Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory
Graber, Mark A., Constitutional Commentary
Contemporary constitutional theory rests on three premises. Brown v. Board of Education was correct, Lochner v. New York was wrong, and Dred Scott v. Sandford was also wrong. A few intrepid souls question whether Brown was correctly decided (although they would not have the Supreme Court overrule that decision).(1) Some proponents of law and economics favor reviving the freedom of contract and the Lochner decision.(2) No one, however, wishes to rethink the universal condemnation of Dred Scott.(3) "American legal and constitutional scholars," The Oxford Companion to the Supreme Court states, "consider the Dred Scott decision to be the worst ever rendered by the Supreme Court."(4) David Currie's encyclopedic The Constitution in the Supreme Court maintains that the decision was "bad policy," "bad judicial politics" and "bad law."(5) Commentators across the political spectrum describe Dred Scott as "the worst constitutional decision of the nineteenth century,"(6) "the worst atrocity in the Supreme Court's history,"(7) "the most disastrous opinion the Supreme Court has ever issued,"(8) "the most odious action ever taken by a branch of the federal government,"(9) a "ghastly error,"(10) a "tragic failure to follow the terms of the Constitution,"(11) "a gross abuse of trust,"(12) "a lie before God,"(13) and "judicial review at its worst."(14) In the words of former Chief Justice Charles Evans Hughes, the Dred Scott decision was a "self-inflicted [wound]" that almost destroyed the Supreme Court.(15)
This agreement that Dred Scott was a "public calamity"(16) masks a deeper disagreement over exactly what was wrong with the Supreme Court's decision. Each school of contemporary constitutional thought claims Dred Scott embarrasses rival theories. Proponents of judicial restraint maintain that Chief Justice Roger Taney's opinion demonstrates the evils that result when federal justices prevent the elected branches of government from resolving major social disputes. Originalists maintain that the Taney opinion demonstrates the evils that result when constitutional authorities fail to be tethered by precedent or the original meaning of the constitution. Aspirational theorists maintain that the Taney opinion demonstrates the evils that result when constitutional authorities are too tethered by precedent or the original meaning of the constitution. Virtually every commentator who condemns Dred Scott insists that Taney could not have reached that decision's proslavery and racist conclusions had he understood or adhered to the correct theory of the judicial function in constitutional cases. Following Robert Cover's analysis of fugitive slave cases, leading members of all schools of contemporary constitutional thought suggest that many Supreme Court justices who protected slavery and declared free blacks to be non-citizens supported those evils because they "shared a jurisprudence that fostered imprecise thinking about the nature of the choices available."(17)
These contemporary uses of the Dred Scott decision to discredit rival theories are fruitless. No prominent approach to the judicial function compels any result in that case. Both the denial of congressional power over slavery in the territories and the claim that former slaves could not be American citizens can be supported (and opposed) by jurists sincerely committed to institutional, historical and aspirational theories. The majority opinions in Dred Scott used many different constitutional arguments to reach their immoral conclusions and the dissents in that case similarly relied on various constitutional logics. For these reasons, the standard analogies between Dred Scott and controversial twentieth century judicial opinions fail. A proper appreciation of the flaws in the Dred Scott majority opinions does not privilege any side to debates over whether Roe v. Wade and other contemporary exercises of the judicial power are constitutionally legitimate.
The argument laid out below is that Dred Scott is constitutionally plausible in any contemporary constitutional rhetoric, not that the result in that case follows logically from institutional, historical, or aspirational understandings of the judicial function in constitutional cases. …