Claims that the Justices in Dred Scott abandoned a tradition of judicial restraint rely on an anachronistic measure for judicial activism. Antebellum Justices asserted that laws were unconstitutional only when restraining state officials. Judicial etiquette, in their opinion, required more circumspection when imposing constitutional limits on a coordinate branch of the national government. Contrary to accepted wisdom, the Justices before the Civil War imposed constitutional limitations on federal power in approximately twenty cases. They did so, however, without explicitly declaring federal legislation unconstitutional. The Justices in some federal cases ignored the plain meaning of federal statutes on the ground that Congress would always be presumed to have intended to act constitutionally, as constitutionality was defined by the Supreme Court. In other cases, Justices determined that the federal government could not constitutionally engage in some activity without determining whether Congress by statute had authorized that activity. These and other techniques were means by which the Supreme Court could announce constitutional limits on the national government while pretending that no constitutional conflict was taking place between national elected officials and federal Justices. The majority and concurring opinions in Dred Scott broke with past judicial practice only by explicitly declaring, when limiting federal power, that the national legislature had passed an unconstitutional law. Their actual ruling, if not their language, was consistent with previous cases imposing constitutional limits on the federal government.
Mark A. Graber,
The New Fiction: Dred Scott and the Language of Judicial Authority,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol82/iss1/6