Wednesday, March 07, 2007

13 Ways of Looking at Dred Scott


This week marks the 150th anniversary of the Supreme Court's decision in Dred Scott v. Sandford. Sandy Levinson and I have just submitted a draft of our new article on the Dred Scott case to SSRN. This essay was written for a conference on Dred Scott that we organized together with Paul Finkelman, one of the country's leading legal historians of slavery. The conference was held at the University of Texas last March. The papers from the conference will be published this spring in a symposium in the Chicago-Kent Law Review, and we hope to published further revisions in a forthcoming book.

Our paper tries to show the many ways in which Dred Scott is still relevant to contemporary constitutional debates, including not only the familiar debates about judicial review and substantive due process, but also, as we show, debates about civil liberties in time of emergency and the constitutional obligations of the United States in territories it holds overseas.

Here is the abstract for the paper. (the academic haiku will follow tomorrow!).

13 Ways of Looking at Dred Scott
Jack M. Balkin and Sanford Levinson

Dred Scott v. Sanford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally held lands overseas. And it asks whether, as Chief Justice Taney famously said of blacks, there are indeed some people who have no rights we Americans are bound to respect.

Dred Scott remains the most salient example in debates over the legitimacy of substantive due process. It subverts our intuitions about the relative merits of originalism and living constitutionalism. It symbolizes the problem of constitutional evil and the question whether responsibility for great injustices lies in the Constitution itself or in the judges who apply it.

Finally, Dred Scott encapsulates the central problems of judicial review in a constitutional democracy. One the one hand, Dred Scott raises perennial questions about the judicial role in cases of profound moral and political disagreement, and about judicial responsibility for the backlash and political upheaval that may result from judicial review. On the other hand, the political context of the Dred Scott decision suggests that the Supreme Court rarely strays far from the wishes of the dominant national political coalition. It raises the unsettling possibility that, given larger social and political forces, what courts do in highly contested cases is far less important than we imagine.


I have just read the article and was deeply, profoundly impressed. At this time I'm almost done reading volume 2 of Taylor Branch's history of the King Years, and it's difficult to describe how completely shaken my world view has been. It reminds me of a phrase Branch himself used to describe the theological training provided by Enslin & Pritchard at Crozer Theological (Parting the Waters): that the object was to tear down entirely the accretions of random religious notions of students before constructing a rigorous edifice. I feel I am experiencing something of this myself.

I think, though, that it's not quite as mysterious wherein the historical odiousness of Dred Scott v. Sandford lies: it's that the opinion so completely sanctioned slavery as the moral high ground, that impeded its liquidation eight years later.

Quote the article (page 24, second paragraph):
A different version of originalism would focus on the original meaning of the text and its underlying principles and aspirations. It would distinguish between original public meaning of the words of the text and their original expected concrete application. That version of originalism, however, has much in common with a belief in a living Constitution, rejected by both Taney and many of today’s originalists.

Really? I thought that was the pretty standard consensus among Originalists. Just that not all are eager to follow that where it sometimes leads.

Interesting piece. Thanks. Two things confused me though.

(1) One of the bloggers here is cited as suggesting that there is good evidence that an originalist reading could support Taney.

I don't understand this. Art. III. diversity jurisdiction relies on state citizenship. This is the general sentiment of Curtis' dissent. Taney's confusion of that and P&I notwithstanding (Fehrenbacher notes the confusion).

Is THAT really backed up by original understanding? Free blacks could never sue in federal court? Madison even has a FP tidbit about that once slaves are freed, rights attach.

A reality not so horrible that even Taney himself was involved litigation with a black as one of the parties, even if he noted in the ruling that the matter was not challenged so was technically not a controversy.

(2) This seems contradictory:

"Because Taney in effect validated the views of extreme Southern
Democrats that territories must welcome slave-owning settlers, the Court destroyed the Democratic coalition that had dominated American politics since Jefferson’s day."

and (earlier, arguing against Rosen's view):

"From this perspective, Dred Scott’s chief vice is that unelected judges acted contrary to the wishes of a democratically elected majority. The major problem with this indictment of Dred Scott is that it is not true."

To be fair, I think it is just phrased to broadly. In effect, the Dems gladly looked fwd to the courts deciding the matter, even putting in a special provision in the Compromise of 1850 to do so re. Utah/NM territories.

So, it is not that the attempt was undemocratic, just its BREADTH. Douglas had to submit a convulted makeweight argument to get around expansive dicta that rule against his popular sovereignty approach

Oh, and I'm not sure if vested property and liberty based substantive due process are two different articles. Cf. John Orth's book on due process, that put them in the same category -- economic and personal liberties just seen differently over the years.

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