The McClean Dissent

I know it’s been a long time since I’ve posted. Even after such a long break, slavery is still a topic we’re talking about apparently. As this blog is – for the time being – a companion to one that I must maintain for my Philosophy of Law Course, it follows the topics de jure of that course, which have been slave-centric all semester.

It is likely that this may continue for a while, so strap yourself in for some more of the same.

Although, I have been doing quite a lot of independent reading and hope to begin discussion some of that as the semester winds down and I being to transition into a more self-guided set of topics for this blog.

This post will be broken up into two parts: first, a very brief, broad, and basic discussion of the McClean dissent in the Dred Scott case; and second, a discussion of that dissent through the lens of Ronald Dworkin’s Law’s Empire.

In his decision in Dred Scott v. Sanford, Chief Justice Roger Taney wrote that it was unconstitutional for the Congress to enact legislation such as the Missouri Compromise, which banned slavery within the Louisiana Territories, above 36°30’, except within the boundaries of the state of Missouri. The much-maligned decision rested upon the premise that the federal government had no power to regulate slavery in territories acquired after the ratification of the Constitution, and additionally that persons of color could not be citizens of the United States, regardless of whether or not they are or were slaves.


In his dissent, Justice McClean explored the notion of the citizenship of Black persons living in the United States, and further, he examined the necessity of the majority’s decision to strike down the salient substantive portions of the Missouri Compromise. His arguments rested, in large part, on the dearth of precedent that disallows persons of color from being citizens, citing that there is no evidence by which one may make such a claim as that persons of color may not be citizens. Instead, McClean argued that at times white men were enslaved as well, and that the institution rested upon the wielding of coercive power. By this measure, it makes little sense to exclude one race, at one point or another bound by the shackles of a slave, from receiving suffrage, but allowing another race, also having been similarly bound, to exercise full suffrage.  Not unrelated was McClean’s argument against the repeal of the Missouri Compromise, in which he cited the precedent in Atlantic Insurance Company v. Carter, in which Chief Justice Marshall wrote that the Constitution empowers Congress to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” As such, argued McClean, the Missouri Compromise was good law. Logically, if the Missouri Compromise was good law, and was brought to bear on the geographic location of Scott, upon which his argument rested, then Scott was logically a free man. Further, McClean cited Marie Louise v. Marot, in which the Louisiana Supreme Court ruled that once freed, a man couldn’t be resubmitted to the bondage of slavery.


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