Dred Scott v. Sandford

1. Isn't this a rotten test case? First, we have a res judicata problem. Second, the claim of emancipation by travel is controversial. Wouldn't it have been better for abolitionists to find a clearly manumitted slave or, even better, the free descendant of a manumitted slave, and find a lawsuit against a citizen of another state. That way, we wouldn't get tangled up in all the territories stuff. Would it have been so obvious that such a person had no right to sue in the courts of the United States?

2. What is the continuing relevance of Dred Scott, which has had its central holding overturned by the first sentence of the 14th amendment and its factual predicate (the existence of slavery) overturned by the 13th. Consider what Dred Scott has to say on the power of states to give rights to state citizens. Consider what Dred Scott has to say on the power of the nation to hold "permanent" colonies. There are great paper topics in both.

3. Is the problem with Dred Scott that it is bad originalism or that it is good originalism? If the latter, what does that say?

4. Should the majority have decided the constitutionality of the Missouri Compromise and further efforts by the federal government to regulate slavery in the territories?

5. Notice how Dred Scott almost disappears in some of the later opinions such as Justice Catron. The issue is conceived of as one almost exclusively or federalism or of the rights of slaveholders. There appears to be notion that Dred Scott or his family have any rights whatsoever. Their status as property is emphasized by the abstract and detached nature of the opinion.

6. What do you think of Justice Curtis' treatment of the Fifth Amendment claims?

7. Reading these opinions is quite a task. But can you imagine writing them. With a quill pen. By candlelight. Before West organized legal research.