The Accidental Abolitionist
How a justice infamous for defending slavery came to write his Dred Scott dissent.
WHEN WILLIAM LLOYD GARRISON finished burning a copy of the United States Constitution on July 4, 1854, in Framingham, Mass., he crushed the ashes with the heel of his boot and declared, "So perish all compromises with tyranny." The crowd of several thousand abolitionists gathered before him called out, "Amen." Garrison, the founder of the antislavery newspaper The Liberator, had never been able to see the Constitution as a sacred compact of republican government. To him, it was "the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villany [sic] ever exhibited on earth." Though it made no explicit reference to slavery, as Garrison and his followers read the document it included provisions sanctioning the right to buy, sell, and hold human beings as property.
The Constitution was not all that Garrison burned that day. He destroyed copies of the Fugitive Slave Act, a powerful new law that brought the force of the federal government to bear in returning runaways to bondage, and set fire to a copy of instructions to a federal grand jury, written by Benjamin Robbins Curtis, a recently appointed member of the U.S. Supreme Court.
Shortly before Curtis joined the court in 1851, a group of abolitionists swept into a federal courtroom in Boston and rescued a runaway slave named Shadrach Minkins as he was being prosecuted under the act. By the time Curtis got on the court, a grand jury had been called to investigate those involved in orchestrating the rescue. In those days, Supreme Court justices also rode a federal circuit, and Curtis wrote the instructions to the grand jury. Such violent acts in defiance of the law, he told the jury, were tantamount to "levying war," and thus met one of the Constitution's definitions of treason.
To some students of history, Curtis might seem like an unlikely author of such a harsh condemnation of abolitionist activities. Curtis is remembered, to the extent that he is remembered, for his dissent in the 1857 case of Dred Scott v. Sandford, a powerful rebuke to the Supreme Court's notorious pro-slavery decision. That shining moment, however, contrasts sharply with the remainder of Curtis's record in dealing with the institution of slavery; perhaps because of his inconsistent support for slaves' rights, we have made less room in our collective memory for Curtis than for the radical figure of William Lloyd Garrison. While Curtis's Dred Scott opinion is one of the court's most famous and influential dissents, Curtis the man has been largely left alone by scholars. Stuart Streichler's new volume, Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism, is the first book-length consideration of Curtis's career since his brother and his son collaborated on one in 1879.
In light of Curtis's defense of pro-slavery legislation like the Fugitive Slave Act, scholars have tended to see his dissent in Dred Scott as an aberration, if a noble one. Streichler has a different view. He makes the intriguing and novel argument that the Dred Scott dissent was not an aberration, but rather a decision very much in keeping with a consistent, conservative judicial philosophy that favored fealty to the Constitution above all else.
BENJAMIN CURTIS WAS BORN IN WATERTOWN, MASS., in 1809. He was not the scion of a great and venerable familyhis father was a merchant seamanbut he grew up in Boston's high society, thanks to the favor and patronage of a family friend, the Brahmin litterateur George Ticknor. That upbringing, combined with an education at Harvard in the late 1820s, imbued him with cultural and political sensibilities that would define his legal philosophy.
Though the Revolution had been touched off in Lexington and Concord and began in earnest in Charlestown, by the time Curtis came of age a generation later, Massachusetts elites were more conservative than revolutionary. Andrew Jackson occupied the White House in 1829 while Curtis was still in college, and remained there through Curtis's early years in private legal practice. Jackson embodied a radically democratic shift of political power from established elites to ordinary white men, and Curtis joined those opposed to such "mob rule" in the conservative wing of the opposition Whig Party.
For Curtis, the common law tradition was central to this evolutionary vision of social and political development. The law "should be derived, not created," he said in 1851 as a representative in the Massachusetts House of Representatives. Properly formed, law would be "deduced by experience and careful observation from the existing usages, habits, and wants of men, and not spun out of the brains even of the most learned." Born out of an instinctive fear of revolution and disorder, this understanding of law and precedent would allow only for gradual and stable change in the law.
Curtis had an early opportunity to apply this legal philosophy to the knotty questions of slavery as a young attorney in private practice. In the landmark case of Commonwealth v. Aves in 1836, he represented the interests of a Louisiana slaveholder in danger of being dispossessed of her young slave while visiting Boston. Curtis's opponents argued, successfully it would turn out, that because slavery violated natural, or "higher," law, the institution could be maintained only if a local law approved it. Curtis conceded that slavery stood in violation of natural law, but said that the concrete demands of the Constitution and the settled law following from it must outweigh abstract principles. The Constitution, he argued, was a contract among the states that included "an agreement that slaves should be considered as property" according to the Fugitive Slave Clause. The slaveholder's right to his property must be recognized, Curtis insisted, even in Massachusetts, the heart of the antislavery movement.
Curtis had occasion to build on his argument that the Constitution preempted any claim based on higher law when the Compromise of 1850 carried the Fugitive Slave Act into law, touching off what came to be known as the fugitive slave crisis. While serving a term as a Whig representative in the state legislature in 1850, Curtis was called upon to defend Senator Daniel Webster, the standard bearer for the Massachusetts Whigs who had helped orchestrate the compromise. Speaking at a Whig political rally at Fanueil Hall in 1850, he made an impassioned stand for obedience to the specific demands of the law. With abolitionists threatening to flout the Fugitive Slave Act and to do so violently, Curtis outlined a choice between constitutional order and insurrection: "I want to see somebody come manfully up to the point, and attempt to show that the moral duty which we owe to the fugitive slave, when in conflict with the moral duty we owe to our country and its laws, is so plainly su- perior thereto, that we may and ought to engage in a revolution on account of it."
President Millard Fillmore, a conservative Whig, rewarded Curtis a year later for his loyalty to party and the Constitution by tapping him for a seat on the Supreme Court. With sectional tempers flaring, a Massachusetts Whig who had defended the Fugitive Slave Act on constitutional grounds was an attractive choice.
The matter of Dred Scott v. Sandford was fraught with technicalities and was complicated by a thicket of prior rulings, but the basic question facing the Supreme Court was a relatively simple one: Was a slave from Missouri allowed to sue in federal court as a citizen? Had the court's majority followed the precedent set in the 1850 case Strader v. Graham, which established that individual states would determine the civil status of persons within their borders, Missouri's ruling that Dred Scott was not a citizen would have stood. The case would have been closed with little controversy, and Benjamin Curtis would, perhaps, have been relegated to complete obscurity. Instead, Chief Justice Roger B. Taney issued a much broader opinion based more on political than constitutional considerations, and Curtis became an unlikelyor, perhaps more accurately, an unwittinghero.
Looking beyond the basic issue of Scott's civil status in Missouri and its bearing on the matter before the court, Taney used the case as an opportunity to rule on the issue of black civil rights nationwide. He didn't equivocate as he read a fundamental racism into the Constitution. Blacks, he said, "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that document provides." Articulating a kind of biological racial distinction that belonged more to the mid-19th century than the founding era, he claimed that when the framers drafted the Constitution, blacks were "regarded as beings . . . so far inferior that they had no rights which a white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery."
As bold as Taney's finding that blacks had no right to citizenship may seem to us now, Americans in 1857 found his negation of the Missouri compromise bolder. More so than the question of black rights, the question of the legal status of slavery in the Western territories stood at the center of the national debate on the peculiar institution.
Struck in 1820, the compromise had admitted Missouri to the Union as a slave state, but it declared that all territory in the Louisiana Purchase north of the 36'30" line (Missouri's southern border) would be free. Scott claimed his freedom under the compromise, arguing that his extended residence in Illinois and the Minnesota Territoryboth free under the authority of the compromisemeant that he was no longer a slave when he returned to Missouri. Taney took this argument as an opportunity to move again beyond the narrow limits of the case, this time to make a sweeping ruling on the constitutionality of the compromise. Directly engaging the broader political discussion on slavery in the West, Taney argued that banning slavery in the territories was unconstitutional. Any law that did so, he said, would deprive slaveholders of their property without due process of law.
To Northerners already smarting from having to do the South's bidding by returning runaways to slavery, Taney's ruling on the Missouri Compromise was an outrage. Slavery, the ruling seemed to say, could not be banned anywhere.
Curtis also responded to Taney's opinion with outrage, but for reasons that were vastly different from those that fired the antislavery North. The chief justice had transgressed the limits of the case and turned the Supreme Court into a forum for advancing the political agenda of the slave South. To Curtis, a tribunal with the stature of the court could not "decide upon political considerations." When "the theoretical opinions of individuals are allowed to control [the Constitution's] meaning," he warned Taney in dissent, "we no longer have [one]." In what Streichler calls "an exacting demonstration of how to work through the problems posed by slavery within a legal framework," Curtis went on to answer Taney's opinion with the same cautious style of reasoning that had guided him throughout his career.
Taney had made his argument against black citizenship based on an historical interpretation of what the framers had meant by "We the People." But where the chief justice had spoken speculatively about the framers' intentions, Curtis surveyed with rigor and precision the boundaries of the American political community at the founding. Seeking out precedents, practices, and customs relevant to the case at hand, Curtis built probably the most substantive argument for black citizenship under the Constitution in the pre-Civil War era. Blacks, he found, had citizenship and voting rights in 5 of the 13 states at the time of the Constitution's adoption. Noting that blacks surely voted on its ratification, he concluded that it was "not true, in point of fact, that the Constitution was made exclusively by the white race." Contrary to Taney's rough stroke, Curtis noted that blacks were "in every sense part of the people of the United States, [as] they were among those for whom and whose posterity the Constitution was ordained and established."
If Taney had been imprecise in bending the question of Scott's right to sue into a larger statement on black citizenship, Curtis implied that the chief justice was downright irresponsible in offering a ruling on the question of the Missouri compromise. The court had ruled that Scott was not allowed to sue, and that should have been the end of the matter. Such a "great question of constitutional law, deeply affecting the peace and welfare of the country," Curtis noted, was not a "fit subject to be thus reached."
Curtis instead affirmed Congress's plenary power over the territories, denied Taney's due process argument, and again built a careful argument around existing precedent and accepted practice. Federal power over slavery in the territories had been exercised more than a dozen times over a span of 70 years, and no objections had been made. Curtis argued that this constituted the kind of precedent that "may always influence, and in doubtful cases should determine, the judicial mind on a question of the interpretation of the Constitution."
At first glance, Curtis's embrace of black citizenship appears to be an uncharacteristic turn for a man whose previous decisions regarding the Fugitive Slave Act had led him to be branded a "slave-catching judge." But Streichler's argument that Curtis built his dissent on the same principles of jurisprudence that had guided him through the whole of his career is a convincing one. As Streichler presents the case, Taney appears in a similar light as the radical abolitionists who had tried to circumvent the Constitution to advance their cause. Curtis believed that the Constitution offered a clear framework for the safe and gradual evolution of the law. Innovation did not have to come through revolution. As Streichler puts it, "For Curtis there was a logic to constitutional transformation, and the demands for reform could be met without sacrificing continuity."
MODERN STUDENTS OF DRED SCOTT generally admire Curtis's dissent as a censure of Taney's reckless opinion, but most have been wary of offering too much praise because, in their view, it didn't go far enough in advocating for slaves' rights. In his massive Pulitzer Prize-winning history of the case, Don Fehrenbacher calls Curtis's argument "racially conservative and of a limited scope," and notes that it "would have entailed no significant change in the discriminatory racial arrangements of the time." There is justice in the views of Fehrenbacher and others. Curtis may have affirmed precedent for black citizenship, but he also said that the states had full discretion in determining who was and was not a citizen and in defining what rights would go along with that status. He did not, in other words, embrace the vision of national citizenship and equality that the Fourteenth Amendment would establish during Reconstruction.
Fehrenbacher's belief that Curtis's opinion is essentially conservative would seem to support Streichler's contention that the dissent was in fact consistent with a lifetime of conservative jurisprudence. Streichler, however, isn't content to rescue the dissent from being labeled an aberration. Instead, he suggests that present-day biases have blocked scholars like Fehrenbacher from seeing the novelty of Curtis's findings on black citizenship. Rather than focusing on what Curtis didn't say in his dissent, Streichler says that we should look at the possibilities opened up by what he did say. He argues that Curtis may have been the first person to identify a firm historical and constitutional basis for black citizenship. To Streichler, the mere fact that Curtis wrote that "color was not a necessary qualification for citizenship" a decade before the Fourteenth Amendment is significant. As he observes, Curtis "did not clarify exactly how progress toward racial equality should occur, but his discussion intimated that the law was not necessarily an obstacle but rather a framework for change."
But if Streichler's portrait of Curtis's constitutionalism successfully casts the Dred Scott dissent in a new light, he revels a bit too freely in the implications of the dissent for black rights. As the Civil War and Reconstruction turned some of those implications into realities, Curtis revealed himself to be deeply uncomfortable with such developments.
Curtis resigned from the Supreme Court in September 1857, just under six months after Dred Scott. Financial necessity, he said, compelled him to do so, but it was clear that he believed the judicial process to be hopelessly corrupted by politics. In public, as copies of his dissent circulated widely in pamphlet form, Curtis found himself the lion of the Northern antislavery and Free Soil political factions. Wishing to take no part in the fight over the political implications of the decision and his dissent, Curtis returned to Boston, resumed his private practice, and watched the Union unravel.
THE LEGAL REVOLUTION THAT DISENTANGLED SLAVERY from the Constitution has been a hot topic among historians and legal scholars in recent years, and Streichler clearly hopes to add his subject to the mix. But the cautious constitutionalism that served Curtis so well in Dred Scott put him on the wrong side of that legal revolution, and it seriously undermines Streichler's attempt to add a progressive cast to Curtis's legacy. The scholars who have examined the Civil War as a "constitutional war" have generally focused on those whose creativity transformed the nation's fundamental law. Studies of Lincoln's leadership, for instance, show him boldly playing fast and loose with the Constitution, all for the purpose of saving it. Others, meanwhile, have portrayed the radical Republicans in Congress during Reconstruction as delegates to a second constitutional convention.
Curtis certainly was an actor in this drama, but after Dred Scott he returned to play only a minor and less compelling part. In 1862, Curtis published a long pamphlet charging Lincoln with abusing executive power after the Emancipation Proclamation. In 1866, he wrote a public letter in support of the 1866 "arm-in-arm convention," held in protest of Reconstruction. When called upon to defend President Andrew Johnson against the radical Republicans' impeachment attempt in 1868, he accepted. Curtis strongly opposed the program of Reconstruction, which would guarantee citizenship and equality before the law to all black Americans, including freed slaves. Always seeking the gradual solution, Curtis wrote in 1868 that he would support such change only if "the people have a fair chance [to reject it]." "Southern niggers," he said, invoking the openly racist language of the Northern opposition to Reconstruction, "can not govern [whites] without their consent." He would continue to fight against the Reconstruction program until his bid failed for a seat in the U.S. Senate just before he died, in 1874.
Ultimately, Curtis's own actions and words suggest that Streichler might have been more persuasive if he had used Curtis as a foil to reveal the extent of constitutional change in the Civil War era. As Curtis wrote to his uncle with some prescience in 1866, "the country to which I belong does not honor me as a prophet." It is difficult to place him among those who saw the necessity of creating a Constitution that knew no bounds of race. Those we do honor as prophets understood that the Union could not survive under the Constitution that Curtis worked so strenuously to uphold....