Today marks the 150th Anniversary of Dred Scott v. Sandford. Tony Mauro comments at BLT here.
I seem to remember a comment from Robert Bork, answering a question from the imbecile Teddy Kennedy (actually a diatribe stating that if Bork were an S.C. Justice, we could expect a replay of Dred Scott). Bork responded that the Scott decision reflected an assertion of substantive (as against procedual) due process - a principle that Bork had always opposed. Being right did not help him, as we know.
But slaves in territories who could not work to free themselves had to be freed by Congressional Act. And the Court argued, among other things, that such an Act denied slaveholders of property without due process. This would have held even if the Court claimed blacks could be citizens. And that's the substantive part.
Anyone with interest in this subject should read "The Dred Scott Case: Its Significance in American Law and Politics" by the late Stanford historian Don Fehrenbacher.
Dred Scott v. Sandford is usually said to be the second case where a federal statute was declared unconstitutional, with Marbury v. Madison being the first. What was the third? The Civil Rights Cases?
Actually it is the first case. Marbury avoided doing anything including upholding the property right claimed by Marbury