By Mark W. Fowler

“This momentous question, like a fire-bell in the night, awakened and filled me with terror.” —Thomas Jefferson, commenting on the Missouri Question

Jefferson was concerned that congressional action banning slavery west of the Mississippi and north of 36 degrees 30 minutes would enrage the South and precipitate dissolution of the Union. The question of how to end slavery did not exist in a vacuum separated from other concerns. Evil though it was, a political solution had to be found, if possible, to keep the Union together.

However fashionable it is now to condemn the United States as irretrievably racist, the fact remains that all great moral questions in human affairs are complicated, and men of good faith may be found on both sides of any question until the moral imperative is clear. What is obvious to us by today’s standards may have been muddled at the time when it must be addressed. Presently, we have been grappling with abortion for almost 50 years and may soon have to grapple with legally authorized infanticide by neglect. Think not? Refer to former Governor of Virginia Ralph Northam, a former pediatric neurologist, speaking about children born alive to botched late-term abortions and advocating for death by neglect of those infants. Or to a recently introduced bill in California prohibiting criminal or civil penalties for neglecting unwanted children. And we have our latest Supreme Court nominee who cannot identify when constitutional protection begins for an infant. We, too, will have much to answer for.

Between 1787 and 1820, there was a period of relative but uneasy peace between many factions. Our new experiment in a Constitutional Republic created uncharted territory in governance. There were competing tensions in the country: Northern manufacturing interests vs. Southern agriculture; states’ rights vs. federal power; slavery vs. freedom; Eastern elites vs. Western newcomers; the question of Western expansion. Beclouding all these issues was the vulnerability of a new nation to attack from the European powers of Britain, France, and Spain and at home from the Indian nations. The imperative of the time was to keep the colonies together, for only united could they defend themselves effectively. The failure of the Articles of Confederation and the weakness of the Continental Army in the Revolutionary War had proved that. Jefferson’s fear was that the country would be torn apart, leaving those divided sections vulnerable if not at each other’s throats.

In this posture, the North and South needed each other and a mechanism for reconciling differences. Regional tensions were constrained if the issue of slavery (and others) was deadlocked. Disturbing the balance of power carried the threat of dissolution. In 1820, Missouri’s petition for statehood threatened this equilibrium. If Missouri was admitted as a slave state, power in the Senate would favor the slave states. A compromise offered by Henry Clay admitted Missouri as a slave state and Maine as a free state, and as a matter of federal law prohibited slavery above the 36-degree 30-minute parallel (the southern boundary of Missouri) and west of the Mississippi river. In effect, this prohibited the expansion of slavery to the greater part of the Louisiana Purchase and all lands on the Western Frontier. The compromise was not liked by either faction but managed to preserve the peace until 1854.

Federal legislation between 1820 and 1854 allowed for the admission of several states, with each admission requiring a careful balance of pro- and anti-slavery power. The 1850 compromise strengthened the Fugitive Slave Act but abolished slavery in Washington, DC, and provided that the citizens of New Mexico and Utah would decide for themselves the slavery question.

In 1854, Congress passed the Kansas-Nebraska Act. Contradicting the Missouri Compromise, which put the slavery question in the hands of Congress, Kansas-Nebraska allowed the states to vote on slavery (popular sovereignty). This upset the tenuous balance between pro- and anti-slavery factions, and tension over slavery question — like water flowing through rock — eroded the peace. It was a foregone conclusion that Nebraska would be free. The climate did not favor the kind of crops for which slavery was suited. But Kansas became the site of small-scale acts of violence between pro-slavery and abolitionist forces. The abolitionist John Brown conducted a violent raid in Kansas, and Lawrence, a hub of anti-slavery activity, was sacked in 1856. Kansas became known as “Bleeding Kansas.” And the country began to fall apart.

The Dred Scott case was decided in 1857 and stands as one of the most ill-advised decisions of the Supreme Court. (One would think the history of Dred Scott would be known to a black female prospective member of the Supreme Court from Harvard, no less. One would be wrong.) The case was brought by a former slave whose master had taken him to the free states of Wisconsin and Illinois. We do not know why Mr. Scott did not sue for his freedom in Wisconsin, but it is posited that he became unhappy when his owner decided to let out his services after retuning with him to Missouri. In any event, his 11-year-long court case was filed first in state court in Missouri, where he won at trial based on a statue that said slaves taken to a free state could be freed. That decision was reversed by the Missouri Supreme Court, after which Scott appealed to the United State Supreme Court.

Inasmuch as the Court was dominated by members from slave states, it is not surprising that the decision went against Scott. On the other hand, it is hard to fathom that men learned in the law could not see that slavery was anathema to a civilized society and doomed to eventual extinction. The merits of the case (Scott’s presence in two free states) would have supported the Court granting him his freedom. There was adequate legal precedent for this. Arkansas, Missouri, and Louisiana had statutes that supported his cause. He was not a fugitive, and the Fugitive Slave Act did not apply. But Chief Justice Taney had other ideas and was determined to settle the question finally.

Instead, he made it worse by being on the wrong side of the question. Taney held that Scott could not sue under diversity jurisdiction (a suit between citizens of two different states) because Scott, as a slave, was not a citizen of any state for federal jurisdiction purposes even if he became free by operation of Wisconsin law. In other words, only Congress could determine who was a federal citizen with standing before a federal court. Therefore, an African American, having been born a slave, and even if emancipated by his master and made a citizen by a state, had no standing in the federal courts. It was an absurd result and unnecessary for the Court’s decision. Then Taney made it worse by declaring that Congress had no power to prohibit slavery in any state, as it interfered with the property rights of slave owners. He held only states themselves could decide the legality of slavery. This rendered inoperable the Missouri Compromise and ineffective the power of the federal government over slavery. This question was not squarely before the Court and not ripe for decision.

Slave states treated the decision as if delivered from on high and engraved in stone. Northern abolitionists were apoplectic, as was a then little-known politician from Illinois named Abraham Lincoln. It would fall to Lincoln to preside over the bloodiest American war in history, preserve the Union, and end slavery.

The Emancipation Proclamation was one of his many tools. And we shall examine that document next.

Dr. Fowler is a former attorney and now a practicing physician in Tennessee. He can be reached at [email protected].