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Mrs. Dred Scott Mrs. Dred Scott Lea VanderVeldet and Sandhya Subramanian" In the progression of American people toward freedom, the contributions of one person whose life was central to that struggle have long been ignored: Harriet Robinson Scott, "Mrs. Dred Scott." Dred Scott v. Sandford' stands in infamy in American constitutional law and the history of the Supreme Court. The Court denied Dred Scott's assertion of freedom in sweeping language. 2 Most work on this famous case focuses on its conventionally significant features: the case itself, the legal records, the judges and lawyers, their ideologies and biographies, and the significance of the case in the Lincoln-Douglas debates, in the Civil War, in the Reconstruction Amendments and in the Reconstruction Court. No one has I Professor of Law and Faculty Scholar. University of Iowa College of La%% I %sould like to thank Laura Cooper and her family for their hospitality as I read Laurence Taltaferro's papers in Minneapolhs I would also like to thank Bill Nelson, Cass Sunstem. Leslie Schwalm. Medc Weiner. Jon Carlson. Margaret Raymond, Thomas Shaw, and Paul Finkelman for insightful comments on earlier %ersionsof this work. Research credit must go as well to Lisa Emesti. Bridgett Williams. John Searles. and Gerald Bosch. who tackled some of the thorniest research issues with skill and aplomb. It J.D., 1996, Yale Law School; Associate, 1996-97. Ropes & Gray: Clerk. 1997-98. Judge Thomas. Ninth Circuit Court of Appeals. I would like to thank my parents and Charles McGuire for their patience and support throughout the process of preparing this Article. 1. 60 U.S. (19 How.) 393 (1857). 2. In the 7-2 United States Supreme Court opinion by Justice Tancy. the Court held that I. Congress had no authority to eliminate slavery in any of the federal temitones. 2. Dred Scott was not a citizen of the United States, nor was he permitted to use the courts of the United States to sue for his freedom; 3. Because Congress had no authority to eliminate slaver in the federal temitones and because Dred Scott was not a citizen of the United States, the federal courts did not hasc junsdiction over Dred Scott's claim; 4. Dred Scott's residency in free temtory did not make him free because the 1820 .Mdissoun Compromise violated the Fifth Amendment Due Process Clause by depnving slaveholders of their property; 5. Dred's residence in another state, Illinois. had no effect on his status as a slae once he returned to Missouri, at which point Missouri law. not Illinois law. applied See id. at 452-54. In its most infamous pronouncement, the Court majority maintained that "[Negroesi had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate %kiththe white rae ... and so far inferior, that they had no nghts which the white man %%as bound to respect Id. at 407. 3. In fact, the Reconstruction Congress frequently stated that the purpose of constitutional reform was to cure, as they called it, "Dred Scott-itus." See ALFRED ALVINS, THE RECO.STRLCTO*, AstF%D.%E.%""S" DEBATES (1974). These facets of Dred Scott have been abundantly explored in both legal and historical sources. See generally THE DRED ScOTT DEcISION (Stanley 1. Kutler ed.. 1967) (collecting pnmary and contemporary legal and journalistic accounts of Dred Scott to construct "biography*" of case). WALTER EHRLICH, THEY HAVE No RIGHTS: DRED SCOTr'S STRUGGLE FOR FREDom (1979) (Investigating background of Dred Scott decision, including history of lawyers and judges inoled), DON E_ 1033 1034 The Yale Law Journal [Vol. 106: 1033 focused on the eye of the hurricane: the quiet, silent family members whose lives were at stake in that litigation.4 Dred Scott, the named plaintiff, died in 1858. Although a friend purchased Dred's freedom for him after his cause was lost, he never saw the Jubilee, Emancipation, or the passage of the Thirteenth Amendment. Harriet Robinson Scott, his lawfully wedded wife, did. She brought her own case for freedom, a case that was submerged in his. She lived through the protracted litigation, the fame and infamy that the case brought, the purchase of freedom, the birth and raising of two children, her husband's death, and finally, the Jubilee. Nonetheless, conventional history has relegated her life to a footnote. Focusing on Harriet's life highlights the nature of her contributions to America's progress toward freedom. First, recognizing the precarious position Harriet occupied at the intersection of multiple oppressions illuminates the force of these oppressions and the contradictions among them. The malleability of the identity categories that produced these oppressions-race, class, gender, enslavement--exposes the arbitrariness of the conventional legal analysis that determined slaves' fates from their residential histories. The complexity of the forces at work in slaves' existences also allows us to respond to the major mysteries that have surrounded the Dred Scott case: Why did Scott, a formerly enslaved person in free territory return to a slave state if, by doing so, he risked re-enslavement? Why would Dred Scott not have taken one of the many opportunities that his extended sojourn in free territory offered for escape? Moreover, if Dred prized his freedom so highly, why would he not have filed his lawsuit in free territory rather than returning to slave territory to sue for his freedom? What took him so long to decide to assert his freedom?5 Harriet's presence and her life with Dred suggest answers to these questions that transcend the usual dichotomies of slavery and freedom, agency and helplessness. Second, a proper understanding of Harriet Robinson Scott's distinct legal claims exposes a crucial error in legal strategy made by the Scotts' lawyers: They overlooked the legal theory based on Harriet Robinson Scott's personal circumstances that would have made her case for freedom a stronger one than her husband's. Facts and contexts matter. Conventional legal scholarship has not inquired into the extent to which the Dred Scott decision hinged on the FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLMCS (1978) (situating Dred Scott in legal, political, and historical context and exploring case's significance in Civil War, Reconstruction Amendments, and Reconstruction Court); VINCENT C. HOPKINS, DRED SCOTT'S CASE (1951) (focusing on legal proceedings of Dred Scott); JOEL PARKER, PERSONAL LIBERTY LAWS, AND SLAVERY IN THE TERRITORIES (Boston, Wright & Potter 1861); THEODORE CLARKE SMITH, PARTIES AND SLAVERY, 1850-1859 (1906) (examining Dred Scott decision and its implications for Lincoln-Douglas debates). 4. Photographs of Harriet, Dred, and their two daughters are reproduced at Appendix A. 5. Dred Scott left free territory at Fort Snelling on May 29, 1840. His master, Dr. John Emerson, died in Davenport, Iowa on December 29, 1843, and Dred and Harriet Scott filed their suits for freedom on April 6, 1846. See infra notes 215-17 and accompanying text. 19971 Mrs. Dred Scott 1035 specific details of Dred Scott's life story.6 Consequently, legal thinkers have not investigated the potential consequences of the suit involving the other plaintiff, a woman, who arguably had a better claim to freedom. And yet Dred Scott's case, of all the freedom suits filed in the 1840s, was the context in which the Supreme Court wrote its nation-splitting words. Third, we undertake this analysis as part of the work of compensatory as well as transformative history. As Justice Brennan has said, "We remain imprisoned by the past as long as we deny its influence in the present."7 Once we recognize Harriet's role in the litigation, we can never again see the infamous case of Dred Scott v. Sandford as a simple dichotomy between a white male master, John Sanford, and an enslaved black man. Instead, a new image emerges of a black family negotiating the difficult channels of passage 6. Conventional legal scholarship has considered the tactical choices that the Scotts' attorney made in bringing the litigation, first in state court, and then in federal court. In the state litigation, the Scotts' attorney faced the task of proving that Dred had been taken to reside on free soil and that Mrs Emerson now claimed or held him as a slave. Their theory was a conventional one: Having resided permanently on free soil, Dred was free, rendering Mrs. Emerson's actions in holding him in bondage a trespass Then. in Scott v. Emerson, 15 Mo. 576 (1852), Justice Scott of the Missouri Supreme Court overthrew decades of well-settled Missouri precedent, see infra note Il l. to deny freedom to Dred Scott on the basis of the permissive nature of comity: It held that Missouri was not obligated to enforce other states' laws that were hostile to its own law. Against this backdrop, the decision of the Scotts' lawyers to sue in federal court emerges as a strategy aimed at circumventing the constraints of comity. The pnnctple of federal supremacy meant that a favorable federal decision would have trumped slave states' unwillingness--demonstrated by Justice Scott's opinion--to enforce laws bestowing freedom upon slaves who had resided on free soil. Accordingly. the Scotts' lawyers launched their Supreme Court argument for the Scotts' freedom from a foundation focusing on federal citizenship. They pointed out that "citizen" and "inhabitant" or "fret inhabitant" had been used interchangeably in state and federal law and in the Articles of Confederation's pnvileges and immunities clause. Although the Constitution's Privileges and Immunities Clause mentioned only "'citizens." this change in diction surely did not exclude free Negroes from citizenship. since the kind of public outcry that would have responded to such an exclusion had not occurred.
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