Overcoming Dred: A Counterfactual Analysis
Constitutional Commentary, Vol. 24, pp. 733-770, 2007
37 Pages Posted: 17 Sep 2008 Last revised: 1 Oct 2014
Date Written: September 17, 2008
Abstract
This article asks the question whether Dred Scott could have been overruled in its own time, under then-existing constitutional understandings. If so, the core constitutional infirmity of Dred Scott would be uncovered, apart from those discussed in the usual critiques of the case. Employing a counterfactual hypothesis of a Chase Court with a Lincoln-appointed majority coming into being in the early 1860s and eager to overrule Dred Scott, three possible constitutional challenges to Dred Scott are explored and the third is found reasonably potent and convincing. But obstacles to its deployment are also seen, and anomalies and ironies that would accompany any such overruling of Dred Scott are identified.
Keywords: Dred Scott, Lincoln, Sandford
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