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

one Constitutional Law and the Legitimation of History

฀9 o n e p Constitutional Law and the Legitimation of History The Enduring Force of Roger Taney’s “opinion of the court” David Thomas Konig ROGER TANEy was not the first judge to seek legitimacy for an opinion by drawing on the authority of the past, and his “opinion of the court” in Dred Scott v. Sandford only continued a long tradition of applying— some would say, manipulating—the historical method to reach desired results. Current academic criticism of the “historical method of adjudication ” remains framed by a 1965 article by historian Alfred H. Kelly that stands as a classic censure of the fallacies of reasoning and decontextualized evidence that lead judges to use historical argument to reach conclusions that are wrong or historically impossible to prove. Kelly, however, was only giving voice to a long tradition of criticism and providing additional argument to strictures made that same year by legal scholar Mark DeWolfe Howe, who had observed that such corruption of the historical method had “very probably always marked the divisions within the Court.” Those who disparage the way history has been used in adjudication acknowledge, of course, that the historical recovery of the past and the judicial resolution of legal disputes can work at cross-purposes. There exists an inherent 10 p David Thomas Konig dilemma of method and goal, what Howe called the “tension between the complexities of a confused reality and the simplicities of sure conviction.” Acknowledging the different professional imperatives of the lawyer, historian Kelly conceded that the object of the adversarial process of advocacy litigation “is, after all, not history, but the resolution of a lawsuit, and the judges are supposed to resolve opposing claims of counsel in such a way as to produce something coherent in terms of justice, legal continuity, or ascertainable law. It is not for a historian to choose.” Just as judges must choose between competing legal narratives, so too must they choose between competing historical narratives in order to arrive at the “simplicities of conviction” needed for adjudicating disputes.1 This essay argues that the impact of rejecting a particular legal doctrine differs materially from that of rejecting a particular version of history, which ultimately poses a much greater harm in a democracy. Consigning a legal doctrine to extinction is not the same as rejecting the “the complexities of a confused reality” of the past, which may do serious harm beyond what the legal decision produces. While “bad history” can lead to bad decisions, such damage may affect only the parties to a particular case. Even if, as in the case of Dred Scott, its decision has an immediate impact on millions and accelerates a national crisis, its impact can be reversed by constitutional amendment . Thus, the law announced in Chief Justice Roger B. Taney’s “opinion of the court” (his term, anointing what was, actually, only his own opinion among a thicket of contradictory concurring and dissenting opinions)2 was altered by three amendments to the Constitution, but its greater and much longer term damage lies outside the law and continues to the present day. Taney’s simplistic version of a complex past, announced and anointed as “too clear to dispute,”3 was a form of collateral damage that has outlived its primary constitutional harm by corrupting our nation’s historical memory and creating a false normative narrative of the American experience. The “opinion of the court” thus placed the imprimatur of a vastly respected institution on an interpretation of history whose fallacies continue to undermine the historical foundations of core constitutional beliefs. Taney’s history was a classic example of how a judge uses history “not to learn about the past, but merely to support an outcome.”4 The purpose of his historical analysis—to which Taney devoted more space in his opinion than any other issue—was to exclude all African Americans, slave or free, Constitutional Law and the Legitimation of History p฀11 from any rights specified in the Constitution.5 To do so required establishing that even free blacks were not among those “who were citizens of the several States when the Constitution was adopted. And in order to do this,” he stated, “we must recur” to the political institutions of the time and “inquire who, at that time, were recognized as the people or citizens of a State, whose rights and liberties had been outraged by the English Government ; and...