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chapter nine Looking Westward Concurrent Sovereignty and the Answer to the Territorial Question “ if disunion takes place,” Massachusetts jurist Joel Parker wrote in 1861, “it will be occasioned . . . by this unhallowed interference . . . with the great political question of the day.” Parker referred to the court’s intervention into the territorial issue and its ruling that Congress possessed no authority to limit slavery’s expansion into the western territories . Critics immediately denounced the ruling as an illegitimate use of judicial power. “We have no longer a Constitution,” insisted Justice Benjamin Robbins Curtis in his dissent, “we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Curtis initiated a tradition of criticism that the court had taken on a political issue that it was not equipped to address. “Political reasons have not the requisite certainty to afford rules of juridical interpretation,” he wrote. “They are different in different men. They are different in the same men at different times.” Former senator Thomas Hart Benton of Missouri made a similar point: “These decisions being political, are dependent upon moral considerations for their effect. They cannot be enforced. . . . Influence—not authority—is the only power the Court can wield.” In their effort to further a prosouthern partisan agenda, the majority had overstepped its bounds, meddled in a matter that was not part of the court’s official business, and made the sectional crisis even worse. Parker bluntly stated the position: “Evil was the hour; . . . when six judges of the supreme court . . . united in a sheer usurpation of the powers of Congress.”1 The Taney Court’s critics had a point—its territorial ruling had an obviously partisan dimension—but the focus of their critiques, which were not free of partisanship themselves, obscured the extent to which the court, 178 looking westward 179 1 [179 through Chief Justice Roger B. Taney, may have been using Dred Scott to integrate the territories more securely within the constitutional system. Taney’s opinion approached slavery in the territories in precisely the same manner the court had handled slavery in the states: it forced the issue into the local courts. As he did in Strader, Taney emphasized the U.S. character as a union of concurrent sovereigns, and he sought to integrate the territories into this framework. His strategy also allowed the court to declare unconstitutional the antislavery restriction in the Missouri Compromise. Yet Taney’s maneuvers were not political in any simplistic sense; he in fact rejected all available partisan arguments on the territorial question. He also set aside the court’s ambiguous case law and drew on his perception of constitutional language and history to develop a novel and controversial approach to the territorial question. His ruling barred any congressional prohibition of slavery in the territories but did so in a manner that would require a complete rethinking of territorial policy. Taney sought not only to break congressional deadlock by forcing legislators to formulate prosouthern policy but also to break with nearly sixty years of territorial governance. His radical approach disturbed Justice John Catron, a member of the majority , and brought strong protests from the two dissenters, John McLean and Curtis, who merely confirmed Congress’s possession of an authority that it had proven itself incapable of exercising effectively since the 1840s. Despite its unsavory character, Taney’s opinion for the court at least attempted to place the territories on a sound legal footing. And given the parameters of Supreme Court jurisprudence, he put forth a plausible argument. Much criticism directed at Taney’s opinion concerned the propriety of handling the territorial question at all. “Such an exertion of judicial power,” Curtis wrote in his dissent, “transcends . . . the authority of the court.” When it ruled that Scott lacked citizenship, the court likewise ruled that it had no jurisdiction, and it should have dismissed the suit at that point. Instead , it proceeded to discuss “a great question of constitutional law, deeply affecting the peace and welfare of the country.” Taney’s entire discussion was improper and therefore not binding. Curtis’s argument quickly became a central feature in the criticism of Dred Scott. Discussions of the case before the 1970s, in fact, generally refrained from substantive analysis and offered instead complex accounts concerning which issues were before the court and the related quandary over what the court really decided. As David Potter has demonstrated, this...

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