Dred Scott as Authority

I was re-reading Justice George Sutherland’s dissent in Blaisdell, which is probably the greatest defense of originalism in the Supreme Court’s history. This time, I was struck by this passage:

“Chief Justice Taney in Dred Scott v. Sandford . . . said that, while the Constitution remains unaltered, it must be construed now as it was understood at the time of its adoption: that it is not only the same in words, but the same in meaning.” [Sutherland then quoted Taney’s opinion.]

I’m thinking that this was the last time that a Supreme Court Justice cited Dred Scott as positive authority, as opposed to descriptively or negatively. Does anyone know of a subsequent positive cite?

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1 Response

  1. Jon Weinberg says:

    Souter’s dissent in Seminole Tribe v. FL: “Regardless of its other faults, Chief Justice Taney’s opinion in Dred Scott v. Sandford, 19 How. 393 (1857), recognized as a structural matter that ‘[t]he new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one.'”