Dred Scott, Substantive Due Process, and the Logic of Natural Rights: A Further Reply to Matthew Franck

Engraving depicting American attorney and United States Supreme Court Justice Benjamin Robbins Curtis (1809-1874), USA, circa
Engraving depicting American attorney and United States Supreme Court Justice Benjamin Robbins Curtis (1809-1874), USA, circa 1855. (Photo by Kean Collection/Getty Images)

Perhaps nothing has damaged the reputation of "substantive due process" more than that doctrine's association with Dred Scott v. Sandford (1857) -- the infamous decision holding that Congress lacked the power to ban slavery in federal territories and blacks had no rights under the Constitution that whites were bound to respect. That association stems from a single sentence in Chief Justice Roger B. Taney's meandering opinion for the Court in Dred Scott:

[A]n act of Congress which deprives a citizen 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 offence against the laws, could hardly be dignified with the name of due process of law.

In a recent essay defending substantive due process--the idea that the Due Process of Law Clauses of the Fifth and Fourteenth Amendments impose absolute limits on the government's power to deprive people of life, liberty, or property, regardless of what procedures are used to effectuate those deprivations--against criticism from Matthew Franck, I pointed out that Abraham Lincoln and other critics of Dred Scott did not respond to the above sentence as if they were encountering a novel, illegitimate doctrine. Rather, they argued that Taney was wrong about the limits of congressional power and wrong about whether blacks possessed rights that whites were bound to respect. Franck has responded, asking for evidence that Lincoln or Justice Benjamin R. Curtis (whose dissent in Dred Scott Lincoln adopted) argued, in effect, that "Taney has the right doctrine of the due process clause but has wrongly applied it here."

That is precisely what Justice Curtis did argue in his Dred Scott dissent. As several scholars have observed, Curtis did not take issue with the proposition that Congress could not simply extinguish liberty or property through general, prospective laws and that legislation that did so "could hardly be dignified with the name of due process of law." Rather, Curtis argued that slave property was not like other kinds of property. That argument in turn rested upon natural rights premises that Franck seems determined to avoid but ultimately cannot.

In approaching the question whether Congress could, consistent with the Fifth Amendment, ban slavery in federal territories, Justice Curtis first discussed the unique "nature and incidents" of slave property. "Slavery," Curtis stated, "being contrary to natural right, is created only by municipal law." As scholar Don Fehrenbacher explains in his definitive study of the Dred Scott case, Curtis was drawing upon a longstanding legal tradition traceable to a famous decision by the King's Bench in Somerset v. Stewart (1772). In Somerset, Lord Mansfield declared that slavery is "so odious, that nothing can be suffered to support it, but positive law." This decision, writes Fehrenbacher, had an "enormous, persisting influence" on American legal thought, and "became a major weapon in the arsenal of abolitionism, lending support to the argument that slavery was contrary to natural law and without legal status beyond the boundaries of the jurisdiction establishing it by positive law."

How did Curtis apply the Somerset tradition to the facts of Dred Scott? Because slavery was solely a creation of municipal law, slave property could not exist unless it was recognized and protected by the states. Thus, slave owners' property in their slaves ceased to exist as soon as slave owners voluntarily brought their slaves into territory "where no municipal laws on the subject of slavery exist[ed]." Further, Justice Curtis explained, nothing prevented Congress, exercising its power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States," from "recogniz[ing] [slavery] for the purpose of being absolutely prohibited, and declared incapable of existing." And that, of course, is precisely what the Missouri Compromise and other federal legislation forbidding slavery in federal territories did.

In summary, according to Curtis, Taney's argument that the Missouri Compromise violated the Fifth Amendment's Due Process of Law Clause did not fail because Congress could deprive a citizen of their liberty or property through general, prospective legislation, "merely because he came himself or brought his property into a particular Territory of the United States"-- Congress could not do so. It failed because slavery was so hostile to natural rights that it had no existence absent positive law--thus, banning it from a federal territory did not deprive slave owners who voluntarily entered into that territory with their slaves of any liberty or property at all. For that reason, such antislavery laws did not violate the Due Process of Law Clause. The deep connection between natural rights and due process of law is inescapable.

"Substantive due process" may sound silly--no surprise, since the term was coined by the doctrine's critics. But, to paraphrase Lincoln, the doctrine is right, absolutely and eternally right, even though it was improperly--and unjustly--applied in Dred Scott. Substantive due process--better, due process of law-- is an entirely legitimate, indeed, essential, part of our constitutional tradition. Defenders of limited government should not be ashamed of it. They should wholeheartedly embrace it.