Dred Scott v. Sandford began as a relatively simple dispute over Scott’s status but developed into a complex legal snarl. Scott brought suit in Missouri where he was held as a slave, arguing that he had become free as a result of his former residence with his master in Illinois. The Supreme Court was initially ready to dispose of the case on relatively narrow grounds. Until the oral argument in the Supreme Court, no issue had been raised as to whether Scott was freed by virtue of living in a territory where Congress banned slavery. Reversing its course, the majority decided to abandon a narrow decision and instead to resolve the slavery issue once and for all. The opinion of the Court by Chief Justice Taney took the occasion to rule that free blacks could never become citizens of the United States, that Congress lacked the power to limit slavery in the territories, and that federal legislation limiting slavery anywhere would violate the Due Process Clause.

The late David Currie’s biting legal critique of the opinion probably represents the view of most constitutional law scholars today. As he says, the “variety of feeble, poorly developed, and unnecessary constitutional arguments suggests, if nothing else, a determination to reach a predetermined conclusion at any price.”

The Taney opinion also occupies suspect moral ground. Unlike some other judges of the time, Taney was untroubled by the moral dimensions of his judicial support for slavery. Robert Cover’s book, Justice Accused, tells the story of Northern judges forced to carry out a deeply immoral law, the Fugitive Slave Act, by their fidelity to law. In contrast, Chief Justice Taney went far out of his way to leap to the defense of slavery and racism. If many Northern judges were unwilling bridegrooms of evil, Taney can only be considered an ardent suitor. Consistent with the biblical maxim that he who sows the wind shall inherit the whirlwind, Taney’s opinion may well have been a contributing factor in bringing about the bloodiest of America’s wars and the destruction of slavery.


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