Mrs. Dred Scott
VanderVelde, Lea, Subramanian, Sandhya, The Yale Law Journal
In the progression of American people toward freedom, the contributions of one person whose life was central to that struggle have long been ignored: Harriet Robinson Scott, "Mrs. Dred Scott."
Dred Scott v. Sandford(1) stands in infamy in American constitutional law and the history of the Supreme Court. The Court denied Dred Scott's assertion of freedom in sweeping language.(2) Most work on this famous case focuses on its conventionally significant features the case itself, the legal records, the judges and lawyers, their ideologies and biographies, and the significance of the case in the Lincoln-Douglas debates, in the Civil War, in the Reconstruction Amendments and in the Reconstruction Court.(3) No one has focused on the eye of the hurricane: the quiet, silent family members whose lives were at stake in that litigation.(4) Dred Scott, the named plaintiff, died in 1858. Although a friend purchased Dred's freedom for him after his cause was lost, he never saw the Jubilee, Emancipation, or the passage of the Thirteenth Amendment. Harriet Robinson Scott, his lawfully wedded wife, did. She brought her own case for freedom, a case that was submerged in his. She lived through the protracted litigation, the fame and infamy that the case brought, the purchase of freedom, the birth and raising of two children, her husband's death, and finally, the Jubilee. Nonetheless, conventional history has relegated her life to a footnote.
Focusing on Harriet's life highlights the nature of her contributions to America's progress toward freedom. First, recognizing the precarious position Harriet occupied at the intersection of multiple oppressions illuminates the force of these oppressions and the contradictions among them. The malleability of the identity categories that produced these oppressions--race, class, gender, enslavement--exposes the arbitrariness of the conventional legal analysis that determined slaves' fates from their residential histories.
The complexity of the forces at work in slaves' existences also allows us to respond to the major mysteries that have surrounded the Dred Scott case: Why did Scott, a formerly enslaved person in free territory return to a slave state if, by doing so, he risked re-enslavement? Why would Dred Scott not have taken one of the many opportunities that his extended sojourn in free territory offered for escape? Moreover, if Dred prized his freedom so highly, why would he not have filed his lawsuit in free territory rather than returning to slave territory to sue for his freedom? What took him so long to decide to assert his freedom?(5) Harriet's presence and her life with Dred suggest answers to these questions that transcend the usual dichotomies of slavery and freedom, agency and helplessness.
Second, a proper understanding of Harriet Robinson Scott's distinct legal claims exposes a crucial error in legal strategy made by the Scotts' lawyers: They overlooked the legal theory based on Harriet Robinson Scott's personal circumstances that would have made her case for freedom a stronger one than her husband's. Facts and contexts matter. Conventional legal scholarship has not inquired into the extent to which the Dred Scott decision hinged on the specific details of Dred Scott's life story.(6) Consequently, legal thinkers have not investigated the potential consequences of the suit involving the other plaintiff, a woman, who arguably had a better claim to freedom. And yet Dred Scott's case, of all the freedom suits filed in the 1840s, was the context in which the Supreme Court wrote its nation-splitting words.
Third, we undertake this analysis as part of the work of compensatory as well as transformative history. As Justice Brennan has said, "We remain imprisoned by the past as long as we deny its influence in the present."(7) Once we recognize Harriet's role in the litigation, we can never again see the infamous case of Dred Scott v. Sandford as a simple dichotomy between a white male master, John Sanford, and an enslaved black man. …