New Yorker: Should Dred Scott Decision Be Taught in Law School?

The New Yorker has an essay on the trend in some law schools to no longer have students read the entire Dred Scott Decision in Constitutional Law classes. Some professors assign only a few excerpts from the case because so much of the case contains racial insults directed at Black people that many students find extremely troubling. You can read the whole Supreme Court decision here.

I teach immigration law at Hofstra Law School and it is not unusual to assign parts of legal decisions instead of unedited versions. A court’s opinion could go on for fifty pages or more and students typically only need to read the “holding”  which is defined as a “court’s determination of some matter of law. Often, holding refers to a determination of such a central issue that it decides the entire case…” However, Dred Scott has typically been read in its entirety because it illustrates the utter lack of legal protections that Black people were forced to live under prior to the Emancipation Proclamation, the 13th, 14th, and 15th Amendments, and the Reconstruction Era Civil Rights Acts.

Jeannie Suk Gersen writes in the New Yorker that last year:

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 author quotes Chief Justice Taney’s decision:

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.”

Wile the language of Dred Scott is extreme in its open embrace White Supremacy, and can be extremely disturbing to read, some legal scholars say that is precisely why the case should be taught in its entirety. According to the author:

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.”

The last year has only intensified the debate over teaching unvarnished legal history, according to the article:

This pedagogical soul-searching has gone on during a year in which direct public access to the video of George Floyd’s killing, by Derek Chauvin, galvanized worldwide protests on racial injustice and provided the basis for a murder conviction. Among the changes the movement has spurred are stronger efforts to teach the history and theory of racial injustice, in schools at every level. At the same time, it has brought on resistance, in the form of both the predictable conservative backlash against “indoctrinating” students in “critical race theory,” and the more ambivalent liberal concern not to injure students with an unobstructed view of brutal racism. Sometimes the two converge in advocating the editing out of racist content that is deemed too upsetting to be worth the pedagogical benefits.

For primary- and secondary-school education, there are currently a number of state bills to ban the teaching of critical race theory, which the bills’ proponents understand to mean a focus on systemic and institutional racism as opposed to racism as an individual’s prejudice. A recent Oklahoma law makes it unlawful for higher-education institutions to require that students “engage in any form of mandatory gender or sexual diversity training or counseling,” and for K-12 schools to “require or make part of a course” the concept that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.” In response, Oklahoma City Community College paused a longstanding course about racial inequality. When it comes to law school, the truth is that to learn constitutional law is to become well versed in techniques of legal interpretation that have enabled deeply unjust results. Bowie reminds his students that “decisions that they see as neutral will be seen later as profound injustices.” If they had gone to law school in the eighteen-fifties, they might have viewed the Dred Scott decision as controversial but sound. In the nineteen-forties, they might have written a legal brief condoning the internment of Japanese-Americans. And in recent years, law graduates justified the so-called Muslim ban and the separation of families at the border.

Next year, Bowie will publish a new constitutional-law casebook; his edited text of Dred Scott v. Sandford does not omit the Court’s starkly demeaning rhetoric about Black people. Having the text’s racist language appear fully demands more preparation work from the teacher, who must engage with students not only on what the case says and means but on why we read and teach it. The fact that it is so disturbing when it is so visible is why purveyors of constitutional law might have the impulse to obscure it.

 

 

Follow Reconstruction Blog on Social Media:

•