Slavery was America’s original sin.   Thomas Jefferson wrote in the Declaration of Independence that “all men are created equal.”   In fact in the original draft of the Declaration of Independence the justification Jefferson gave for the revolution was that King George had “waged a cruel war against human nature itself” – by perpetuating the slave trade.

Slavery represented a moral dilemma. But it   was at the same time, “the central economic institution” of the U.S.  at the time our constitution was written (1787) . According to Van Cleve about this time slaves constituted about one third of the wealth in the Southern colonies.  The value of the slaves in those colonies approximated the value of all the land. Many of the founding fathers owned slaves themselves?  What were they to do?  They compromised. Five clauses of the U.S.  constitution enabled slavery without mentioning slaves by name.

The three-fifths clause provided that slaves would count as 3/5ths of a person for purposes of counting the population of a state.  Yes, three fifths of a human being. The constitution also forbids the federal government from interfering with the importation of slaves until 1808.  And in addition it provided a fugitive slave clause that required the North to return slaves who managed to escape there-to-their “masters” in the South.

In Paul Finkleman’s words the founding fathers had made a “covenant with death.”   But Jefferson’s writings show that this dark bargain was a source of guilt. Jefferson wrote in his famous work Notes of a State OF VIRGINIA,   “I tremble when I think that god is just and his justice will not sleep forever.”

Judges, during the era of slavery, struggled to justify the peculiar institution. Their strategy rested on the claim that law and justice were separate things. In a case called State v. Post, Justice Nevius wrote, “Judges must be more than men.” In effect he said they must put the letter of the law above their personal sense of right and wrong. 

This dilemma came to a head in the case of Dred Scott which was decided on March 6, 1857.  In 1836 Dred Scott’s master, Dr. John Emerson, took Scott with him to Ft. Snelling in Missouri, a “free” territory. Emerson later sold Scott to John Sanford.  English law had long held that slavery was so repugnant to the law of nature that once slaves landed on English territory-free soil-they were free.  This was called the Somerset doctrine.   In the Dred Scott case attorney Montgomery Blair agued on behalf of Scott that once Scott had set foot on free soil he was free. But Henry S. Geyer argued on behalf of Sanford that only “permanent” residents of free territories were free. Scott’s residence in Missouri was only temporary Geyer said.

Chief Justice Roger B. Taney wrote the opinion for the U.S. Supreme Court.

Taney dismissed Scott’s claim on the grounds that he was not a citizen entitled to sue in U.S. courts.  Famously Taney wrote, 

Blacks,are not included and were not intended to be included under the word citizens in the constitution …On the contrary they were at that time (1787) considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and whether emancipated or not…and so far inferior that they had no rights which the white man was bound to respect.

The Dred Scott case was never officially overruled.   But Congress abolished slavery and decreed in the fourteenth amendment that any person born in the U.S. is a citizen of the state they are born on and a citizen of the United States. In 1954 The Supreme Court rejected the philosophy of Dred Scott in Brown v. Board. 

As Faulkner has written,” the past is never dead-it is not even past.”  The legacy of Dred Scott  still haunts us. The racist narrative that blacks are an inferior order of human has been reinvented as a story about how blacks, particularly urban blacks are prone to crime and should be presumed guilty.   This racial narrative is reflected in patterns of profiling – blacks arrested for shopping at Barney’s in New York, the New York stop and frisk case, and in the case of Eric Garner and Michael Brown.  This narrative is also reflected in the fact that blacks are disproportionately represented in America’s prisons and jails.    As Michele Alexander has written a black male child born today has one in three chance of going to prison by age 35. 

But another legacy we have is hope. For all our problems, we live in the greatest democracy in the world.  The descendants of African slaves – those whose humanity Taney denied- have become doctors, lawyers and leaders.  On the anniversary of Dred Scott celebrating the moral distance we have travelled the Justice Department has issued a blistering report denouncing systemic racism in Ferguson police department and has demanded change. 


Donald Jones is Professor of Law at the University of Miami, School of Law.  He is the author of Fear of a Hip Hop Planet: America’s New Dilemma (2013).