Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview
Save to active project

political rights secured by the reconstruction amendments. Not until the Court struck down official segregation in Brown v. Board of Education did the Court finally excise from constitutional law the premise of racial supremacy.

Justice McLean, who died in 1861, did not survive to witness the formal undoing of Dred Scott. After resigning from the Court in 1858, Justice Curtis became a vocal critic of developments that ultimately led to abolition and reconstruction. Curtis accused the Lincoln administration of exceeding its constitutional powers and objected in particular to the Emancipation Proclamation. Despite having advanced a notion of national citizenship deriving from state citizenship, he objected to the inverse proposition that state citizenship was established by virtue of national citizenship. Curtis also opposed the Fourteenth Amendment for imposing demands on the South that he considered excessive. Like the other reconstruction amendments, the Fourteenth Amendment became a cost of readmission to the union and was ratified as a function of post-war realities, of governance rather than popular sentiment in the South. Given the widespread resistance and evasion that the Fourteenth Amendment prompted, reflecting a sense similar to Curtis's that the provision was harsh and unacceptable, it is not surprising that ratification proved a much easier task than actualization.

The reconstruction amendments revised the Constitution so as to disclaim, at least formally, the core legal premises of Dred Scott. Their introduction commenced a new and enduring debate over the quality of freedom and nature of rights established and the extent to which power had been redistributed from state to national government. Over the course of its history, the Fourteenth Amendment's practical meaning has evolved according to judicial interpretation and has become the most prolific source of constitutional litigation. The Fourteenth Amendment redefined the Constitution and political system in a way that the dissenters in Dred Scott may not have contemplated. It since has become a source of constitutional development that the framers themselves may not have imagined.



Brown v. Board of Education, 347 U.S. 483 ( 1954).

Commonwealth v. Aves, 35 Mass. 191 ( 1836).

Dartmouth College v. Woodward, 17 U.S. 518 ( 1819).

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

Miller v. McQuerry, 17 F. Cas. 332 (C.C.D. Ohio, 1853).

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


Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this page

Cited page

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited page

Bookmark this page
Foreshadows of the Law: Supreme Court Dissents and Constitutional Development


Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen
/ 172

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?