Law and Politics Reconsidered:
This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber's Dred Scott and the Problem of Constitutional Evil (2006). It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney's Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis's celebrated dissent amounted to an unjudicial manipulation of the law, not the judicial masterpiece of historiographical lore, although driver by the higher purpose of striking at the political hegemony of the slaveholding class.
This essay is an unabridged version of a shorter work that is forthcoming in Law and Social Inquiry (Summer 2009).
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