Legality and Legitimacy in <em>Dred Scott</em>: The Crisis of the Incomplete Constitution

The original Constitution was incomplete in that it contained a disparity between the principles of legitimacy of the system and the legality of the institution of slavery. Political communities marked by such disharmony are beset with pressures to make the system consistent in one way or another. Such indeed was the fate of the U.S. during the antebellum era. Three typical responses arose: to make legality correspond to legality (by redefining the principles of legitimacy of the system), to make legality conform to legitimacy (by doing away with slavery), or to maintain the tension in ever more creative ways.

The Dred Scott case represents a late stage of this dynamic process—seven of the Justices chose one or another version of the legality-over-legitimacy strategy, one chose a nascent version of the legitimacy-over-legality position, and only one worked to reaffirm the original constitutional tension between legality and legitimacy.