Paul Finkelman (Albany Law School – Government Law Center) has posted Was Dred Scott Correctly Decided? An "Expert Report" for the Defendant
(Lewis & Clark Law Review, Vol. 12, No. 4, 2008) on SSRN. 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."
Highly recommended. I learned much from this piece.