Overcoming Dred: A Counterfactual Analysis
Weinberg, Louise, Constitutional Commentary
Could anything have been done about Dred Scott (1) in its own day, in a Supreme Court remade by Abraham Lincoln? That is, was Dred Scott vulnerable to overrule, even in its own day, even in advance of the Thirteenth and Fourteenth Amendments? Would the power of then-existing constitutional theory have been sufficient to support overcoming Dred? If the answer is yes, we would have the key to the essential wrongness of Dred Scott, quite apart from the usual critiques of Chief Justice Roger Taney's opinion.
Analysis of this question is best performed in a counterfactual setting. By stripping away the aftermath of the election of 1860, the South's secession and the Civil War, and by examining a Lincoln Supreme Court's likely options as rationally perceivable by voters in 1860, we can isolate for consideration the constitutional vulnerabilities of Dred Scott in the context of the national predicament at the time. We can examine the Court's plausible alternatives, with some freedom from involuntary anachronism and presentism.
We can reasonably assume that voters in 1860 were anticipating that the South would abide the election and accept Lincoln's presidency, in the ordinary peaceable way the Constitution provides that Americans undergo a transfer of power. Voters would anticipate that the South, through the Democratic Party, would retain effective control of the Senate after the election, as, in fact, it did. Nobody in 1860 could have predicted the Confiscation Acts of 1861 and 1862, (2) the Emancipation Proclamation of 1863, (3) or the Thirteenth Amendment of 1865. (4) So we can clear all these events from our thinking and conduct our inquiry as if they never occurred. In order to focus more precisely on overruling Dred Scott, we will eliminate related possibilities, such as the possibility of the Court's sustaining an act of Congress providing for a compensated emancipation. Still, we could not advance the inquiry if we took the Court as it was in 1860. The "Chase Court," a ten-Justice Court with its full complement of five Lincoln appointees, was complete only in 1864, and lacked a Lincoln-appointed majority. Let us hypothesize, then, for purposes of this analysis, a Chase Court with a majority comprised of Lincoln appointees, coming into being early in the 1860s, and prepared to overrule Dred Scott at the earliest opportunity.
What can we gain from setting up this wholly counterfactual inquiry, apart from the sheer intellectual fun of it? I have said that with this inquiry we will be able to identify and articulate the essential constitutional critique of Dred Scott, uncovering, among Dred Scott's manifold wrongnesses, its core constitutional infirmity. More specifically, we will also discover the true ground on which to assess the constitutionality of the Missouri Compromise, struck down in Dred Scott--and indeed, all of the old territorial "compromise" statutes. We will find that Dred Scott was constitutionally infirm within the constitutional understandings of its own time and therefore might have been overruled then. The Court arguably could have done this even if an overruling of Dred Scott would have been greeted with the kind of disregard we have come to associate with the modern school prayer cases, or with Worcester v. Georgia. (5) We will also begin to see why the necessary analysis was not evoked, not considered, not developed, not argued at the time, even by counsel in Dred Scott, even by Dred Scott's dissenting Justices. But we shall also see very good reasons for the silence of that generation. Among the surprises our exploration has in store for us, we will come to see, along with the benefits of overruling Dred Scott, the very real difficulties that stood in the way at the time, and the ironies that would have accompanied any such overruling.
II. THE POLITICAL SIGNIFICANCE OF DRED SCOTT
It is not always understood to what extent Dred Scott was at the heart of the election of 1860 and the crisis that followed. …