made clear that courts will ordinarily protect the legal rights of individuals, will ordinarily review the lawfulness of executive branch activity, and will themselves determine whether the “political” nature of an executive branch decision precludes court review and, above all, that a federal statute contrary to the Constitution cannot bind the courts. He supported these conclusions with strong legal arguments, including considerations similar to those set forth by Hamilton and Iredell, namely (1) the Constitution’s “fundamental” and “superior” legal role, (2) the nature of judicial expertise, and (3) the need to avoid an all-powerful legislature.
And because Jefferson won the case, Marshall did not have to worry whether the government would enforce his decision.
18
For present purposes, the last-mentioned fact is particularly important. Faced with circumstances that threatened to demonstrate, and would thereby reinforce, the Court’s institutional weakness, Marshall avoided the enforcement issue while holding that the Court had the power to declare an act of Congress unconstitutional and refuse to apply it.
Consider too what Marshall did not do. He did not decide that the Court had an
exclusive
power to interpret the Constitution or a power superior to that of other branches. Indeed, he wrote that the “courts,
as well as other departments
, are bound by” the Constitution. Nor did the case of
Marbury v. Madison
answer Hotspur’s question: Would the public follow an unpopular Court decision with which it strongly disagrees? Marshall feared a negative answer; and the next case shows how right he was to worry. 19
Chapter Four
Dred Scott
I N THE
D RED S COTT
decision, the Court held that a former slave
was not
a citizen entitled to sue in federal court, and it held that a slave could
not become
free simply because his owner took him into a free state or territory. In the process the Court also held, for the first time since
Marbury
, that a federal statute (in this case the Missouri Compromise) was unconstitutional. When the Court decided the case in 1857, the country was deeply divided over slavery and on the brink of civil war. Given the timing and political circumstances, one could wonder whether the country would have implemented the
Dred Scott
decision had war not broken out. 1
We should be aware that the
Dred Scott
decision has long been considered one of the Court’s worst. It may well have helped to bring about a war, which was the very political result it hoped to avoid. As an example of judicial review, it is the opposite of the kind of Constitution-protecting review that Hamilton hoped the Court would undertake. What went wrong? The decision was unworkable and unenforceable because the Court itself made a legal and practical mistake. In other words, in this case the Court, not the president, Congress, or the general public, deterred Americans from following the law.
B ACKGROUND
D RED S COTT WAS born a slave on a Virginia plantation around 1800. His first owner, Peter Blow, took him to St. Louis, Missouri, where hesold him to an army doctor, John Emerson. Emerson took Scott with him from base to base, including Fort Armstrong in the free state of Illinois and Fort Snelling in the free territory of Wisconsin (now in the state of Minnesota). During his two-year stay at Fort Snelling, Scott married Harriet, a slave who also lived there. Emerson then returned to St. Louis with Scott, Harriet, and their newly born child, Eliza. After Emerson died, Scott and his family became the property of Emerson’s wife and, eventually, of his wife’s brother, John Sanford. Scott, or perhaps Harriet, was not satisfied with this arrangement, so the couple brought a lawsuit, first in state court, then in federal court. They argued that their lengthy stay in free territory had made Scott legally a free man. 2
Roger Taney, chief justice of the United States, wrote the majority opinion in the
Dred