Great Scott Dred Scott!: A.K.A., the “Green Pastel Of Redness”

Perhaps, the easiest legal decision to remember of all the Supreme Court rulings in American history is the one concerning the fate of a slave who claimed to be free after he had been taken to a free state and, subsequently, to a territory (federal) in which slavery was not permitted by the Missouri Compromise.

It could be said that judges may dread being associated with such a ruling by stating it as precedent. I have no clue whether any Judge anywhere has—in modern times, or any time—cited the subject ruling, it being the dreaded Dred Scott v. Sandford.

This decision has been described as, “the worst constitutional decision of the nineteenth century”, and, with respect to it’s “constitutional legitimacy”, has, “remained unchallenged as the worst in our history until the twentieth century provided rivals for that title.”[1]

Chief Justice Roger Taney wrote the “opinion of the Court” in which he conceived, “a constitutional right to own slaves where a statue [forbade] it”, and he accomplished this feat, “by changing the plain meaning of the due process clause of the fifth amendment”; his opinion, “transforms this requirement of fair procedures into a rule about the allowable substance of a statute.”[1] This was, “the first appearance in American constitutional law of the concept of ‘substantive due process,’ and that concept has been used countless times since by judges who want to write their personal beliefs into a document that, most inconveniently, does not contain those beliefs.”[1]

The phrase, “substantive due process”, has been characterized as, “a contradiction in terms—sort of like ‘green pastel redness.'”[2]

Does anyone anywhere know that the dreaded Dred Scott decision is the implied precedent when “substantive due process” is employed in a ruling?

Would any of the “forward thinking” Justices who are accused of “legislating from the bench” admit that they have embraced the dreaded Dred Scott v. Sandford?

Do any such Justices know that they have embraced the dreaded Dred Scott v. Sandford?

With respect to questions one and two, I can’t imagine or entertain a “yes”; as for the third question, I become ill at the prospect of “no”.

The most infamous employ of “substantive due process” is Roe v. Wade.

[1] The Tempting Of America, Robert H. Bork, pages 28-31.
[2] ibid. Page 32; Quotation of Professor John Hart Ely, see Note #24,
     Bork’s Notes for chapter Creation and Fall.

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