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Not too long ago, I spent a few days in Minneapolis and St. Paul, Minnesota Twin Cities, and on my way to the airport headed home I visited historic Fort Snelling. Over the centuries, much history has unfolded at Snelling, and its expansive story is well told at the fort. But I was particularly interested in one room there, which that day I had not expected to see. It was the room where for something like four years, 1836 to 1840, I, a husband and wife, lived with their first child, a man and woman whose names are now legendary in American history. This was the living quarters of Dred and Harriet Scott. Dred Scott, the Dred Scott case, Supreme court decision of 1857 that dred Scott. And here he was, or at least his memory made manifest by four walls, the simplest of furnishings and a fireplace. A living quarters in a military fort where a young family made its home. And it became the unlikeliest starting point of a legal case that by its conclusion would shake the nation to its core.

Don Wildman (3:59)

Hello and welcome back to American History hit. I'm Don Wildman here every Monday and Thursday with new episodes. Thanks for joining us. The institution of American slavery is studied historically from many angleseconomics. Politics, morality. But no matter the reason, we all too often lose sight of the fact that those enslaved were human individuals. Think for a moment and you might come up with a short list of famous Harriet Tubman, Frederick Douglass, Sojourner Truth. But that's usually because they escaped slavery. And even if you came up with a list of a thousand, it's all a drop in the bucket. 388,000 Africans are estimated to have arrived on North American shores during the centuries of the Middle Passage. By the time of the Civil War, that number had grown exponentially to 3.5 million, 40% of the total population of the American South. But there is another very famous name remembered for a uniquely specific legal reason. His landed in the title of a case that came before the United States Supreme Court in 1857, listing this individual as plaintiff. His name, Dred Scott and his case. And the notorious decision rendered by the highest court in the land is cited as one of the many appalling reasons our nation spiraled towards civil war just a few years later. To discuss the causes and consequences of the Dred Scott case, we are joined by Kate Masur, professor of history at Northwestern University. Her book, Until Justice Be America's First Civil Rights Movement From Revolution to Reconstruction, published by W.W. norton 2021, won many awards and was a finalist for the Pulitzer Prize in history. She was co author, with Martha Jones, of a recent amicus brief filed against the current president's efforts to deny birthright citizenship to children born in the US to undocumented immigrants. Greetings, Kate. Nice to meet you. Thanks for being on the show.

Kate Masur (5:49)

Thank you for having me.

Don Wildman (5:50)

The Dred Scott case is headline history. It concerns the general issue of US Citizenship, but in particular, the rights of black individuals to live freely as citizens in the United States. In Dred Scott's case, once they were outside the territory of enslavement. So let's start with the man himself. And what eventually leads to this pivotal decision. Who was Dred Scott? How does this case land in the Supreme Court? There's a legal chronology behind this.

Kate Masur (6:17)

Sure. Well, that's a big question. And the Dred Scott decision being so famous and so important in American history, many books have been written about it. So we'll try to kind of cut to some of the key details here.

Don Wildman (6:29)

Welcome to American History at Kate. We take big bites.

Kate Masur (6:33)

So Dred Scott was a man who was born around 1799 or around 1800, enslaved in Virginia. Like many slave owning families, his owners moved west. So they moved from Virginia to Alabama, where they lived for several years and then moved to St. Louis. And after a while, Dred Scott's original enslaving owner died and he became. He was owned then by a US army officer named John Emerson. So again, not atypical of this period. John Emerson took his enslaved worker, Dred Scott, into new territories where the army sent him on postings. And one of those places was in the state of Illinois. Another was in Wisconsin territory. It's a place that's now in Minnesota, but at that time it was a federal territory called Wisconsin Territory, a place called Fort Snelling. Dred Scott met Harriet Robinson at Fort Snelling. She too was enslaved and they married at Fort Snelling. Robinson then came under ownership of John Emerson, and then they moved back to St. Louis. In 1846, Dred Scott and Harriet Scott, who by then had two daughters, attempted to purchase their own freedom from their owner, but the owner would not cooperate. And so they went to court in St. Louis in what's called a freedom suit. And they alleged that they were being held as slaves illegally because they had been taken into free territory and had lived in free territory, then been brought back into a slaveholding state, Missouri. And there was a legal principle at the time which is often called the free soil principle. And under that principle, which was often accepted in US Courts, if an enslaved person had spent time in a free state or a free territory, they could no longer be held as a slave, whether they were still in that territory or as in the case of the Scots, even if they had been brought back into a slave, a place where slavery was legal. So the Scots go to court and say, we lived for some time in the free territory of Wisconsin and free state of Illinois, so we can no longer be held in slavery.

Don Wildman (8:48)

Okay, let me just condense this a little bit for our purposes, because you've delivered that eloquently. And yet the difficulty of this case for many people is that it's a very nooks and cranny kind of thing, and it's very subtle stuff. When most Americans think of slavery as one thing, you're enslaved, you're gone. See you later. It's terrible. We wish this didn't happen. That's kind of, you know, good person's feeling about this. The fact is, slavery at this point in the United States history has all these different kind of shades. It's all bad. But there are ways out of slavery if you can buy your way out. Like you say, there are subtleties, like we're going to find out about where enslaved people went over the border into free territory. That's the major issue here. And spent time there. Then there's, of course, there's escapes and all sorts of things that are happening here. The Dred Scott case infers a lot of these issues, but it really is outstanding because it becomes a United States Supreme Court issue. And it really nailed put the nails in the coffin. As far as all of this subtlety that had going on in the antebellum period, is that a fair summation for the audience?

Kate Masur (9:55)

I think it's important for the audience to understand that it began as a freedom suit. It began as a legal action where Dred and Harriet Scott and their daughters were trying to become free and were alleging that they were held illegally in slavery by the time it makes it to federal court. And this is important, why is the Dred Scott decision importantly about the question of citizenship? It's because in order to sue in federal court, you have to be a citizen under the United States Constitution. And so when they lose, eventually lose their freedom suit in Missouri state court, they go to federal court as another option. Like any person was due who is trying to exercise all of their legal options. Yeah, but you cannot sue in federal court under the Constitution unless you're a U.S. citizen. And so the really immediacy of what Taney and the Supreme Court were deciding in that moment was, did Dred Scott have standing to sue his owner? At the time, he only had standing if he was a U.S. citizen.

Don Wildman (10:54)

Yeah.

Kate Masur (10:55)

The decision rendered by the majority on the court was, he is not a citizen. And not only was Dred Scott said to not be a citizen of the United States, but famously right. No person of African descent, enslaved or free, is a citizen of the United States under the United States Constitution. So that's how we get there. So the Dred Scott decision is formally not on the question of, you know, Slate, did he spend time in Illinois and Wisconsin? Da, da, da. The question that the court is deciding. Well, one of the two major questions, but really the central legal question is, is he a citizen? Does he have standing to sue Taney? And the court says no. So we can kind of go from there.

Don Wildman (11:34)

Okay, good. So let's review. He spends how much time. He and his wife spend how much time in free states.

Kate Masur (11:40)

They spend more than two years in Illinois and Wisconsin territory, and they've lived there for quite some time. Even at one point, the owner leaves and goes somewhere else. I think Louisiana, they're still there being hired out. And so they've spent a fair amount of time there. And. And it is very typical in this time period, up to the early 1850s, for the Missouri courts to decide that in those types of situations, which come up fairly regularly, yes, you are entitled to your freedom. So it is not. They're not. It's not a huge stretch for them to go to court and say, we. You know, it's very typical. It's Missouri, so it's right across the river from the free state of Illinois. It's just south of the free state of Iowa. So there's a lot of back and forth between the slave state of Missouri and these free places. So coming into court and saying, like the Scotts did, that they're entitled to their freedom, not unusual. And the courts in Missouri had a history of assenting to those claims. And so here in the early 1850s, when their Missouri court decision comes out, the Missouri court is actually breaking with its own precedent by saying, we don't have to observe that rule anymore. We're tired of the abolitionists. We're tired of free states making claims on enslaved people. And so the Missouri court in the first place, by denying freedom to Dred and Harriet sky, is breaking with its own precedent.

Don Wildman (12:59)

Interesting.

Kate Masur (13:00)

And part of the reason that they feel like, let's take this up to the federal court level is because, you know, there's a decent chance that they would prevail, at least under the way that things had been going up to that point.

Don Wildman (13:10)

Yeah, I think it's a good moment to mention, you know, we. These. These grand history things we often dehumanize. As I mentioned in the beginning of this, it wasn't until recently that I was in Minnesota, in Minneapolis, and went outside town to Fort Snelling. And there is the room in Fort Snelling where Dred Scott and his wife lived for a long time. It has a hearth, it has a table, chairs, it's bedroom. It's. The whole thing is there. And that's where they lived all that time. And it really brought home the fact to me. Oh, my goodness. You know, I see it now. This is not Dred Scott the case. This is Dred Scott the man and his wife doing this whole thing. Fascinating. Dr. Emerson, who was the original enslaver of this, he dies. The case is taken against John Sanford, the brother of Emerson's widow, who is Irene Emerson. I mean, it gets so complicated. That's the guy who wants to say no to this whole idea, right?

Kate Masur (14:02)

That's right. I mean, the widow of John Emerson doesn't want to. You know, she has a history of not wanting the Scots to become free. And there's a complicated kind of question of, did Mrs. Emerson still own the Scots? Did John Sanford? Even historians had a little bit of a difficult time disentangling that question. So, but in the end, I mean, what we need to know is that Sanford was the named defendant, I suppose, in this case, and also that Sanford lived in New York. So again, back to the question of citizenship. This is called diversity jurisdiction. That's the legal term for the idea that one of the ways you can use the federal courts is for a lawsuit by a citizen of one state against a citizen of another. So the idea is it can't be neatly resolved within one state alone because it's two citizens of two different states going up against each other. So the key issue here is that the putative owner of the Scotts did not live in the state of Missouri, but lived in another state.

Don Wildman (15:03)

Interesting. And that all happens in 1853. And so it will be years before this finally reaches the Supreme Court, which is not unusual. Dred Scott vs Sanford, 1857. Now a black man in the enslaved south suing for freedom. Sounds shocking even today. Daring, I should say. But in fact, it had precedence, as you say. I'm sorry, I'm going to take this slowly but surely, because I really want to drive this case home. We've been doing a lot of Civil War history on this series, and this one sits dead center in all of it as far as the issues that are concerned and someone listening this show should emerge with an idea of exactly these various layers that we're peeling back here. Freedom suits, as you mentioned, happened hundreds of times before Dred Scott. So the case bounces around for years. Legal labyrinth at a time when politics around slavery had heated up. I mean, this is a case. We're dealing with this today, where the culture changes, tilts one way or the other, and suddenly courts start behaving differently in reflection of that, in many ways, for various reasons, this is what's going on. Finally, the case is accepted at the Supreme Court and it will focus on citizenship, as you've mentioned. Are they articulating that to themselves? Is that that the understanding right from the get go?

Kate Masur (16:17)

Yeah. I mean, the arguments in the case are framed around the question of Dred Scott's standing to sue, because that's the central legal question. And so, for example, by the time the case gets to the Supreme Court, there are very prominent lawyers on both sides. Like, people know that this is a big deal case. You know, you've got prominent lawyers defending the claim that the Scots should be enslaved. You've got prominent lawyers, including a man named Montgomery Blair, on the side of Dred Scott. And I have read the Blair's briefs in that case. And you know, he is indeed talking about the question of whether Dred Scott should be considered a citizen of the United States and entitled to sue in federal court. So, absolutely, that's perhaps the central question. I mean, maybe we can get into a little bit the other major question that the Chief justice attempts to decide in the course of this, which is whether Congress is allowed to bar slavery from federal territories. Because that's those two questions, one about black citizenship and one about the power of Congress to bar slavery in the territories are both really important political questions that Chief Justice Taney attempts to decide in this case. But the question of slavery in the territories is not really on the table legally. I mean, it's what people sometimes call dicta when coming from the court, because it doesn't really matter for the resolution of the case, yet he chooses to weigh in on it anyway because of the political crisis over slavery.

Podcast Host (Don Wildman) (17:48)

I'll be back with more American history after this short break.

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Don Wildman (21:03)

This case gets argued in 1856. The decision will be issued in 1857. Explain the decision in layman's terms. What does Chief justice and others who join him claim?

Kate Masur (21:17)

So, Chief Justice Roger Taney, the decision is very long, and I encourage people to read it. I recently taught a class on the history of the 14th Amendment, and we assigned a large portion of the Taney decision and the Benjamin Curtis dissent. And it really pays off to read it. And I think it's a little bit what you were saying earlier about the sense of being at Fort Snelling, reading the actual decision, instead of just pulling out a line like, the black man has no rights that the white man is bound to respect, really gets you a sense of what were the issues at the time. So Taney, first of all, goes through a huge amount of American history. And one of the things that's interesting about the decision and the dissent by Curtis is they are really engaging with how do we understand the American past Now, Taney's interpretation of the past is very selective. He leaves out a lot, as Curtis will point out. But he basically says our founding fathers never intended for African Americans, even if they were free to be part of our body politicians. And he cites examples of laws that restricted the rights of free African Americans, right. Not to mention, of course, all of the many laws that created slavery itself. And so he kind of fast forwards and says black people were never part of our body politic. And therefore, there is no possible way of understanding Dred Scott as a citizen of Missouri, and therefore he cannot sue in federal court. And he goes on to talk about how there's a fundament, essentially, there's a fundamental right that slave owners have to human property. And that in fact, the federal government, which had outlawed slavery in federal territories in the Northwest Ordinance back in the 18th century and also in part in the Missouri Compromise of 1820, had actually, the Congress had never had any right to bar slavery in the territories because that actually represented an illegal taking of the property of slave owners. And this is a very. I mean, him saying that on behalf of the Supreme Court was kind of bold, very bold. It was an argument that slave owners had wanted to make for a long time to get federal recognition of a fundamental right to own other human beings. But in various ways, from the United States Constitution onward, high level federal agents had been reluctant to recognize the affirmative right to own human beings in any place in the United States.

Don Wildman (23:51)

Sure.

Kate Masur (23:51)

So for Taney to also go out there and say that it was illegal for Congress to have ever barred slavery in federal territories was a huge advance for the rights of slave owners.

Don Wildman (24:02)

Yes.

Kate Masur (24:02)

Again, not connected to the question of whether Dred Scott had a right to sue, but a very clearly very political advancing of the argument that slave owners have been trying to make for quite a long time.

Don Wildman (24:14)

Yeah. And keep in mind, we are against a backdrop of the likes of Frederick Douglass and abolitionists of all sorts for decades have been going around building this momentum. This is bleeding Kansas time. This is in the newspapers. Terrible things are happening in Kansas as this whole popular sovereignty issue is being taken on. I mean, there's all kinds of news. It's a very, very hot issue for Americans. So right in the smack in the front stage of this comes this decision. Tell me about Taney. Chief Justice Roger Taney. I mean, talk about an iconic figure in American history. Who was this man?

Kate Masur (24:49)

Right. So the Chief justice, whose decision is understood as the decision of the Court, was a very widely respected American, you know, figure in American law. He was born in 1777 in Maryland. He was from a very prominent, very elite Maryland family. Tobacco plantation owners owned enslaved people. He was from a. He was Catholic, which is interesting. He was actually the first Catholic United States Supreme Court Justice. Anyway, so Taney begins his career in Maryland. He studies law, he's admitted to the bar there. He enters Maryland politics, and early on he's part of the Federalist Party, but he becomes a supporter of the party that primarily oppose the Federalists, the Democratic Party, and is very, very associated with Andrew Jackson. So Taney is a supporter of Andrew Jackson from early, from the 1820s onward. And Andrew Jackson also admires Taney, this, you know, rising star in the legal profession and brings him on as Attorney General. Taney serves as Treasury Secretary as well under Jackson. And then Jackson appoints Taney to the Supreme Court in 1835. The appointment actually goes through in 1836. Just to kind of mention Taney's relationship to slavery was a little bit complicated. He actually believed that slavery was not good for the United States. He was not comfortable with slavery, and he manumitted or freed the slaves that he inherited from his father and even provided pensions for them. And so we don't want to think of Taney as this kind of die hard, pro slavery guy, but in some Ways that makes him more interesting because someone who was so sort of ambivalent about slavery in his own life also ended up doing so much to support the continuation of the institution of slavery and to reinforce white supremacy later in life.

Don Wildman (26:46)

He's so much a symbol of how in the weeds all of this was legally and absurdly, of course, and now we look back when we're talking about people's lives, but that was how this all was justified, where people were talking so much about legalities of all of this and constitutionality of it. And all this stuff was obfuscating the real central issue which we're going to fight a war over in, you know, four years from this point.

Kate Masur (27:10)

It is also important though to think about the fear that many people had that the United States was going to come apart. Yes, right. So the question of the Constitution is non trivial in the sense that many Americans then as now, believe that the Constitution was the thing that held us together. And Taney was associated with a sort of more heavily state rights oriented perspective than his predecessor, Chief Justice John Marshall, who's really well known as a nationalist. But still, Taney was not a secessionist. Taney was not like, did not agree with John Calhoun and those kind of people. He still really believed in kind of the future of the United States as a whole nation. And so another way of thinking about it is the complexity and the tension between trying to sustain the United States and also understanding that it was at that time founded on this fundamentally kind of morally corrupt bargain over slavery. Right. So somebody like Taney is trying to kind of make issue a decision that will, he hoped, avert this sectional crisis while at the same time making this horrible kind of compromise with slavery and white supremacy.

Don Wildman (28:24)

Yeah. As you mentioned, he is importantly brought to power under Andrew Jackson's administration and as you say, made the Chief justice in 1836. So he's been in this position for 20 years at this point. And he was a replacement for none other than John Marshall. I mean, this is real basic American, almost founding era stuff that we're talking about here. And all of this goes throughout the entire. He is in power as the Chief justice throughout the antebellum period, 28 years, under seven different presidents. He even swears in Abraham Lincoln in 1860. That's how.

Podcast Host (Don Wildman) (28:55)

Wow.

Don Wildman (28:55)

That's how deep this guy goes. By the way, Abraham Lincoln had some of the same issues going on in his thinking. You know, as far as the primary goal to hold this nation together. Never mind the issues we're talking about. Above all Else.

Kate Masur (29:09)

No, I mean, just because you bring up Lincoln, I mean, this is a really key point, that both men really cared about the United States as a nation. Both really cared about the Constitution, but they came out completely differently on this issue. Right. So Lincoln is just kind of developing a national political prominence and around, or he's attempting to anyway. When the Dred Scott decision is issued and he comes out against it immediately, he says this is wrongly decided. Taney has his facts of American history incorrect. African Americans, free African Americans in many places were considered citizens of their states at the time of the founding, the Declaration of Independence. Whereas Taney and his supporters have said it was only intended, the declaration that all men are created equal. Taney and his people say that only was ever intended to apply to white people. Lincoln says no, that was intended to apply to all people. And so even as both of them have, are patriots, if you will, they come out completely different. And that reminds us, right, that within the realm of thinking that you're standing up for the United States or American values, people come to very, very different, often polar opposite conclusions.

Don Wildman (30:23)

It is the struggle, I'm sure you fight as a historian all the time, which is this, this naive notion that there's this U turn, you know, in, in the, in the 19th century, when in fact it is a big wide turn that we take on the issues of slavery based on many, many different angles. Here I want to give equal time to Dred Scott. How involved in his, this legal battle was he, Especially when it gets to the Supreme Court level.

Kate Masur (30:48)

There are a lot of, unfortunately a lot of gaps in our knowledge about the lives, the everyday lives of the Scott family. We do know, I mean, the evidence from Dred Scott and Harriet Scott's various legal machinations is that they were trying very, very, very hard to get free. Right. They first try to buy their freedom, then they pursue their case in St. Louis court, in the Missouri state court, in federal district court, and finally to the US Supreme Court. Right. So this is a family that is putting a huge amount of effort into, into trying to get free. And you don't do that. I mean, again then as now, you don't do that without a major commitment to it.

Superhuman Ad Narrator (31:29)

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Kate Masur (31:30)

He could have just disappeared. They could have said, forget it, we're done. We don't want to get involved in this. In the face to face culture of a city like St. Louis at that time, it would have been widely known that he was involved in this. Right. So we also know that they had access to, well, for example, Harriet Scott we know was a member of, of a St. Louis Baptist Church where the minister, the black minister, was involved in helping people find their way to lawyers to file freedom suits. And they had enough political connections that they were able to get good white lawyers involved at the ground level in their lawsuit. And then eventually the case gets taken up by these very, very nationally prominent lawyers. We don't have, like, evidence of Dred Scott comes into a lawyer's office and says, you know, hey, I really want you to represent me. That just doesn't exist.

Don Wildman (32:20)

They're literate people. I mean, I would have thought there's letters to this effect. And I'm just curious whether you understood the subtleties of the case in terms of citizenship and all that.

Kate Masur (32:28)

We just don't know the answer to that question. We also know that Dred Scott was manumitted. So after the Dred Scott decision by the Supreme Court, where they say, so he's not entitled to his freedom, then his own putative owner at that time turns them, the Scott family, over to another guy who's actually the son of their original owner, and he frees them. And so Dred Scott continues to live and work in St. Louis, and Harriet Scott does, too. Dred Scott dies a year later, a year after the decision in 1858 of tuberculosis. Harriet Scott lives all the way to the 1870s, and their daughters outlive her. So, you know, this is one of those situations where we wish we knew a lot more about their individual lives, but based on the decisions that they made and the affiliations that they had, we can know some things about how much they wanted to be free and how important it was to them.

Podcast Host (Don Wildman) (33:27)

I'll be back with more American history after this short break.

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Don Wildman (34:42)

This was big news when this decision came out. Headline stuff. How much does this contribute to the rollercoaster ride that we are now heading down towards the Civil War?

Kate Masur (34:52)

So definitely when the decision is issued, it's huge news. And it's the kind of news, you know, where everyone in politics is responding to it. Right. Like hooray. Stephen Douglas in Illinois says, this is great. So glad somebody's finally come to a reason the Supreme Court has finally weighed in in a reasonable way. Abraham Lincoln and other Republicans say this is, this is absurd. And also, by the way, they feel free to criticize the decision. I mean, Lincoln was of the opinion that, you know, a Supreme Court decision should be taken seriously, but also that there was nothing wrong with kind of eviscerating it based on his own understanding of American history and his values. Historians have shown that state courts in many states tried to get around the decision and tried to recognize black citizenship, even though the Supreme Court had said that it didn't exist. Legislatures in New England passed resolutions affirming that they recognized the state citizenship of free African Americans. So it's a political lightning rod and it's hugely controversial. I think one of the things to keep in mind is it was never widely accepted either in law or in political culture. So it was one moment, as you said, in this larger struggle that over questions of slavery and freedom and civil rights, that isn't going to get really resolved, I mean, ever, if you, if you. But I mean, is it the attempt to really resolve it will only come with Reconstruction and measures like the 14th amendment. So. So it's kind of like a moment in this much larger struggle. And keep in mind too, as you know from wearing your history hat, they don't know the Civil War is coming. Right. So we can say, oh, it's one in many line of events that leads to the Civil War. But like in the moment, nobody is certain that that is going to be this kind of dramatic result of all of this arguing. So.

Don Wildman (36:47)

Yeah, exactly.

Kate Masur (36:48)

Yeah.

Don Wildman (36:49)

This case involves originalism, which we hear a lot about now. I mean, that is one of Taney's pillars of his decision, isn't it sort of.

Kate Masur (36:57)

I mean, the. So the. It is noteworthy how much as you say, originalism or the idea of like, what did the founders think about citizenship plays an important role here. I would. So what they're doing, what he is doing, and then what the Benjamin Curtis dissent is doing is looking to history and giving a lot of weight to what did the founders think. Right. So that is a kind of originalist move. I wouldn't say they're necessarily originalists in the sense that we understand it now, just because they're not also saying that the only way to understand or to interpret the law is by trying to figure out something about the original meaning. They're saying that this is one of the things that they're going to weigh.

Don Wildman (37:39)

I mentioned at the top, Kate, your brief, which you wrote with Martha Jones about birthright citizenship. This pushes into that legal territory. Dred Scott is very much a part of that general issue that we're even dealing with today. In what way?

Kate Masur (37:52)

So one of the things that Taney's decision in Dred Scott says is even if you're a free person, even if you were born in the United States, if you're black, you're not a citizen of the United States. And so it's widely known, or one of the things that people often say very as a kind of rote statement, is the 14th Amendment's birthright citizenship clause, which says all persons born or naturalized in the United States are citizens of the United States. That that was designed to overturn or essentially nullify the Dred Scott decision. The 14th Amendment, which was passed in 1866 and ratified in 1868, is part of the Constitution that was designed to definitively say everyone born in the United States is a citizen of the United States. By then, slavery was abolished. And so it wasn't a question of slavery free everyone born in the United States is a citizen of the United States. So at that point, like any Supreme Court justice who comes along and says black people aren't entitled to be citizens, you can't say that anymore because it's part of the Constitution, right, that birthright citizenship exists. So back to 1857, Taney is saying there's no such thing as birthright citizenship in this country. People on the other side of that argument, including Justice Curtis on the Supreme Court and also including many African American activists and their white allies, have been saying for decades, free African Americans were born in this country. They're citizens of this country. So this I don't want to get too Much in the weeds. But the point is, before the codification of birthright citizenship in the United states constitution in 1868, there was a widespread view that this country had inherited from England a tradition of birthright citizenship, that everyone born here is a citizen. It was not exactly codified in the original Constitution, but the idea that we inherited that from English common law. People had been trying to deny free black Americans their citizenship for a long time. And free black Americans had been constantly coming back, particularly in the decades of like the 1830s, 1840s, 1850s, and saying, no, we were born here, we're citizens of this country. And there were many white legal authorities who agreed with that argument. So one of the sort of debates between, let's say Taney and Curtis in the Dred Scott decision is about the question of birthright citizenship. And it is then the 14th amendment that tries to settle it once and for all.

Don Wildman (40:17)

Right. How much was this all a reaction to the growing power legally that black people were gaining? You know, so much of American history is about hedging in this power base and minimizing it. Dred Scott addresses that directly. Right.

Kate Masur (40:32)

Well, I think it would be more accurate to say it was hedging against the growing power of the anti slavery movement. Sometimes people say, you know, that abolitionists were this teeny, tiny minority who had very, had no power. But actually that's really a misreading. The Republican Party was the first major political party that took any kind of anti slavery stance, and it very clearly stood against the extension, the further extension of slavery into new territories. Republicans were very comfortable saying they thought slavery was morally wrong. And black Americans who were political were at the forefront of that egalitarian movement. They were the ones, as you can imagine. Why? I mean, they were the ones who were saying, we need to be a multiracial democracy. We need everyone to be free. We need to have citizenship regardless of race. And there were also plenty of white Northerners at the time who agreed with that. So what the Dred Scott decision and its larger context is trying to do is hem in and disempower that pro democracy movement most broadly.

Don Wildman (41:38)

Kate, the Dred Scott case destroys any chance for compromise. This thing, this issue has gone all the way to the Supreme Court who has laid out the law. It really sets into stone what all these issues are going to be as we move towards civil War. I'm curious about after Civil War, how is the Dred Scott related to, say, the 14th Amendment?

Kate Masur (41:57)

Well, the Dred Scott decision was, as we've talked about, super Controversial in some ways not widely accepted. And then ensues this Civil War from 1861 to 1865, during which the Lincoln administration takes steps to actually undermine the Dred Scott decision. So at one point, the Attorney General of the United States under Lincoln issues an opinion in the end of 1862, saying in his legal view, free African Americans are indeed citizens of the United States. And then the Lincoln administration does things like issue passports to free black people, which had been a subject of debate about black citizenship before the war, recognize the independence of Haiti and Liberia, and welcome diplomats from those countries, black diplomats from those countries to the United States. This is Congress take away the bar on black men as letter carriers for the federal government. So there are all of these ways that during the course of the Civil War, the Lincoln administration and the Republicans in Congress tried to erode the impact of the Dred Scott decision. And then finally, in 1866, once and for all, Congress tries to bring the matter to a close by first passing what's called the Civil Rights act of 1866. It's the first ever federal civil rights statute which declares that all people born in the United States are citizen and then constitutionalizes that in the 14th Amendment. And again, I encourage people to read the 14th Amendment, especially Section 1 for themselves, particularly because it's at issue today. So today we will hear lots of conversations about what does birthright citizenship mean? Who does it include? Who does it exclude? And I think the bottom line is that in trying to ensure that everyone is clear forever and ever that the United States Constitution says all people born in the United States are citizens of the United States to overturn and nullify. Dred Scott. That is what Congress put in the United states constitution in 1866, and that's the Constitution that we live under today. So in a way, there's a very direct line from today's conversations about birthright citizenship to the 14th Amendment back to the Dred Scott decision.

Don Wildman (44:07)

Kate Macer is professor who hails from the halls of Northwestern University in Evanston, Illinois, Land of Lincoln. Her book, Until Justice Be America's First Civil Rights Movement From Revolution to Reconstruction, should definitely be on your shelf. Kate, how can listeners keep track of what you do?

Kate Masur (44:22)

They can find me on my Northwestern website, Northwestern University, and also I have my own website, katemacer.com where I put resources and stuff related to what I'm up to lately.

Don Wildman (44:32)

Thank you so much, Kate. I hope we see you again.

Kate Masur (44:35)

Thanks a lot. Take care.

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