Justice McLean Analysis in Dworkin Perspective - Tosin Onibiyo

   Justice John McLean, in his dissent to the decision in the case Scott v. Sandford (1857), pointed out Taney's historical errors. First he emphasize the time of the Founding of the United States, and how several states had admitted free persons of the color to the suffrage-thereby recognizing them as citizens. Furthermore, he explained that being colored is not and has never been an inherent disqualifier for citizenship; right after the Mexican War, the U. S. made citizens of "all grades, combinations, and colors." According to Justice McLean, neither the Founders nor the Constitution explicitly promoted slavery; rather, slavery was a system imposed on the colonies by their mother-country and the Founders were careful to protectthe Constitution's language against the mentions of slavery. Justices McLean and Curtis argued, contrary to Taney, that every free person born on the soil of a state and a citizen of that state is also a citizen of the United States. Moreover, they also defended the Missouri Compromise's constitutionality; because it was passed intensely by Congress and approved as by the president as constitutional; no one had thought of questioning its constitutionality not until the Dred Scott decision,   for that would also call into question the constitutionality of Congress's first act: prohibition on slavery in the Northwest territories andthe renewal of the Northwest Ordinance.

If Ronald  Dworkin was to analyze the opinions of the case Scott V. Sandford, especially the dissent opinion been focused on in this paper, I believe he will argue about Judicial Activism; which is the theory under which judges may 'actively' interpret the law on a broad plane and are not necessarily constrained to relying on the sources and issues strictly before them as Justice McLean as done in his dissent He broadly interpreted the case and not narrowing it specifically to any source like the other Justices have done except Curtis. . In addition, as predicted of what Dworkin’s analyses will be; activism is a necessity when the other branches of government do not act to bring about social change. Just like when the other justices didn’t bring about any ‘social change,’ Justice McLean and Curtis did. They stood their grounds and broadly emphasized on the citizenship aspect, the constitution and Congress’ Act.