Great Scott Dred Scott!, Part II: A Dissenter’s Opinion And The Probable Cause Of Civil War

From page 33-34, The Tempting Of America, Robert H. Bork, 1990:
     Justice Benjamin Curtis of Massachusetts dissented in Dred Scott [v. Sandford], destroyed Taney’s reasoning, and rested his own conclusions upon the original understanding of those who made the Constitution. . . . [H]e wrote: . . . “Political reasons have not the requisite certainty to afford rules of judicial interpretation. They are different in different men. They are different in the same man at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Bus Curtis’s argument did not prevail then, and it does not deflect willful courts today.
     Shortly afterward, Curtis resigned from the Supreme Court and returned to Boston to practice law. His motives were said to be partly financial and partly a loss of confidence in the Court. It would be good to think that he might have borne the financial sacrifice had Dred Scott not convinced him that the Court, far from being a serious judicial body, had become hopelessly political, and that he wanted no part of it. Since only one other Justice, John McLean of Ohio, had sided with him, Curtis was entitled to think he could not affect the balance of the Court.
     The ruling in Dred Scott at once became an explosive national issue. As historian Don Fehrenbacher noted, Taney had ruled “in effect that the Republican party was organized for an illegal purpose. . . .No doubt it contributed significantly to the general accumulation of sectional animosity that made some kind of national crisis increasingly unavoidable.” [1] There is something wrong, as somebody has said, with a judicial power that can produce a decision it takes a civil war to overturn.
(Emphasis is mine.)
[1] In Bork, this is footnote 31; From Notes, page 381 is found:
     31. Fehrenbacher, “Dred Scott v. Sandford,” in 2 Encyclopedia of
     the American Constitution
584, 586 (1986).

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