Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview
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deliberate disregard of it. The ruling's long-term pertinence was formally defeated by the Thirteenth Amendment, which prohibits slavery. Despite formal repudiation of the Dred Scott decision, within a decade of its rendition, significant aspects of Taney's opinion endured as a continuing source of constitutional influence. Since the late nineteenth century, as discussed in Chapters 3, 4, and 7, the Supreme Court has referred to due process for purposes of developing rights that although not constitutionally specified have been declared fundamental. The racist spirit of Dred Scott survived as a significant factor in constitutional jurisprudence through the middle of the twentieth century. Even after the Fourteenth Amendment was added to the Constitution, the Court denied Congress the power to reach private discrimination in any context and upheld official segregation. Dissenting from the Court's investment in the separate but equal doctrine forty years after Dred Scott, in Plessy v. Ferguson, Justice Harlan warned that the decision "will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case."

What was offered as a constitutional resolution of the slavery question in 1857 actually compounded the controversy and exacerbated sectional tension. To have expected more, no matter how the Court ruled, seems unrealistic given the almost irreparably divided condition of the union. Even if the Court's judgment with respect to Scott himself was final, its practical effect was not. Two months after the decision, he was manumitted. For Taney, the opinion became a stain on his record that neither time nor the respectability of his jurisprudence otherwise has erased. The Court itself lost prestige and credibility, as some states openly challenged its authority and Republicans flaunted its decision. Derrick Bell has described Dred Scott as "being the most frequently overturned decision in history." Even if ultimately discredited, the decision, as discussed in the next chapter, was to be a departure and transfer point rather than an absolute dead end in the development of constitutional law.



Commonwealth v. Aves, 35 Mass. 193 ( 1836).

Dred Scott v. Sandford, 60 U.S. 393 ( 1857).

Josefa Segunda, The, 18 U.S. 338 ( 1820).

Marbury v. Madison, 5 U.S. 137 ( 1803).

Plessy v. Ferguson, 163 U.S. 537 ( 1896).

Prigg v. Pennsylvania, 41 U.S. 536 ( 1842).

Strader v. Graham, 51 U.S. 82 ( 1850).

Books and Articles

Bell D., And We Are Not Saved ( 1987).

Bell D., Race, Racism and American Law ( 1973).


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