Dred Scott question

[Paul Finkelman]

Earl may be right, but only if we assume there is no "federal question" issue.
There are two ways to read Strader; first that it simply said the forum state
decides the status of all people, period. In that case Mo. decided Scott was slave
and that ends it; alterantively Strader could mean that since the states area
"equal" the law of one state (except under Full Faith and Credit) cannot dictate
the law of another state.  In that interpretation, Ky (in Strader) did not have to
recognize Indiana law.  But, under this reading it is arguable that Mo. has to
recognize federal law and under the Supremacy Clause,  Missouri can't  overrule
federal law.  Thus, if Scott is free under federal law, (Mo. Compromise and
residence in Fed territory) then the Supremacy Clause forces Missouri to recognize
that freedom.  To avoid this problem, Taney find Mo. Compromise unconstitutional
and then no supremacy issue arises.

Paul Finkelman

earl maltz wrote:

> One must always hesitate before disagreeing with Paul about any issue
> relating to the law of slavery.  However, I don't believe that the Court
> had to address the issue of the constitutionality of the Missouri
> Compromise if the Supreme Court had jurisdiction over the case.  Taney and
> the other members of the majority could simply have followed the Strader v.
> Graham argument and held that they were bound by the interpretation of
> Missouri law by the Missouri Supreme Court.  Indeed, this is the position
> taken by Justice Nelson in his concurrence.  By contrast, McLean and Curtis
> argued that, because the Missouri Supreme Court had departed from its own
> preferences, the Supreme Court was free to put its own gloss on Missouri law.
>
> At 12:08 AM 1/10/01 -0600, you wrote:
> >Scott sued in St. Louis Circuit court, a trial court, lost on a technicality,
> >was given a right to a new trial by the State Supreme Court, and then won his
> >case.  A jury declared him free.
> >
> >Mrs. Emerson then appealed to the Mo. Sup. Ct. which reversed, in _Scott v.
> >Emerson_ (1852) with the famous line of Justice Scott (no relation to the
> >plaintiff), declaring "times are not now as  they were when the former
> >decisions on this subject were made.  Since then not only individuals but
> >States have been possessed of a dark and fell spirit in relation to
> >slavery...."
> >
> >The federal issue is this, as I understand it. Scott had two claims to
> >freedom, one based on residence in Illinois.  Under Strader v. Graham (1850)
> >the US Supreme Court held that a slave state did not have to recognize
> freedom
> >gained by living in a free state.  Thus, on the question of Ill. residence
> >Missouri was entitled to reject its own precedents and declare Scott to still
> >be a slave.   The theory here, I suppose, is that common the law of one state
> >(absent a judicial decree) have no power in another except by comity and that
> >Missouri was not obligated to respect Illinois common or even statutory law.
> >[Had Scott won his freedom in an Illinois court and then returned to Missouri
> >and been reenslaved in Missouri presumably Full Faith and Credit would have
> >barred Missouri from denying his free status).
> >
> >The Second issue was the Missouri Compromise.  Today this would be a simple
> >issue of a "federal question."  *If* the Missouri Compromise freed all slaves
> >brought into what became Minnesota and Iowa, then did the Missouri Supreme
> >Court was in error in interpreting the  federal law because Scott was free
> >under federal law.  The Missouri Court had the right to declare a federal law
> >unconstitutional, but of course the Supreme Court had the right to reverse
> >that.  In fact, this is what happened a year later, in _Ableman v. Booth_
> when
> >the Wisconsin Supreme Court declared the Fug. Slave Law of 1850
> >unconstitutional and the US Supreme Court reversed.  Thus, it would seem that
> >the Taney court _had_ to decide the Missouri compromise question _if_ the
> >Supreme Court had jurisdiction.
> >
> >As I understand things (and here I hope someone who knows federal question
> >doctrine better than I will respond), there was no general federal question
> >jurisdiction at this time, and so Scott had to bring his case in diversity.
> >This allowed Taney to rule that he had no standing, and that should have
> ended
> >the case without getting to the Missouri Compromise issue.  Another test
> case,
> >perhaps one between two whites over the sale of a slave, would have
> eventually
> >brought the Mo. Comp. question back to the Court.  Taney decided to end the
> >issue all at once, miscalculated, and the whole thing blew up in his face.
> >
> >--
> >Paul Finkelman
> >Chapman Distinguished Professor
> >University of Tulsa College of Law
> >3120 East Fourth Place
> >Tulsa, OK  74104
> >
> >918-631-3706
> >Fax 918-631-2194
> >
> >E-mail:  paul-finkelman at utulsa.edu
> >
> >
> >
> >Stephen Siegel wrote:
> >
> >> Please correct me if I'm wrong, but I have the following
> >> recollection which I'm not able to immediately check out.  I seem to
> >> recall that Dred Scott first sued for his freedom in the Missouri state
> >> courts.  Under the precedent that Paul mentioned, he should have expected
> >> to win because he had been in free territory and, therefore, was
> >> freed.  However, perhaps reflecting the increasing tensions of the time,
> >> when Dred Scott reached the state Supreme Court, the state Supreme Court,
> >> in a reversal of the prior precedent, held that if a slave had traveled to
> >> a free state he or she was free should that (now former) slave return to
> >> Missouri (a slave state) he or she would be re-enslaved.  If this is true,
> >> then in the federal Dred Scott case, wouldn't the question of whether Dred
> >> Scott had been freed be irrelevant unless there was some federal
> >> constitutional problem with his re-enslavement?
> >>
> >> Taney, of course, never had to reach any issue dealing with Dred Scott's
> >> re-enslavement because he held that even if Dred Scott were free, free
> >> blacks were not citizens and, therefore, Dred Scott could not sue in
> >> federal court under diversity of citizenship.
> >>
> >> I dimly recall that this was the posture of the case, but certainly stand
> >> ready to be corrected.
> >>
> >> Stephen Siegel
> >> DePaul University College of Law
> >

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu