NULR 1L Writing Competition: Dred Scott v. Sandford (Dissent)

Written by Walter Garcia

Photo by Álvaro Serrano on Unsplash

The idea of diversity has influenced some of our country’s most important judicial decisions. We asked Northwestern 1Ls to write about a case they studied in their first year of law school that has affected their opinion about diversity in the legal system. Walter was one of the winners.

History will not look kindly upon this Court’s ruling. Nor should it. The short of the matter is that Mr. Dred Scott has been denied his basic sense of humanity, and the Chief Justice shows zero qualms in doing so, going as far as to write:

We think [persons of African descent] are not [citizens of the United States], and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race . . . .

I think otherwise. Indeed, I know otherwise. Like it or not, ours is a nation that, at its very inception, was founded on the principle “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” When those words were written in 1776, our country was already a diverse nation, home yes to men and women of Caucasian ancestry, but also to men and women of African ancestry, to Native Americans, and to so many others. Faced with such a reality, our founding fathers still chose to use the word “all.”

I am therefore of the belief that our Constitution provides us with numerous ways to give Mr. Scott the basic sense of humanity that is being denied to him. Of them all, however, the Guarantee Clause carries the day: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” This Court has expressed its belief that questions arising under the Guarantee Clause are for Congress—not the courts—to decide.

However, if that Clause is to mean anything, if the United States truly is committed to ensuring that all states have a republican form of government, then we must rule in Mr. Scott’s favor. There will always be disagreements on the particulars of what constitutes a republican form of government. What we cannot do, and what this Court does today, is to allow for such disagreement here, when the particulars are not at stake, but when the very foundation of a republican form of government is at stake. Stripped to its very essence, a republican form of government is one in which every man and woman is treated equally, and with respect and dignity. In reference to this topic, James Madison wrote in Federalist 39 that, “[i]f we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people . . . .” There are no powers to be derived and no government to be had when some, based on their ancestry alone, are treated as “others.” All slaves, including Mr. Scott, are not “others.” They, like all those who contribute to this country’s diversity, are our brothers and sisters. I dissent.

Walter Garcia is a first-year student at Northwestern Pritzker School of Law.