Lincoln’s Dred Scott: Contesting the Declaration of Independence

This paper will consider only a few aspects of Lincoln’s response to the case of Dred Scott v. Sandford (1857). It will not provide an account of the history of the case, or a reading of either Justice Taney’s majority opinion, or the dissenting opinions by Justices McLean and Curtis.¹ It also will not discuss Lincoln’s use of the decision to advance the general slave power conspiracy thesis—the claim that slaveholders, in defense of slavery, must seek to dominate every polity of which they are a part, and to that extent must subvert democracy. Nor will it consider the special slave power conspiracy thesis Lincoln advanced in the 1858 “House Divided” speech, the claim that Stephen Douglas, along with Chief Justice Taney and Presidents Pierce and Buchanan, had been maturing a scheme to generate a “second Dred Scott decision” that would prohibit even the states from abolishing slavery since before Douglas authored the Kansas-Nebraska Act in 1854.² Nor will it consider Douglas’s own interesting attempt to subvert the decision through the Freeport Doctrine. This paper will consider only the way Lincoln’s attempts to oppose and transform that decision raise some of the deepest questions about the role of underlying principles in politics and law.

The central political problem Lincoln had to face in confronting the Dred Scott decision was that it ruled that the key plank of his party’s platform was unconstitutional, holding that the federal government could not prohibit slavery from spreading to the western territories. Lincoln responded to this argument in detail in the Cooper Union address in 1860, making clear that if one looks at how the men who wrote the Constitution behaved, both in the Confederation Congress at the time of the Northwest Ordinance and in the Federal Congress up to and including the time of the Missouri Compromise, it is clear that the founders did intend to give Congress the power to prohibit slavery in the territories and in the District of Columbia.

In his earliest response, his speech about the Dred Scott case in Springfield on 26 June 1857, Lincoln focused on what then and later seemed to him to be the crucial error of the decision, its ruling that no African Americans, free or slave, were then, or, in some readings, could ever be, part of the political community created by the US Constitution.³ This ruling, Lincoln thought, subverted the deepest promises at the center of American political life, the promises articulated by Jefferson in the Declaration of Independence. What was at stake for Lincoln in the Dred Scott decision was the meaning of the Declaration of Independence. And behind that, what was at stake were certain key values, chief among them the idea that persons, not just legal citizens, owe each other mutual recognition of moral equality and moral autonomy, key values without which no democratic polity can long survive.

In the Dred Scott case Lincoln had to respond to a decision that contradicted his vision of the meaning of politics in wholesale ways. And he had to do this without, on one hand, presenting an anarchist challenge to the constitutional order, such as sometimes proceeds from a critique of that order from the point of view of a divine alternative law, and also without, on the other hand, engaging in the kind of regal high-handedness he and his party had criticized when President Jackson engaged in it over the constitutionality of the Bank of the US and over the removal of the Cherokees. Lincoln had, this is to say, to avoid replacing law with theology, and he had also to avoid replacing law with politics.⁴

When Stephen Douglas responded to Lincoln’s attacks upon the Dred Scott decision he often assumed that such attacks could only arise from the claim that one has in one’s own conscience an authority higher than the Court to declare the meaning of the Constitution.⁵ Douglas thought of this kind of claim as a version of burning the Constitution as a covenant with death and an...