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Book Review
| Austin Allen, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837–1857, Athens & London: University of Georgia Press, 2006. Pp. 274. $59.95 cloth (ISBN 0-8203-2653-4); $22.95 paper (ISBN 0-8203-2842-1).
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| The role slavery played during the sectional crisis responsible for secession and the American Civil War has been the subject of an ongoing scholarly debate. Claims made by scholars in the first half of the twentieth century that disputes over human bondage were largely pretextual have been decisively refuted. Nevertheless, such revisionist scholars as William Freehling, Michael Morrison, and William Cooper have demonstrated that scholars analyzing the politics of slavery must understand antebellum politics as well as antebellum slavery. Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court makes important contributions to this scholarship on sectional controversies in antebellum America. Allen overstates his case when rejecting claims that "sectional politics constituted the primary motivation behind the [Dred Scott] decision" (1). What he effectively demonstrates is that scholars analyzing the constitutional law of slavery must understand antebellum law as well as antebellum slavery. |
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Allen's self-consciously internal explanation for the Dred Scott decision does a wonderful job highlighting the doctrinal concerns the justices confronted when seeking to make a proslavery vision the law of the land. Slaveholders in 1850 worried that Swift v. Tyson (1842) would open the federal courts to alleged fugitives who could employ federal common law when challenging slave state judicial rulings. Questions concerned the citizenship of free blacks by 1857 were enmeshed in other constitutional questions concerning state regulatory power and corporate citizenship under the constitution. "[T]he access of corporations created by state law to the federal courts," Allen notes, "potentially gave free blacks, if recognized as citizens by state law, an opportunity to enter the federal courts and avoid state laws designed to keep them in submission" (155). The status of territories in American constitutional law was sufficiently underdetermined that almost any theory of federal power would be consistent with some, but only some strands of existing law. When deciding whether the federal government could prohibit slavery in the territories, every justice was forced to consider hitherto unsettled questions about the source and nature of any federal authority in those regions. |
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Origins makes an important contribution to scholarship by focusing on how these and related constitutional issues structured the opinions in Dred Scott. Taney, Allen correctly observes, was not simply interested in denying African-American citizenship, but was seeking to "reconcile the protection of slavery with the emerging corporate order" (97). The Chief Justice did so partly by championing a racialized conception of citizenship that excluded former slaves but not business enterprises from federal courts. At the margins, these doctrinal considerations might even influence judicial decisions on slavery. Jacksonian commitments to federalism help explain why the unanimous court in Kentucky v. Dennison (1860) refused to order the extradition of an Ohio citizen accused of helping a Kentucky slave to escape. |
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Origins is less convincing when Allen asserts that "the Taney Court's interest had little to do with sectionalism in any direct sense" (5–6). While "the court's members confronted the issues Dred Scott raised according to the terms of a conceptual framework that they had spent two decades developing" (6), protecting slavery was central to the construction of that framework. Allen painstaking details how, during the years before Dred Scott, "the court developed an increasingly sophisticated approach to slavery that allowed a reconciliation of the justices' commitment to the peculiar institution with their desire to facilitate commercial interaction" (96). The justices, he properly notes, sought to "reconcile" their commitment to slavery with the promotion of a market economy. Origins provides little evidence that southern Jacksonians ever balanced or sacrificed that commitment for doctrinal reasons. When Justice James Wayne defended broad federal powers, he explicitly stated that such authority could not constitutionally be exercised in ways detrimental to slavery or race relations in the south. No justice when providing constitutional protections for slavery expressed the same concern for how such protections might influence federal regulation of the national economy. |
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Overly bold theses are often the mark of talented young scholars a bit too overeager to make their mark on the academy. Allen impressively demonstrates how "[d]evelopments in the court's slavery rulings could shape changes in commercial and corporate law, which in turn could influence the justices' approach to slavery cases" (223). Even if Taney's opinion in Dred Scott was not motivated primarily by a desire to preserve diversity jurisdiction in cases involving corporations, Origins correctly observes that scholars will not fully understand the jurisprudence moves Taney made unless they recognize what proslavery moves inherited Jacksonian jurisprudence permitted the justices to make in Dred Scott, and the doctrinal concerns that led Taney to make particular proslavery moves rather than others. |
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| Mark A. Graber
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| University of Maryland |
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