criterion of the lawfuless of a law—which made no sense to the founding generation (although of course, it is a principle to which Bork does subscribe). (The best brief description of the concept of substantive due process is in Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655 (1874), as I explained here.)
The question in Dred Scott, as Taney explained was “simply this: Can a negro…become a member of the political community formed and brought into existence by the Constitution of the United States[?]” Dred Scott, 60 U.S. (19 How.) at 403. He explained that the Declaration and the Constitution did not make slaves into citizens; it is at this point that he makes his awful statement about blacks having no rights that whites are bound to respect, and where he refers to “two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed,” id. at 411, neither clause being the due process clause as Bork would have it. After a very long explanation, Taney concludes that blacks are not federal citizens, but rather that
The only two provisions [of the Federal Constitution] which point to them and include them, treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Government of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require.
Id. at 425-26. This, of course, is important, because it leads up to Taney’s big finish: that Congress had no authority to ban slavery in federal territory. He goes through a tortured argument to the effect that Congress lacks this power despite Article IV section 3, which gives it all power to regulate federal territory. Here is the real kernel of the opinion, but it is too long and complicated to discuss here. In the end, what Taney concludes it that Congress
has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, [i.e., natural law] can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.
Now, as we have already said in an earlier part of this opinion, upon a different point, 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 guarantied 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 [except by Robert Bork, apparently]. 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 that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.
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.
Id. at 451-52. In other words, Congress lacks any authority to prohibit slavery in the federal territories, because it’s not enumerated. Taney says this because he’s engaged in ludicrous illogic to erase that authority from the Constitution where it clearly exists, but he’s now concluded that Congress doesn’t have that authority. Now, if it really did lack that authority, then for it to deprive a person of property in an attempt to exercise authority it doesn’t have is a violation of the Fifth Amendment. It is only here that due process comes in; as Taney puts it, “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.” Id. at 450.
In other words, the reason Dred Scott is wrong is because 1) blacks were citizens under a correct reading of the Constitution, as Lysander Spooner, Frederick Douglass, and others explained; 2) even if they were not, Congress has plenary authority to make the laws for federal territories. But Taney denies both of these arguments at length, then determines that Congress lacks authority to regulate in the federal territories, and then concludes that for it to deprive a slaveowner of his property merely for traveling from one place to another, without committing any wrong, would violate the due process clause—which, I hasten to add, is a procedural due process argument, not a “substantive due process argument.” (That is, he’s saying that Scott’s owner can’t be deprived of property without a hearing) What Taney is not saying is that the Due Process Clause itself bars Congress from enacting this legislation, in the face of a clear grant of power to Congress. What he is saying is that Congress has no enumerated power to bar slavery’s spread. That is not true. But assume for a second that it were true—then Taney’s conclusion vis-à-vis due process would be correct. Consider, for example: Congress has no authority to regulate the color of carpet in my house. (Well, putting aside the commerce clause!) If Congress were to say “Any person who has brown carpet hereby forfeits his car,” then Congress would be depriving me of property for something it has no authority to do in the first place. There are many grounds on which I would base my lawsuit, but one of them would surely be that this deprives me of property without due process of law.
As you can see, Dred Scott is an enormously complicated case. For Bork to characterize it as just Taney writing whatever he wants is, at the very, very best, misleading. Giving Bork the benefit of the doubt, his description of the case contributes nothing to our understanding of the most important Supreme Court decision of all time. It makes us see the case out of context, it ignores the most important elements of the case—so that if you read only Bork’s description of it, you’d be at a loss to understand Lincoln’s and Douglass’ arguments against it. But, as I’ve mentioned, I don’t give Bork the benefit of the doubt. His characterization of Dred Scott is not only confusing and misleading, but flatly wrong. The case was not the first use of substantive due process, it was not even primarily a due process case, and even there, it was procedural, not substantive. Say what you will about Taney and his biases, his argument was not simply his own predilections, but had some complicated, though entirely wrong, legal theorizing behind it, and the Constitution did recognize property in slaves.
Taney’s assertion that the Constitution expressly affirms the right to slave property, and by this reason enjoins a duty to protect slave property, rests mainly on a construction of Section 2, Article IV, and does not depend upon the Fifth Amendment at all. And this assertion, combined with the supremacy clause, certainly does yield, as a logical necessity, the conclusion that no state may destroy the right of property in a slave.