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.

Slavery, Antislavery, and the Coming of the Civil War

In this intriguing essay, Ariela Gross previews her new book on the role of proslavery and antislavery contests over law and constitution in the antebellum era. She makes the case that the law operated on two levels: the everyday level, where disputes were mediated and slavery was protected; and the national level, where disputes about the constitutional status of slaves in the territories, fugitive slaves, and other heady issues led to considerable conflict between proslavery and antislavery forces. The essay is here.

Did slavery violate the 5th Amendment?

Among the questions we can reasonably ask about slavery in the United States is whether the institution violated basic constitutional freedoms embodied in either the document's spirit and design, or in specific provisions of the bill of rights. In this article, Kaimipono Wenger makes the theoretical argument that slavery was an intrinsic violation of the takings clause of the 5th Amendment. The article does not proceed from historical premises (the argument relies more upon legal reasoning and logic than historical inquiry) but it broaches an important issue about slavery and the construction of the constitution.