The Dred Scott Lesson Plan

This lesson plan was the beginning of my unit focusing on the gradual extension of voting rights and personal liberties and protections afforded oppressed people in the United States, starting prior to the US Civil War with the infamous Dred Scott Decision, followed by Plessey V. Ferguson which enshrined nearly a hundred years of state segregation laws and political oppression.

The unit includes discussion of the struggle for female voting rights, legal rights, and rights to control their own reproductive choices. Watch the space for a dynamite Margaret Sanger lesson plan – a woman central to sufferage, birth control access, and attempts for an Equal Rights Amendment to the US Constitution, as well as her early support of Eugenic Theory.

Eventually the unit explores the struggles and successes of the Labor Movement, the US Civil Rights Movement, Students for a Democratic Society issues promoting free speech, organization rights and voting rights. Dove tailing into Women’s rights activism of the 1960’s and beyond, followed by the still unfulfilled journey toward Ecological preservation and a sustainable global economy.

But it all starts with Dred Scott…

Dred Scott Decision Lesson Plan Jim Sawatzki, Bethel High School

Reading Materials:

“Dred Scott v. Sandford”, Annals of America 1994

“Abraham Lincoln’s Speech on the Dred Scott Decision” The Freeman Institute. www.freemaninstitute.com/lincoln.htm

Tindall and Shi, America: A Narrative History. W. W. Norton & Co. New York. 1992.

Length: I do this as a two-period “blocked schedule” 100-minute lesson during our six-period day. But it could as easily be shaped into a two-day exercise for a standard six-period day or an eighty-minute period for a four-period day.

Prior to lesson:

Night before class discussion students read Annals of America excerpts of Chief Justice Taney’s “majority” Supreme Court decision. Reading length is 5 pages. Students are asked to “outline or otherwise summarize Justice Taney’s main points” in preparation for discussion of the legitimacy of the decision. Student’s should be prepared to, “defend or attack the decision based on the facts and the law pertinent to the case.”

Students have previously spent significant time becoming acquainted with philosophical underpinnings of Natural Law theory. Students will have already studied excerpts and ideas of Aquinas, Hobbes, Rousseau and Locke especially in regards to Aristotelian concepts of human “final cause” and political theory. Students have also completed a couple days study of the Abolition Movement.

Lesson set:

Journal question on board as students enter the room:

“Is Chief Justice Taney’s ruling well-reasoned and correct? Explain in at least three paragraphs.”

It can also be presented as small group work at start of period prior to discussion:

“In groups of less than or equal to 5, refute Justice Taney’s position as though you are Dred Scott’s legal team. Use law, facts of case, history and natural law theory to bolster your position. Be ready to present oral arguments in 20 minutes.” (Then if kids remain engaged, lengthen to 30 min.) (Other groups might file “friend of the court briefs” representing various constituencies of the day. Or function as Taney’s legal clerks.)

Notes on board at start of class: (An outline of the Taney decision in case students misunderstood or failed to follow through. They are not read to class, but are there for ready reference facilitating class discussion.)

The Dred Scott decision is a document wholly concerned with an owner’s property rights. It gives Dred no consideration at all. His lack of humanity is implicit:

Constitution is for white men only.
Constitution formed to protect white men’s property.
Neither Declaration of Independence nor Constitution considers blacks to be “citizens”. (Persons being a more vague term.) Blacks are not part of “We the People”. Therefore, not even free Negroes could be citizens.
People in general then, both in U.S. and England, understood blacks to be inferior.
“All men created equal” cannot be understood in a “modern” (1857) context. If this is NOT true, then the founding fathers were hypocrites and that is not possible.
Constitution does not define citizen term better. Therefore meaning must have been obvious. Moreover, constitution supports slavery:
1. Article 1 sec. 9: Import slaves until 1808.
2. Article 4 sec. 2: Return runaway property.
Strict Constructionism
1. Meaning of law doesn’t change even if attitudes might.
2. Amendments were possible but not done.
3. Court can’t reflect the “whims” of the day.
4. Dred Scott is not a citizen and can’t sue.
Congress lacked power to restrict slavery from territories. Therefore Missouri Compromise of 1820 is unconstitutional.
Congress’ power over territories is limited to territories held at time of government formation. Congress lacks authority to rule over territories introduced since then.
Slave holder rights follow, even out of states into territories. (Else they would be colonies, not territories.)
All territory laws must be consistent with laws governing all the states. And all rights to property in states must exist in territories. Otherwise owner’s 5^th amendment rights are violated!!!
Constitution recognizes a right to slave ownership and court cannot deny that right. Only the owner’s rights are protected by the constitution. Being in a territory does not free Dred Scott.
Being in Illinois doesn’t free him either, as per Strader v. Graham.

Extensive Class Discussion

Students “circle-up” for discussion or present and defend their positions as teams, or discussion is directed by teacher depending on personality and need of any period’s students. Ideally, discussion is regularly linked back to text studied by students and students are challenged to link ideas to law, facts or theory and defend their interpretations.

Discussion can begin with journal question or presentation of group “findings”.

Allow student observations and opinions to drive discussion of the Taney decision. Many will find themselves surprised to conclude that the decision is reasonable “given the law and traditions of the time.” Others will gravitate to a Natural Law critique of Taney given Locke’s clear dictum that “a slave is never conquered”. Ultimately, students will try to decipher what one can conclude about the Constitution’s 3/5^th Compromise and what it reveals about “framer’s intent”.

During course of discussion teacher rephrases some student contributions for clarity, to emphasize relevance or to link to particular text or a previous student observation. If needed, or apropos, various observational prods to discussion can be suggested by teacher:

Do any Natural Law philosophers allow that “persons” can be property? Check out what they say about women and children and apply to Dred Scott.
Can one believe Taney’s assertion that the Founding Fathers are of unassailable integrity?
Given your reading so far, does Taney make any clear factual errors, or make assertions that cannot be supported?
How does Taney perceive the nature of the Constitution and the function of the Supreme Court? (Should a president consider him a good nominee? Is he a judicial activist? Consider his statement about the Missouri Compromise. Or the limits of Congress regarding new territories.)

Lincoln’s Critique of Taney

With 15 – 20 minutes to go in period, students will have expressed dismay at an inability to dismiss Taney’s decision outright. When appropriate for closure teacher introduces that Lincoln criticized the decision during the Lincoln – Douglas Debates. Students will want to hear it. Arguments can be outlined or read aloud (after editing) as time permits. It helps to have copies of the Lincoln speech available for students to take with at end of period.

Supreme Court Justice Curtis, dissents from Taney, pointing out that five colonies allowed free Negroes to vote on the adoption of the Constitution, showing that at least in these cases, Blacks can be considered, “We the people.”
Contrary to Taney’s implication, the country is not more liberal in these “modern times” (1857) but is in fact far more conservative than at the start of the nation. “In those days, our Declaration of Independence was held sacred by all…it its framers could rise from their graves, they could not at all recognize it.”
As does Saint Thomas Aquinas, Lincoln argues all men are equal in “liberty” (and created so by God), but not necessarily “equal in their natural perfections.” This allows Lincoln to advocate “liberty” without offending White sensibilities by suggesting “equality”. Says Lincoln:

“I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands…she is my equal, and the equal of all others.”

Strict Constructionism “fritters away” the profound meaning of the Declaration of Independence and Constitution. Reducing it to “We hold these truths to be self-evident that all British subjects who were on this continent eighty-one years ago, were created equal to all British subjects born and then residing in Great Britain.”

It’s good to close class reading six satirical paragraphs from Lincoln’s speech where he rewrites the Declaration of Independence to fit the implications of Justice Taney’s Dred Scott Decision. It leaves the kids with a smile.