Foreshadows of the Law: Supreme Court Dissents and Constitutional Development

By Donald E. Lively | Go to book overview

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.


Bibliography

Cases

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).

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Foreshadows of the Law: Supreme Court Dissents and Constitutional Development
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • INTRODUCTION: JUDICIAL REVIEW AND CONSTITUTIONAL DEVELOPMENT xiii
  • Bibliography xxvi
  • Chapter 1 a Constitutional Right in Slavery 1
  • Bibliography 22
  • Chapter 2 Images of a New Union 25
  • Bibliography 41
  • Chapter 3 Constitutional Redefinition and National Reconstruction 43
  • Bibliography 60
  • Chapter 4 the Rise, Demise and Resurrection of Substantive Due Process 63
  • Bibliography 85
  • Chapter 5 Color and the Constitution 87
  • Bibliography 111
  • Chapter 6 Freedom of Speech: the "Indispensable" Liberty 113
  • Bibliography 134
  • Chapter 7 the Right to Be Let Alone 137
  • Bibliography 158
  • AFTERWORD 161
  • Index 163
  • About the Author 169
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