The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law

five An Exaggerated Legacy

฀83 f i v e p An Exaggerated Legacy Dred Scott and Substantive Due Process Austin Allen SCHOLARS FREQUENTLy cite Chief Justice Roger B. Taney’s majority opinion in Dred Scott v. Sandford (1857) as the birthplace of substantive due process, one of the most controversial concepts in American constitutional law.1 This concept holds that the Constitution’s Fifth and Fourteenth amendments’ due process clauses guarantee that certain fundamental rights will not be abridged under almost any circumstances. The theory has essentially no grounding in the Constitution’s text, and the specific rights it protects have varied widely over time.2 Proponents contend, however, that properly applied substantive due process provides a powerful mechanism to balance state interests against individual rights.3 Critics disagree. For them, the lack of a textual foundation offers reason enough to abandon the theory. If not, then the correlation between substantive due process’s rather arbitrary protection of rights and what critics see as an abuse of judicial power should do so. Some of the most controversial cases in the Court’s history have employed substantive due process to subordinate the will of democratic majorities to the opinions of a few unelected judges. Classic 84 p Austin Allen examples include Roe v.Wade’s elevation of privacy rights over antiabortion laws and Lochner v. New York’s protection of contractual rights in the face of worker-protection laws.4 Dred Scott, which held that Congress possessed no authority to stop slavery’s expansion into the federal territories, claims a special status on this list. The 1857 decision is one of the few Supreme Court rulings to be repudiated by a constitutional amendment, and it played a role in the coming of a civil war. These features have made Dred Scott a particularly useful case for critics of substantive due process, because the decision’s legacy permits them to portray the concept as one that has been devoid of legitimacy from its inception . Such arguments generally reduce the decision to a single passage in Taney’s sprawling opinion: “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”5 There was in 1857 no term for the concept Taney employed here, but modern lawyers have no difficulty labeling it substantive due process. Indeed , they have associated that reasoning with this decision since the early twentieth century, when Edward S. Corwin portrayed Dred Scott as a forerunner to Lochner.6 But in the 1990s, commentators seeking to undermine Roe v. Wade—most notably Robert Bork and Justice Antonin Scalia—put forward influential assertions that the controversy generated by Dred Scott stemmed precisely from Taney’s invocation of substantive due process. Steven G. Calabresi recently employed this tactic by asserting that one of the Fourteenth Amendment’s primary objectives involved overturning “the Supreme Court’s activist, substantive due process decision in Dred Scott” to counter an argument in favor of broad powers of judicial review under the amendment. This interpretation, he insisted, led to decisions like Lochner and Roe and ran counter to the Fourteenth Amendment’s original intent, which “sought to overrule Dred Scott, not to authorize future Dred Scotts!”7 This essay rejects such interpretations of Dred Scott. It argues that the use of the decision by Bork, Scalia, Calabresi, and others fails to undermine the concept of substantive due process. Although it remains agnostic as to the concept’s legitimacy, this essay contends that these currently influential readings of Dred Scott rest on a number of misleading assumptions about An Exaggerated Legacy p฀85 the nature of Taney’s opinion, the scope of judicial power in American society, and the decision’s similarities with twentieth-century substantive due process rulings. None of those assumptions can withstand historical scrutiny. After examining the relationship between Dred Scott and substantive due process as it was understood in the early twentieth century and noting how those accounts differ from those developed in the 1990s by Bork, Scalia, and others, this essay will argue that Dred Scott cannot bear the explanatory weight that critics of substantive due process ascribe to it. p On one level, Bork, Scalia, and others assert nothing new...