Saturday, January 17, 2009

Finkelman on Dred Scott

Paul Finkelman, Albany Law School has posted Was Dred Scott Correctly Decided? An "Expert Report" for the Defendant, which appears in Lewis & Clark Law Review 12 (2008). Here is the abstract:
This Article offers an "expert report" for the defendant in Dred Scott, and argues that "given the history of the writing of the Constitution, the importance of slavery to the American economy, the specific protections for slavery found in the Constitution, and the politics of the era," the "decision upholding Dred Scott's status as a slave was surely inevitable." However, from "the perspective of modern scholarship . . . it is not unreasonable to ask if the case was in fact correctly decided. To ask this question is not to defend [Chief Justice] Taney's racism" or to argue "in favor of slavery." Instead, this Article suggests "how the Court might have reached the same result that Chief Jusitce Taney reached - and why perhaps the result was constitutionally correct - without relying on racism or aggressively proslavery thought."

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