Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism.

Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism. By Stuart Streichler. (Charlottesville and London: University of Virginia Press, 2005. Pp. xvi, 271. $37.50, ISBN 0-8139-2342-5.)

Justice Benjamin R. Curtis is best known today for his dissent in the 1857 Dred Scott case. Curtis blasted Chief Justice Roger B. Taney's proslavery opinion in what is widely considered one of the landmark dissenting opinions in the history of the Court. Yet even as scholars have made a great deal of the dissent, the constitutional thinking of Curtis himself has been mostly neglected. In this important new book, Stuart Streichler finally gives Benjamin Curtis the sustained scholarly attention he deserves and makes a persuasive case that we need both to rethink the traditional understanding of Curtis's dissent and to restore him as one of the leading constitutional thinkers of his era.

The book is less a chronological biography and more an intellectual history of Curtis and his approach to the Constitution. The chapters are organized around constitutional questions and disputes from 1850 to 1868. Streichler shows that Curtis, even if the author of a great dissent, was not a great dissenter. As a Whig legislator in Massachusetts, Curtis was appointed to the bench by President Millard Fillmore in 1851. He soon became a staunch advocate of what Streichler calls "constitutionalism," an understanding of the Constitution rooted in traditional, conservative devotion to the common law, marked by "evolutionary growth in the law" and an "emphasis on pragmatic problem solving" (p. 5). Thus Curtis was not an antislavery judge so much as a strict interpreter of the Constitution. Like Joseph Story, he was a defender of judicial enforcement of the Fugitive Slave Act and later opposed Lincoln's Emancipation Proclamation as beyond the constitutional powers of the president.

Curtis's seventy-page dissent in Dred Scott has long appeared aberrational, a dramatic departure for a justice who did not embrace abolitionism or a vision of the Constitution as a charter of freedom. In a nuanced and original analysis of the different opinions in Dred Scott, Streichler argues that Curtis's dissent was not aberrational at all but should instead be understood as of a piece with the justice's understanding of the Constitution as common law. Where Chief Justice Taney argued that African Americans were not considered citizens under the Constitution, Curtis took on the issue of black citizenship as a practical, historical question. He offered a detailed historical account of black participation in civic life in the Revolutionary era and beyond, not to make a broad claim of black equality but more as a powerful legal counter to Taney's sweeping assertions. While Streichler concedes that Curtis did not go beyond this to advance an expansive, substantive idea of citizenship, he does make the novel claim that Curtis's use of history in the Dred Scott case amounted to an early understanding--more than ten years before the Fourteenth Amendment--of a potentially color-blind Constitution.

For Streichler, "Curtis was heir to the Federalist-Whig tradition of Marshall, Story, and Webster" and effectively worked to expand judicial power through innovative use of the commerce clause and the due process clause of the Constitution (p. 206). For Curtis this "broad conception of judicial power" was always grounded in a commitment to "limited government constrained by the rule of law" (pp. 209-10). In an era offering several different alternative styles of judicial reasoning, from binding precedent to natural law, Curtis's vision of the Constitution as common law simultaneously offered judges great interpretive power and a mechanism for constraining that power.

If only to better understand the meaning and dynamics of Scott v. Sandford, there has long been a need for a biography of Benjamin Curtis. Not only has Streichler admirably met this need, he has also successfully made Curtis an essential part of the discussion of constitutional thought and interpretation in the era of the Civil War.

DANIEL W. HAMILTON 

Chicago Kent College of Law