Directions: Working in groups, read each of the following hypothetical cases involving congressional actions. Using the Constitution and the decision in McCulloch v. Maryland, decide which congressional action(s) would be allowed and which would not be allowed. EXPLAIN YOUR ANSWERS BY QUOTING FROM THE McCULLOCH v. MARYLAND DECISION AND SPECIFIC SECTIONS IN THE CONSTITUTION THAT WOULD POSSIBLY APPLY TO THE QUESTION ASKED.
Case One: In order to maintain military strength, Congress passes a law allowing the United States to draft eighteen-year-olds into military service. (Yes. The case states that the Necessary and Proper Clause gives Congress “additional power, not a restriction on those already granted.” Article I, Section 8 provides Congress with the power to “raise and support Armies ….”)
Case Two: Congress believes that all citizens must have military training and passes a law requiring all ministers, priests, and rabbis in the country to give sermons supporting military training. (No. The powers extended by this case are powers involving commerce, not religious rights. The First Amendment says “Congress shall make no law respecting an establishment of religion ….”)
Case Three: With the U. S. government experiencing financial trouble, Congress passes a law allowing the president to appoint citizens “Lords and Ladies of the United States.” In return, these “Lords and Ladies” agree to donate large sums of money to the United States treasury. (No. The case emphasizes the “government of the people,” which would exclude giving recognition based on the ability to “buy” that recognition. Article I, Section 9 says “No Title of Nobility shall be granted ….”)
Case Four: A backlog of cases clogs the federal court system. In order to reduce the buildup, Congress creates a series of special courts to hear certain kinds of cases. (Yes. The case states, “This government is acknowledged by all to be one of enumerated powers.” Article III says “… and in such inferior Courts as the Congress may from time to time ordain and establish.)
THOMAS GIBBONS v. AARON OGDEN
22 U.S. (9 Wheat.) 1, 6 L.Ed. 23
Argued February 1824
Decided March 2, 1824
Robert R. Livingston and Robert Fulton, the inventor of the steamboat, had a twenty-year monopoly granted by the New York State Legislature to exclusively run steamboats in the state’s waters. The monopoly was a source of aggravation to other states, which passed laws excluding the Livingston-Fulton boats from their waters while granting a monopoly for their state to another company.
In 1811, Fulton’s company assigned to Aaron Ogden, a former New Jersey governor, a license to run a ferry service on the Hudson between New York and New Jersey--a very profitable business. Seeking to take advantage of this, in 1818 Thomas Gibbons, Ogden’s former partner, secured a license from the federal government to engage in the coastal trade and started up a competing New York-New Jersey ferry service. Although Gibbons was not licensed by the monopoly, his ships were licensed under the federal law governing the coastal trade.
Claiming that his monopoly rights were being infringed, Ogden obtained an order from the New York courts forbidding Gibbons’ ferry from docking in New York. After obtaining the services of Daniel Webster as his lawyer, Gibbons took the case to the United States Supreme Court. For five days in February, 1824 the case was argued before the justices.
ISSUE: Under the Commerce Clause of Article I, Section 8, should navigation be understood to be a part of commerce, and, if so, to what extent might Congress regulate it?
GIBBONS v. OGDEN (1824)
The Court held in Gibbons’ favor, striking down the monopoly because it was in conflict with the broad federal power to regulate interstate commerce. Chief Justice John Marshall wrote this landmark decision.
Ogden had argued that commerce did not include navigation but was limited “to traffic, to buying and selling, or to the exchange of commodities ....” Marshall agreed that this was one of its meanings, but that it was still “something more.”
The words are: “congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” The subject to be regulated is commerce; and our constitution being ... one of enumerations, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more.... If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation .... The power over commerce, including navigation, was one of the primary objects for which the people of American adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense; and the attempt to restrict it comes too late ....
Marshall then turned to the meaning of “among,” as in “among the several states.” He reasoned that since “among” means “intermingle with,” “Commerce among the states cannot stop at the external boundary line of each state but may be introduced into the interior.” Congress had no power over commerce, which is confined to one state alone, but that power was in force as soon as a state’s boundary line had been crossed. And the power to regulate must necessarily follow any commerce in question right across those boundaries; otherwise, the power would be “useless.”
Having established that Congress has a regulatory power over commerce, which includes navigation and crosses state lines, the Court turned to the question of the extent of such power:
... But the framers of the constitution foresaw this state of things, and provided for it by declaring the supremacy not only of itself but of the laws made in pursuance of it. The nullity of any act inconsistent with the constitution is produced by the declaration that the constitution is supreme law.... In every such case the act of congress, or treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it.... (Emphasis added.)
The Court’s conclusion was that the power of Congress to regulate power was unlimited as long as it applied to objects specified in the Constitution. Commerce is such an object, and the Constitution places no limit on Congress’s power to regulate it.
DRED SCOTT v. JOHN SANDFORD*
60 U.S. 393, 15 L.Ed. 691
Argued February 1856; Reargued December 1856
Decided March 6, 1857
The first African Negroes in the British North American colonies were brought ashore at Jamestown in 1619 as slaves. There were significant differences in the way slaves were treated, work they were required to do, and even in the legal structure of slavery from colony to colony. In all the colonies, however, slavery was lifelong and hereditary. At law, a slave was considered a thing rather than a person, having no legitimate will of his or her own and belonging bodily to his or her owner. As property, he could be forced to work, and his offspring belonged to the master. Conscience and interest, however, dictated that in certain respects he must be treated as a person. For instance, regarding criminal law a slave was fully responsible for illegal acts he committed, which made a slave both property and person.
By the beginning of the American Revolution, slavery was not only legally established in all thirteen colonies, but also so firmly implanted in the southern colonies that blacks constituted about forty percent of the population. Many people, however, felt that slavery was incompatible with the fundamental assumption of the Declaration of Independence that all men are created equal and endowed by their creator with the inalienable rights of life, liberty, and the pursuit of happiness. During the Revolutionary Period state after state began to end African slave trade, and abolition of slavery itself was achieved in some states. By the 1790s, abolition societies had appeared in every state from Virginia northward, with prominent men like Benjamin Franklin and John Jay in leading roles.
With support from both northern and southern delegates, the Confederation Congress, with no dissenting votes, prohibited slavery in the Northwest Territory when it passed the Northwest Ordinance in 1787. At the Constitutional Convention (also in 1787), there were approximately 50,000 free blacks in the United States and about 700,000 slaves, most of who were in the south. This time the question was whether slaves should be counted as property or as population. That problem was temporarily solved with the Three-Fifths Compromise. Neither in its wording nor in its historical context does the clause lend significant support to the property-holding aspect of slavery. The Constitution neither authorized nor forbade slavery.
On August 7, 1789, the first Congress under the Constitution reenacted the Northwest Ordinance, making some modifications, but including the antislavery provision. Although the first session of the new Congress saw no pressing need in 1789 to include a fugitive-slave law, four years later the second Congress took action on the subject. Fugitives from justice and fugitives from service had been dealt with side by side in the Constitution, so it seemed logical to do so again in passing the Fugitive Slave Act of 1793. The first half of the law dealt with criminal extradition and required a governor of a state to which a fugitive fled to return the fugitive to the state where the person was wanted. The second half of the Act authorized a slave owner or his agent to cross state lines to seize an alleged fugitive slave. The law gave an alleged fugitive no legal due process, such as the writ of habeas corpus or trial by jury. In 1842 the United States Supreme Court ruled the Fugitive Slave Act to be constitutional in the case of Prigg v. Pennsylvania. Federal enforcement of the fugitive-slave clause treated slaves as property, accepting the southern definition of slave holding as a form of property holding.
*The respondent’s last name, Sanford, was misspelled in the official Supreme Court report.
When the Missouri Territory applied for statehood in 1819, slavery in the territories became a serious political and constitutional question. At that time there were eleven free states and eleven slave states. Northerners in the House of Representatives pushed through an amendment to the statehood resolution that would have prohibited slavery in the new state even though many Missourians were slaveholders. Dominated by southerners, the Senate objected to the amendment, claiming that Congress had no constitutional right to impose such a condition on a new state. Ironically, few southerners questioned Congress’s right to prohibit slavery in the territories. The stalemate between the two chambers was not resolved until Maine was admitted to statehood in 1820 under the Missouri Compromise. The Compromise prohibited slavery in the remainder of the Louisiana Purchase area that was north of Missouri’s southern boundary.
A second compromise became necessary when Missouri’s constitution was presented to Congress for approval later in 1820. A section of the document barred the entry of free blacks into the new state. Representatives from several northern states that had given free blacks rights of citizenship objected to the provision, claiming it violated the “comity clause” (Article IV, Section 2, Clause 1) of the Constitution, which gave citizens of one state “all Privileges and Immunities of Citizens in the several States.” Southerners, on the other hand, contended that free blacks did not have the same rights as whites—they could not vote in federal elections, for example—and therefore were not citizens under the Constitution.
The Constitution did not define either federal or state citizenship, nor did it clearly stipulate whether those persons defined as citizens by one state retained that status when they moved to another state. In the Missouri controversy, Congress reached a compromise that essentially barred Missouri from passing any law that would ban the entry of citizens of another state. Although the two Missouri compromises solved tensions over slavery temporarily, they did not answer the greater questions of whether Congress actually had the authority to prohibit slavery in the territories and whether blacks, free or slave, were citizens with all the rights and privileges guaranteed by the Constitution.
With the formal acquisition of Texas in 1846 and the prospect of obtaining more land from Mexico, extension of slavery into the territories again became an issue. The extension of slavery was in reality a thin shield for the real issue of whether slavery could continue to exist at all. Once again, northern representatives proposed to bar slavery in the newly acquired territories. They contended that Congress, under the “rules and regulations” clause of Article IV and under the treaty and war powers, had the power to prohibit slavery in the territories. They also noted that Congress had exercised this authority throughout its existence.
Southern opponents argued that slaves were property and that all the sovereign states owned the territories in common. The federal government, they continued, had no right to act against the interest of the sovereign states by barring their property in slaves from any of the territories. Another argument was that abolition of slavery was a violation of the Fifth Amendment’s Due Process Clause because it took property without just compensation.
The controversy over the western lands was settled in 1850 when Congress produced a three-part compromise. California would enter the Union as a free state; enforcement of the controversial Fugitive Slave Act would be turned over to the federal government; and citizens of the newly organized Utah and New Mexico territories would determine whether they would allow slavery at the time those territories became states.
With racial discrimination so pervasive in American law and society, there inevitably arose the question whether free Negroes were citizens of the United States and of the states in which they lived. It was an issue clouded not only by the free Negro’s intermediate status between slavery and freedom, and by the variations in his treatment from New England to the deep South, but also by the vague and flexible meaning of the word “citizen” itself. In its broadest and perhaps most common usage during the early national period, “citizen” meant any domiciled inhabitant except an alien or a slave.
The Articles of Confederation treated the word “citizen” as interchangeable with the word “inhabitant.”
The nature of citizenship
, state and national, and whether it included free Negroes, remained unsettled issues when the slave Dred Scott sought his freedom in the courts. Scott was originally owned by a Peter Blow, who came to St. Louis, Missouri (a slave state) with his family in 1830. He brought Dred Scott with him, who had been with the Blow family since Scott’s childhood or early youth, and five other slaves. Scott was described as having a very dark skin and probably no more than five feet tall, “illiterate but not ignorant, with a strong common sense.” Blow died in 1832, and in 1833 Dred Scott was sold to an army surgeon, Dr. John Emerson. In 1834, Emerson was transferred to Illinois (a free state), and later to Wisconsin territory, taking Dred Scott with him both times. Thus Scott had been held as a slave in a free state and was then taken into an area where the Missouri Compromise forbade slavery. During the travels, Scott met and married Harriet Robinson. Emerson returned to St. Louis near the end of 1838, having recently married the former Irene Sanford. In 1842 Emerson was honorably dismissed from the service, and he died the next year. In his will, Emerson left Scott to his widow. Mrs. Emerson’s brother, John F.A. Sanford of St. Louis was one of the executors of Emerson’s will.
On April 6, 1846, Dred and Harriet Scott filed petitions in the Missouri circuit court in St. Louis, summarizing the circumstances of their residence on free soil and requesting permission to bring suit against Irene Emerson in order to establish their right to freedom. They received permission to sue, claiming that Mrs. Emerson had “beat, bruised and ill-treated him” and then imprisoned Scott for twelve hours. The declaration also attested that Scott was a free person held in slavery by Mrs. Emerson. Harriet’s complaint was similar. It was understood that the alleged acts of the defendant were lawful of a slave but constituted assault and false imprisonment if the plaintiff were a free person. Just how the Scott suits got started, and who provided the original initiative, remains unproven. There is no evidence of underlying political purposes or of intent to contrive a test case. On June 30, 1847, the suits came to trial and the jury returned a verdict for Mrs. Emerson. The case was then presented to the highest appellate court of Missouri, which reversed and returned a ruling in favor of the Scotts.
After the court’s ruling, Mrs. Emerson left St. Louis to live with one of her sisters in Springfield, Massachusetts. At that point, John Sanford apparently took over his sister=s affairs and hired a new lawyer for a new trial. The case came to retrial on January 12, 1850, and the Scotts were ruled to be free. Appealed, the Missouri Supreme Court on March 22, 1852 reversed the trial court’s decision, announcing that Dred and Hariett Scott were still slaves.
By the end of 1853, Dred Scott had acquired new legal counsel, had allegedly become the property of a new owner, and had begun a new suit for freedom in the federal circuit court. Since 1852, Charles Edmund LaBeaume, brother-in-law of Henry T. Blow, had been hiring Dred and Hariett Scott. LaBeaume was informed that Harriet and Dred Scott had been sold to Irene Emerson’s brother, John F.A. Sanford, a resident of New York City. It is not known whether Sanford actually owned the Scotts or if he was simply acting as his sister’s agent. Some historians feel that Sanford was simply a cardboard defendant, secretly in a league with the other side.
In 1854 the United States circuit court for the district of Missouri heard Dred Scott
in a small back room over a store. The judge instructed the jury that the law was in the defendant’s favor, and the jury returned a verdict for Sanford. According to the decision, Dred Scott was a slave and had
always been a slave. This meant that he was never a citizen of Missouri and therefore had no right to bring suit in the first place.
The United States Supreme Court officially received the record of Dred Scott v. Sandford on December 30, 1854. Because of the lateness of receiving the case, it was continued to the next term. Montgomery Blair represented Dred Scott, arguing that free Negroes were citizens to the extent of being qualified to bring suit in a federal court. Blair also claimed freedom for Scott solely on the ground that he had been “emancipated by his master’s having taken him to reside in the State of Illinois.” Arguments before the Court began on February 11, 1856 and extended over four days. During the latter part of February, the Court conferred at least twice on the case without making progress.
Finally, the case was reargued beginning on December 15, 1856. This time, George T. Curtis, a conservative Massachusetts Whig whose father was sitting on the Supreme Court, joined Montgomery Blair. Again, arguments extended over four days. On the question of Negro citizenship, Blair spoke for more than an hour, going over much the same ground that he had covered in February. It was the respondent who primarily dealt with the question of whether Scott’s stay in Illinois had worked his emancipation. On March 6, 1857, the United States announced its decision.
ISSUES: Is Dred Scott a citizen and therefore entitled to sue in federal court under the diversity of citizenship rule? What is the status of slaves who had been held on free soil? Does Congress, under Article I of the Constitution, have the power to prohibit slavery in new states and in the territories?
SCOTT v. SANDFORD (1857)
By a seven-to-two vote, the Supreme Court ruled that “Negro slaves” were an inferior race and did not have the same rights and protections as citizens of the United States. After the case was reargued, seven of the justices agreed to answer only whether Scott was a slave, and as a slave if he had authority to sue. Justice Nelson was assigned to write that opinion. However, the two dissenters announced that their dissents would cover all the issues: whether Dred Scott was a citizen, whether his stay on free soil made him a free man, and whether Congress had the authority to prohibit slavery in the territories. Unwilling to let the dissents go unanswered, each of the seven majority justices decided to write an opinion answering those issues he thought to be in question. When completed, the decision totaled 250 pages. Of the seven opinions written by members of the majority, Chief Justice Taney’s writing is considered to present the formal view of the Court.
The Chief Justice’s decision determined that Negroes, “whether emancipated or not,” did not qualify as citizens of the United States. It was Taney’s opinion that:
... they are not, and that they are not included, and were not intended to be included, under the word “citizen” in the Constitution, and can, therefore, claim none of the rights and privileges under which that instrument provides for and secures to citizens of the United States.
In Taney’s opinion, even the words “all men are created equal” from the Declaration of Independence did not include the black race. Taney wrote that the men responsible for that document:
... perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world, be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.
Taney felt that slaves were considered property, and according to him, this was reflected in the only two provisions of the Constitution that specifically mentioned slaves. These provisions “treat them as property, and makes it the duty of the government to protect it; no other power, in relation to this race, is to be found in the Constitution.” Taney continued:
But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if he thinks it proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories ... And these two provisions show, conclusively, that therein referred to, nor their descendants, were embraced in any of the other provisions of the Constitution; for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen....
Addressing the Fifth Amendment right not to be deprived of the right to property without Due Process of Law, the Chief Justice wrote:
The rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment of the Constitution .... An Act of Congress which deprives a person of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law ....
It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which governments may exercise over it, have been dwelt upon in the argument.
But ... if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.
Now ... the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner.... And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.
The Chief Justice attacked the Missouri Compromise as an unconstitutional exercise of congressional authority. He wrote:
... [I]t is the opinion of this court that the Act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident ....
Taney acknowledged that the federal government had the power to acquire new territory for preparation for statehood and that Congress could in its discretion determine the form of government the territory would have. But Congress must exercise that power over territories within the confines prescribed by the Constitution. Therefore, Taney said, the portion of the Missouri Compromise that prohibited slavery in the northern portion of the Louisiana Purchase was void, and his residence there had not freed Dred Scott.
Nor was Scott free because of his residence in Illinois. Taney said that because:
... Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave depended on the laws of Missouri, and not of Illinois.
Chief Justice Taney’s view of Negro inferiority was basic to his ruling. He said:
They had for more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic....
Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it.
The six other justices in the majority came to the same conclusions as the Chief Justice, some using different reasoning. All agreed that Congress had no authority to prohibit slavery in the territories.
The two dissenters also filed lengthy opinions. Justice Curtis focused primarily on citizenship for freeborn Negroes, noting that Negroes were among those who originally ratified the Constitution in a number of states. Curtis strongly indicated that, in his opinion, nothing in the Constitution had stripped these free African Americans of their citizenship. He wrote:
... under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States.
FOLLOW UP: The Dred Scott decision immediately created an uproar in which the Supreme Court was lambasted on one side and hailed on the other. Today the case is often considered to be the worst decision in its history by the United States Supreme Court. The decision, however, became totally obsolete when the Thirteenth Amendment was ratified late in 1865. The Civil Rights Act of 1866 and the Fourteenth Amendment, which was ratified in 1868, overturned it.
The parties in the case did not live long after the decision. John Sanford was in an “insane asylum” at the time of the decision and died within two months afterward. Dred Scott, his wife and their two daughters were given their freedom after the decision was announced, but Scott died of tuberculosis on September 17, 1858.
SCOTT v. SANDFORD
Learning Objective: The student will
Understand arguments in the Dred Scott v. Sandford Supreme Court case, which led to the Thirteenth, Fourteenth, and Fifteenth Amendments.
TEKS/TAKS: 8.7 B, C, D; 8.8 A, C; 8.9 A; U.S. Hist. 2 C, 7 A & D, 17 A, 18 A & C, 21 C, 26 A & B; Govt. 2 A, 3 A & B, 8 D & E, 9 C, E & F, 14 A, C, D & F, 16 B, 23 A & B
Materials Needed: Copies of Learning Stations posted around the room, copy of student answer sheet for each student
Vocabulary: Due process of law
1. Study the facts of the case of Scott v. Sandford.
2. Instruct pairs of students to go to each station. Students should discuss the argument posted and determine if it is an argument for Scott or for Sanford. Answers should be placed on the provided answer sheet.
3. After all pairs of students are finished with the learning stations, pass out and read together the Supreme Court decision. Explain to students that this decision is often called the worst decision the Supreme Court ever made.
4. Tell students to try and put themselves in the place of a United States citizen at the time of the Dred Scott case. They should take a position regarding the outcome of the case and write a letter to the newspaper editor explaining how they feel about the case. Explain that their letters may be written in first person but should include some specific facts and arguments from the case. Note: Student letters may be used for assessment for this activity.
Answers: Stations for Scott--2, 5, 7 & 8; for Sandford--1, 3, 4, 6, 9 & 10.
Extension for GT/AP: Give students the facts in the case. Divide the class into teams of either members of the Supreme Court, attorneys for Scott, or attorneys for Sanford. The attorneys should prepare oral arguments before the Supreme Court, and the members of the Court should prepare questions to ask the attorneys during the oral arguments. Then have the class conduct a “moot court,” a mock appellate hearing, on the case. The members of the Court should then meet, come to a decision, and write an opinion in the case.
LEARNING STATION STATEMENTS
DRED SCOTT v. SANDFORD
1. Only federal citizens have the right to sue in federal courts.
2. All people are guaranteed the right to sue when their rights are violated.
3. Only those African Americans who were state citizens when the country was formed are citizens of the United States.
4. Even though a state might free a slave and give him state citizenship, it did not automatically mean he was granted federal citizenship.
5. Every free person born on United States soil is a citizen of that state and the United States, protected by the laws of the Constitution.
6. When Dred Scott returned to Missouri, he was subject to Missouri=s law; therefore he was again a slave.
7. Residence in a free state or free territory automatically frees a slave.
8. A freed slave was automatically a citizen.
9. Slaves are property and not citizens; only citizens may sue.
10. Slaves may not be taken away from owners without following due process of law.
JOHN H. FERGUSON
163 U.S. 527
Decided May 18, 1896
In 1890, the State of Louisiana passed a railroad transportation law "to provide equal but separate accommodations for the white and colored races." The law provided that:
... [A]ll railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.... No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to... [A]ny passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of twenty-five dollars in the parish prison.... [S]hould any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts in this state....
In 1892, a committee was formed by black and Creole leaders to test the constitutionality of the law. They chose Homer Plessy
, who was one-eighth black, to make their test case. Plessy was a resident of the state of Louisiana and felt that he was entitled to every right, privilege, and immunity due to citizens of the United States of the white race by its constitution and laws. On June 7, 1892, he bought a first-class ticket on the East Louisiana Railway that traveled from New Orleans to Covington, Louisiana. Plessy entered the train and walked past the car marked "for coloreds only," finding a seat in the coach marked "for whites only." When the train conductor, who was responsible for assigning seats according to race, asked Plessy to move to the other car, he refused. Plessy was then forcibly ejected by the train conductor and a police officer and placed under arrest. After being charged with violating the state law, he was found guilty and sentenced to jail.
Homer Plessy filed an appeal against John H. Ferguson, judge of the criminal district court for the parish of Orleans, in the Supreme Court of Louisiana. This court found the statute to be valid.
Plessy then appealed to the U. S. Supreme Court, where he argued that the Louisiana law denied him "equal protection of the laws" in violation of the Fourteenth Amendment. Louisiana argued that the Amendment was only intended to protect political rights, such as access to courts, voting, holding public office, and so forth, and that it was not intended to protect "social rights." The state also felt that since it was equally illegal for a white man to enter the black coach as it was for a black man to enter the white one, this meant that each was furnished "equal protection of the laws."
ISSUE: Does a state law that requires separate facilities for black and white races violate the Thirteenth Amendment prohibition against slavery and the Fourteenth Amendment prohibition against state action that denies equal protection of the law?
PLESSY v. FERGUSON (1896)
Justice Brown wrote for a seven-to-one majority (Justice Brewer did not participate). The Court upheld the Louisiana law, stating that "a legal distinction between the white and colored races ... has no tendency to destroy the legal equality of the two races."
Brown concluded that the object of the Fourteenth Amendment was to:
... enforce the absolute equality of the two races before the law, but ... it could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political, equality...."
... as a conflict with the fourteenth amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the fourteenth amendment than the acts of congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned....
The majority then examined what they considered to be a fallacy of the plaintiff=s argument:
We consider the underlying fallacy of the plaintiff=s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if ... the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that ... equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals....
Justice Harlan, a former Kentucky slave-owner, alone dissented in this case. He stated:
In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.... Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.
The thirteenth amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom....
In examining legislative purpose for passing the statute, Justice Harlan stated:
... Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.... The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches.... If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so; and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
Justice Harlan then made an argument for equal rights:
There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.... In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved....
In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.
Justice Harlan warned that this decision would be used to segregate all aspects of life by races. This case created the doctrine of "separate but equal" that was followed in the United States until 1954.
BROWN, et al.
BOARD OF EDUCATION OF TOPEKA, SHAWNEE
COUNTY, KANSAS, ET AL.
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
Reargued December 7, 8, 9, 1953
Decided May 17, 1954
The Plessy v. Ferguson decision by the U. S. Supreme Court in 1896 established the doctrine of "separate but equal," which was followed by most school districts until the 1950s. The idea was that as long as facilities were provided for whites and blacks, no one's rights were violated.
By 1950, black Americans had made many gains, but they still suffered, partially as a result of years of unequal education. A total of seventeen southern states and Washington, D.C., had segregated schools. Another four states, including Kansas, allowed the local school districts to decide if there would be integrated or segregated schools.
A Kansas statute permitted, but did not require, cities with more than 15,000 populations to maintain separate school facilities for Negro and white students. The Topeka Board of Education established segregated elementary schools, but other public schools in the community were not segregated.
Linda Brown was black and lived in Topeka, Kansas. There was a grade school just five blocks from Linda's home, but that school was for white children only. Linda had to ride a bus and attend a school for black children that was twenty-one blocks from her home and across a dangerous railroad crossing.
Linda's parents, along with twelve other parents, took her case to federal court in 1951. An attorney for the National Association represented them for the Advancement of Colored People, Thurgood Marshall. Marshall argued that the black school was not as good as the white one in their neighborhood, that the black school building was old, the classrooms were crowded, and there weren't enough teachers. The Browns also said that Linda's school could never be equal as long as it was separate and furthermore that segregated schools were harmful to black children. They argued that segregated schools seemed to indicate that blacks weren't good enough to go to school with whites, and the only way to end this harm was to desegregate schools.
The three-judge District Court found that segregation in public education had a detrimental effect upon Negro children, but it denied the Brown's claim. This court determined that the Negro and white schools were substantially equal with respect to buildings, transportation, curriculum, and teachers.
Class actions originated in three other states at the same time in which Negro children sought to obtain admission to public schools on a nonsegregated basis. The other three states were South Carolina, Virginia, and Delaware. The Brown case and cases from the other three states were directly appealed to the U. S. Supreme Court.
ISSUE: Does segregation of children in public schools solely on the basis of race deprive children of the minority group of equal protection of law, as guaranteed by the Fourteenth Amendment?
BROWN v. BOARD OF EDUCATION (1954)
In Brown v. Board of Education, the nine Justices rendered a unanimous, consolidated opinion in the four state cases. Recognizing that history had shed little light on the intended effect of the Fourteenth Amendment on public education, the Court considered the few judicial precedents in the field. However, instead of weighing and comparing the equality of school facilities for both races in terms of buildings, curriculums, qualifications and salaries of teachers, and other tangible factors, Chief Justice Warren, writing for the Court, simply got to the heart of the matter by examining the effect of segregation itself on American public schools:
In each of the cases, minors of the Negro race ... seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.... [These cases were based on] the so-called "separate but equal" doctrine announced by this Court in Plessy v. Ferguson. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate....
The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of equal protection of the laws....
Justice Warren then discussed the intent of the Fourteenth Amendment's original sponsors. He indicated that the Court's investigation determined not enough information to resolve the current problem. He stated:
The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.
An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world.... conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education....
In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of "separate but equal" did not make its appearance in this court until 1896 in the case of Plessy v. Ferguson, involving not education but transportation. American courts have since labored with the doctrine for over half a century.... In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications....
The approach to this problem, said Chief Justice Warren, should be sociological, not legalistic. And there was no better way to start than to consider the present place of public education in American life:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.... It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
Chief Justice Warren then went to the issue in the case:
We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does....
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a
finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:
"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system."
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected....
We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment....
We have now announced that such segregation is a denial of the equal protection of the laws....
FOLLOW-UP TO BROWN v. BOARD OF EDUCATION: On the same day the 1954 Brown ruling was handed down, the Court also settled the issue of segregation in the District of Columbia. This case, Bolling v. Sharpe, posed a somewhat different problem. The Fifth Amendment to the United States Constitution, which is applicable to the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment. So the Court had to decide whether the Due Process Clause of the Fifth Amendment made it unconstitutional to refuse to admit Negro children, solely because of their race, to public schools attended by whites.
Again, with a minimum of citations and with a determination to do for the District of Columbia what it was doing for the states, the Court outlawed segregation. The reasoning, however, was quite different. The unanimous opinion of the Court began by emphasizing that the concepts of equal protection of the laws and due process of law both stem "from our American ideal of fairness [and] are not mutually exclusive." True, equal protection is "a more explicit safeguard of prohibited unfairness," but discrimination may become so unreasonable and unjustifiable as to become a violation of due process of law. Within this category could fall classifications based solely on race, "since they are contrary to our traditions and hence constitutionally suspect."
As in the Brown v. Board of Education case, this one was also restored to the docket for reargument on a timetable for desegregation of the schools.
The Court heard another Brown v. Board of Education case in 1955, and again, the decision was unanimous. Chief Justice Warren again wrote the majority opinion. According to the Court's order, school authorities had "the primary responsibility for elucidating, assessing, and solving" the integration problem. The federal district courts were entrusted with the task of determining whether the actions of the school authorities constituted "good faith implementation of the governing constitutional principles." These courts could best perform this judicial appraisal because of their proximity to local conditions and their availability for further hearings.
A number of guideposts were set up for the lower courts in issuing their decrees:
First, Negroes must be admitted to public schools "as soon as practicable on a non-discriminatory basis."
Second, the obstacles to integration must be eliminated in "a systematic and effective manner."
Third, local communities must make "a prompt and reasonable start toward full compliance with the May 17, 1954, ruling."
Fourth, communities that have started on their timetables toward integration might, under certain conditions, be granted additional time to do an effective job. In their petitions to the courts these communities would have the burden of proving that their requests are "necessary in the public interest" and "consistent with good-faith compliance at the earliest practicable date."
As a general rule, Court decisions apply only to the parties in the case. Technically, therefore, this decision might be construed as applying only to the five parties in this case. But the Justices underscored the sweeping nature of their ruling by stating that the decision extended to all public school segregation practices, whether involved in the present litigation or not.
Southern reaction to these rulings ranged from a call for calm judgment to a challenge of open defiance. The status quo point of view favored a boycott of the Court's implementation hearings. Implicit in this position was the attitude supposedly voiced by Andrew Jackson: "John Marshall has made his decision. Now let him enforce it."
BROWN v. BOARD OF EDUCATION
Learning Objectives: The student will
1. Identify problems created by segregated schools;
2. Evaluate the significance of the Supreme Court decision that desegregated public schools.
TEKS: 5.21 B & C, 5.23 C; 8.17 B, 8.19 B; U.S. Hist 7 D, 17 A, 18 A, 18 C, 21 C
Materials Needed: Copies of “Student Worksheet” for each
Vocabulary: Segregated, injunction, unconstitutional, discrimination, precedents
1. Go over the Fourteenth Amendment. Explain that this amendment, along with the Thirteenth and Fifteenth, were passed as a result of the Civil War. Answer any questions regarding vocabulary students may have.
2. Discuss the background of the Brown v. Board of Education case. Make sure students understand that, before this case, students of different races could not attend the same schools.
3. List legal arguments for each side on the board as students locate them.
4. Place students into groups of approximately five students each. Ask them to determine how, if they had been on the Supreme Court in 1954, they would have decided this case. Be sure that they give reasons for their decisions.
5. Have students, working individually or in pairs, complete the worksheet.