Confronting Dred Scott

We conclude our preview of the new (Winter) issue of the Claremont Review of Books (subscribe here, please) this morning with Professor Michael Zuckert’s review of two new books on the Supreme Court’s 1857 decision in the Dred Scott case. Professor Zuckert’s review is “Confronting Dred Scott.”
Lincoln’s contemporaneous speech criticizing the Dred Scott decision is a model of its kind. The following year in his debates with Douglas, Lincoln famously characterized Dred Scott as “an astonisher in legal history.” In part he objected to “[t]he sacredness…throw[n] around this decision[.]” It was, he said, “a degree of sacredness that has never been before thrown around any other decision.” The phenomenon of sacralization of Supreme Court decisions is one to which we have unfortunately become accustomed.
Given the import and consequences of the case, it cannot be studied enough. Don Fehhrenbacher provided his widely recognized, authoritative history of the case over a generation ago, and it has stood the test of time. Is there anything new to say about the case?
Professor Zuckert seems to think so. What I admire most about Professor Zuckert’s review is his introduction to the subject. It took me a long time to arrive at the conclusions that Professor Zuckert states almost too concisely in his opening:

It was 150 long years ago that the Supreme Court handed down what is now considered the most disastrous decision of its career, in the notorious Dred Scott case. In that decision the Court held that the Missouri Compromise was unconstitutional, for Congress lacked the power to prohibit slavery in the territories of the United States. Since Abraham Lincoln and the Republican Party were seeking legislatively to control the further extension of slavery into the territories and hardly anything else, the decision in effect declared the party unconstitutional. The Court also ruled that black persons descended from slaves, whether free themselves or not, could never become citizens of the United States. What’s more, Chief Justice Taney declared for the Court that in the eyes of those who made the Constitution, black people had no rights that white men were bound to respect.

Dred Scott reminds us that the ideological origins of the Republican Party lay in its opposition to the “twin relics of barbarism–Polygamy, and Slavery.” One does not have to vary the formulation much to describe the challenges facing us today and therefore to understand the continuing relevance of the study, in Fehrenbacher’s words, of “the most famous of all American judicial decisions.”