A Fatal Loss of Balance: Dred Scott Revisited

36 Pages Posted: 11 Mar 2011 Last revised: 14 Feb 2012

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law

Date Written: March 10, 2011


This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress's enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in fair procedure within the Court itself.

Taney's exercise in originalism highlights some pitfalls that present-day originalists would do well to avoid. His effort to read all of the Constitution through a states' rights, pro-slavery lense also dramatizes the risks of foundationalism. Taney's opinion lacks any sense of balance - a failing at any time for a judge, but particularly dangerous when the nation is poised over a historic abyss.

Keywords: Dred Scott, congressional power, slavery, originalism, citizenship

Suggested Citation

Farber, Daniel A., A Fatal Loss of Balance: Dred Scott Revisited (March 10, 2011). UC Berkeley Public Law Research Paper No. 1782963, Available at SSRN: https://ssrn.com/abstract=1782963 or http://dx.doi.org/10.2139/ssrn.1782963

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

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