Law Commons^™

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 …

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 …

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 …

Modern Day Slavery In Our Own Backyard, Ellen L. Buckwalter, Maria Perinetti, Susan L. Pollet, Meredith S. Salvaggio

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

St. George Tucker And The Legacy Of Slavery, Michael Kent Curtis

William & Mary Law Review

No abstract provided.

The Dragon St. George Could Not Slay: Tucker's Plan To End Slavery, Paul Finkelman

William & Mary Law Review

No abstract provided.

Process Theory And Emerging Thirteenth Amendment Jurisprudence:The Case Of Agricultural Guestworkers, Benjamin P. Quest

University of San Francisco Law Review

This Comment argues that applying process theory as a limiting principle to an expansive substantive interpretation of the Thirteenth Amendment and uses United States agricultural guestworker policy as a case study. Viewed through a process theory lens, the Thirteenth Amendment compels Congress to revise guestworker statutes since guestworkers are unable to take advantage of democratic channels to combat employment practices that replicate slavery-like harms.

The Original Intent Of The Fourteenth Amendment: A Conversation With Eric Foner, Eric Foner

Nevada Law Journal

No abstract provided.

Sexual Abuse Of Women In United States Prisons: A Modern Corollary Of Slavery, Brenda V. Smith

Fordham Urban Law Journal

This paper addresses the sexual abuse of women in custody as a more contemporary manifestation of slavery. Part II situates the sexual abuse of women in custody and women slaves in their historical context. Part II also charts the creation of the first penitentiaries in the United States and the "Reform Movement," led by Quaker women who were also involved in the abolition movement, and later in the suffrage movement. It further examines the impact that women's entry into male prisons as workers in the 1970s and 1980s - pursuant to Title VII - had on the sexual abuse of …