Monthly Archives: April 2017


Dred Scott v. Sandford (Updated): Residence on “Free Soil” (03/06/1857)

Dred Scott v. Sandford (Updated)

Was Dred Scott a free slave?

Argued: 02/10/1856; 02/11/1856; 02/12/1856; 02/13/1856; 12/14/1856; 12/15/1856; 12/16/1856; 12/17/1856

Decision Date: 03/06/1857

Decision Record: 7-2; no

Justices Majority: Roger Taney, James Wayne, John Catron, Peter Daniel, Samuel Nelson, Robert Grier, John Campbell

Justices Dissenting: John McLean, Benjamin Curtis

Effect of the Decision

This case upheld three rulings. First, Scott was still an enslaved person without any citizen rights, including filing a lawsuit, regardless of how long he lived on “free soil” with his previous owner. Second, a slave could not be taken away from a person, for they are still considered property. That would be deemed a violation of the Fifth Amendment, which states that property could not be taken away without “due process of law.” Finally, Congress had no right to legally ban slavery in any territory and the Missouri Compromise, which helped preserve the balance of slave and free states, was unconstitutional.

In Favor

Dred Scott was represented by attorneys Montgomery Blair and George Ticknor Curtis.


Then in opposition, Sandford was represented by attorney Henry S. Geyer.


The majority opinion slip was written by Justice Roger Taney. He wrote, “Our notice of this part of the case will be very brief, for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. v. Graham, reported in 10th Howard 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition as free or slave depended upon the laws of Kentucky when they were brought back into that State, and not of Ohio, and that this court had no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case.

So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status as free or slave depended on the laws of Missouri, and not of Illinois.

It has, however, been urged in the argument that, by the laws of Missouri, he was free on his return, and that this case therefore cannot be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may at one time have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant, and that the Circuit Court of the United States had no jurisdiction when, by the laws of the State, the plaintiff was a slave and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State, was fully argued there, and that court decided that neither the plaintiff nor his family were entitled to freedom, and were still the slaves of the defendant, and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of the Supreme Court of the State was erroneous, and that this court had jurisdiction to revise and reverse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court. The case of Strader and others v. Graham is directly in point, and, indeed, independent of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy.

But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the State court. And if this court takes jurisdiction in this form, the result, so far as the rights of the respective parties are concerned, is in every respect substantially the same as if it had, in open violation of law, entertained jurisdiction over the judgment of the State court upon a writ of error, and revised and reversed its judgment upon the ground that its opinion upon the question of law was erroneous. It would ill become this court to sanction such an attempt to evade the law, or to exercise an appellate power in this circuitous way which it is forbidden to exercise in the direct and regular and invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri in the sense in which that word is used in the Constitution, and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued directing the suit to be dismissed for want of jurisdiction.”

Then in dissent, Justice John McLean wrote, “We entertain the highest respect for that learned court (the Supreme Court of Michigan), and, in any question affecting the construction of their own laws where we entertain any doubt, would be glad to be relieved from doubt and responsibility by reposing on their decision. There are, it is true, many dicta to be found in our decisions averring that the courts of the United States are bound to follow the decisions of the State courts on the construction of their own laws. But although this may be correct, yet a rather strong expression of a general rule, it cannot be received as the annunciation of a maxim of universal application. Accordingly, our reports furnish many cases of exceptions to it. In all cases where there is a settled construction of the laws of the a State by its highest judicature established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it without criticism or further inquiry. When the decisions of the State court are not consistent, we do not feel bound to follow the last if it is contrary to our own convictions, and much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent.

These words, it appears to me, have a stronger application to the case before us than they had to the cause in which they were spoken as the opinion of this court, and I regret that they do not seem to be as fresh in the recollection of some of my brethren as in my own. For twenty-eight years, the decisions of the Supreme Court of Missouri were consistent on all the points made in this case. But this consistent course was suddenly terminated, whether by some new light suddenly springing up, or an excited public opinion, or both, it is not necessary to say. In the case of Scott v. Emerson, in 1852, they were overturned and repudiated.

This, then, is the very case in which seven of my brethren declared they would not follow the last decision. On this authority I may well repose. I can desire no other or better basis.

But there is another ground which I deem conclusive, and which I will restate.

The Supreme Court of Missouri refused to notice the act of Congress or the Constitution of Illinois under which Dred Scott, his wife, and children claimed that they are entitled to freedom.

This being rejected by the Missouri court, there was no case before it, or least it was a case with only one side. And this is the case which, in the opinion of this court, we are bound to follow. The Missouri court disregards the express provisions of an act of Congress and the Constitution of a sovereign State, both of which laws for twenty-eight years it had not only regarded, but carried into effect.

If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford? So far from this being a Missouri question, it is a question, as it would seem, within the twenty-fifth section of the Judiciary Act, where a right to freedom being set up under the act of Congress, and the decision being against such right, it may be brought for revision before this court, from the Supreme Court of Missouri.”

Also in dissent, Justice Benjamin Curtis wrote, “The case before us will illustrate the construction contended for. Dr. Emerson was a citizen of Missouri; he had an equal right to go to the Territory with every citizen of other States. This is undeniable, as I suppose. Scott was Dr. Emerson’s lawful property in Missouri; he carried his Missouri title with him, and the precise question here is whether Congress had the power to annul that title. It is idle to say that, if Congress could not defeat the title directly, that it might be done indirectly, by drawing a narrow circle around the slave population of Upper Louisiana and declaring that, if the slave went beyond it, he should be free. Such assumption is mere evasion, and entitled to no consideration. And it is equally idle to contend that, because Congress has express power to regulate commerce among the Indian tribes and to prohibit intercourse with the Indians, that therefore Dr. Emerson’s title might be defeated within the country ceded by the Indians to the United States as early as 1805, and which embraces Fort Snelling. Am.State Papers, vol. 1, p. 734. We must meet the question whether Congress had the power to declare that a citizen of a State, carrying with him his equal rights secured to him through his State, could be stripped of his goods and slaves and be deprived of any participation in the common property? If this be the true meaning of the Constitution, equality of rights to enjoy a common country (equal to a thousand miles square) may be cut off by a geographical line, and a great portion of our citizens excluded from it.

Ingenious indirect evasions of the Constitution have been attempted and defeated heretofore. In the Passenger Cases, 7 How.R., the attempt was made to impose a tax on the masters, crews, and passengers of vessels, the Constitution having prohibited a tax on the vessel itself, but this Court held the attempt to be a mere evasion, and pronounced the tax illegal.

I admit that Virginia could, and lawfully did, prohibit slavery northwest of the Ohio by her charter of cession, and that the territory was taken by the United States with this condition imposed. I also admit that France could, by the treaty of 1803, have prohibited slavery in any part of the ceded territory, and imposed it on the United States as a fundamental condition of the cession, in the meantime, till new States were admitted in the Union.

I concur with Judge Baldwin that Federal power is exercised over all the territory within the United States, pursuant to the Constitution and the conditions of the cession, whether it was a part of the original territory of a State of the Union or of a foreign State, ceded by deed or treaty, the right of the United States in or over it depends on the contract of cession, which operates to incorporate as well the Territory as its inhabitants into the Union. Baldwin’s Constitutional Views 84.

My opinion is that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be repealed by Congress.

And, secondly that the Act of 1820, known as the Missouri Compromise, violates the most leading feature of the Constitution — a feature on which the Union depends and which secures to the respective States and their citizens and entire EQUALITY of rights, privileges, and immunities.

On these grounds, I hold the compromise act to have been void, and consequently that the plaintiff, Scott, can claim no benefit under it.”

My Opinion:

In this case, I strongly disagree with the majority opinion. The African Americans should have been treated no differently than the whites. They had the right to be citizens, but they weren’t granted that right. Being a resident in a free state, means that you, yourself are free. The law in the area declares you legally free. If slavery is not permitted in that state, then no slaves exist there either. This means they are considered a human being there. They are not property that cannot be taken away without “due process of law.” Slaves had every right in court as a citizen did. You cannot possibly rule a human being as an object that can be confiscated. Congress also had the legal right to ban slavery from any territory they voted upon. That was their job. Banning slavery from a territory can’t be considered unconstitutional.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Hurst v. Florida: Jury Sentencing (01/12/16)

Hurst v. Florida

Did Florida’s capital sentencing scheme violate Hurst’s right to the Sixth Amendment in the light of Ring?

See Ring v. Arizona for more.  

Argued: 10/13/2015

Decision Date: 01/12/2016

Decision Record: 8-1; yes

Justices in Favor: Elena Kagan (LC*), Antonin Scalia (RC), Ruth Bader Ginsburg (L), Anthony Kennedy (LC), John Roberts (RC), and Stephen Breyer (L), Clarence Thomas (R), Sonia Sotomayor (L)

Justices Dissenting: Samuel Alito (R)


Effect of the Decision

This case clarified that a final sentence of death had to be decided by an impartial jury, and not a judge.


In Favor

In the favoring side of this case, attorney Seth P. Waxman argued, “Under Florida law, Timothy Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered — rendered him eligible for death.

That violates the Sixth Amendment under Ring.

In Florida, and Florida alone, what authorizes imposition of the death penalty is a finding of fact by the court of an aggravating factor, a finding that the trial judge makes independently, and, quote, “notwithstanding the jury’s recommendation as to sentence.” Now, the State here contends that capital sentencing juries make implicit findings that satisfy the Sixth Amendment under Ring, which the trial judge then simply ratifies.

That is wrong. Whatever the jury’s recommendation might imply about the specified aggravating factors, the Florida Supreme Court has repeatedly rejected the notion that the jury’s verdict is anything other than advisory. Florida law entrusts the factual findings of aggravators to the judge alone, who may do so on the basis of evidence that the jury never heard, and aggravators that the jury was never presented with.”


In the opposition, represented by attorney Allen Winsor, he claimed, “Florida’s capital sentencing system was constitutional before Ring v. Arizona, and it remains constitutional in light of Ring v. Arizona.

What Ring required was a jury determination on those facts on which the State legislature conditions the imposition of the death penalty. In this instance Mr. Hurst got that.

The legislature has determined that the elements necessary to make a defendant eligible for the death penalty is the existence of a murder and one or more aggravating circumstances. And what the other side calls the advisory sentence included within it a finding, as this Court recognized in the United States v. Jones, that the jury had determined there was one or more aggravating circumstances.”


On the majority side, also the affirming side, Justice Sotomayor wrote the opinion slip. She wrote, “The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional. The judgment of the Florida Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”

In the side of the opposition, Justice Alito wrote the opinion slip. He wrote, “Once the jury has made this decision, the trial court performs what amounts, in practical terms, to a reviewing function. The judge duplicates the steps previously formed by the jury and, while the court can impose a sentence different from that recommended by the jury, the judge must accord the jury’s recommendation ‘great weight.’ Indeed, if the jury recommends a life sentence, the judge may override that decision only if ‘the facts suggesting a sentence of death were so clear and convincing that virtually no reasonable person could differ.’ No Florida trial court has overruled a jury’s recommendation of a life sentence for more than 15 years. Under the Florida system, the jury plays a critically important role. Our decision in Ring did not decide whether this procedure violates the Sixth Amendment, and I would not extend Ring to cover the Florida system.”

My Opinion:

In this case, I agree with the majority opinion. Hurst’s death penalty was not sentenced to him by an impartial jury, however, an impartial jury is what the Sixth Amendment specifically requires. Hurst was only recommended a death penalty by a jury, but it was a judge who sentenced him to death. The case law, Ring v. Arizona made it clear that a death penalty had to be placed by a jury, not a judge. Nevertheless, it was a judge that had sentenced Hurst to death, but because this went against the Sixth Amendment, it also violated Hurst’s constitutional right to the Sixth Amendment. The difference between an impartial jury and a judge is crystal clear. Therefore, Hurst’s death penalty sentence, issued by the judge, was overturned by the Supreme Court.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right