Dred Scott and the Politics of Slavery (review)

Americans agree that the Supreme Court's decision in Dred Scott v. Sandford (1856) was a tragic mistake, but no consensus exists on why the justices should not have declared unconstitutional the Missouri Compromise or asserted that former slaves were not American citizens. Part of the problem is ideological. Law professors are convinced that Chief Justice Roger Taney reached his immoral conclusions only because he relied on the wrong theory of constitutional interpretation. Members of the general public confront problems of understanding more often than interpretation when they assess precisely where the Taney Court made a wrong turn. Dred Scott raises complex questions about choice of law, constitutional powers in the territories, birthright citizenship, and other matters that are not common topics in ordinary discourse. Worse, all nine justices wrote opinions in a dialect of nineteenth-century constitutional English that most readers find no more comprehensible than Chaucer.

Dred Scott and the Politics of Slavery is a first-rate introduction to the central constitutional issues the justices grappled with when deciding Dred Scott. Earl M. Maltz provides a very accessible introduction to the constitutional history of slavery, sectional politics before the Civil War, the justices who decided Dred Scott, and the issues that had to be resolved to decide that case. In Dred Scott, Maltz first takes the reader through the lawyer's arguments, explaining why both the plaintiff and defense had to frame the issues as they did. He then does the same for the judicial opinions. The main lesson the text teaches is that a morass of complex legal technicalities structure the legal strategy and judicial response to Dred Scott's claim for freedom. Many modern complaints about that decision, Maltz demonstrates, overlook matters of civil procedure or common law forms that good lawyers before the Civil War had to address.

Consider how these technical legal issues influenced the celebrated Curtis dissent in Dred Scott. Contrary to common belief, Curtis did not take the position that free blacks were citizens (Justice McLean did take that position). Rather, Maltz details, Curtis maintained that free blacks were citizens of the United States only if they were born in states that regarded free blacks as state citizens. Sanborn's brief, however, asserted that no free black could be a citizen of the United States. The lawyerly Curtis insisted that the court could reach only this issue that was briefed. Jurisdiction existed if any person of color might be an American citizen. Had the Sanborn brief asserted that Dred Scott was not a citizen of the United States, Dred Scott points out, Curtis might have supported the majority position.

The text comes to the conventional conclusion that Dred Scott was wrongly decided. "Ultimately," Maltz writes, "this book is the story of a colossal judicial failure" (3). Following the great weight of the scholarly literature, Dred Scott condemns both the decision the justices made and the judicial decision to make any decision in Dred Scott. The book is more restrained on the former. After highlighting the strengths and weaknesses of all major opinions, Maltz mildly concludes that "Curtis clearly had the better of the argument on the larger constitutional questions" (139). Dred Scott is more concerned with the judicial belief that a broad judicial decision of any sort was appropriate. That bit of "judicial hubris," Maltz states, "reflected an overestimation of the power of the Court in the American political system" (155-56). As is the case, with all writings on Dred Scott, Maltz draws a contemporary moral. In his view, "those who embrace [Justice Taney's] vision of the judicial function do so only at their peril" (154).

These arguments are reasonable and based on sound appreciation for the nuances of constitutional logics before the Civil War. Some readers may wish Dred Scott engaged some of the revisionist literature (particularly if one is the author of one of the revision works!). Still, reviewer quibbles aside, Maltz has successfully penned...