The Dred Scott Challenge or: Why Constitutional Law is Not a Game

Volokh Conspiracy : If it's possible to say what the law is without taking a normative stance concerning whether it is good or bad, law itself is not normatively neutral.

Law isn't like this. It confers power upon people to do things that they would not otherwise be able to do, and those things affect other people.

Volokah : The Dred Scott challenge isn't a difficult but rewarding game that ingenious scholars should have an interest in overcoming.

Dred Scott v. Sandford was written by a slaveholder and joined by five other slaveholders.

It treated the denial of civil and (especially) political rights to Black people as dispositive of their exclusion from citizenship.

Sandford 's reasoning is continuous with the consent theory that surfaced in enslaving states.

The text of the Citizenship Clause does not only proclaim Black citizenship, but it proclaims Black citizenship.

John Sutter : It's possible to critique Dred Scott on consensualist grounds, but it's not possible to do so.

Sutter says consent theory can't be rescued by positing that all Black Americans consented to be citizens of the U.S. He says any account of Citizenship Clause which depended upon actual consent of either enslaved people or the polity to be bound by U.K. sovereign power would be ludicrous.

He says it's a much, much easier way to explain why any credible theory of citizenship must produce is correct.