Abstract
The Dred Scott case holds a deserved place in the constitutional “anticanon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This Article argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that was supposedly based on the substantive due process argument—does not offer a clear precedent for substantive due process, which was a mere makeweight argument, but instead rests on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.
Recommended Citation
Schwartz, David S.
(2025)
"An Ugly Common Ancestor: Dred Scott, Roe and Enumerationism,"
Utah Law Review: Vol. 2025:
No.
5, Article 4.
Available at:
https://dc.law.utah.edu/ulr/vol2025/iss5/4