Using Proslavery Precedent

While researching my latest article, I was struck by the lack of discussion of Dred Scott in the law review literature on the history of the Property Clause of Article IV (sometimes called the Territories Clause). Dred Scott was one of the most important Supreme Court decisions of the 19^th century, and Congress’s regulatory power over the public lands was a central issue.

In fact, judges and scholars often ignore proslavery precedent. Tarble’s Case (1872) is commonly cited for the proposition that a state judge cannot issue a writ of habeas for the discharge of a federal prisoner. That point, however, was clearly settled in Ableman v. Booth (1859), which is better known for upholding the Fugitive Slave Act of 1850. And, the Court said that it invented the anti-commandeering doctrine in New York v. U.S. (1992), even though it appears in Prigg v. Pennsylvania (1842). Prigg, though, is better known for upholding the Fugitive Slave Act of 1793. Like it or not, Dred Scott also supports Shelby County’s much-maligned equal state sovereignty principle.

Pretending that that these cases don’t exist, or that everything in them must be wrong, distorts constitutional history. Of course I do not mean to suggest that the Court reached the right result in these cases. Several of my articles argue otherwise. However, cases like Dred Scott reflect the reality that, for much of our history, we had a proslavery constitution. If we want to understand constitutional history, legal scholarship should take proslavery precedent seriously.

Many other have written on this topic. I find Jamal Greene’s article The Anticanon especially interesting. He argues that Dred Scott did not enter the anticanon until the 1960s, when racial equality became a legal and ethical imperative in American culture. It then became even more firmly deeply embedded in the anticanon in the 80s and 90s when conservatives associated it with substantive due process and Roe. Today, everyone agrees that Dred Scott is wrong, but there is profound disagreement as to why. Greene ultimately worries that “Dred Scott’s status as anti-canonical sanitizes the Constitution and prevents us from confronting the problem of ‘constitutional evil.’”

To me, this suggests that we should not reflexively reject everything in proslavery precedent. In fact, the one article on the meaning of the Property Clause that discusses Dred Scott in any depth includes something along the lines of the following: (1) everyone agrees that Dred Scott was wrong; (2) Dred Scott narrowly interpreted the Property Clause; therefore (3) the Court’s narrow interpretation of the Property Clause was wrong.  My article responds at pages 36-38.

Comments

[Steve L.]

See Mark Graber's excellent book, Dred Scott and the Problem of Constitutional Evil.