Constitutional History Book Report

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Earl M. Maltz, Dred Scott and the Politics of Slavery. University Press of Kansas, 2007.

Eric Maltz's book Dred Scott and the Politics of Slavery is a standard history of the key issue of slavery in the western territories in the United States from 1785 to 1860, and the treatment of fugitive slaves. It contains no new or startling information on these subjects, which have been thoroughly studied by historians for decades, nor is his central thesis particularly controversial. Slavery in the West was already an issue before the 1787 Constitution and would continue to be in 1820, when the Missouri Compromise resolved the issue in the Louisiana Territory by drawing a dividing line at the southern border of Missouri north of which slavery would be banned. It nearly split the Union after the Mexican War on 1846-48, when the Northern members of Congress supported the Wilmot Proviso banning slavery in any territories acquired from Mexico. Only the Compromise of 1850, which admitted California without slavery and left the matter to 'popular sovereignty' in the other new territories, prevented civil war at that time. When the Kansas-Nebraska Act of 1854 repealed the Missouri compromise and the South moved aggressively to have Kansas admitted as a slave state, both the Democratic Party and the Union itself finally shattered, opening the door to the election of Abraham Lincoln in 1860.

Only in this context would the Dred Scott case have become a matter of vital national importance as no other fugitive slave case had ever been before. Dr. John Emerson, an Army surgeon, had taken Scott to live in Illinois and at other military posts in free territory, and Scott sued for his freedom on the basis of having lived in places where slavery was prohibited.

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In the past, the Missouri courts had freed slaves on these grounds, but not in the polarized climate of the 1850s. When Scott and his supporters took his case to the federal courts, Chief Justice Roger B. Taney and the other Southern slaveholders were determined to resolve the issue of slavery in the territories permanently. They could have simply refused to take the case and let the decisions of the lower courts stand, in which case no one would have remembered Dred Scott at all. Instead, "the Southern justices -- a majority on the Court -- boldly decided to use the case as a vehicle to constitutionalize the position of the slave states on the issue of slavery in the territories" (Maltz 1). Along with two 'doughface' Northern justices sympathetic to the Southern viewpoint, they ruled that Dred Scott was not a citizen, not even a human being, but simply property and therefore Southerners had a constitutional right to take their 'property' anywhere they chose in the Western territories. Maltz is perfectly correct in stating this move was a "colossal judicial failure," and also a political failure in that it provoked widespread outrage in the North, not only among abolitionists but all supporters of the Free Soil/Republican movement (Maltz 2). Ultimately, Taney also failed because the Civil War and the 13th, 14th and 15th Amendments to the Constitution completely overruled his decision and resolved the issues of slavery and black citizenship in ways he would have utterly opposed.

Maltz based this book on a wide variety of primary and secondary sources, including United States Reports for published records of the Dred Scott case and….....

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