Overruling Dred Scott: The Case for Same-Sex Marriage

Abstract

Dred Scott v. Sandford is widely acknowledged to be the worst decision ever rendered by the United States Supreme Court. Its specific holdings-that Congress had no authority to regulate slavery in the territories and that no black person, whether slave or free, was a citizen of the United States entitled to bring suit in federal courts2-were overruled by the Thirteenth and Fourteenth Amendments, enacted in the immediate wake of the Civil War.3 But as we mark its 150th anniversary, it is not enough to say that the Dred Scott decision has been overruled. It is not enough to say that slavery has been abolished by the Thirteenth Amendment and that African Americans have been acknowledged as United States citizens by the Fourteenth Amendment. We must ask whether these two amendments, taken together, did more than overrule the specific holdings of Dred Scott. We must ask whether there was a deeper meaning to the reversal of this decision in order to determine whether the underlying assumptions of Dred Scott have truly been repudiated in our constitutional realm.