"Every man can read the Constitution." That's what Salmon P. Chase believed, or so he said on November 1, 1860, just before Abraham Lincoln was elected president. Chase was in Covington, Kentucky campaigning for the Republicans by spelling out one of the cardinal principles of the party's platform, and of the broader antislavery movement he had done so much to build. Not only can anybody read the Constitution, Chase went on, "every man can read the debates of the framers of the Constitution for himself, and I confess," he concluded,I do not see how any man can read either and come to the conclusion that property in slaves is anywhere recognized in that instrument.... Not only is there no recognition, but there is careful avoidance of recognition of property in man. Whenever and wherever slaves are referred to in the Constitution, they are always mentioned as persons. (1)
Earlier in that same year, in February of 1860, Abraham Lincoln had used nearly identical language in the famous speech he gave at the Cooper Institute in Manhattan--the speech that helped secure him the Republican party's presidential nomination. "[N]either the word 'slave' nor 'slavery' is to be found in the Constitution," Lincoln said. On the contrary, "wherever in that instrument the slave is alluded to, he is called a 'person.'" This "mode of alluding to slaves and slavery," Lincoln insisted, "was employed on purpose to exclude from the Constitution the idea that there could be property in man." (2)
Lincoln presented his case as the sober conclusion he arrived at after diligent research in the Illinois state library, where he had recently pored over the documentary record left by the Founders. Chase, by contrast, spoke as if it were all perfectly obvious--that anyone who read the Constitution could easily see that it did not recognize a right of property in slaves. Or that anyone who read Madison's published notes of debates at the Constitutional Convention in Philadelphia in 1787 could also see that the men who drafted the "instrument" were clearly, unambiguously, obviously determined to exclude any wording that recognized a property right in human beings.
But of course, what was obvious to Chase was not obvious to all those who read the Constitution. Not everyone read it the same way. In this case one particular man read it very differently, and that man happened to be the Chief Justice of the United States Supreme Court, Roger B. Taney. In 1857, only a few years before Lincoln's election, Taney had issued his explosive decision in the case of Dred Scott v. Sandford. It was and remains a notoriously difficult decision to unpack, in part because there were so many different concurring and dissenting opinions, in part because it's not always easy to disentangle which passages were--as Lincoln believed--mere dicta, and in part because Taney's opinion covered several different issues, each one riddled with complexity. But on one point Taney was clear and unmistakable. The "right of property in slaves," he ruled,...