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What Was Taney Thinking? American Indian Citizenship In The Era Of Dred Scott, Frederick E. Hoxie

Chicago-Kent Law Review

Historians have often noted that Chief Justice Taney's decision in Dred Scott juxtaposed a denial of African American rights to citizenship with an assertion that Native Americans could obtain that status. Explaining this apparently inconsistent description of two racial minority groups requires an examination of the history of Native American classification in the law prior to 1857. This article argues that political leaders and judges of Taney's generation were committed to the removal of Indian tribes from eastern states and commonly proposed this removal as a choice between migrating west or dissolving tribal governments in order to remain in the …

Dred Scott And The Crisis Of 1860, Louise Weinberg

Chicago-Kent Law Review

Recent suggestions to the contrary notwithstanding, the Dred Scott decision and the controversy over the extension of slavery into the territories were at the very center of the crisis of 1860. This paper fills in the social, political, economic, and legal backgrounds of that crisis in order to clarify the centrality of Dred Scott in the election of Abraham Lincoln and to the ensuing destruction of the Union.

Stay East, Young Man? Market Repercussions Of The Dred Scott Decision, Jenny B. Wahl

Chicago-Kent Law Review

The Dred Scott decision definitively opened U.S. territories to slavery. This reduced the probability of westward migration for free-soilers, in part because of expected effects on land markets. Although land was an important part of a slaveholder's portfolio, his ability to hold wealth in mobile assets—slaves—meant that he had a different outlook on internal improvements than his Northern brethren, as well as a production process that emphasized relatively abundant labor inputs. Letting slaves into the territories thus led to uncertainty about future land values. This slowed the flow of Northerners west, dragging present land prices downward. In turn, uncertainty about …

Divine Intervention: Re-Examining The "Act Of God" Defense In A Post-Katrina World, Joel Eagle

Chicago-Kent Law Review

From the moment of landfall, Hurricane Katrina instantly became synonymous with unprecedented damage, destruction, and loss. The exceptionally intense storm and subsequent flooding in New Orleans and much of the Gulf Coast was quickly deemed one of the worst disasters in United States history. A particularly destructive consequence of Hurricane Katrina has been the environmental effects, in part caused by oil spills and chemical releases from many of the industrial sources concentrated in the Gulf Coast region.

A question that will likely remain in contention for years or even decades to come is who should be liable for the cleanup …

Table Of Contents - Issue 1, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

Scott V. Sandford: The Court's Most Dreadful Case And How It Changed History, Paul Finkelman

Chicago-Kent Law Review

Dred Scott, without doubt, is the most controversial case in the history of the United States Supreme Court. Unlike the controversies that surround other decisions of the Court, the controversy surrounding Dred Scott does not turn on if the outcome or Chief Justice Taney's analysis was wrong, but rather on why the outcome and Chief Justice Taney's analysis were wrong. This article focuses on the political goals Taney attempted to accomplish through his decision in Dred Scott. Though there existed reasons for Taney's belief that his decision in Dred Scott would once and for all end the political …

Thirteen Ways Of Looking At Dred Scott, Jack M. Balkin, Sanford Levinson

Chicago-Kent Law Review

Dred Scott v. Sandford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally …

Rethinking Dred Scott: New Context For An Old Case, Austin Allen

Chicago-Kent Law Review

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 …

The New Fiction: Dred Scott And The Language Of Judicial Authority, Mark A. Graber

Chicago-Kent Law Review

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 …

Dred Scott: Tiered Citizenship And Tiered Personhood, Henry L. Chambers Jr.

Chicago-Kent Law Review

The Dred Scott Court accepted and perpetuated the notion that our Constitution afforded multiple tiers of citizenship and multiple tiers of personhood through which different groups of citizens and different groups of persons would receive varying sets of rights. Through their language and interpretation, the Reconstruction Amendments largely resolved this issue by providing a formal equality that created a single tier of citizenship and a single tier of personhood. Though, as a formal matter, tiered citizenship and tiered personhood are unacceptable, the issue is not fully resolved as a practical matter. Tiered citizenship and tiered personhood may exist when the …

Emergence Of Equality As A Constitutional Value: The First Century, William M. Wiecek

Chicago-Kent Law Review

Equality as a constitutional value was unprecedented when it made its appearance in 1868 in the Equal Protection Clause of the Fourteenth Amendment. It reflected antebellum abolitionist ideals adopted hesitantly by Northern Republicans during Reconstruction, but these were incompatible with the expectations of most white Americans of the era, as well as with all previous American experiences. In this sense, equality was a revolutionary constitutional value. The framers of the Fourteenth Amendment intended the Equal Protection Clause and its embedded ideal of interracial equality to reverse the racist dicta of the Dred Scott opinion, to validate the Civil Rights Act …

The Last Angry Man: Benjamin Robbins Curtis And The Dred Scott Case, Earl M. Maltz

Chicago-Kent Law Review

The dissenting opinion of Justice Benjamin Robbins Curtis in Dred Scott has generally received lavish praise from commentators. Curtis is typically praised not only for his substantive conclusions, but also for his seemingly dispassionate analysis of the legal issues presented by the case. In many respects, this praise is well-deserved; Curtis's discussions of the issues of slavery in the territories and citizenship for free blacks are models of legal reasoning. However, a close analysis of other aspects of his opinion reveals that Curtis's analysis was at times distorted by his anger with the actions of Chief Justice Taney and other …

Legality And Legitimacy In Dred Scott: The Crisis Of The Incomplete Constitution, Michael P. Zuckert

Chicago-Kent Law Review

The original Constitution was incomplete in that it contained a disparity between the principles of legitimacy of the system and the legality of the institution of slavery. Political communities marked by such disharmony are beset with pressures to make the system consistent in one way or another. Such indeed was the fate of the U.S. during the antebellum era. Three typical responses arose: to make legality correspond to legality (by redefining the principles of legitimacy of the system), to make legality conform to legitimacy (by doing away with slavery), or to maintain the tension in ever more creative ways. The …

Benjamin Curtis: Top Of The List, R. Owen Williams

Chicago-Kent Law Review

Among the many brave and brilliant dissents from the Supreme Court, few are more historically significant than that of Benjamin Curtis in Dred Scott v. Sandford. Earl Maltz insists that the traditional view of Curtis as a dispassionate Justice is incorrect; Curtis is better seen as the "Last Angry Man." This paper considers the famous dissent, the man who wrote it, and the technical analysis Maltz claims as sine qua non to a proper understanding of the opinion.

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Chicago-Kent Law Review

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 …

Searching For A Needle In A Haystack: The Constitutionality Of Police Dna Dragnets, Sepideh Esmaili

Chicago-Kent Law Review

DNA dragnets—the mass warrantless DNA testing of individuals whom authorities have neither probable cause nor reasonable suspicion to believe perpetrated a crime, but who merely live or work near a crime scene—have increasingly been used by police departments in a desperate attempt to solve puzzling crimes. The lack of success and the Fourth Amendment constitutional concerns raised by DNA dragnets, however, lead this practice to be suspect. Under the Fourth Amendment, all searches of an individual must be reasonable. The reasonableness of any search typically depends on the government obtaining a warrant prior to the search. While there are well-established …

Signed General Releases May Be Worth Less Than Employers Expected: Circuits Split On Whether Former Employee Can Sign Release, Reap Its Benefit, And Sue For Fmla Claim Anyway, Muniza Bawaney

Chicago-Kent Law Review

A circuit split has recently developed regarding the correct interpretation of 29 C.F.R. § 825.220(d), a regulation issued pursuant to the Family and Medical Leave Act of 1993, which states in pertinent part, "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." The Fifth Circuit correctly concluded that 29 C.F.R. § 825.220(d) bars only the prospective waiver of substantive rights under the FMLA and does not reach the post-dispute release or settlement of FMLA claims. Subsequently, the Fourth Circuit alternatively concluded that § 825.220(d) prohibits the prospective and retrospective waiver or release of both the …

Introduction: A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review, Daniel W. Hamilton

Chicago-Kent Law Review

No abstract provided.

Politics, Police, Past And Present: Larry Kramer's The People Themselves, Christopher Tomlins

Chicago-Kent Law Review

This article addresses aspects of the debate over Larry Kramer's The People Themselves and, more generally, current interest in popular constitutionalism before engaging, briefly, with the book itself. Because I find Kramer's book in general terms unexceptionable I see no particular reason to engage in the kind of lengthy critical assessment undertaken by those scholars whose disagreements with the book are pronounced. Instead I focus on three "sites" that the book traverses that I consider sites of missed opportunity. They are, first, the question of the people and the Constitution; second, the people and politics; third, the question of police …

A Discrete And Cosmopolitan Minority: The Loyalists, The Atlantic World, And The Origins Of Judicial Review, Daniel J. Hulsebosch

Chicago-Kent Law Review

Historical interest in popular constitutionalism has enlivened the search for the origins of judicial review. Several precursors of judicial review in the state courts during the 1780s, in particular, demand explanation. If early modern Anglo-Americans did not perceive courts as enforcers of constitutional limits on legislatures, what explains these attempts by judges to curtail statutes in the "critical period" before the Philadelphia Convention? This article argues that these cases involved antiloyalist legislation and related laws that violated the Peace Treaty of 1783 or the law of nations, or otherwise obstructed diplomatic and commercial relations with the other empires of the …

Mobs, Militias, And Magistrates: Popular Constitutionalism And The Whiskey Rebellion, Saul Cornell

Chicago-Kent Law Review

It is impossible to understand the Constitutional dynamics of the early Republic without some appreciation for the manifold ways popular constitutionalism shaped these early debates. Popular constitutionalism in the early republic encompassed an enormous spectrum of legal strategies. The peaceful efforts of the Democratic-Republican Societies to influence the course of Federalist policy stood at one pole, while mob action stood at the other. Even more important than either of these modalities of popular constitutionalism were the efforts of local communities and states to use the militia as check on federal power.

Give "The People" What They Want?, Keith E. Whittington

Chicago-Kent Law Review

Larry Kramer's The People Themselves argues that "popular constitutionalism" has been the dominant tradition over the course of American history, being eclipsed by "judicial supremacy" only in the last decades of the twentieth century. He posits that political parties have, since the age of Andrew Jackson, been the vehicle for pushing back the forces of judicial supremacy. This article argues that political parties are instead deeply implicated in the political dynamic that gives rise to judicial supremacy in the United States. The article identifies the features of the early party system that allowed it serve the popular constitutionalist function that …

Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah Harding

Chicago-Kent Law Review

This paper steps outside of the historical debate about the origins and development of judicial review and focuses on the normative claim that Kramer makes near the end of Popular Constitutionalism. Should the Court, as Kramer argues, have a little more humility when it comes to judicial review and its authority over constitutional interpretation? Should the Court have more respect for legislative decision-making? These questions are addressed through a brief exploration of the ideas of a leading skeptic of judicial review, Jeremy Waldron, and a glimpse at the experiences of other rights-respecting nations.

Table Of Contents - Issue 3, Chicago-Kent Law Review

Chicago-Kent Law Review

No abstract provided.

A Historiography Of The People Themselves And Popular Constitutionalism, Morton J. Horwitz

Chicago-Kent Law Review

The People Themselves intervenes in a growing contemporary debate about the role of the Supreme Court in our constitutional system that began to emerge after the end of the Warren Court and reached a crescendo with Bush v. Gore. For the second time since Lochner v. New York was decided, some liberals have begun once again to switch sides on the virtues of judicial review. Many recent liberal books and articles inevitably bring to mind the flood of Progressive attacks on the democratic legitimacy of judicial review written between 1905 and 1937. Yet the book can be approached independently …

Iredell Reclaimed: Farewell To Snowiss's History Of Judicial Review, Gerald Leonard

Chicago-Kent Law Review

Even after the publication of Larry Kramer's The People Themselves, the early history of judicial review suffers from the unfortunate influence of Sylvia Snowiss's Judicial Review and the Law of the Constitution. Snowiss misread, among other things, James Iredell's foundational argument in 1786 for the inevitability and necessity of judicial review. Snowiss claimed that early understandings of judicial review conceptualized it not as a legal doctrine but as a doctrine of political and revolutionary resistance. In fact, however, Iredell argued for judicial review as a straightforward, legalistic consequence of popular sovereignty. In Iredell's influential account, the transition from …

Pre-Revolutionary Popular Constitutionalism And Larry Kramer's The People Themselves, Richard J. Ross

Chicago-Kent Law Review

Larry Kramer's depiction of pre-Revolutionary constitutionalism rests on two dichotomies that are valuable yet exclude middle positions. First, he distinguishes between fundamental law and ordinary law. Second, he argues that pre-Revolutionary judges could play one of two roles—since they were not supreme constitutional interpreters (the first of these roles), they must have possessed no special authority to determine constitutional meanings (the second, and remaining, possibility). Both of these dichotomies obscure middle positions that capture important aspects of the pre-Revolutionary constitutional tradition. My comments briefly identify these middle positions and suggest what is at stake in recovering them.

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Chicago-Kent Law Review

The complete history of the Lincoln-Douglas debates provides additional support for the main thesis of Larry Kramer's The People Themselves: Popular Constitutionalism and Judicial Review, while casting doubt on a subtheme. The Lincoln-Douglas debates of 1840 are yet another instance when judicial power was contested in American history. Professor Kramer, however, treats American constitutional history as an ongoing struggle between aristocrats who support judicial supremacy and "democrats" committed to a more popular constitutionalism. The complete Lincoln-Douglas debates suggest that political struggles to control constitutional meaning have been more protean. Douglas was one of many ambitious politicians who rose to …

Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton

Chicago-Kent Law Review

The Civil War was widely recognized, at the time and since, as a moment of popular constitutionalism, at least in so far as the Supreme Court was made suddenly less powerful as an interpreter of the Constitution on the eve of the war. The Court was largely marginalized on constitutional questions during the war, in large part as a result of the Dred Scott Case, which Charles Evans Hughes described as one of the great "self-inflicted wounds" in the history of the Supreme Court.

If today, in a time of war, we look readily to the courts to ultimately delineate …

Popular Constitutionalism In The Twentieth Century: Reflections On The Dark Side, The Progressive Constitutional Imagination, And The Enduring Role Of Judicial Finality In Popular Understandings Of Popular Self-Rule, William E. Forbath

Chicago-Kent Law Review

This essay aims to revise and strengthen some important features of Larry Kramer's pioneering account of popular constitutionalism, particularly during the last century, which Kramer covers on the run. In doing so, the essay also complicates the normative path of Kramer's narrative. First, I discuss the role of racism in shaping American popular constitutionalism and its rivals. The People Themselves has been assailed for glossing over this and other dark chapters in popular constitutionalism's history. I sketch how and why Kramer's narrative should take these dark chapters on board. Next, I turn to the Progressive Era and the New Deal. …