David S. Schwartz, An Ugly Common Ancestor: Dred Scott, Roe and Enumerationism An Ugly Common Ancestor: Dred Scott, Roe and Enumerationism 2025 Utah L. Rev. 1161 (2025).
The Dred Scott case holds a deserved place in the constitutional “anticanon” of Supreme Court decisions that exemplify rejected constitutional
views. But the complex history of the case, the convolution of the opinion
by Chief Justice Roger Taney, and the complicated relationship between
its two primary holdings have generated multiple, often conflicting
arguments about its negative “lessons.” Such arguments—particularly
that of Robert Bork arguing that Dred Scott is the “very ugly common
ancestor” of Lochner v. New York and Roe v. Wade—have masked an
important element of the Taney opinion: its central reliance on
“enumerationism,” the doctrine of limited enumerated powers. This
Article argues that the reasoning underlying Dred Scott’s holding striking
down the Missouri Compromise—the holding that was supposedly based
on the substantive due process argument—does not offer a clear precedent
for substantive due process, which was a mere makeweight argument, but
instead rests on the core values of enumerationism. The opinion, whatever
other lessons it supplies, demonstrates the close connection between
enumerationism and slavery as well as the internal contradictions and
incoherence of limited enumerated powers.
