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Dred Scott's Revenge: A Legal History of Race and Freedom in America

Dred Scott's Revenge: A Legal History of Race and Freedom in America

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by Andrew P. Napolitano

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Racial hatred is one of the ugliest of human emotions. And the United States not only once condoned it, it also mandated it?wove it right into the fabric of American jurisprudence. Federal and state governments legally suspended the free will of blacks for 150 years and then denied blacks equal protection of the law for another 150.

How did such crimes


Racial hatred is one of the ugliest of human emotions. And the United States not only once condoned it, it also mandated it?wove it right into the fabric of American jurisprudence. Federal and state governments legally suspended the free will of blacks for 150 years and then denied blacks equal protection of the law for another 150.

How did such crimes happen in America? How were the laws of the land, even the Constitution itself, twisted into repressive and oppressive legislation that denied people their inalienable rights?

Taking the Dred Scott case of 1957 as his shocking center, Judge Andrew P. Napolitano tells the story of how it happened and, through it, builds a damning case against American statesmen from Lincoln to Wilson, from FDR to JFK.

Born a slave in Virginia, Dred Scott sued for freedom based on the fact that he had lived in states and territories where slavery was illegal. The U.S. Supreme Court ruled against Scott, denied citizenship to blacks, and spawned more than a century of government-sponsored maltreatment that destroyed lives, suppressed freedom, and scarred our culture.

Dred Scott's Revenge is the story of America's long struggle to provide a new context?one in which "All men are created equal," and government really treats them so.

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Dred Scott's Revenge

By Andrew P. Napolitano

Thomas Nelson

Copyright © 2009 Andrew P. Napolitano
All right reserved.

ISBN: 978-1-59555-265-5

Chapter One

Slavery Comes to the New World

All humans are inherently free and equal creatures. Equality and freedom act as common bonds that transcend nationality, ethnicity, and race. Yet since the beginnings of civilization, humans have conquered and enslaved one another time and time again, effectively extinguishing the God-given rights we possess. While there are certain components peculiar to American slavery, every case of human trafficking in history suffers from the inevitable natural repercussions of creating a class of humans defined as things.

The institution of slavery can be found in the histories of the Egyptian, Roman, and Greek civilizations in ways that seem to have foreshadowed the American system. The ancient Greeks believed that no healthy, lasting society could prosper without slaves. Slavery was thus an integral part of common culture and, similar to the inherent contradiction of American slavery, was predominant in those cities where individual liberty for some was at its highest.

The most obvious example was Athens. In order to devote one's true capabilities to the city-state, one could not be consumed by manual ordomestic labor. Consequently, it was thought that the freedom to target one's efforts in areas that would benefit society could only come about with the existence of slavery. Democracy and slavery, apparent opposites, were united in Athens.

The number of slaves in ancient Greece was proportionately similar to the number in the American South in 1860, but the distribution of slave ownership was greater in Greece than in the United States. However, the vital social distinction in Greece was not that of slave and freeman, but rather aristocrat and commoner. Generally, the Greeks considered slaves and laborers as members of the same social class and carefully defined a slave as a kind of possession with a soul. Slaves were often able to secure their freedom and even become politically and economically powerful due to mercifully lenient Greek law.

According to Jack Hayward, the English writer and academic, "if slavery was an important institution in Greece, it became the all-important institution in Rome." Rome's urban, rural, and domestic economies were driven by slave labor. The defining characteristic of the Roman institution was its sheer size: From 65 BC to about 30 BC, one hundred thousand new slaves were needed each year on the Italian peninsula, and from 30 BC to AD 150, a staggering five hundred thousand new slaves were needed each year to feed the empire's commercial needs. In comparison, the African slave trade at its peak would bring an average of sixty thousand slaves per year to the New World. At the height of the Roman Empire, it is estimated that one-third of the entire population were slaves.

Slavery in Rome grew almost proportionately to the empire's persistent expansion. The primary supply of slaves came from the enslavement of its conquered enemies and, as any student of history is aware, Rome was not short of enemies. For centuries at a time, Rome was in almost perpetual conflict, the result of which was the eventual control of the entire Mediterranean, Northern Africa, and almost all of modern-day Europe. When conquering an enemy's territory, the Roman military machine would enslave its entire population. The conquest of the Etruscan city of Veii, the siege of Aspis, the destruction of Carthage, the campaign against the Salassi Alpine tribe, and the destruction of the city of Ctesiphon in the war against the Parthians produced approximately 225,000 slaves for the Romans through the system of enslaving their enemies en masse. After these conquests, slaves-who had been citizens and denizens of the conquered territories-would be shipped back to the Roman peninsula and auctioned off at slave markets in ways similar to the American slave trade centuries later.

The role of the slave was vital in every conceivable corner of Roman society. In addition to acquisition from war, the system was perpetuated by reproduction, just as American slaves inherited the status of their mothers as slaves in the antebellum South centuries later. Greece would even breed slaves for Rome, just as Virginia and Maryland would later do for other Southern states. Despite the many horrors that Roman slaves faced, they also participated in family religious worship and seasonal feasts, often socially mingling with their masters as apparent equals.

In the Arab world, racial distinctions were more important than in Rome and Greece. This tended to occur as Arab civilization extended deeper into Africa. Arabs actually regarded Africans as a race born to be slaves. China also attached racial significance to slavery, especially between the seventh and tenth centuries AD. The Chinese regarded Koreans, Indonesians, Persians, and Turks as less than human and imposed strict laws to prevent sexual relations between the free and slave populations as a means of maintaining the purity of their race.

Babylonia, Assyria, India, and Russia were all home to slaves. Visigothic Spain was divided into two classes, the free and unfree. The Franks made use of slaves as merchants, and slaves as manufacturers were common during the early Middle Ages. Christians and Muslims enslaved each other during their centuries of wars. The Black and Mediterranean Seas were the highways of an international slave trade during the thirteenth, fourteenth, and fifteenth centuries.

But amidst slavery's historical prevalence, rarely, if at all, can one hear so much as a peep about its immorality, calls for its eradication, or revelations of its patent violation of the natural law. Nearly all ancient civilizations accepted slavery as a natural occurrence of the human condition. People were born into various class and caste systems of which slavery was commonly one. Civilizations relied on the institution as a source of free labor, and it was simply too good a luxury even to think about wrestling with its immorality.

Nor did this in any way cease to exist when notions of individual rights and liberty were at their highest. We have already seen that slavery coexisted with Greek ideas of liberty over two thousand years ago. The Reformation came and went without any change in attitude toward human bondage; so did the Enlightenment.

This hypocrisy even permeated the philosophy of John Locke, one of the pioneers of the Enlightenment whose philosophy is imbedded in the American Constitution. Perhaps the greatest English defender of the inalienable rights of man-he argued that one's fundamental rights should be preserved and protected from "the inconstant, uncertain, unknown, arbitrary will of another man" even upon entering into the social contract (the consent individuals grant to the government that gives government the authority to govern). Locke was an investor in the Royal African Company, a major slave importer, and had no qualms justifying slavery along with his revolutionary notions of individual liberty. To Locke, slavery represented the continuation of the state of war and was free from the obligations otherwise imposed by the social compact. These are but examples of slavery's seductive ability to coexist with seemingly contradictory philosophies over the centuries.

Nonetheless, American slavery has a peculiar horror all its own. The existing evidence leads to the conclusion that slaves throughout history were exposed to similar brutality. Turning a human into a thing, a form of conveyable chattel stripped of natural rights and free will, operates as the same contradiction whether it occurs in ancient Rome, medieval China, or antebellum Virginia. Humans in bondage suffer equally in any civilization or century. Yet in no ancient society was the distinction between slave and freeman so sharply drawn as in America. There is a unique tragedy behind the existence of slavery in what would later become known as the free world.

How could a country founded upon such revolutionary philosophical principles of the primacy of the individual over the state possibly perpetuate humanity's ultimate sin? How could the author of "We hold these Truths to be self-evident, 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" be a slaveholder? How could a country that personifies such a declaration permit the existence of legal slavery? True, slavery existed alongside opposing ideologies in the past, but not alongside one as explicit, impassioned, and utterly profound as the Declaration of Independence.

There are no satisfactory answers to these questions. The modern study of American slavery is certainly not intended to justify it. Rather, it is a means of discovering a solution to its continuing negative effects on contemporary American society. Virtually all Americans experience these effects every single day. We experience it when we attend a top-notch school that is 99 percent white and come upon someone who is in the other 1 percent. We experience it when we hear that over a third of all prison inmates in America are black, when blacks make up only 13 percent of the country's population. And we experience it when we pass a member of another race on the street and automatically cast judgment upon that person. This is the inescapable reality of a country that for nearly two centuries perpetuated revolting notions of racial inferiority under the color of law.


Slavery existed in Europe when Christopher Columbus made his voyages across the Atlantic Ocean. At that time the Spanish held many groups of people in bondage, including Muslims, Slavs, Africans, and even other Spaniards. King Ferdinand of Spain, who financed Columbus's voyage, even gave Pope Innocent VIII one hundred Moors, which he, in turn, distributed among his cardinals and nobles in 1488.

It was Columbus himself who initiated the transatlantic slave trade when he returned from his first voyage to the New World, bringing Native Americans from what is now Haiti to present to the Spanish royal court. Recognizing the potential for exploiting the native population for labor, he commented, "From here one might send, in the name of the Holy Trinity, as many slaves as could be sold."

The primary European supply of slaves, however, came from the African continent. The Portuguese prince Henry the Navigator obtained the title to undiscovered African lands from the Pope in 1441. The subsequent decades witnessed a steady increase in trafficking Africans, and the Portuguese led the way. The Portuguese would dominate the African slave trade and operate the enterprise under an effective monopoly for decades to come, sending millions of slaves to Europe every year. Without a doubt, the African slave trade was well on its feet at the beginning of the sixteenth century.

However, the 1493 founding of the first Spanish colony of Hispaniola (modern-day Haiti and the Dominican Republic) marked a tragic turning point in the evolution of slavery. The establishment of sugar plantations created a vast and immediate need for cheap labor at an unprecedented level. While slaves were accustomed to operating in an existing civilization in Europe, they were suddenly needed to build a new civilization from scratch in the Americas. Slaves began to be seized from the African continent in increasing numbers; the vast majority was sent to the expanding colonies. As the colonies grew in number, so did the slaves. The huge profit potential eventually enticed the Dutch, French, and English to join the trade.

Government played a major role in the perpetuation of the trade. While private contractors were responsible for much of the trade, the European governments facilitated this through the use of taxation, subsidization, and monopoly contracts. The state was needed to subsidize the trade in almost every case in order to get it organized. The Portuguese would eventually grant state monopolies in the seventeenth century when underdeveloped colonies lacked the money to finance the trade. The infamous Dutch West India Company owed its prominence to a Dutch monopoly of the slave trade. The explicit goal of numerous European governments was to get the slave trade on its feet so as to spur the growth of their respective colonies.

Considering the historical context, this comes as no surprise. The slave trade came to exist at a time when the European powers were beginning their race for colonial prominence. Slavery was only one component of this race, as the Europeans sought to extract every conceivable natural resource from African lands. The effects of this ambition upon the modern world are profound, as a simple observation of the Western languages spoken on the African continent reveal. This competitive atmosphere would usher in the cultural, linguistic, and geopolitical framework of the modern globalized world.

The majority of slaves seized in the seventeenth century came from West Africa. Because the region consisted mainly of warring and competing tribes and civilizations, obtaining slaves was accomplished with great ease. There was no single African identity and no common language binding the African people. Cultural, political, and ethnic differences perpetuated regular conflict, which provided a steady flow of prisoners of war. Africans were also enslaved by their own governments as punishment for crimes and for failure to pay debts.

Regardless of the reasons for the initial servitude, these black men and women were sold by their respective black political captors to the white Europeans. While raids were common as well, the majority of slaves were purchased in a way that created profit on both sides and incentivized the perpetuation of the business. Traders would arrive on the West African coast bearing gifts for the chief or king. The going rate for a healthy slave in 1600 was approximately $60 for a male and $15 for a female (in contemporary American dollars), although the price was usually satisfied with guns, gunpowder, textile products, pots, pans, and alcohol.

It is important to note that the fractiousness on the continent did not mean that Africans lived lives of savagery or barbarism, as was often the common belief and even a stated justification for slavery. Though the political entities were numerous, they operated under their own systems of government and custom. Religion, cultural expression such as music and oral literature, and other signs of civilized life were widespread. Moreover, the market for slavery was very limited in size before the arrival of the Europeans. Their arrival created a demand for human trafficking at an unprecedented level and spurred the turmoil on the continent.

Once the slaves were sold, they were literally branded with the mark of the owner and placed on ships for the colonies. This grueling and horrific journey became known as the Middle Passage: This was the middle leg of the triangular trade route that took the slave ships to Africa for purchase, to the colonies for shipment, and back to Europe with various goods produced by slave labor and with the proceeds of the sales of the slaves.

It is difficult to imagine the horror that slaves faced on a slave ship; it was truly a world unto itself. As William Wilberforce, the great English abolitionist, once said: "Never can so much misery be found condensed in so small a place as in a slave ship." Slaves were chained and leg-ironed in small quarters for anywhere from five to eight weeks, provided that the trip went well. The conditions were abhorrent. Sanitation was virtually nonexistent, and death and disease were rampant. Traders would consciously overpack the quarters, believing that any resulting death would be offset by the large cargo. One out of every eight kidnapped Africans did not survive the journey. It is estimated that three million Africans perished aboard the vessels over the course of the slave trade's history.

If slaves rebelled, they were whipped, branded with hot irons, thrown in cages, and left to die. For fighting for their freedom, slaves had their body parts cut off one by one and thrown to the sharks, a deliberate attempt by slave ship commanders to keep sharks close in order to quell any desire the slaves might harbor to jump overboard. The ships also carried thumbscrews, chains, whips, and mouth-openers. Mouth-openers were metal braces used to force-feed those slaves who tried to starve themselves. As suicide became a more common method of escaping the horrors of the present and future for the slaves, the traders kept a closer eye on their cargo and often would practice a ceremony called "dancing the slaves," which required the prisoners to jump and move about to the sound of a fiddle, harp, or bagpipes. Despite precautions against depression and insurrection, mutiny was still a common occurrence for the traders. In fact, almost all ship owners purchased "revolt insurance." Over time, barricados (barriers behind which the crew could retreat in the event of an uprising) were added to the vessels.


Excerpted from Dred Scott's Revenge by Andrew P. Napolitano Copyright © 2009 by Andrew P. Napolitano. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Meet the Author

Judge Andrew P. Napolitano is Fox News Channel's senior judicial analyst, currently seen by millions of viewers weeknights on The Big Story and The O'Reilly Factor. Napolitano is the youngest person in New Jersey history to receive a lifetime judgeship. He is bright (graduate of Princeton and Notre Dame Law School), articulate (four times voted most outstanding professor at the two law schools at which he taught), and broadcast-experienced (as a daily fixture on Fox News Channel since 1998). He is the author of Constitutional Chaos and The Constitution In Exile.

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Dred Scott's Revenge: A Legal History of Race and Freedom in America 4.1 out of 5 based on 0 ratings. 14 reviews.
Anonymous More than 1 year ago
This book is an easy read, and it really makes you think about how life was back then. This is one of the best books I've read.
RetPastorRon More than 1 year ago
I greatly appreciated the author's panoramic presentation of the legal and political relations between white and black people from before the American Revolution to the present. The author demonstrates a brilliant legal mind, a broad spectrum of impressive legal experience, and a clear and forceful articulation of his positions. He blasts the violations of natural law and the U.S. Constitution, and the damnable legal and hateful injustices inflicted on black people - with the Dred Scott a prime exhibit. It is valuable to see this overview and the author's principles and interpretations, also to see the positive gains in freedom for African-Americans, and hope for the future. I was stunned to read the author's persuasion that Abraham Lincoln should not be called the "Great Emancipator." The author also provides his significant view of Thomas Jefferson.
Anonymous More than 1 year ago
Made me look through new eyes at events of my childhood/teen years. I grew up in the rural South and my ancestors were substantial slaveholders. I have taught school for 30 yrs. and I thought my eyes had been opened by my classroom experiences and Af. Am friends who are dear to me, but this book scratched off scabs and made me properly treat the wounds.
MizzEmily More than 1 year ago
What a provocative title! At least it's provocative if you know who Dred Scott is. If you don't know, take a side-trip to The History Place now, http://www.historyplace.com/lincoln/dred.htm. Judge Napolitano traces the history of racism in the United States from its origin in the institution of slavery to the present day. He weaves a fascinating story of how the government (which is supposed to protect people) actually contributed to the establishment and continuation of slavery throughout the years. The most surprising portion for me was the section on Lincoln and the Civil War. The judge points out that many other countries managed to abolish slavery without resorting to war. Why, then, was it necessary in the United States? The short answer is: POLITICS. Lincoln was motivated by politics like most others who manage to get elected to national office. He actually never completely denounced slavery during the time he was running for office or while he was in the White House. Political considerations always prevailed. When I started reading this book, I expected a lot of legal lingo, and I was concerned that I might not fully understand it all. However, Napolitano's writing style is very much like his speaking style (if you've heard him explain legal matters on FoxNews). It's not the type of book you read for recreational purposes, but I highly recommend it to every American who thinks they understand how racism has affected American society.
Curious83 More than 1 year ago
Judge Napolitano does an excellent job of explaining the state of race relations in this country. He also does an excellent job of explaining that our view of the history of both slavery and the civil war is seriously flawed.
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LauraN More than 1 year ago
Judge Andrew Napolitano starts with a bang. He is challenging the attitudes and actions of the founding fathers in the introduction and doesn't slow down after that. The book covers history, politics, judicial rulings, and long-term effects of each major step in our nation's path. The author offers a framework for looking at slavery and then uses that framework to show the wrong choices and bad values that kept slavery, segregation, and the view that blacks were an inferior race alive for so long in the United States. He challenges a lot of what I learned in school and backs it up pretty well. He argues a few things that I am still not convinced about but that doesn't detract from the truth of the book. Even if I think the founding fathers had little choice if they were going to create a united country, his point is well made when it goes on for another 200 years and not only does the federal government allow the South to keep slavery/segregation, but then it institutionalizes it across the entire nation. He teaches more than just racism and sees more concerns with our government's behavior than just race-related. But the arena of race is an excellent example of the issues and a subject worthy of more attention and effort. This book will challenge common knowledge about the history of race relations in the US. It will convince you the battle isn't over.
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