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24 Hastings Const. L.Q. 509 (1996-1997)
Justice Curtis's Dissent in the Dred Scott Case: An Interpretive Study

handle is hein.journals/hascq24 and id is 529 raw text is: Justice Curtis's Dissent in the Dred Scott
Case: An Interpretive Study
By STUART A. STREICHLER*
Table of Contents
Introduction  ....................................................     509
I. Citizenship, Race, and the Uses of History .............        512
II. Congress's Powers, the Territories, and Constitutional
Structure  ................................................    528
Conclusion   .....................................................     543
Introduction
The Dred Scott decision' was one of the most significant, and dis-
astrous, in the history of the Supreme Court.2 Purporting to write the
opinion of the Court,3 Chief Justice Roger B. Taney ruled that no
black, whether slave or free, could ever be a citizen of the United
* Assistant Professor of Political Science, University of Miami; Ph.D. 1995, Johns
Hopkins University; J.D. 1982, University of Michigan Law School; B.S. 1978, Bowling
Green State University. An earlier version of this Article was presented at the 1994 An-
nual Meeting of the Law and Society Association in Phoenix, Arizona. I am indebted to J.
Woodford Howard, Jr. for his insights, generosity, and helpful criticism. I would also like
to thank Hendrik Hartog, Timothy S. Huebner, Lili Levi, and especially Marilys Ne-
pomechie for their thoughtful comments, and Bianca Roig for her research assistance.
1. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
2. As Carl Swisher put it, Dred Scott has gone down in history as a major disaster,
degrading the Court and the Constitution and precipitating the Civil War. CARL B.
SWISHER, 5 THE OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME CoURT OF
THE UNrrED STATES: THE TANEY PERIOD, 1836-64, at 631 (Paul A. Freund ed., 1974).
3. See Scott, 60 U.S. at 400. Whether Taney's views actually commanded a majority is
a matter in dispute. In his review of the case, Horace Gray, later appointed Chief Justice,
concluded that Taney speaks only for himself and Mr. Justice Wayne, and that each of the
other justices defines his own position. Horace Gray & John Lowell, The Case of Dred
Scott, 20 MoNrrHLY L. REP. 61, 67 (1857). However, Don Fehrenbacher concluded that
none of the major rulings in Taney's opinion can be pushed aside as unauthoritative.
DON E. FEHRENBACHER, TiH DRED Scorr CASE: ITs SIGNIFICANCE IN AMERICAN LAW
AND POLrIcS 333 (1978); see also John S. Vishneski III, What the Court Decided in Dred
Scott v. Sandford, 32 AM. J. LEGAL HIsT. 373, 386-90 (1988) (arguing that evidence from
the Court's deliberative process shows that Taney had a majority for each point in his
decision).

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