Coming to Terms with Dred Scott: A Response to Daniel A. Farber

Abstract

When thinking about Dred Scott, the issue is not how do we “rehabilitate” the opinion. The goal of scholarship here is to understand the opinion, place it in the context of its own time, and explain its enduring significance. After that, we may praise or damn it, and rehabilitate it or condemn it.

No one today likes the Dred Scott opinion or the result. But, this article argues that Professor Daniel A. Farber is so incensed by the opinion that he vastly overstates its historical significance including incorrectly blaming Chief Justice Taney for causing the Civil War. This article rejects such an analysis. However, despite Farber’s claims, the author of this article has not tried to “rehabilitate” Chief Justice Taney and his opinion.

This article does not endorse Taney’s opinion or attempt to rehabilitate his reputation. There is a huge difference between “rehabilitating” the opinion of the Chief Justice, and suggesting, as the author of this article did in a recent article, that some aspects of the opinion were at least reasonable and that the outcome — that Scott remained a slave and could not sue in diversity — was probably legally correct.

Farber argues that Dred Scott was illegitimately decided and that Taney overreached in his attempt to solve the problem of slavery in the territories in a single opinion. Tied to this we must also interrogate the claim implied by Farber, and made by others, that somehow Dred Scott caused the Civil War. The answers to these questions will not be found in a law professor’s narrow analysis of the structure of the opinion, but rather in a more thorough understand of the historical context of the decision as set out in this article.