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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). [5091

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