Was Dred Scott Right?

Dare we ask the question? More fiercely controversial than Roe v. Wade, more volatile than Brown v. Board of Education: Dred Scott v. Sanford is without a doubt the most reviled case in the Supreme Court canon. Even George W. Bush, a president not known for his strong credentials in constitutional law, felt comfortable invoking Dred Scott during the 2004 debates to illustrate how important it was to appoint judges who understood the Constitution. In the respectable (and perhaps not so respectable) constitutional literature, Dred Scott is always invoked similarly, to illustrate precisely what is wrong with Supreme Court decision making. But does that mean it was decided wrongly?

Mark Graber, a political scientist at Maryland, has recently argued that maybe Dred Scott was decided rightly. In his provocative book, Dred Scott and the Problem of Constitutional Evil, he has suggested that our scholarship on the subject is tainted and that we have overlooked the obvious--that the decision in Dred Scott was at least as possible a constitutional outcome for a hard case as was its opposite. The book has generated a buzz in the academy and continues to rattle conservatives and liberals alike who are concerned about its shaking of fundamental truths in constitutional law.

Most intriguing for me in this is one of the book's fundamental premises: that constitutional law in the main is indeterminate. This is not new to Graber (the critical legal studies movement has been singing this tune for some time) but it has never been put in starker terms. The only equivalent is Michael Klarman's recent work on Brown v. Board of Education, in which he advances the controversial thesis that Brown was NOT responsible for the Civil Rights Movement except indirectly, and that it had little effect on American society. Along the way, Klarman argued that the Constitution supported both the "separate but equal" standard advanced in Plessey v. Ferguson and the "separate is inherently unequal" standard of Brown v. Board. If the Constitution was not clear on this subject, Klarman argued, what was more important was the society in which the justices made their decisions.

In short, both seem to argue that it is EXTRAJUDICIAL factors that determine how hard cases are made, and both are compelling arguments for this case. But along the way, we must confront the problem: was Dred Scott decided correctly? Could someone read the Constitution in 1857 and properly conclude (moral issue aside) that the color of someone's skin determined his or her legal rights in perpetuity? That citizenship was reserved to white men? That slavery was protected by the Bill of Rights?

History is a moral discipline as well as an intellectual one. And that means we ought to take seriously questions that make us uncomfortable. Graber has posed such a question. Is he right?

Race and Law, and constructing whiteness

Although nearly a decade old, "Litigating Whiteness," (available in JSTOR) by Ariela Gross offers up some intriguing observations about the all-important question of race before the southern courts during the antebellum era. How was race constructed? Gross argues that antebellum southerners, with no scientific means of figuring out what constituted "black" or "white," relied on evidence of the "performance" of whiteness to distill biological essentialism.

Dworkin on the Roberts Court

In an essay penned for the New York Review of Books, Ronald Dworkin lays out a persuasive argument in layman's terms about the disposition of the current Supreme Court. Dworkin points out that a series of 5-4 decisions, anchored by the right-wing bloc of Scalia-Thomas-Alito-Roberts and joined by Kennedy (pictured to the left), have undermined almost all the constitutional principles at work in women's rights, racial justice, and freedom of speech issues. While minutely examining the doctrinal defenses of these decisions (and finding them wanting), Dworkin points to a disturbing sub-rosa rationale. He writes:

In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later.

Dworkin's argument, as well as his explication of the different opinions in the school assignment decisions that so recently undercut Brown v. Board of Education, is enormously important for anyone interested in race and law, as well as how Supreme Court justices make their decisions. Dworkin ably covers not just school assignment, but also freedom of speech issues (Bong Hits 4 Jesus Case), reproductive rights, and the McCain-Feingold campaign finance reform bill. The article is here. (Note to my students at Georgia State: I will give extra credit to anyone commenting on this post with a critical reading of Dworkin's article.)