Origins of the Dred Scott Case: Jackson Jurisprudence and the Supreme Court.

• Author: Erman, Sam
• Position: Book review

ORIGINS OF THE DRED SCOTT CASE: JACKSONIAN JURISPRUDENCE AND THE SUPREME COURT, 1837-1857. By Austin Allen. Athens and London: University of Georgia Press. 2006. Pp. x, 274. Cloth, $59.95; paper, $22.95.

INTRODUCTION

Austin Allen's (1) monograph marks the 150th anniversary of the decision in Dred Scott v. Sandford (2) with a revisionist interpretation of that off-examined case. Many scholars have portrayed the case as a proslavery decision that fanned sectional fires. After all, the Court held that blacks were not U.S. citizens and that Congress was impotent to bar slavery in U.S. territories. Allen, by contrast, understands the case primarily as a judicial attempt to rationalize federal commerce and slavery jurisprudences. Part I argues that this ambitious reinterpretation enriches, but does not topple, existing Dred Scott historiography. In the case of the Court's citizenship ruling, Allen's understanding of Dred Scott depends on a legal model of U.S. citizenship. While Part II commends the historicity of this approach, it criticizes Allen for overstating the independence of law from extrajudicial pressures and thereby understating the significance of the Dred Scott citizenship holding.

1. DRED SCOTT AS A "LEGAL PROBLEM": A TANGLED WEB

   Although much has been written on Dred Scott, Allen contends that the most important dynamics of the case have been overlooked. His predecessors have tended to portray the Dred Scott decision as an abuse of judicial power, "a failure of partisan justices to steer their court away from contentious political and social issues that it was not equipped to solve." (3) In doing so, scholars missed the extent to and manner in which the case presented a "legal problem" (p. 221). According to Allen, the Justices of the Taney Court shared commitments to relatively stable doctrines and professional methodologies. When the Dred Scott case reached the Taney Court, longstanding tensions between commerce and slavery jurisprudences made the outcome all but inevitable. (4)

   Understanding the "legal problem" of Dred Scott, Allen explains, means seeing Jacksonian law as an interdependent web of doctrinal nodes in which "various strands of doctrine interacted with one another and became intertwined." (5) No one line of cases formed a coherent, self-contained doctrine. (6) Instead, when judges decided cases in one area, they responded to--and drove developments in--others. (7) This normal course of legal events produced cross-doctrinal patterns of legal change. (8)

   Within this context, Allen argues, the assumptions and commitments that judges brought to their decision making constituted a driving force behind change in the legal system. (9) For most Justices on the Court between 1837 and 1857, these assumptions and commitments encompassed such Jacksonian principles and professional norms of legal reasoning as deference to state legislatures, insistence that individuals meet their market obligations, and adherence to precedent and common-law terminology. (10)

   To trace the mechanics by which judges applied these abstract commitments in particular cases, Allen examines all published and draft Taney Court opinions, as well as the papers of the Court and its Justices (pp. 5, 224). The Taney Court, he concludes, created and then sought to resolve a modified "slaveholders' dilemma," aiming to find a basis consistent with its principles and norms that would justify both the expansive federal power necessary to promote a uniform federal law of commerce and its declarations of impotence to review local decisions concerning slavery. (11) Before 1857, progress on one front produced setbacks on the other. (12)

   In Dred Scott, the Court sought to articulate a ground on which it could succeed on both fronts. (13) In doing so, it built on two cases. In Strader v. Graham, (14) the Court had sharply limited federal jurisdiction over commerce and slavery questions in appeals from state courts. (15) In Louisville, Cincinnati, & Charleston Railroad Company v. Letson, (16) it had permitted corporations to access diversity jurisdiction (p. 127). By holding that blacks were not U.S. citizens in Dred Scott, the Court barred them from diversity jurisdiction (p. 160). The result effectively left blacks to state remedies while permitting corporations to retain access to diversity jurisdiction and a concomitant federal law of commerce. (17)

   But in the territories, federal law sometimes purported to determine who was a slave. (18) Thus by merely holding that blacks were not U.S. citizens, the Taney Court could not fully reconcile assertions of federal power over commerce with denials of such power with respect to slavery (pp. 178-79, 182-83). Allen understands the second Dred Scott holding--that Congress was powerless to bar slavery in U.S. territories--as eliminating this anomaly by pushing the issue of slavery in the territories into local courts (pp. 186-94, 216-19). That holding vested legislative power over territorial slavery with territorial legislatures and, Allen contends, may have been a step toward creating an integrated "union" of U.S. state and territorial "concurrent sovereignties. (19)

   Allen desires that his monograph not merely supplement Dred Scott histories but supplant many of them. He "refuses to [join prior scholars and] accept the primacy" of extrajudicial influences such as "sectional partisanship" in the Dred Scott decision (pp. 6-7). The legal dynamics at work, Allen explains, "converged in such a way that a sweeping decision such as Dred Scott appeared not only unavoidable but absolutely necessary" (p. 6). Acknowledging that two Justices dissented, he argues that the weakness of their efforts reinforces his conclusion. (20)

   Allen hangs his ambitious claim--that the assumptions, doctrines, and institution of the Taney Court together were the primary causes of its holding-on a slender reed: primary sources that largely concern intrajudicial dynamics. Still, this shortfall does not detract from his accomplishment. As he set out to do, Allen "contribute[s] a considerably more textured analysis of Dred Scott than previous scholars have offered" (p. 228).

2. IN SEARCH OF CITIZENSHIP

   Dred Scott may be the most important case on U.S. citizenship in our constitutional tradition. Certainly it was so at the time that it was decided. The decision announced a distinction between U.S. citizenship and U.S. nationality--since reversed by the Fourteenth Amendmen (21)--and presumed that numerous rights and civic belonging...