The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law

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In 1846 two slaves, Dred and Harriet Scott, filed petitions for their freedom in the Old Courthouse in St. Louis, Missouri. As the first true civil rights case decided by the U.S. Supreme Court, Dred Scott v. Sandford raised issues that have not been fully resolved despite three amendments to the Constitution and more than a century and a half of litigation.
The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law presents original research and the reflections of the nation’s leading scholars who gathered in St. Louis to mark the 150th anniversary of what was arguably the most infamous decision of the U.S. Supreme Court. The decision that held that African Americans “had no rights” under the Constitution and that Congress had no authority to alter that galvanized Americans and thrust the issue of race and law to the center of American politics. This collection of essays revisits the history of the case and its aftermath in American life and law. In a final section, the present-day justices of the Missouri Supreme Court offer their reflections on the process of judging and provide perspective on the misdeeds of their nineteenth-century predecessors who denied the Scotts their freedom.

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Meet the Author

David Thomas Konig is a professor of history and a professor of law at Washington University, St. Louis.

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Table of Contents

Acknowledgments ix

Introduction: American Confluence: History, Race, and Law David Thomas Konig Paul Finkelman Christopher Alan Bracey 1

Part 1 Historical Perspectives: The Power of the Past

1 Constitutional Law and the Legitimation of History: The Enduring Force of Roger Taney's "opinion of the court" David Thomas Konig 9

2 Dred Scott versus the Dred Scott Case: The History and Memory of a Signal Moment in American Slavery, 1857-2007 Adam Arenson 25

Part 2 Historical Perspectives: The Legacy of Dred Scott

3 John Brown, Abraham Lincoln, Dred Scott, and the Problem of Constitutional Evil Mark Graber 49

4 The Legacy of the Dred Scott Case: The Uncertain Course of Emancipation in Missouri Louis Gerteis 68

5 An Exaggerated Legacy: Dred Scott and Substantive Due Process Austin Allen 83

6 Emancipation and Contract Law: Litigating Human Property after the Civil War Daniel W. Hamilton 100

Part 3 Contemporary Perspectives

7 Dred Scott, Human Dignity, and the Quest for a Culture of Equality Christopher Alan Bracey 119

8 Dred Scott, Racial Stereotypes, and the "enduring marks of inferiority" Leland Ware 140

9 Unmasking the Lie Dred Scott and the Antebellum Southern Honor Culture Cecil J. Hunt II 156

10 Whose Ancestors Were Imported into This Country and Sold as Slaves? John Baugh 171

11 Considering Reparations for Dred Scott Alfred L. Brophy 177

Part 4 Judicial Perspectives

12 Lessons for Judges from Scott v. Emerson Duane Benton 193

13 Missouri Law, Politics, and the Dred Scott Case Michael A. Wolff 212

14 The Strange Career of Dred Scott From Fort Armstrong to Guantánamo Bay Paul Finkelman 227

Select Bibliography 253

List of Contributors 273

Index 275

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