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13 Ways of Looking at Dred Scott


Jack M. Balkin


Yale University - Law School

Sanford Levinson


University of Texas Law School


Chicago-Kent Law Review, Vol. 82, No. 800, p. 49, 2007
Yale Law School, Public Law Working Paper No. 153
U of Texas Law, Public Law Research Paper No. 115

Abstract:     
Dred Scott v. Sanford 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 American 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 held lands overseas. And it asks whether, as Chief Justice Taney famously said of blacks, there are indeed some people who have no rights we Americans are bound to respect.

Dred Scott remains the most salient example in debates over the legitimacy of substantive due process. It subverts our intuitions about the relative merits of originalism and living constitutionalism. It symbolizes the problem of constitutional evil and the question whether responsibility for great injustices lies in the Constitution itself or in the judges who apply it.

Finally, Dred Scott encapsulates the central problems of judicial review in a constitutional democracy. One the one hand, Dred Scott raises perennial questions about the judicial role in cases of profound moral and political disagreement, and about judicial responsibility for the backlash and political upheaval that may result from judicial review. On the other hand, the political context of the Dred Scott decision suggests that the Supreme Court rarely strays far from the wishes of the dominant national political coalition. It raises the unsettling possibility that, given larger social and political forces, what courts do in highly contested cases is far less important than we imagine.

Number of Pages in PDF File: 48

Keywords: dred scott, slavery, constitutional theory, substantive due process, judicial review

JEL Classification: K10

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Date posted: March 8, 2007 ; Last revised: January 30, 2009

Suggested Citation

Balkin, Jack M. and Levinson, Sanford, 13 Ways of Looking at Dred Scott. Chicago-Kent Law Review, Vol. 82, No. 800, p. 49, 2007; Yale Law School, Public Law Working Paper No. 153; U of Texas Law, Public Law Research Paper No. 115. Available at SSRN: http://ssrn.com/abstract=968975

Contact Information

Jack M. Balkin (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)
Sanford V. Levinson
University of Texas Law School ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)
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