In January, 2011, the House of Representatives undertook a recitation of the United States Constitution on the House floor. Lawmakers started with “We the People” and took turns reading the text aloud for the next hour and a half. Orchestrated by a new Republican majority to perform devotion to the Constitution, the exercise excluded some provisions, including ones that supported slavery: the three-fifths clause, which says that an enslaved person counts as “three-fifths” of a person for the purpose of apportioning congressional representatives and taxes, and the fugitive-slave clause, which commands that an enslaved person “escaping into another” state, regardless of its laws, “shall be delivered” back to the slave owner. The Thirteenth Amendment, which abolished slavery after the Civil War, was read aloud by Representative John Lewis. But Representative James Clyburn, the top-ranking Black congressman, refused to participate in the reading, calling the choice to omit provisions “revisionist history.” Representative Jesse Jackson, Jr., similarly objected that the “redacted constitutional reading gives little deference to the long history of improving the Constitution” through “the blood, sweat and tears of millions of Americans.”
A decade later, during the nationwide grappling with racial injustice that followed the murder of George Floyd, I saw a striking Twitter discussion among professors of constitutional law, a course that I also teach. They were debating whether much of the Supreme Court case of Dred Scott v. Sandford should be excised from constitutional-law courses. In the case, which Scott brought in federal court to assert his freedom from enslavement, the Supreme Court held, in 1857, that Scott did not have the privilege to bring the suit because, as a Black person, he could not be a “citizen” within the meaning of the Constitution. Matthew Steilen, a law professor at the University at Buffalo, launched the Twitter thread and advocated for editing the case down to a minimalistic page or so, to omit text that is “so gratuitously insulting and demeaning.” He wondered whether assigning that material is asking students “to relive the humiliation of Taney’s language as evidence of his doctrine of white supremacy.”
The Dred Scott case addressed the moral and political struggle that in those years was threatening to tear the United States apart: whether slavery would be allowed in newly acquired territories. The man who enslaved Scott had taken him from Missouri, a slave state, to live in Illinois, a free state, and in a federal territory (present-day Wisconsin, Minnesota, Iowa, and parts of the Dakotas) where Congress had made slavery unlawful. Scott claimed that his stay in Illinois and the territory had emancipated him; a common-law doctrine said slaveholders who intentionally transported enslaved people into free jurisdictions freed them, regardless of intent.
The problem, though, was that, under the Constitution, in order to bring the lawsuit in the first place, one had to be a “citizen.” To arrive at the conclusion that Scott was not one, Chief Justice Roger B. Taney zeroed in on the statement in the Declaration of Independence that it was “self-evident” “that all men are created equal” and “endowed by their Creator with certain unalienable Rights.” If the Founding Fathers intended to include Black people in that declaration while personally enslaving them, Taney reasoned, that would mean that the Founding Fathers were hypocrites who “would have deserved and received universal rebuke and reprobation.” But Taney found it impossible that these “great men” acted in a manner so “utterly and flagrantly inconsistent with the principles they asserted.” So he concluded, instead, that their intent was to exclude Black people from the American political community. Of the two possibilities, grotesque hypocrisy or white supremacy, Taney found the latter far more plausible.
Indeed, Taney, a former Maryland slaveholder, said the language of equality and rights “would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.” The “unhappy black race,” he wrote, was “never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.” Most notoriously, Taney wrote that Blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” He also noted that the Constitution itself took slavery as a given in the fugitive-slave clause, and the slave-trade clause, prohibiting Congress to abolish the “Migration or Importation of such Persons” before 1808 and allowing an import tax of up to “ten dollars for each Person.” Taney took this as evidence that the country’s founding document did not confer on Black people “the blessings of liberty, or any of the personal rights so carefully provided for the citizen.”
Scott’s case was fully resolved by the holding that he could not bring his suit, but Chief Justice Taney went even further, in a famously ill-fated attempt to protect the interests of the South and preserve the Union. Scott’s claim to have been emancipated by his stay in a free state and territory turned on the fact that Congress had prohibited slavery there, through the Missouri Compromise of 1820. Taney declared that the compromise itself was unconstitutional. According to Taney, Congress’s slavery ban violated the fundamental right of slaveholders to their property. Taney pushed a strongly anti-colonial line, insisting that slave-owning citizens who migrate to a federal territory “cannot be ruled as mere colonists” by an imperialist power. The purported imperialist here was the U.S. government imposing colonial domination by banning slavery, and the subaltern colonial subjects were slaveholders from slave states. The liberty at stake in Taney’s anti-colonial rebuke was not the freedom of enslaved people but, rather, the freedom of white men to enslave them.
Taney apparently thought that a Supreme Court ruling that Congress must permit slavery in the territories because of slaveholders’ constitutional rights would prevent a war over the question. If anything, Northern outrage at the Court’s expansion of slavery helped to pave the road to the Civil War by making more likely the election of President Abraham Lincoln, who famously denounced the Court. As we know, the war led to the Thirteenth, Fourteenth, and Fifteenth Amendments, which invalidated the Dred Scott decision.
Dred Scott v. Sandford is undoubtedly among the most reviled Supreme Court decisions, often invoked as a clear example of what judges should not do. Jamal Greene, a constitutional scholar at Columbia Law School, has described it as part of the “anticanon” of constitutional law, which includes Plessy v. Ferguson, of “separate but equal” fame, and Korematsu v. United States, which permitted the Japanese internment. But Greene has argued that the cases, including Dred Scott, are not necessarily poorly reasoned according to the forms of constitutional analysis that we still use today, involving the interpretation of text, structure, and history. Casting Taney as “a villain who ignored the Constitution,” Greene writes, may be “a distraction from the reasonable possibility that the Constitution itself enabled Scott to lose.”
When I spoke recently with Nikolas Bowie, my colleague and fellow constitutional-law teacher at Harvard Law School, he put it more strongly: “The Constitution sanctioned slavery.” He said that “it would be profoundly irresponsible to tell a history of the Constitution that intentionally ignores the injustice that the Constitution has perpetuated.” In his view, Dred Scott is not “a case in which the Supreme Court made a logical error or an analytic mistake,” nor can it be dismissed as “The Supreme Court was racist back then.” Rather, Bowie uses the case to “emphasize that what makes something constitutional is not its substantive justice but the ability of someone to justify it using constitutional vocabulary.” He said, “The reason the opinion deserves to be condemned is because it thought it needed to be bound by the constitutional drafters’ dehumanization of Black people. What sort of injustice has that obedience engendered or tolerated?”
In my own constitutional-law course, I assign Dred Scott as the first case for the first day, which is not uncommon. Doing so immediately foregrounds the centrality of slavery and white supremacy to the country’s origin, as a frame for understanding constitutional law. It shows that the standard techniques of constitutional interpretation that students are learning to deploy have enabled morally disastrous conclusions. It also helps to disabuse students of the impulse to approach the Constitution and the Supreme Court with uncritical worship. Julian Davis Mortenson, a professor at the University of Michigan Law School who also begins his course with Dred Scott, told me that teaching the case at the start “completely inverts the hero narrative of the Supreme Court, shows how rights can be deeply oppressive, and questions the legitimacy of the enterprise.” Mortenson believes that the decision unwittingly “conveys the essence of Critical Race Theory to a person encountering these ideas for the first time: this is the Supreme Court explaining how the United States has been superracist forever and endorsing the racism. It’s a powerful way for students to confront the racism that has been central to the United States.”
Steilen, who wrote the initial tweet about teaching the Dred Scott case, doesn’t disagree with these principles and has worked to add more content on slavery and the Civil War in his course. But, he told me, “George Floyd has changed everything. . . . I wasn’t sure I could muster the moral authority to stand up there and teach this case.” He explained that omitting it entirely would be “a bridge too far,” but he thought it best to assign just “two paragraphs and move on.” He said, “Taney is making the case that Black people who were enslaved were never part of the people of the United States and could never be citizens. . . . It’s just painful. I’m white and I’m going to stand up there and talk with the students, including Black students, about this stuff? I would be dragging them through stuff that was hurtful to them. . . . It just felt indefensible.” Steilen feels that Taney’s language “gratuitously traumatizes” readers: “I wasn’t comfortable giving his words to my students because I was afraid it would hurt them and destroy the kind of community I want to foster in class.” This year, Steilen also skipped teaching Plessy v. Ferguson, which held that segregation did not imply Black people’s inferiority, and instead only mentioned its ideas in discussing Brown v. Board of Education, which overruled it.
Carolyn Shapiro is a professor and co-director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law. When teaching the case, she lectures to her students rather than requiring them to participate in a class discussion as she would throughout most of the course. She wrote on Twitter that she didn’t “think any student should be forced to recite or describe what Taney says about black people.” Shapiro told me, “It is so deeply offensive that I don’t think it’s appropriate.” In her teaching on race discrimination, she includes historical materials intended to show that “how we’ve grappled with the history of slavery is relevant to today.” As part of that, she used to include a clip of “The Road to Brown,” a documentary about Brown v. Board of Education that features historical photographs and footage, to help set the stage on Jim Crow. But, recently, she came to think that the photographs of lynchings that were shown in the video made it traumatic in the classroom, given today’s levels of violence against Black people. Instead, she prefers describing those historical events to her students. (Both Steilen and Shapiro came to these conclusions without pressure from students; they said they had not heard concerns or complaints.)
