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  • Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837–1857
  • Keith E. Whittington
Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837–1857. By Austin Allen . ( Athens: University of Georgia Press, 2000. Pp. 288. Cloth $59.95; paper $22.95.)

In the U.S. Supreme Court's 1857 decision in Dred Scott v. Sandford, the justices barred Congress from prohibiting slavery in the western territories and sought to end the growing turmoil that had already torn apart the Whig party and launched the Republican party. Austin Allen has found a new and intriguing angle on the infamous Dred Scott case. Allen seeks to place Dred Scott "in its judicial context," in the context of the ideas, concerns, and bodies of law that the Supreme Court had been building up over several decades, rather than in the more familiar and immediate context of the sectional and partisan politics of 1857. It is in the latter context that Republicans at the time, including Abraham Lincoln, cast the decision, and it is in that context that the decision has stood as an example of misguided and unwarranted "judicial activism." Allen does not go so far as to argue that this externalist account is irrelevant, but he aptly demonstrates the power of an internalist account that filters political considerations through the web of law.

In particular, Allen shows the connections between Dred Scott and the Court's developing jurisprudence relating to slavery, economic development, and the jurisdiction of the federal courts. In many ways, Allen argues, the Court's difficulty began with its decision in Swift v. Tyson in 1842. Swift concerned the choice of law to be applied in diversity cases, cases that entered the federal court system because they involved parties from more than one state. Beginning with Swift, the justices developed an increasingly robust federal common law that trumped relevant state law in the cases that were decided in federal court.

There was a substantial attraction in this development for the commercial cases with which Swift was primarily concerned, but it created at least two difficulties. In order to trigger federal diversity jurisdiction under the U.S. [End Page 415] Constitution, the parties to the lawsuit must be citizens from different states. Corporations, artificial entities created by state law, were at best analogous to citizens, but if they were going to be efficiently and effectively brought under the protective umbrella of federal diversity jurisdiction they would have to be given "quasi-citizen" status by the Court (130). But if corporations could be recognized as a kind of citizen entitled to federal rights and access to federal courts, Southern justices well recognized, then free blacks might as well. In the context of commercial law, the Taney Court was willing to trump state policies so as to facilitate the development of a national and vibrant commercial republic. In the context of slavery and social policy generally, however, the Court wanted to defer to local law in most circumstances.

The Missouri courts had ruled that Dred Scott was a slave, despite the time he had spent in free territory, and under other circumstances the Taney Court would defer to Missouri's judgment and easily dismiss the case. Dred Scott's lawyer, however, hoped to take advantage of the loophole created by the Court's diversity jurisdiction. If Dred Scott's case could be heard under diversity jurisdiction, then the federal courts could not simply defer to the state courts. They would have to hear such cases and rule on them independently. In Allen's telling, the Dred Scott case is the Taney Court's effort to close that loophole by denying that blacks could be citizens, or quasi-citizens, and forcing them into state courts for whatever disposition state law would provide. Ironically, Dred Scott would then be a case in which the Supreme Court was trying to avoid future entanglements with the slavery issue, rather than a case in which the Court was trying to impose a final (proslavery) solution.

This is an inventive and provocative thesis (suggesting, for example, that Dred Scott would allow territorial legislatures, but not Congress, to prohibit slavery...


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