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Was the Dred Scott Decision Judicial Activism?
The Theoretical Foundations of Legal Reasoning
by Tara L. Dirst

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Students will
  • formulate conclusions on the 3 judicial questions involved in the Dred Scott case based upon 4 different foundations of judicial decision-making (strict construction, precedent, natural law, and the Declaration of Independence)
  • debate the validity of 4 different foundations of judicial decision-making
  • describe Lincoln and Douglas's adherence to any of 4 different foundations of judicial decision-making in their analysis of the Dred Scott decision
  • critique Lincoln and Douglas's interpretations of the legal issues involved with the Dred Scott decision
Materials Needed:
For the Introduction: For the Group Reading and Analysis: For the Take Home Reading and Analysis Assignment:
Time Required:
Two 50-minute class periods.
Notes for the Instructor:
  • The separate group readings, analysis and reporting can be done as a full class discussion. In order to do this, photocopy the complete group readings sheet onto a transparency sheet, or use the online copy in class.
  • If more time is available, the task of finding the relevant supporting sources (articles of the Constitution, precedent cases, information on natural law law, and the exact quote from the Declaration of Independence) can be part of the assignment for the students. This will likely take at least two days of research in the library, with the exception of the part about the Declaration of Independence. In that case the precedent group and the Declaration of Independence group should be merged so that the bulk of their time may be spent finding resources on legal precedents.
  • The students should be given at least two evenings to complete the Lincoln excerpt and question sheet that accompanies the reading. This assignment can be left out, but its value lies in that it challenges the students to interpret the judicial theories of Lincoln and Douglas in light of the 4 arguments reviewed in class. This will assist students in interpreting political arguments more generally because they can connect the theoretical base (the 4 group arguments) with how people actually use argumentation in debate.
Student Preparation:

Read the portion of the textbook that deals with the Dred Scott decision. Sample text: Danzer, Gerald A., et al. The Americans. "Dred Scott v. Sandford (1857)." Evanston, IL: McDougal Littell, 2003. 332-333.

Students should also be familiar with the Northwest Ordinance and Missouri Compromise's stipulations about slavery in the territories.

The following terms should be defined in class for the students during the discussion:
  • Comity -- the informal and voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another
  • Common law -- the body of law developed in England primarily from judicial decisions based on custom and precedent, unwritten in statute or code, and constituting the basis of the English legal system and of the system in all of the U.S. except Louisiana
  • Judicial review -- a constitutional doctrine that gives to a court system the power to annul legislative or executive acts which the judges declare to be unconstitutional
  • Natural law -- theory that some laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions
  • Precedent -- something done or said that may serve as an example or rule to authorize or justify a subsequent act of the same or an analogous kind
  • Strict construction -- by George Bush's definition it is a limited interpretation of the Constitution (see the Introduction below).

All definitions come from the Merriam-Webster Online Dictionary available at with the exception of strict construction and natural law. The definition of natural law comes from The Columbia Encyclopedia. Online. Internet. 24 Mar. 2005. Available:


Put the following quote from George Bush on an overhead projector, or link to it directly online. (Click here to go to the quote suitable for printing or use in the classroom.)

During the second 2004 Bush-Kerry debate, in response to this question:

MICHAELSON: Mr. President, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who would you choose and why?

Bush responded with the following:

"I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States."

"Let me give you a couple of examples, I guess, of the kind of person I wouldn't pick.  I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution."

"Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights."

"That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America."

"And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution."

Start a conversion about judicial review. Here are some possible questions:
  1. What do you think George Bush meant by "I would pick people that would be strict constructionists"?
  2. Have you heard the phrase "strict construction" before?
  3. How would you interpret the phrase strict construction?
  4. Do you think that strict construction is possible?
  5. What issues might arise from a strict constructionist take on major contemporary legal issues like gay marriage, medical marijuana use, etc.?
  6. What is "precedent"?
  7. How do you think judicial decisions should be made? On what basis?
Case Summary:

Ask the students about the textbook's description of the issues involved in the Dred Scott case. Have the students give a summary of the facts of the case as it was going before the Supreme Court, and outline the 3 main judicial questions decided upon by the Court on the board.

Facts of the Case: Dred Scott was a slave whose owner, Dr. Emerson, a military physician, took him into free Illinois and the Wisconsin Territory (later the Iowa Territory) as he went from military post to military post. After returning to Missouri, a slave state, Scott sued for his freedom based on the argument that by taking him into a free state and free territory, free state and territory rules applied and he was freed upon entry into those areas.

Judicial Questions:

  1. Did Scott have the right to sue?
  2. Was Scott free as a result of living in a state and territory where slavery was illegal?
  3. Was it constitutional for the Congress to limit slavery in the territories? (Discuss the Missouri Compromise briefly.)
Group Reading and Analysis:

Before examining exactly what the Supreme Court held in this case (although the students should already be aware of the Supreme Court's decision based upon the text reading), have the students examine the issues and make their own interpretations based upon different types of legal arguments. Break the students into 4 groups (more groups may be assigned to keep group size to a minimum -- just double up.) Students need to answer the 3 judicial questions outlined above in accordance with their interpretation of their group's argument. If groups do not finish, they should complete their own decisions at home and then bring their results together the next day for group reporting.

Group 1: The Strict Construction Argument:

Answer the 3 judicial questions using strict construction theory only. The relevant articles of the Constitution are as follows:

Article 1, Section 2: "Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons."

Article 1, Section 9: "The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."

Article 4, Section 1: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

Article 4, Section 2: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

Article 4, Section 2: "No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

Article 4, Section 3: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state."

Article 6, Section 2: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

The Precedent Argument:

Answer the 3 judicial questions based on precedents set by the Supreme Court or applicable state rulings in cases that dealt with similar judicial issues occurring before 1857. State any inconsistencies between the precedents, if found.

Rachel v. Walker (1836 Missouri Supreme Court case) -- Missouri's case law prior to the Dred Scott case showed that in the cases where slave owners took slaves to free territory and then returned to the slave state, the slaves were actually emancipated upon arrival in the free state. This was based on an informal legal precedent called "comity" (one court recognizing the jurisdiction of another.) This particular case determined that even an officer residing on a military post in a free state was obligated to follow that state's rules. (Fehrenbacher, 130)

U.S. v. The Amistad (1841 U.S. Supreme Court case) -- In this case, kidnapped Africans were transported from Guinea to Cuba on a Portuguese slave ship in violation of Spanish laws forbidding the international slave trade. The slaves were sold to two Spaniards who were overpowered by the Africans while transporting them on the Amistad. The Africans were attempting to return to Africa, but the ship landed near Long Island, New York and they were taken to New London, Connecticut. The Supreme Court ruled in favor of the Africans stating that there was no evidence that the Africans were in fact slaves (they found that the documents that the Cubans had given were falsified.) However, even though the Court did rule in the Africans favor, they did not use the language of the defense argument which stated that because the Africans were brought into the free states of New York and Connecticut they were legally free. (Wiecek, 41-43)

Prigg v. Pennsylvania (1842 U.S. Supreme Court case) -- This case dealt with the constitutionality of personal liberty laws in free states. In this case Pennsylvania's 1826 law was used to prosecute a slave-catcher (Prigg) who had taken Margaret Moran to Maryland without the required "certificate of removal." The Supreme Court held that the Pennsylvania act was unconstitutional and that a master had the right to recapture runaway slaves based on common law or because of the fugitive-slave clause in the Constitution. (The basis of the right of recapture was disputed by the judges.) (Wiecek, 44)

Strader v. Graham (1851 U.S. Supreme Court case) -- In that case two slave musicians were taken into Ohio and then later escaped from Kentucky to Canada. The slave-owner captured them back and it was argued in court that they were freed the minute they set foot on free soil. The Kentucky Court of Appeals decided in favor of the slave-owner (it was really a suit for damages by the slave-owner against the men who had abetted their escape.) The Supreme Court dismissed the case stating it lacked jurisdiction because the Northwest Ordinance did not apply to Ohio because it was superseded by state law, thus the case did not present a federal question. Taney's opinion in this case outlined the idea that once the slaves were returned to Kentucky, Kentucky law applied and Ohio law could not be considered. (Fehrenbacher, 135-136).

The Natural Law Argument:

Answer the 3 judicial questions based on "natural law" which is a "theory that some laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions." (From: "Natural Law." The Columbia Encyclopedia. Online. Internet. 24 Mar. 2005. Available:

Many anti-slavery activists argued that slavery was against natural law. The Supreme Court used natural law principles ("the general principles of right and wrong") to condemn the international slave trade in the 1822 case of United States v. La Jeune Eugenie. (Wiecek, 37)

The Declaration of Independence Argument:

Answer the 3 judicial questions based on the following statement in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…"

(2nd Day) Group Reports and Discussion:

Have the students report their decisions on the 3 judicial questions based on their group point of view. Where possible, ask the groups themselves or other students to provide counter-arguments based on the same argument. (The instructor can provide counter-arguments as well.) Review the actual Supreme Court decision and ask if one of the 4 arguments seemed to hold more weight for the judges.


Ask the students questions to elicit a discussion about how judicial decisions are made and how they think they should be made. Here are some suggested questions:

  1. Is any one argument more persuasive than the others?
  2. Did the strict construction group agree with Bush on his interpretation of the Dred Scott decision? Why or why not?
  3. Even if you have a theoretical argument to apply, how easy would it be to remain consistent when making decisions?
  4. What causes change in interpretation?
  5. What is particularly challenging about the theory of natural law?
Take Home Reading and Analysis Assignment:

Have the students read Abraham Lincoln's excerpt from a speech where he discusses the Dred Scott decision. Lincoln also quotes directly from Stephen Douglas which provides an oppositional opinion to Lincoln's. Students should complete the question sheet which requires the students to analyze Lincoln and Douglas's statements in light of the different theories outlined in class.

Bush, George W. "The Second Bush-Kerry Presidential Debate." Washington University, St. Louis, MO. 8 October 2004. Online. Available:

Fehrenbacher, Don E. Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective. New York: Oxford University Press, 1981.

Wiecek, William M. "Slavery and Abolition Before the United States Supreme Court, 1820-1860." The Journal of American History 65, no. 1 (June 1978): 34-59.

Acknowledgments: The Abraham Lincoln Historical Digitization Project would like to thank the National Endowment for the Humanities for funding this lesson plan under the We the People Project.

©Copyright 2005 Abraham Lincoln Historical Digitization Project