Question: Was the Dred Scott decision in 1856 an example of Judicial Activism?

Focusing on the Constitutional -

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...
(US Constitution, Article IV, Section 3, Clause 2

This statement of the Constitution gave Congress exclusive authority over the management and regulation of territories owned by the US government. An example of how Congress regulated territories was the Northwest Ordinance. It was passed soon after the establishment of the Constitution and regulated the territories ceded by the states to the new government.

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Activist Judges is not anything new. The infamous Dred Scott decision in 1856 is a perfect example. Scott was a slave that was taken by his master to a state in which Congress had banned slavery. When his master died and he was inherited along with the estate he followed the advice of his white friends to file suit for his freedom on the grounds that he lived for several years in territory that banned slavery.

A couple of the questions before the Court were whether Scott was a citizen and thus entitled to sue in the courts, and if Congress had the Constitutional authority to ban slavery in any territory. Chief Justice Roger Taney wrote the Supreme Court's decision. He claimed that Scott was not a citizen because when the Constitution was ratified citizenship was restricted to whites only. This claim was void of truth. The truth was that New Hampshire, Massachusetts, New York, New Jersey and North Carolina allowed free blacks to vote and they had a say in the ratification of the Constitution in those states. (Refer to speech on June 26, 1857 by Abraham Lincoln)

Taney also rejected Scott's claim of being free due to residence in a free state. He claimed that the Fifth Amendment prohibited people from being deprived of property without due process of law. He claimed that Congress could not ban slavery because it denied property without due process. Taney ignored the fact that Congress did have power granted to it to regulate all US territories under Article IV, Section 3 of the Constitution as given above in this newsletter.

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