Philadelphia judges find modern meaning in the 1857 Dred Scott case

What does the 1857 Dred Scott case have to do with criminal justice in the 21st century?

It was the question a forum aimed to answer. Instead, the Philadelphia Municipal Court judges and other court employees who gathered this week at the National Constitution Center discussed how to find meaning in what’s unfolded since the opinion in the U.S. Supreme Court case famously declared that black people, enslaved or free, “had no rights which the white man was bound to respect.”

Scott, an enslaved man in Missouri, lived for 10 years in Illinois and the Louisiana territory, which were free areas. After returning to Missouri, Scott sued, claiming that his residence made him a free man. But in Dred Scott v. Sanford, the court ruled in favor of his owner, Chief Justice Roger A. Taney writing that the Constitution’s authors had never intended to treat black people as citizens.

Eventually, the Reconstruction Amendments abolished slavery (the 13th); granted citizenship to everyone born or naturalized here, including former slaves (14th); and established the right to vote for black men (15th).

Here are some takeaways from the discussion:

By 1860, most people in the United States were sympathetic with Taney’s position on race and slavery, and the percentage who were abolitionists was small, said Thavolia Glymph, a professor of history and African American studies at Duke University, who led Monday’s discussion. In fact, Congress passed a joint resolution in 1861 saying it would not seek to abolish slavery or interfere with any state’s rights to “domestic institutions.” That had been destined to become the 13th Amendment, had not the Civil War intervened.

By the end of 1865, however, after the war, a vastly different 13th Amendment was ratified, one that abolished slavery. “Four years later, after attempts to have Congress pass an amendment protecting slavery, the 13th Amendment as we know it, had been ratified," Glymph said. "That signaled how far the country had come from a moment where slavery was considered to be very normal, to a moment where slavery was abolished.”

The 14th Amendment, ratified by 28 of the then-37 states in July 1868, holds that all persons born or naturalized in the United States are citizens and guarantees equal protection under the law. It was written with the goal of granting citizenship and equal rights to newly freed black people. But Glymph pointed out that the amendment paved the way for the rights of all ethnic groups. The equal protection clause was the basis for providing rights for people to marry whoever they want to, regardless of race or gender.

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Some slaveholders refused to accept that slavery had ended. Glymph told a story taken from Freedmen Bureau of a man who tried to help three black women and their three children escape when they came to a bridge that had been burned. After the man got in the water, one woman threw her infant to him. That child survived. But the next two children tossed to him, a 5-year-old and a 7-year-old, were swept away in the current. That’s reminiscent of the immigrant crisis of today, Glymph said, where parents sometimes risk their children’s lives to cross Central America. “The [slave] stories about the struggle for freedom are not all about the big massacres, but about the small, everyday basic concept of freedom, such as the right to be with your child."

Philadelphia Municipal Court Judge Sharon Williams Losier said the discussion should make judges aware that the decisions they make today may eventually be considered morally wrong. “People think of judges as being on a higher level,” she said. The Dred Scott decision, once the law of the land, was later overturned by resolutions that would later abolish slavery and establish citizenry for black people. “We need to learn this history, or we are doomed to repeat it," she said. "As judges, we don’t want to wind up being on the wrong side of history.”

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