Discussion Paper
Scott v. Sandford, from today’s perspective, is almost without doubt a notorious case. The
Plaintiff Dred Scott, once a slave in Missouri, spent four years of his life in the state of Illinois where
slavery was forbidden by the Missouri Compromise of 1820. However, the SCOTUS rejected his
claim that his residence in the free state made him a free man. Instead, according to the majority
opinion, an African American whose ancestors were brought into the US and sold as slaves can not
become a member of the political community and are not entitled to all the rights, privileges and
immunities enjoyed by citizens under Article III of the Constitution. As such, Dred had even no
standing to sue in the Court of Missouri: he was a property there, not a citizen, and the SCOTUS
resorted to the history of times and the language of the legislation to prove this. As if still not
satisfied, the SCOTUS went on to hold the Missouri Compromise of 1820 unconstitutional, foreclose
Congress from abolishing slavery in certain regions, and announce that the right to own slaves as
property is protected under the Fifth Amendment.
To me, the reasoning of the majority opinion is quite self-contradictory and elusive in certain
aspects. First of all, it seems unclear whether Dred had any standing to sue in the federal court in this
case. The Court only stated that Dred was not a citizen “in the state of Missouri” and thus lacked
standing to sue there, but was silent as to whether Dred had standing to sue in the federal court
system. On one hand, the Court suggested throughout its reasoning that Dred was not a citizen of the
United States - if that is the case, Dred would have no standing to sue in the federal court system and
the case should be dismissed. On the other hand, the Court “proceed[ed]” to inquire whether the facts
relied on by Dred entitled him to his freedom. This move was indicative of the Court’s belief that it
in fact had the jurisdiction to hear this case and Dred had the standing to sue. This logic fallacy
points to a deeper institutional tension rooted in the judicial system at that time: if the SCOTUS was
to remain logically consistent by denying Dred’s national citizenship and his right to sue in federal
courts, in theory only the courts of Illinois could decide whether Dred was free or not in the state of
Missouri, but what would be the ground for an Illinois court to decide such issue?
Second, the Court was inconsistent on the relationship between the state and the nation in terms
of territory and citizenship. While the Court agreed that, in terms of territory, the land of a state was
the land of the nation and the federal government controlled certain lands (Johnson v. M’Intosh,
1823), it took a rather different stance on the question of citizenship. It argued that a citizen of one
state was not necessarily a citizen of the nation when s/he was black - even if the nation was called
“the United States”, very sarcastically. This argument was not only logically fragile, but also
factually untrue (as pointed out by Justice Curtis in his dissenting opinion).
Third, the majority opinion was also bipolar in its attitude towards the branch of legislation (and
the concept of people sovereignty that it potentially stood for). In some parts of the opinion, the
Court portrayed itself as a legal realist, favoring legislation over jurisprudential sources of law and
asserting that the Court was only interpreting the provisions and not responsible for changing it.
However, its actions in essence betrayed its words at the end of the day by adopting a very stringent
view in interpreting the Constitution and declaring the unconstitutionality of the legislation by the
Congress.
I will now move on to discuss the other two readings, both touching upon the reparation for the
Black citizens. One of the grounds for reparation is to return the land and economic wealth “stolen
from Black families”. Neighborhoods such as Russell City and North Lawndale have witnessed the
institutional economic repression on African Americans that continued decades after the Civil War:
from racist housing covenants and insufficient remedy for expropriation to redlining practices
endorsed by the FHA and denial from the legitimate financing market. Consequently, African
Americans had to work much harder than the white citizens to afford a house and a decent living.
“White poverty is not negro poverty”, in that the latter was intentionally man-made. When the white
could no longer exploit the black as property, they began to exploit the property of the black, in order
to sustain their decent way of living and their ultimate control of wealth and power. Here, Ta-Nehisi
Coates correctly pointed out that this is in essence not a “racial” problem by maintaining that “these
differences are not racial differences”. Instead, she attributed it to a “cultural” cause of “ancient
brutality, past injustice, and present prejudice”. While this may be partly true (as can be seen by the
majority opinion in Scott v. Sandford), I believe the issue of “white supremacy vs. black punder” may
also be understood through the lens of “class”, one between the bourgeoisie and the working class. If
that is the case, monetary reparation will hardly be “the” solution to the problem, but it is certainly
better than nothing. What is the way out? Another wave of the Black Panther Party movement? I do
not know.