Why Didn't They Tell You?


… about Justice Curtis’ dissenting opinion in the Dred Scott decision?

… about Justice Curtis’ dissenting opinion in the Dred Scott decision?

One of the most famous, or perhaps I should say infamous, and controversial decisions of the United States Supreme Court was the Dred Scott decision of 1857. Dred Scott, a black slave, “who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, had appealed to the Supreme Court in hopes of being granted his freedom.”1 The Supreme Court was presided over by Chief Justice Roger B. Taney, who also was the Chief Justice when the Amistad case was decided sixteen years before (1841).

Justice Taney framed the issue in the following way: “The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution….?”

In the 7-2 majority opinion, Justice Taney answers the question with these words: “The question before us is, whether the class of persons [people of African descent] described in the plea in abatement compose a portion of this people [who established the Constitution] , and are constituent members of this sovereignty? We think they are not, and that they 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 instrument provides for and secures to citizens of the United States.”1[Italics added]. The suit was dismissed on the grounds that the court where the litigation began, a U. S. Circuit Court, had no jurisdiction to try this case. Additionally, in the view of Justice Taney, people descended from Africans brought to the United States as slaves could not become citizens of the United States and, therefore, could not bring suit in a U. S. court.

The Chief Justice had many disparaging and denigrating things to say about people of African descent in this majority opinion which throughout was laced with racist remarks, the likes of which I had never read. There was a hue and cry against this ruling throughout the North, especially in abolitionist circles. Nonetheless, coming from the U. S. Supreme Court, the ruling had the force of law.

One of the voices of dissent was Associate Justice Benjamin R. Curtis who delivered an incisively brilliant dissenting opinion. To convey an idea of the thinking of the founders at that time, Justice Curtis looked at a debate in 1778 on the drafting of the Articles of Confederation, the governing document preceding the Constitution. In the words of Justice Curtis,

“At the time of the ratification of the Articles of Confederation, all free native born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens2.

In debates on the drafting of the fourth article (The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States.), delegates from South Carolina moved to amend the article by,

 “…inserting after the word ‘free,’ and before the word ‘inhabitants,’ the word ‘white,’ so that the privileges and immunities of general citizenship would be secured only to white persons. Two States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by its terms of inclusion, ‘free inhabitants,’ and the strong implication from its terms of exclusion, ‘paupers, vagabonds, and fugitives from justice,’ who alone were excepted, it is clear, that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, were entitled to the [60 U.S. 393, 576] ] privileges and immunities of general citizenship of the United States.”2

In light of the above quotation, we do not have to speculate whether the framers of the Articles of Confederation intended to include free people of African descent among the recipients of citizenship rights. The record makes it plain and crystal clear. When the South Carolina delegation tried to make the article only apply to White People by changing ‘free inhabitants’ to ‘free white inhabitants’, the delegates decisively rejected the proposed change.

As regards the inclusion of people of African descent in the Constitution, Justice Curtis had this to say:

It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact that the Constitution was made exclusively by the white race [Italics added]. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established [Italics added).2

Reading the above words, it seems that Justice Curtis was not just writing for his contemporary audience but also for the time we live in today, when so often we hear it said that the U. S. Constitution was not meant Americans of African heritage. So the question is, whose report are you going to believe, as regards the Founders’ intentions, Justice Taney or Justice Curtis (and don’t forget John Quincy Adams)? As for me, I believe the report of Justice Curtis.

Since the Civil War started in 1861, four years after the Dred Scott ruling in 1857, and the 14th Amendment to the U. S. Constitution was ratified in 1868, granting citizenship rights to the newly freed Americans of African descent, the impact of this heinous ruling was nullified 11 years after its issuance. Remembering that Supreme Court rulings carry the force of law, passage of the 14th Amendment assured that the Dred Scott ruling could not be used to deprive Americans of African heritage of their citizenship rights. The amendment trumped the ruling. And that is a big deal.


  1. Dred Scott case: the Supreme Court decision. http://www.pbs.org/wgbh/aia/part4/4h2933.html   
  2. https://en.wikisource.org/w/index.php?title=Dred_Scott_v._Sandford/Dissent_Curtis&oldid=7429747

Next Post: Why didn’t they tell you that the real Uncle Tom of Uncle Tom’s Cabin was not an Uncle Tom?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s