VanderVelde on the Dred Scott Case in Context

Lea S. VanderVelde, University of Iowa College of Law, has published The Dred Scott Case in Context at 40 Journal of Supreme Court History 263 (2015). Here is the abstract.

This essay concisely summarizes several new discoveries about the Dred Scott case. It argues that only by examining three broader contexts does the case make sense and can its significance be seen. Contextual examination is necessary because the stipulated facts taken at face value make little sense. For example, how could aged slave bring a lawsuit in the first place and sustain it for eleven years against a master who lived in far-away New York? This seeming irrationality has led to speculation about motives which is, in fact, wrong. The case can only be explained by resort to three contexts in which the case is embedded. They are: 1) the national geography of westward migration, 2) local Missouri law, and 3) the parties’ intimate relationships to persons, who were not named in the case. Theoretically, this essay argues that these contexts are useful, if not essential, to understanding most high-profile, high-significance lawsuits, like Dred Scott v. Sanford. The first context highlights the larger role that slaves played in the nation’s expansion. There was a steady stream of slave petitioners who satisfied the criteria for freedom by having lived on free soil (freedom-by-residence) before arriving at the St. Louis courts in a slave state. The second context, local law, demonstrates certain aspects of the Missouri statute authorizing freedom suits. In many circumstances, Missouri law provided petitioning slaves with lawyers and a series of successful suits under that law created local expectations that slaves could sue for freedom and win. These two contexts demonstrate that the Scotts should have won the case easily, under Missouri law in the Missouri courts, until the Missouri Supreme Court changed course. The third context highlights other people who had a stake in the outcome. On the plaintiffs’ side, changing the incentives, were Mrs. Dred Scott (Harriet) and the Scotts’ daughters. Harriet Scott’s status as a mother rendered her more legally relevant to the family’s stability because the daughters’ legal status hinged on the determination of their mother’s status. So recognizing Mrs. Scott and the children’s stake in the case helps explain the litigants’ tenacity. Behind the defendant, John F. A. Sanford was his extended family, the slave-holding Chouteaus, who favored litigating to the end. Recognizing these hidden persons changes the incentives. These persons could exercise influence on whether the case settled.

Download the article from SSRN at the link.

The Dred Scott Decision

David T. Hardy has published Dred Scott, John San(d)Ford, and the Case for Collusion. Here is the abstract.

Dred Scott profoundly changed American history. Intended to protect slavery, its unforeseen consequences were the election of Abraham Lincoln, the political destruction of Stephen Douglas, and the adoption of the 13th, 14th, and 15th Amendments. It was also the Court's first interpretation of freedom of speech and assembly, of the right to arms, and of substantive due process. This article explores the degree to which Dred Scott was collusive -- not in the sense of both sides desiring the same outcome, but in the sense of them manufacturing a false case which each thought they could win. The defendant was John F. A. Sanford, a New York businessman who had no claim to being the Scott family's slaveholder, but who nonetheless stipulated to being such. The real slaveholder was his sister Irene, whom the Scotts initially sued in State court. When the Federal suit was brought, her name was likely omitted, and Sanford substituted, because its known destination was the Supreme Court ... and Irene was now married to Calvin Chaffee, a member of the House of Representatives, and a prominent opponent of slavery. Immediately after the decision was handed down, the Chaffees' role was exposed by the pro-slavery press and a public relations battle ensured, ending with their arranging for the Scott family's manumission. Why the pro-slavery side would have colluded is not hard to understand: given the composition of the Court, they were the likely winners. The motive for Scott's attorneys' collusion is harder to discern. His trial court attorney seems to have thought it worth the gamble because a win would enable sidestepping of the Fugitive Slave Act, a major gain given its almost-complete due process deprivations, while a loss would do limited harm -- the attack on the Missouri Compromise and on Congressional power over slavery in the territories was not an issue at the trial court level. Scott's attorney in the Supreme Court did face that issue, but had never been informed that the defendant had no real standing in the case.

Download the paper from SSRN at the link.