THE LESSONS OF DRED SCOTT

Abstract

Contemporary constitutional theory rests on three premises: Brown v. Board of Education was correct, Lochner v. New York was wrong, and Dred Scott v. Sandford was wrong. A few intrepid souls question whether Brown was correctly decided. Some proponents of law and economics favor reviving the freedom of contract and the Lochner decision. No one wishes to rethink the universal condemnation of Dred Scott . “American legal and constitutional scholars,” The Oxford Companion to the Supreme Court states, “consider the Dred Scott decision to be the worst ever rendered by the Supreme Court.” David Currie's encyclopedic The Constitution in the Supreme Court maintains that the decision was “bad policy,” “bad judicial politics,” and “bad law.” Other commentators describe Dred Scott as “the worst constitutional decision of the nineteenth century,” “the worst atrocity in the Supreme Court's history,” “the most disastrous opinion the Supreme Court has ever issued,” “the most odious action ever taken by a branch of the federal government,” a “ghastly error,” “a tragic failure to follow the terms of the Constitution,” “a gross abuse of trust,” “a lie before God,” “an abomination,” and “judicial review at its worst.” “Infamous” and “notorious” are the preferred contemporary adjectives. In the words of former Chief Justice Charles Evans Hughes, the Dred Scott decision was a “self-inflicted wound” that almost destroyed the Supreme Court. This agreement that Dred Scott was a “national calamity” masks a deeper disagreement over exactly what was wrong with the Supreme Court's decision in that case.