The case and its citizenship holding
In the episode “Revenge of the Pen and the Phone,” Bob Zadek and Sheldon Gilbert of the National Constitution Center discuss Dred Scott v. Sandford as part of a broader exploration of birthright citizenship, tracing the concept from the original Constitution through the decision and the 14th Amendment to modern debates over executive orders and the “subject to the jurisdiction” clause Revenge of the Pen and the Phone (2018).
Gilbert recounts that Dred and Harriet Scott were slaves who were at risk of being torn apart as a family after the death of Dred Scott’s master or owner. Dred Scott filed what was referred to as a freedom suit, a type of lawsuit in which a slave could go into court and argue there was a legal basis to no longer be a slave. Gilbert notes that such suits rested on various theories: a slave might claim Native American ancestry, or that a master had freed him in his will. The most common category, and the one Dred Scott argued, was that a master or somebody else had taken him out of a slave state and into a free state, onto free soil, invoking the legal theory that once free, always free. Under that theory, once a slave stepped foot on free soil, he remained free even if brought back into slave territory.
Scott made that argument in Missouri state court, which ruled against him and said it would not accept the theory anymore. He then tried to bring the freedom suit in federal court. Gilbert explains that one way to get into federal court is through a lawsuit by citizens of different states, so Scott argued he was a citizen of one state suing somebody in another state who claimed to own him. The case made its way to the US Supreme Court, which Gilbert describes as one of the most controversial decisions in all of American history.
The Supreme Court’s two rulings
Gilbert says the Court decided two things. First, it held that Dred Scott could not be in federal court at all because he was not a citizen — not a citizen of anywhere. The reason, in the Court’s interpretation, was that anyone of African descent, anyone who was black, could not be a citizen, whether free or slave. Gilbert quotes the language of the opinion as saying such a person had no rights that the white man must respect. Second, the Court went further and held that all the statutes Congress had adopted saying slavery could not extend to a particular part of the country, or would not exist in one territory or another, were unconstitutional, because Congress did not have the power to stop slavery. Gilbert says both decisions had profound consequences, but the episode focuses on the first: the idea that by virtue of the color of your skin, you could never be a citizen of the United States.
Citizenship and slavery in the early Republic
Earlier in the conversation, Zadek observed that in 1789 or 1790 a citizen of the United States was not all that special — there was no massive accumulation of rights and benefits that non-citizens lacked. In the founding era, he says, the country was very inviting and knew it needed immigration, so not much thought was given to citizenship because it was not all that important as a legal matter in the early growth of the country.
Gilbert pushed back on that a little, agreeing it was true for most people living in the early American Republic but noting one category of individuals for whom citizenship and national citizenship was really important and had a real-world effect on a day-to-day basis: African Americans, whether slaves in the South or free African Americans in the North. Zadek said he was about to get there himself, and that citizenship was not important except when you get to the subject of slavery. He noted that slavery is not directly the topic of the morning but is essential in tracing the history of birthright citizenship, because there was a huge number of people for whom citizenship and the rights and benefits of being a citizen mattered a whole lot.
Across episodes
Only one episode in the excerpts, “Revenge of the Pen and the Phone,” touches on Dred Scott v. Sandford; the excerpts show no development or change in treatment across episodes.
What the sources do not cover
The excerpts do not describe the full doctrinal reach of Dred Scott, the specific statutes Congress adopted regarding slavery in the territories, or the text and ratification of the 14th Amendment beyond Zadek’s mention that the case is intertwined with its passage. They do not state the outcome of the freedom suit beyond the Supreme Court’s rulings, nor any later treatment or overruling of the decision. The guest’s remarks on the case are confined to the citizenship holding and the ruling on congressional power over slavery.