Hastings Constitutional Law Quarterly


In the Dred Scott case, the United States Supreme Court ruled that no black, whether slave or free, could ever be a citizen of the United States and that Congress had no constitutional authority to prohibit slavery in federal territories. While this historically important case has been the subject of extensive commentary over the years, scholars have refrained from in-depth inquiry into Justice Curtis's dissent.

This Article analyzes Curtis's opinion in that case, with a view to unraveling his approach to constitutional interpretation. Contrary to the limited reading of citizenship attributed to Curtis, this Article argues that his theory of citizenship, though limited in some respects, was potentially far-reaching and that his view of the American political community was fundamentally egalitarian. On the territorial question, this Article offers a new explanation of Curtis's argument by showing that he relied mainly on constitutional structure to justify broad powers in Congress to regulate slavery in the territories.