One distinctive feature of the Dred Scott decision for modern readers is the extent to which the Supreme Court Justices looked to foreign and international law in support of their decisions. The legal status of a slave who entered a free jurisdiction was a question that had been confronted by many courts at home and abroad, and international law had played an important role in American and European adjudication of slavery questions. The Justices therefore were confronted with the strikingly modern question of the extent to which U.S. law embraced, or distinguished itself from, foreign practice. Arguments from foreign and international law emerged with respect to four critical questions before the Court: citizenship, choice of law, congressional power in the territories, and due process. With a few notable exceptions, the Justices agreed that foreign authority was relevant to their decisions, though they disagreed on the choice of particular authorities and their application to the facts of the case. No member of the Court adopted the view that foreign authority was never appropriate to constitutional interpretation. Even Chief Justice Taney, who asserted a stridently exceptionalist position to hold that due process protected slavery, also looked to foreign authority—and badly distorted it—to deny citizenship to free blacks. The article concludes it was not the use of foreign authority that opened the decision to condemnation. While the decision illustrates the complexities of nineteenth-century transnational judicial dialogue, Chief Justice Taney's opinion stands as a warning that a blind refusal to consider foreign authorities can be as fraught with hazards as their indiscriminate use.
Sarah H. Cleveland,
Foreign Authority, American Exceptionalism, and the Dred Scott Case,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss1/14