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Law and Politics Reconsidered: A New Constitutional History of Dred Scott

80 Pages Posted: 3 Jun 2009 Last revised: 14 Aug 2009

Gerald Leonard

Boston University School of Law

Date Written: June 3, 2009

Abstract

This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber’s Dred Scott and the Problem of Constitutional Evil (2006). It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney’s Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis’s celebrated dissent amounted to an unjudicial manipulation of the law, not the judicial masterpiece of historiographical lore, although driven by the higher purpose of striking at the political hegemony of the slaveholding class.

Suggested Citation

Leonard, Gerald, Law and Politics Reconsidered: A New Constitutional History of Dred Scott (June 3, 2009). Law and Social Inquiry, Vol. 34, No. 3, 2009; Boston Univ. School of Law Working Paper No. 09-38. Available at SSRN: https://ssrn.com/abstract=1413886

Gerald Leonard (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3138 (Phone)
617-353-3077 (Fax)

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