Desperately ducking slavery: Dred Scott and contemporary constitutional theory.

• Author: Graber, Mark A.

Contemporary constitutional theory rests on three premises. Brown v. Board of Education was correct, Lochner v. New York was wrong, and Dred Scott v. Sandford was also wrong. A few intrepid souls question whether Brown was correctly decided (although they would not have the Supreme Court overrule that decision).(1) Some proponents of law and economics favor reviving the freedom of contract and the Lochner decision.(2) No one, however, wishes to rethink the universal condemnation of Dred Scott.(3) "American legal and constitutional scholars," The Oxford Companion to the Supreme Court states, "consider the Dred Scott decision to be the worst ever rendered by the Supreme Court."(4) David Currie's encyclopedic The Constitution in the Supreme Court maintains that the decision was "bad policy," "bad judicial politics" and "bad law."(5) Commentators across the political spectrum describe Dred Scott as "the worst constitutional decision of the nineteenth century,"(6) "the worst atrocity in the Supreme Court's history,"(7) "the most disastrous opinion the Supreme Court has ever issued,"(8) "the most odious action ever taken by a branch of the federal government,"(9) a "ghastly error,"(10) a "tragic failure to follow the terms of the Constitution,"(11) "a gross abuse of trust,"(12) "a lie before God,"(13) and "judicial review at its worst."(14) In the words of former Chief Justice Charles Evans Hughes, the Dred Scott decision was a "self-inflicted [wound]" that almost destroyed the Supreme Court.(15)

This agreement that Dred Scott was a "public calamity"(16) masks a deeper disagreement over exactly what was wrong with the Supreme Court's decision. Each school of contemporary constitutional thought claims Dred Scott embarrasses rival theories. Proponents of judicial restraint maintain that Chief Justice Roger Taney's opinion demonstrates the evils that result when federal justices prevent the elected branches of government from resolving major social disputes. Originalists maintain that the Taney opinion demonstrates the evils that result when constitutional authorities fail to be tethered by precedent or the original meaning of the constitution. Aspirational theorists maintain that the Taney opinion demonstrates the evils that result when constitutional authorities are too tethered by precedent or the original meaning of the constitution. Virtually every commentator who condemns Dred Scott insists that Taney could not have reached that decision's proslavery and racist conclusions had he understood or adhered to the correct theory of the judicial function in constitutional cases. Following Robert Cover's analysis of fugitive slave cases, leading members of all schools of contemporary constitutional thought suggest that many Supreme Court justices who protected slavery and declared free blacks to be non-citizens supported those evils because they "shared a jurisprudence that fostered imprecise thinking about the nature of the choices available."(17)

These contemporary uses of the Dred Scott decision to discredit rival theories are fruitless. No prominent approach to the judicial function compels any result in that case. Both the denial of congressional power over slavery in the territories and the claim that former slaves could not be American citizens can be supported (and opposed) by jurists sincerely committed to institutional, historical and aspirational theories. The majority opinions in Dred Scott used many different constitutional arguments to reach their immoral conclusions and the dissents in that case similarly relied on various constitutional logics. For these reasons, the standard analogies between Dred Scott and controversial twentieth century judicial opinions fail. A proper appreciation of the flaws in the Dred Scott majority opinions does not privilege any side to debates over whether Roe v. Wade and other contemporary exercises of the judicial power are constitutionally legitimate.

The argument laid out below is that Dred Scott is constitutionally plausible in any contemporary constitutional rhetoric, not that the result in that case follows logically from institutional, historical, or aspirational understandings of the judicial function in constitutional cases. Part I briefly discusses what the Dred Scott Court decided, the criticisms of that decision, and their contemporary implications. Part II explains why these criticisms are inadequate and demonstrates how a judge committed to any contemporary theory of judicial review could have supported or opposed the holding in Dred Scott. Part III explains why efforts to use slavery to bash rival theories of constitutional interpretation are fruitless. All theories of contemporary constitutional interpretation are vulnerable to unique pro-slavery outcomes, circumstances in which that theory might compel a more pro-slavery result than rival theories.

This revisionist account of Dred Scott is less designed to rehabilitate the Taney Court than to expose the result orientation of all schools of contemporary constitutional thought. Constitutional theorists ritually proclaim adherence to the distinction between constitutionality and justice,(18) but few academic lawyers highlight the constitutional evils that they believe would result should judges adopt the "correct" theory of the judicial function in constitutional cases. Controversial cases in leading studies consistently come out "right," as "right" is defined by the theorist's political commitments. Conservative constitutional commentators insist that principled justices would sustain bans on abortion and strike down affirmative action policies; their liberal peers insist that principled justices would strike down bans on abortion and sustain affirmative action policies.(19) Libertarians would have justices strike down bans on abortion and affirmative action policies;(20) democrats would have justices sustain both measures.(21) When a contemporary consensus exists on the just policy, constitutional commentators of all political persuasions agree that the policy is also constitutionally mandated. No prominent theorist admits that Dred Scott might have been a legitimate exercise of judicial review, and no prominent theorist would have the judiciary overrule Brown v. Board of Education. Originalists who claim that constitutional theory should be indifferent to results nevertheless go to great, probably implausible, lengths to demonstrate that the persons responsible for the equal protection clause intended to forbid racially segregated schools.(22)

This consensus that Dred Scott was wrong (and Brown was right) inhibits serious discussion of constitutional evils. As long as the constitution is interpreted as requiring or at least permitting those policies a given commentator thinks just, no pressing political reason exists for examining the constitution's authority. That examination would seem more urgent had contemporary feminists concluded that the Fourteenth Amendment protects fetal life or contemporary evangelicals concluded that the constitution does require a wall of separation between church and state. Such citizens might wonder why Americans should honor a constitution that mandates such obvious injustices. William Lloyd Garrison, after all, publicly burned the constitution when he concluded that the constitution protected slavery.(23) By highlighting the plausible constitutional arguments in favor of the result in Dred Scott, I hope to begin a better discussion among constitutional commentators as to the original constitution's imperfections and the reasons for adhering even to a constitution that might sanction evil results.

1. THE DRED SCOTT DECISION

Dred Scott was a Missouri slave who went with his master, John Emerson, to a free state (Illinois) and a free territory (Minnesota) before he "voluntarily" returned with Emerson to Missouri.(24) On April 6, 1846, Scott and his wife Harriet sued their putative owner, claiming that their time spent on free soil made them free persons. Although their suit was successful in the trial court, that judgment was reversed by the state supreme court, which held that, as a matter of Missouri law, slave status reattached whenever a slave voluntarily reentered a slave state from a free state or territory. Immediately following that defeat, Scott and his family brought a similar suit in federal court. The final result was no different. Their claims were rejected by the local Circuit Court and the United States Supreme Court sustained that rejection by a 7-2 vote, Justices Curtis and McLean dissenting.(25)

The precise holding of Dred Scott has never been entirely clear. All nine justices wrote opinions and the seven justices in the majority gave different reasons for rejecting Scott's appeal. Conventionally, the case stands for the two central propositions in Chief Justice Taney's opinion: 1) no black could be a citizen of the United States;(26) and 2) slavery could not be constitutionally prohibited in American territories.(27) This interpretation of Dred Scott may not be entirely correct. Only three other justices explicitly endorsed Taney's analysis of black citizenship.(28) Moreover, some commentators argue that Taney's analysis of congressional power over slavery in the territories was obiter dictum because his initial ruling on black citizenship meant that the court had no jurisdiction to hear the merits of Dred Scott's appeal.(29) Still, Taney's opinion was without apparent objection designated as the opinion of the Court,(30) and debate over Dred Scott has concentrated on the flaws in Taney's discussion of black citizenship and slavery in the territories.

Taney's claims about black citizenship and slavery in the territories have been criticized for three distinct and inconsistent failings. One fine of criticism claims that Dred Scott rests on a mistaken theory of the proper role of judicial institutions in a democratic society. Robert McCloskey...