The Dred Taney, II

Along with being the sibling with Plessy in the family of hated cases, Dred Scott is an important case in both U.S. political/policy history and judicial history (i.e., precedent). As discussed briefly below (comment if more on this is suitable), Dred Scott is about the Court's jurisdiction (in this case, that Mr. Scott was not a "citizen" within the meaning of the Constitution's Article III, Section 2. So the Court couldn't hear his case.

The Court's decision offers important language on the meaning of citizenship under the Constitution. That verbiage was so repulsive (eventually) to our elected officials, and so approved by others, that the case plays a lead role in the lead up to civil war, and, more importantly to contemporary jurisprudence, the case should directly inform our understanding of the 13th and 14th amendments. Courts ought to cite the case (negatively, to be sure) frequently whilst expounding upon rulings based upon the 14th amendment.

But the case doesn't so inform, and courts don't so cite.

Why not? That's a great question posed by a panelist at a discussion hosted at Philadelphia's Constitution Center. The podcast is available here, along with a wonderful series of similar lectures.

The speaker noted that we study Marbury and McCulloch intensely in our Constitutional Law classes, while we briefly mention, if that, Dred Scott. The 14th amendment is discussed in classes and in cases as if Dred Scott didn't exist.

I'll have to think about this point. It might be analogous to a situation wherein a reader attempts to understand Brown v. Board without understanding Plessy.

A larger discussion might take us to the role of history in decisions and in policy responses. Should, for instance, a case that brings about legislative change, ought to be read into the interpretation of that legislation? If a law passed after, say, Kelo, is challenged in court, do we read Kelo in the same endeavor as reading legislative history?