¹The University of Texas at Austin

^*I thank Gary Jacobsohn, Hadley Arkes, and the anonymous reviewers at Polity for helpful comments on earlier drafts of this essay.

Abstract

John McLean's opinion in Dred Scott v. Sandford (1857) has been considered by most scholars as the weaker of the case's two dissenting opinions. McLean's presidential ambitions were well known, and, as a consequence, much of the moral language employed in his opinion has been interpreted as obiter dictum directed at placating the abolitionist sentiment of the emerging Republican Party. In this essay, I argue that much of the contemporary criticism of McLean's opinion is ill-founded. Don Fehrenbacher's observation that McLean's opinion is not as "thorough, scholarly, and polished" as the fellow dissent of Benjamin Curtis seems, in some sense, to be correct; nevertheless, McLean offers a powerful challenge to some key aspects of Curtis's celebrated dissent. Specifically, McLean shares in common with Lincoln a theory of constitutional aspiration and an understanding of natural right that is absent from Curtis's opinion and that compels McLean to differ from Curtis on the Fifth Amendment question.