The Harm of Dred Scott

[Paul Finkelman]

It is not unreasonable to draw the conclusion that Taney's opinion may be a great example
of the law of unintended consequences. That doesn't make one want to stand up an cheer old
Roger on.

Leslie F Goldstein wrote:

> gees, this comment from Paul makes me believe that the opinoin may have
> done net good, since it made Lincoln president (if it did), for I believe
> he is the best President the US ever had.
> Leslie
>
> On Wed, 26 Jul 2000, Paul Finkelman wrote:
>
> > I think Mark Graber's arguments are not wholly persuasive, and that the conventional
> > wisdom is more right than Mark lays out.
> >
> > Dred Scott gave some strength to northern Democrats, who now could aruge that the
> > Supreme Court backed their position on allowing slavery in the territories;  it aided
> > them by putting the Court behind their repeal of the Missouri Compromise ban on
> > slavery in the territories, which the Democrats had pushed through in the
> > Kansas-Nebraska Act of 1854.  But it also undermined the northern democrats who had
> > been arguing for "squatter sovereignty" or "popular soverignty" -- that is the right
> > of the settlers to decide for themselves the status of slavery in the territories.
> > Dred Scott made this program unconstitutional by asserting that no government, even a
> > popularly elected territorial government, could ban slavery in the territories. This
> > led the South to demand a federal slave code for the territories, to give slaveowners
> > in Kansas and elsewhere the protection of local law in ruling their slaves.  It also
> > led to demands for slave state-like laws in the territories, such as ban on free
> > speech if it was antislavery speech, a ban on abolitionist newspapers, and the like.
> > All of these demands were unacceptable to most northern democrats (except a few in
> > southern Ill., Ind. and Ohio) because these northern democrats, after all, had to win
> > in free states.
> >
> > In otherwords, the extreme nature of Taney's opinion  caused  as much harm to the
> > Democrats as it aided them..   In fact Dred Scott mde the Dems. unstable, and perhaps
> > made the Party collapse in 1860 inevitable. It emboldened Buchanan to push for the
> > disastrous Lecompton Convention, which also undermined the Democrats.
> >
> > Whether Republican picked up more seats in 1857, 1858, and 1859 elections, or lost
> > some seats or gained some is beside the point.  What happened in the big election of
> > 1860 is that Lincoln swept the North, in part because Lincoln had become the most
> > articulate critic of Dred Scott.  In his debates with Douglas Lincoln emerged as a
> > national figure because of Dred Scott.
> >
> > --
> > Prof. Paul Finkelman
> > Visiting at Northwestern School of Law of Lewis & Clark College
> > July 5-August 3, 2000
> > 10015 SW Terwilliger Blvd.
> > Portland, OR  97219
> > (503) 768-6863
> > (503) 768-6671 (fax)
> > finkelma at lclark.edu
> > After August 3, University of Tulsa (918) 631-3706
> >
> >
> >
> > Douglas Laycock wrote:
> >
> > >         When ordinary folks (and casually informed law professors) talk about the
> > > harm of Dred Scott, they typically are not thinking of judicial doctrine.
> > > They typically say that Dred Scott made the Civil War inevitable, or they
> > > say some weaker version of that:  Dred Scott was a major cause of the Civil
> > > War, accelerated the Civil War, increased the odds of the Civil War, etc.
> > >
> > >         Would Paul or Mark or others informed about the period care to comment on
> > > that conventional wisdom?
> > >
> > > Douglas Laycock
> > > University of Texas Law School
> > > 727 E. Dean Keeton St.
> > > Austin, TX  78705
> > >         512-232-1341 (phone)
> > >         512-471-6988 (fax)
> > >         dlaycock at mail.law.utexas.edu
> >

--
Prof. Paul Finkelman
Visiting at Northwestern School of Law of Lewis & Clark College
July 5-August 3, 2000
10015 SW Terwilliger Blvd.
Portland, OR  97219
(503) 768-6863
(503) 768-6671 (fax)
finkelma at lclark.edu
After August 3, University of Tulsa (918) 631-3706