Scholars have misunderstood the context in which Dred Scott emerged. Leading historical interpretations of the decision have relied too heavily on accounts developed by antebellum Republicans and on mid-twentieth-century legal theory. This article offers an alternative account of Dred Scott's origins and argues that the decision emerged from a series of unintended consequences resulting from the Taney Court's efforts to incorporate a Jacksonian vision of governance into constitutional law. By 1857, this effort had generated tensions that made a sweeping decision like Dred Scott nearly unavoidable. The inescapable nature of Dred Scott carries implications for constitutional theorists, especially those calling for the Court to adhere to minimalist interpretive strategies or stark distinctions between law and politics, because such theories cannot evade future decisions like Dred Scott. A departmental constitutionalism providing ample room for extrajudicial interpretation to challenge malevolent Court decisions, however, may be able to limit the reach of future Dred Scotts.
Rethinking Dred Scott: New Context for an Old Case,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss1/5