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Yet More Dred Scott blogging!

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Just to make a last quick point, I think this post at the (superb) Counterspin Central represents a fairly common misperception about the extent of Dred Scott‘s holding. Obviously, if the Court had simply held that Dred Scott didn’t have the right to sue because he was a slave, the case would be utterly uncontroversial (from a legal standpoint); that’s black letter law. What makes Dred Scott a deserved landmark of infamy is its ruling that free blacks could not be American citizens. While this claim is, alas, defensible from an originalist point of view–and, as I’ve said, represents the conception of the Jacksonian faction–it is most certainly not compelled by the Constitution. Which is why, I think, that it was not a “formalist” ruling; indeed, it was a fairly wide stretch.

A really interesting related question that I’d like to hear people’s thought on is raised here, however. It’s one that was the subject of Robert Cover’s brilliant book Justice Accused, and apparently the subtext of Melville’s masterful unfinished story Billy Budd. What is the moral status of abolitionist judges who faithfully applied the Fugitive Slave Act? I lean toward consequentialism, so I’m inclined to think their actions were grossly immoral and indefensible. And, yet, one can see the virtues of upholding one’s conception of rule of law; as Taney so sorrowfully reminds us, results-oriented jurisprudence can produce staggeringly awful results in its own right. When exactly, does a law become so immoral that it ceases to demand respect as law? I’m not sure if I can do any better than Potter Stewart (“I know it when I see it”)…

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