Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 32

Taney’s views on new territory are an uncomfortable sibling of United States v. Sutherland, 60 U.S. 19 How. 363 363 (1856) written by Justice Greer and joined by Taney just a few weeks before Scott. Sutherland recognized huge land grants made by Spanish and Mexican authorities before the ceding of California territory to the United States. Several of these grants, including the El Cahon estate, lacked a survey, and the land was laid off only on a crude map. Estimates put the El Cahon acreage well over 44,000 acres. SCOTUS concluded that the US government had to recognize these princedoms or monopolies through terms of the transfer treaty. The United States received the California territory in September 1846 and issued judicial title to the grants made by the governor of California in 1845. These worthless rancho grants had become quite valuable by 1850 when California entered the Union as the 31st state. The 1849 gold rush converted sparsely settled territories into statehood eligibility in a single year. Congress admitted California as free under the Compromise of 1850. SCOTUS felt that the peace treaty with Mexico left it no discretion in recognizing these huge property concentrations, even though the United States accepted government control over the land from a 26-day revolutionary government and then ruled it by military governors from 1847 to statehood. Congress never granted territorial status to California.

Taney cited the 5th Amendment guarantee against deprivation of life, liberty, or property without due process of the law as protection for slave owners to take such property into the territories. The law similarly prohibited the taking of property without due compensation. The Constitution recognizes the differences between master and slave, so slaves are property despite protests to the contrary. The Fugitive Slave Act of 1850 also legitimized the distinction and obligated others to protect the owner in his rights. The Missouri Compromise forbidding slavery in territories above the 36th 30' parallel was unwarranted by the Constitution, was unconstitutional, and was void. Dred Scott and his family were not free and could not be free. The fact that his owner took Scott into the free state of Illinois and then returned to the slave state of Missouri puts Scott’s status at the mercy of Missouri state law, not Illinois. Scott remained a slave.

Taney criticized the federal circuit court for taking the Scott case. He also suggested that Scott attempted to evade the law when the Missouri high court sent his case back to the lower court by filing the federal suit. Scott then took what he considered an unacceptable outcome by filing the writ of error from the circuit court to SCOTUS. The court will not sanction such an attempt to evade the law. Taney finished his troubled analysis by concluding that Scott and family were not citizens of Missouri in the US Constitutional sense; Missouri law rules that a slave leaving with its owner, residing with its owner in a free state, and returning to Missouri is not an entitlement to freedom. The circuit court had no jurisdiction and should not have issued a decision. Taney ordered the judgment reversed and the case dismissed.

There is an obvious problem left by this decision. Taney made it clear that no member of the black race could become a citizen of the United States. The decision worsened the problem of freedom. Taney argued that Missouri law determines that Scott is still a slave. What if the master/ slave’s sojourn into a free state becomes permanent? The way Taney constructed the problem makes Missouri law extend beyond the boundaries when another state does not recognize its property. Denying national citizenship does not determine the slave’s property status. Is a slave, leaving with its master from a slave state into a free state, a subset of runaway slaves that the free state must return, or is the master-slave relation dissolved by taking permanent residence in a free state? What determines permanency? Does Missouri law extend beyond its boundaries by virtue of the runaway slave clause, or are the issues of property and permanency determined by the free state? National citizenship and national property are quite different matters. Is the master/slave relation an enforceable contract? Does this limit the range of contracts made in one state while expanding the range in another? What if one state does not recognize implicit terms of a contract made in another state or even openly rejects them? Does moving a slave effectively negate legislation proclaiming free state status? Taney would tread on turgid waters here, because a decision permanently continuing the master/slave relation beyond state boundaries effectively nationalizes the master/slave relation by allowing one state’s law to operate permanently beyond its borders. Alternately, does a free state’s dissolving the master/slave relation survive beyond its borders, putting aside the runaway question for now?