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฀227 f o u r t e e n p The Strange Career of Dred Scott From Fort Armstrong to Guantánamo Bay Paul Finkelman THIS BOOK emerged from a conference commemorating the one hundred and fiftieth anniversary of the Dred Scott decision, held, appropriately in St. Louis at Washington University. Dred Scott’s case began in St. Louis, of course, and after ultimately losing his appeal in the U.S. Supreme Court his new owner manumitted him, and he lived the rest of his life in that city. yet, if St. Louis was the appropriate venue for a conference on the case, was it appropriate to have a conference on the case? The case involved Dred Scott’s claim to freedom, based on his residence in a free state (Illinois) and a federal territory (present-day Minnesota) where slavery was banned under the Missouri Compromise, which had been passed in 1820. In Dred Scott the Supreme Court held three things: that blacks could never be citizens of the United States and, therefore, could never sue in federal court as citizens of a state; that Congress had no power to regulate the territories beyond setting up a minimalist form of government; and that the Bill of Rights was applicable to all federal territories and thus neither Congress nor a territorial government could ban 228 p Paul Finkelman slavery in the territories, because this would be an unconstitutional taking of property in violation of the Fifth Amendment. How do we celebrate, or even commemorate, this case? The notion that we should commemorate the Dred Scott case is curious. No decision of the U.S. Supreme Court is more reviled or condemned. More than a century and a half after announcing the decision, Chief Justice Roger B. Taney’s “opinion of the court” remains anathema to almost anyone familiar with the case. After Taney died, the Senate refused to appropriate funds for a commemorative bust, accepting Senator Charles Sumner’s argument that “If a man has done evil during life he must not be complimented in marble.” Sumner declared that Taney’s “wicked opinion” was “more thoroughly abominable than anything of the kind in the history of courts.” It was “a most unrighteous judgment” in which “every principle of Liberty was falsified.” Rather than commemorate Taney, he urged that the space remain empty, where a bust of the departed chief justice might have been placed, “to speak in warning to all who would betray liberty.” Sumner argued that “the name of Taney is to be hooted down the page of history.”1 Since that time, the reputation of Taney has been contested, and despite valiant efforts by friends, independent scholars, and even Justice Felix Frankfurter his reputation has never been truly rehabilitated.2 To this day justices rarely cite Taney’s jurisprudence and even more rarely acknowledge his opinion in Dred Scott. If cited at all, it is mentioned as a poster child for bad decision making by the Court. Almost no one today defends Taney’s opinion or the racism on which it was built. Dred Scott is a universally condemned decision. Everyone— even those unschooled in constitutional law—knows that Dred Scott was a bad decision. For example, during the 2004 presidential debates, President George W. Bush offered up the Dred Scott case when asked to name a Supreme Court decision he opposed.3 No one at the time imagined that he had actually read the case, or that he even knew anything about it. The reporters at the debate did not ask a follow-up question, which might have required Bush to explain what was wrong with the decision. Perhaps this was because they did not want to embarrass a sitting president who was not known for being well read or intellectually sophisticated. But they may have also believed there was no reason for a follow-up question. Everyone knew that Dred Scott was a bad decision. Indeed, the president’s answer [3.138.138.144] Project MUSE (2024-05-01 00:49 GMT) The Strange Career of Dred Scott p฀229 illustrates how Dred Scott has come to symbolize bad jurisprudence, or even “evil” in constitutional law.4 Almost all modern scholars and jurists agree that the decision was not merely wrong, but pernicious and just plain bad. Charles Evans Hughes argued that Dred Scott was one of “three notable instances [in which] the Court has suffered severely from self-inflicted wounds.”5 Similarly, Alexander Bickel of yale...

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