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United States Senate in 187o and argue that Dred Scott had ever been
authoritative. "I never expected to hear read in the Senate of the
United States, or in any court of justice where authority was looked
for, the Dred Scott decision," said Senator James Nye of Nevada.40
Senator Jacob Howard of Michigan was less civil. He pronounced himself "nauseated," disdaining entirely the thought of going "into that
recondite inquiry as to the political status of a black man under the
Dred Scott decision."41 Not to be outdone, Senator Charles Sumner of
Massachusetts declared that Dred Scott had been "[b]orn a putrid
corpse," and described it as "a stench in the nostrils ... to be remembered only as a warning and a shame. '42
In a mirror image of the Democratic belief that the Fourteenth
Amendment had not validly overruled Dred Scott, many Republicans believed that Dred Scott had no legal force even without the Fourteenth Amendment. One can distinguish two forms of that belief. The
first, which might follow from Senator Sumner's description of Dred
Scott as "born a putrid corpse," is that Dred Scott was so wrong as to
have been invalid ab initio. The other, which is more complex conceptually but yields the same result, is that events following Dred Scott - the election of President Lincoln, Southern secession, the Civil War,
emancipation, and perhaps the postwar constitutional amendments - amounted to a radical break with the past, one that made it senseless
to treat certain legal authorities from the old regime as if they had continuing meaning. On this view, the Republican position might not be
that Revels had been a citizen for nine chronological years before 1870,
or at least not in a sense that could be confirmed by asking whether a
court in i86i would have deemed him a citizen. Instead, the position would be that in 1870, it was impermissible to betray fundamental
principles of the new order by giving legal effect to the fact that other
principles - evil principles - had been applied at an earlier time.
Whatever people might have done in 1857 or i86i, this perspective
would hold, it would violate the norms of 187o to give continuing force
to Dred Scott.
Although not always clearly distinguishing between those two positions, several Republicans argued that the Civil War itself demonstrated Dred Scott's invalidity. "The comment made upon that great wrongful judicial decision is to be seen in the dreadful war through
which we have passed," said Senator Howard.43 Senator Frederick
Sawyer, a transplanted Bostonian representing South Carolina, spoke of the war as "the great court of errors" that had reversed the Taney
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