The "Madman Theory"

The latest issue of the New York Review of Books has an essay by Fintan O'Toole discussing the Madman Theory as it pertains to Trump. During his first term, Donald Trump revitalized the Madman theory—a strategic tactic originally associated with the Nixon era—to disrupt the long-standing nuclear stalemate with North Korea. By projecting a persona of volatility through "Fire and Fury" rhetoric and "Little Rocket Man" jabs on social media, he sought to convince Kim Jong Un that the United States was no longer bound by traditional diplomatic restraint. The goal was to create a sense of unpredictability that would unnerve Pyongyang, forcing them to the negotiating table out of fear that the U.S. might actually pivot to military action. This high-stakes psychological game ultimately replaced the previous policy of "strategic patience" and paved the way for the unprecedented direct summits between the two leaders.  Whether it was deliberate or not, and how it applies to the current situation with Iran, got me thinking about the history of the theory and led me down another rabbit hole.

O’Toole posits that Donald Trump has weaponized a chaotic iteration of the Madman Theory—the strategic display of irrationality famously articulated by Nixon to Haldeman. ** However, I suspect this was more of a Nixonian post-hoc justification than a viable strategy for ending the Vietnam War. Trump, by contrast, uses it to dismantle traditional diplomacy in an attempt to gain leverage over adversaries like North Korea and Iran.  If that was indeed his strategy in North Korea, it worked. I suspect Iran's leaders, whomever they may be, regard him very differently.

While Trump explicitly coached associates like Nikki Haley and William Barr in the first term on projecting "just the right amount of crazy" as a shrewd negotiating tactic. O'Toole cites several incidents where Trump (all in his first term) expressed to Cabinet members that his tweets were deliberately intended to display a craziness. He told William Barr, "“Do you know what the secret is of a really good tweet?” he asked, looking at each of us one by one. We all looked blank. “Just the right amount of crazy,” he said."

O’Toole suggests the line between performative theater and genuine psychological instability has effectively dissolved. This reality is obvious to most observers, yet remains a blind spot for much of the mainstream media.

Drawing on testimonies from former cabinet members who witnessed non-performative rages, a disconnect from objective reality, and kaleidoscopic shifts in policy, the author contends that Trump’s behavior has evolved from a controlled "act" into a dangerous, structural form of governance. Ultimately, by broadcasting this perceived psychosis to the public and allies alike, Trump abandons the traditional constraints of the theory, replacing diplomatic cooperation with a volatile, unpredictable hegemony.

Nixon didn't invent the theory. Apparently, Kissinger, that evil genius, came up with it for a speech in 1962, and we all know how tight Kissinger and Nixon were. The dissertation by Campbell-Seremetis examines the validity of the theory as a strategy. He points out that "particularly in democracies, elites are subject to political pressure from the public, whose attitudes towards diplomacy and force are ...  heavily influenced by beliefs about the objectivity and competence of adversary leaders." (I am reminded of Karl Kraus' observation that politicians lie to the press and then believe what they read.*)

Campbell-Seremetis argues that labeling a foreign leader as "irrational" or a "Madman" fundamentally shifts public support toward more aggressive and less diplomatic policy options. It carries several risks:

1.) When an adversary is perceived as a "Madman," the public is significantly more likely to support hostile measures—such as sanctions or military force—before diplomatic dialogue has been exhausted.

2.) Perceived bias in a foreign leader makes the public pessimistic about the effectiveness of rational dialogue, leading them to view military methods as more effective than diplomatic ones.

3.) Interestingly, the public is more likely to advocate for concessions to an "unreasonable" or "crazy" adversary if they also believe that leader is highly competent.

But it works both ways. In the current situation, Trump may find himself more in the role of the public than the leader in his perceptions of the craziness or instability of the Iranians. Or, maybe he's just bored. Leaders may intentionally brand a rising adversary as irrational to manipulate the public into supporting costly alternatives to diplomacy, such as the "Saddam the Madman" narrative used by the George W. Bush administration. Conversely, a sustained campaign to convince the public that an adversary is "objective" can create the necessary political space for diplomacy. For example, characterizing Mikhail Gorbachev as "a man we can do business with" helped pivot the US public away from seeing Soviet leaders as purely irrational ideologues.

In the Korean War case study, the Truman administration was restricted by an American public that viewed the Soviets as "Fanatics" due to red-scare rhetoric. This gap between elite and public preferences forced the government to rely on back-channels for dialogue to avoid domestic political backlash. That assumes professionals are available. I'm not sure how much trust we should have in Kushner et al, especially given their financial stakes in the outcome.

Frank Zagare posits that the "Madman Theory" fails as a reliable strategic strategy because a truly rational adversary will recognize that a perceived "madman" is either bluffing or is so unpredictable that they cannot be manipulated by conventional means anyway.

Joshua Scwartz's study shows that the success of the Madman Strategy depends on a delicate balance between external gains and internal stability. Schwartz highlights that the strategy is most effective when the domestic costs can be mitigated or when the international stakes are high enough to justify the political risk. However, the consistent finding is that the public generally prefers "rational" leadership, making the Madman Strategy a high-stakes gamble that risks long-term domestic legitimacy for short-term diplomatic concessions. This tension explains why the strategy is relatively rare in history despite its theoretical potential for coercive success.

Even assuming it's a valid Trump strategy, he has lost (if he ever had) the ability to apply it strategically, especially when surrounded by rank amateurs. But then. Kissinger admitted it would never work in a democracy anyway.

Something none of these authors even hinted at is dementia.

*Diplomats tell lies to journalists and believe them when they see them in print”.  The original "Wie wird die Welt regiert und in den Krieg geführt? Diplomaten belügen Journalisten und glauben es, wenn sie’s lesen, which I bastardized slightly, is from his book of aphorisms, Nachts. (1918)

**What Nixon said to Haldeman, 

I call it the Madman Theory, Bob. I want the North Vietnamese to believe I’ve reached the point where I might do anything to stop the war. We’ll just slip the word to them that “for God’s sake, you know Nixon is obsessed about Communism. We can’t restrain him when he’s angry—and he has his hand on the nuclear button”—and Ho Chi Minh himself will be in Paris in two days begging for peace

Sources:

Devanny, Joe (2022) ‘Madman Theory’ or ‘Persistent Engagement’? The Coherence of US Cyber Strategy under Trump, Journal of Applied Security Research, 17:3, 282-309, DOI: 10.1080/19361610.2021.1872359

Kissinger, H. A. (2023, December 7). The unsolved problems of European defense. Foreign Affairs. https://www.foreignaffairs.com/articles/europe/1962-07-01/unsolved-problems-european-defense   also http://www.jstor.org/stable/20029577?origin=JSTOR-pdf 

 O’Toole, F. (2026, May 14). ‘The right amount of crazy’. The New York Review of Books https://www.nybooks.com/articles/2026/05/14/the-right-amount-of-crazy-fintan-otoole/

Schwartz, Joshua A. "Madman or Mad Genius? The International Benefits and Domestic Costs of the Madman Strategy." Security Studies, (2023). https://www.tandfonline.com/doi/full/10.1080/09636412.2023.2197619

Zagare, Frank . Rationality and Deterrence.     (n.d.). Personal Websites - University at Buffalo. https://www.acsu.buffalo.edu/~fczagare/Articles/Rationality%20and%20Deterrence.pdf

 

The Pro-Slavery Constitution, Fugitive Slave Acts, Prigg and Ableman, and Upside down States-Rights

The U.S. Constitution is a masterclass in euphemisms, carefully embedding protections for enslavement while scrubbing the text of the specific word for the practice. By framing those in bondage as "persons held to service or labour"[sic] or "all other persons," the Framers prioritized a legalistic definition of property that superseded individual liberty. This emphasis on property rights is most starkly evident in the clause of Article IV, which functioned as a constitutional mandate for the return of those who escaped their condition.:

Article IV, Section 2, Clause 3:  No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. *

This provision effectively nationalized the enforcement of property interests, stripping "free" states of the power to liberate those who crossed their borders. Instead, it dictated that such persons must be "delivered up" to the claimant, ensuring that the economic assets of the owner were constitutionally shielded even in jurisdictions where the institution itself did not exist. Through this euphemistic framework, the document created a paradox where the protection of "property" necessitated the systematic dehumanization of the individual.

Several southern states wanted that provision codified. This clause was enforced by an act of Congress passed February 12, 1793, and signed by President Washington. It was the first fugitive slave law, and remained a part of the law for fifty-seven years. The first part of the act had to do with fugitives from justice. The last part was concerned with run-away slaves.  Its provisions were reinforced by the Prigg decision that specified the federal role.

In the decades preceding the American Civil War, the federal government underwent a profound metamorphosis, shifting from neutrality toward becoming an "enforcement agent" for slaveholding interests. This transformation took place within a  landscape characterized by the  friction between the "presumption of freedom"—a cornerstone of Northern state law—and an increasingly aggressive federal mandate to protect Southern property rights in persons. As Northern jurisdictions attempted to safeguard their citizens through local due process, federal authorities prioritized the extra-territorial security of the slave system, effectively subordinating local sovereignty to the needs of the slave power.  Prigg v. Pennsylvania (1842)  effectively nationalized the law of slavery. By asserting exclusive federal jurisdiction over the return of fugitives, the American state reshaped the constitutional order, laying the institutional foundations for a federal sponsorship of slavery that would ultimately destabilize the Union it sought to preserve.

As noted by the historian Don Fehrenbacher, the transition was cemented by federal policy in the District of Columbia, where Congress maintained existing slave codes, and in the Western territories, where federally appointed officials frequently encouraged quasi-slavery systems. This infrastructure ensured that slavery was not a "peculiar" local exception but a federally endorsed national reality.

The constitutional crisis in Prigg was catalyzed by the 1837 seizure of Margaret Morgan, an incident that exposed the tragic human cost of legal ambiguity. The facts of the case challenged Pennsylvania’s 1826 Personal Liberty Law, revealing how the state's efforts to provide due process were systematically dismantled by federal interests.

Margaret Morgan’s parents were the slaves of a master named Ashmore, who, while never formally emancipating them, allowed them to live as free people beginning sometime before 1812. Ashmore "constantly declared he had set them free," and Margaret was born after this informal grant of liberty. In 1832, Margaret married Jerry Morgan, a free Black man, and the couple moved to Pennsylvania. During their residence there, they had several children who, as "begotten and born" on Pennsylvania soil, were free-born citizens under Commonwealth law.

Following Ashmore’s death, his estate passed to his niece, whose husband, Nathan Bemis, sought to reclaim Margaret. In February 1837, Bemis and Edward Prigg—a professional slave-catcher—traveled to Pennsylvania and seized Margaret and her family. While they initially sought a warrant from a local Justice of the Peace, Thomas Henderson, they were stymied when Henderson refused to issue the final removal papers, concluding he lacked jurisdiction. Henderson likely recognized that Margaret had entered Pennsylvania with her master's implicit permission and that her children were free-born. Disregarding the law, Prigg and his associates forcibly took the family to Maryland, where they were sold to a trader and shipped to the Deep South. In a tragic postscript, Jerry Morgan was killed while returning from a visit to the Pennsylvania Governor in a desperate, failed attempt to secure his family’s return.

Edward Prigg was subsequently indicted and convicted of kidnapping. However, through a "friendly" legal compromise between Maryland and Pennsylvania, both states agreed to expedite the case to the U.S. Supreme Court to resolve the constitutionality of the 1826 law. This single family’s tragedy—and the death of a father seeking justice—became the cold vehicle for Justice Story's  sweeping nationalistic legal opinion that prioritized the  judicial doctrine over the preservation of human liberty. It's also emblematic of the tension between originalism and living constitutionalism as one could argue that Story had no choice given the clear mandate to return fugitive slaves in the Constitution and tension between federal and states rights, i.e. northern personal liberty laws designed precisely to thwart the return of fugitive slaves and the federal constitutional obligation.

Justice Joseph Story occupied a fraught position as a "nationalist" jurist who personally loathed the institution of slavery while feeling legally bound to uphold its constitutional protections. Story frequently condemned the slave trade in his private correspondence and jury charges as a "monstrous" violation of natural law and justice. However, his judicial philosophy centered on the belief that the Constitution was a binding contract whose survival depended on strict adherence to its compromises. This tension is obvious in Prigg  where he characterized the Fugitive Slave Clause as a "fundamental article" of the national compact, essential to the preservation of the Union. While he attempted to mitigate the impact of this ruling by suggesting that state officials were not required to assist in federal captures—giving rise to the "personal liberty laws" and providing an enormous loophole leading to the Fugitive Slave Act of 1850, more on that later—his ruling ultimately reinforced the federal government’s exclusive power to protect human property, illustrating a career-long struggle between personal morality and judicial duty.

The establishment of a "common-law right of self-help" effectively exported the law of the South into the jurisprudence of the North. By authorizing recapture "anywhere in the Union," the Court created a jurisdictional vacuum where state-level due process was replaced by private vigilante action. This rendered Northern states powerless to prevent the kidnapping of their own free Black citizens, as seen in the facts of the case where Margaret Morgan’s children, born free on Pennsylvania soil, were seized and carried into bondage. The decision effectively nationalized the Southern presumption of slave status, transforming the North into a hunting ground for the Southern master.

Despite the majority ruling, the Court was fractured by a strategic disagreement between the proponents of "federal exclusivity" and "concurrent power," and resulted in  seven concurrent and dissenting opinions, unheard of in the early 19th century. (The decision itself was 8-1 with only Justice McClean dissenting.) Proslavery justices, including Roger B. Taney, Smith Thompson, and Peter V. Daniel, expressed profound apprehension that Story’s nationalist doctrine would make the 1793 Act a "dead letter" by allowing Northern states to withdraw their administrative cooperation. They argued instead for a concurrent state power that would permit Northern officials to assist masters in their claims.

Justice John McLean, however, issued a lone and vigorous dissent that prioritized the "Presumption of Freedom." "In a non-slaveholding state, every person is presumed to be free, regardless of color. This presumption stands until it is legally rebutted by the proof required under the Act of 1793" and he made the argument for state sovereignty and due process (I'm sure John Bingham was very familiar with this dissent and it showed in the 14th Amendment). McLean contended that while a master had a constitutional right to his property, he was bound to pursue the specific legal remedy provided by Congress rather than relying on extra-legal force.

Story's son, and Professor Goldstein tried to exonerate Story from history's backlash to the decision by arguing that Story sought to preserve the Union by limiting slaveholders to the "express bargains" of the Constitution. He defined slavery as a "mere municipal regulation" with no basis in natural law to limit its expansion beyond specific statutes. Yet, as H. Robert Baker suggests, Story may have been "fencing" with radical Southern constitutionalists. By establishing federal exclusivity, Story denied Southerners the right to claim slavery as a "natural property right" that the federal government was obligated to protect everywhere. He hoped that by centralizing the issue, a future Northern-led federal government could "remodel" the law to include habeas corpus and trial by jury.

Finkelman says, "nonsense."  Story sought to nationalize the law of slavery to facilitate the recapture of fugitives and aggrandize federal power. He ignored the fact that Margaret Morgan's children were born free, sacrificing individual liberty for a nationalist victory. Story’s "secret" letter to Senator Berrien proposed a federal commissioner system to streamline slave capture.  Story's children tried to suppress that letter.

Regardless of his motives, the result of Prigg was increased tensions between north and south as the northern states used the loophole to harass and thwart southern slave catchers, resulting in the Fugitive Slave Act of 1850.

The 1850 version was a radical expansion of federal power that fundamentally altered the legal landscape of the United States. While the 1793 act had been largely symbolic and difficult to enforce, the 1850 statute turned the federal government into an active agent for the recovery of human property.

The Act bypassed traditional courts by creating a new class of federal officers called Commissioners. These individuals had the power to grant certificates for the removal of a "fugitive" back to the South. This removed these cases from the jurisdiction of local judges who might be sympathetic to the accused.  

In one of the most controversial sections of the law, Commissioners were paid $10 if they ruled in favor of the claimant (the owner) but only $5 if they ruled in favor of the accused. The official justification was that more paperwork was required for a removal certificate, but abolitionists pointed to this as a blatant federal bribe to ensure the return of individuals into bondage.

The law stripped the accused of nearly every legal protection: No Jury Trial: The Commissioner alone decided the person’s fate; No Right to Testify: The individual being claimed was legally prohibited from testifying on their own behalf;  Cases were often decided based solely on an affidavit provided by the claimant, which the accused had no power to challenge.

The Act compelled ordinary citizens to participate in the capture of "fugitives." Federal marshals were authorized to "summon and call to their aid the bystanders" or a posse comitatus. Any citizen who refused to assist a marshal, or who helped an individual escape, faced a fine of $1,000 (a massive sum in 1850) and up to six months in prison.

By making the recovery of "property" a federal responsibility, the law effectively invalidated the "free" status of Northern states. It mandated that federal warrants be honored everywhere, meaning that an individual's legal status was no longer determined by the laws of the state where they lived, but by the laws of the state from which they had allegedly fled.

These provisions outraged free states. Resistance to the 1850 statute transformed from quiet defiance into organized, often militant, confrontation, as many Northerners viewed the law as a direct assault on their state sovereignty and moral conscience. The "Vigilance Committees" of cities like Boston and Philadelphia became the nerve centers of this movement, providing legal counsel, financial aid, and safe passage for those targeted by federal marshals. It provided justification for an expansion of the Underground Railroad.

Resistance frequently turned physical; in the Christiana Riot of 1851 and the rescue of Joshua Glover in Wisconsin, interracial crowds of abolitionists used force to liberate captives from federal custody, openly daring the government to enforce the "Bloodhound Law." By turning the act of capture into a public spectacle of violence and injustice, resistors successfully radicalized a previously moderate Northern public, shifting the debate from a legal dispute over property into a moral crisis that rendered the law virtually unenforceable in many regions. In addition, In response to the 1850 Act, several states passed new, even stricter laws that effectively made it a state crime for anyone—including private citizens—to assist in a federal capture.

In the 1859 decision of Ableman v. Booth, the Supreme Court issued a forceful defense of federal supremacy against state-level judicial resistance. The case arose after the Wisconsin Supreme Court declared the Fugitive Slave Act of 1850 unconstitutional and issued a writ of habeas corpus to release Sherman Booth, an abolitionist editor who had helped rescue a fugitive from federal custody. Chief Justice Roger B. Taney, writing for a unanimous Court, reversed the state’s decision, asserting that state courts have no authority to interfere with federal prisoners or overturn federal statutes. The ruling established a critical precedent for the hierarchy of the American legal system: while states are sovereign in their own sphere, they cannot use their judicial power to "nullify" federal law or obstruct the execution of federal warrants. It's also ironic in that this case  is a rare instance where Northern states argued for "States' Rights" while the Taney Court—usually associated with Southern interests—insisted on absolute Federal Supremacy to protect the Fugitive Slave Act.

The legal developments of the antebellum era reveal a federal government that functioned consistently as an "extrajurisdictional agent" for the South. Through the jurisprudence of Prigg v. Pennsylvania, the Supreme Court effectively erased the personhood of those seized, replacing state-level protections with a nationalized "vigilante’s license." Justice Story’s brand of judicial nationalism attempted to "preserve the Union" by centralizing the issue of slavery, yet in doing so, he removed the safety valves of state sovereignty that protected free Black citizens.

By stripping Northern states of their power to uphold the presumption of freedom and subordinating "Revolutionary idealism" to the protection of property, the federal government did not save the Union—it accelerated its fracturing. The prioritization of slaveholding interests over individual liberty ensured that the conflict could no longer be contained within the sterile halls of the Court. In seeking to build a federal shield for slavery, the judiciary and the executive branch instead forged the very weapons that would eventually dismantle the constitutional order they sought to protect.

* The original Constitution used the traditional British spellings. 

Sources:

Ableman v. Booth, 62 U.S. 506 (1858)

Baker, H. R. (2014). A better story in Prigg v. Pennsylvania? Journal of Supreme Court History, 39(2), 169-189. https://doi.org/10.1353/sch.2014.0011

Coles, N. A., & Masurek, S. J. (2014). An analysis of the Fugitive Slave Act: When Congress passed on act that violated the American constitution.

Fehrenbacher, D. E. (1978). The Dred Scott case: Its significance in American law and politics.  (Chapter on Prigg)

Finkelman, P. (1997). Prigg v. Pennsylvania understanding justice story's Proslavery nationalism. Journal of Supreme Court History, 22(2), 51-64. https://doi.org/10.1111/j.1540-5818.1997.tb00111.x

Goldstein, L. F. (2011). A "Triumph of Freedom" After All? Prigg v. Pennsylvania Re-examined. Law and History Review, 29(3), 763–796.

Maltz, E. M. (2010). Fugitive slave on trial: The Anthony burns case and abolitionist outrage.

(n.d.). New York State Parks, Recreation & Historic Preservation. https://parks.ny.gov/sites/default/files/FugitiveSlaveAct1793.pdf

Prigg v. Pennsylvania, 41 U.S. 539 (1842) https://supreme.justia.com/cases/federal/us/41/539/

Prigg v. Pennsylvania and the Fugitive Slave Act of 1850. (2024). Fugitive Slave on Trial, 15-29. https://doi.org/10.2307/jj.13168062.6

Waldstreicher, D. (2010). Slavery's constitution: From revolution to ratification. Macmillan.

 

John McClean and His Dissent in Dred Scott

I’ve always been interested in dissents. Often they become the majority view years or decades later. Sometimes they are humorous; sometimes catty; sometimes sarcastic or even vicious; other times they ring so true simply because they are right. McLean’s dissent in the infamous Dred Scott decision is one of the right ones.

John McLean occupies a singular and somewhat contradictory space in American history as a figure who was simultaneously a pillar of the Supreme Court for over three decades and a perpetual seeker of the presidency. Born in New Jersey in 1785, McLean’s life began in extraordinarily humble origins, a sharp contrast to many of his colleagues on the bench who hailed from wealthy and established political dynasties. His family followed the typical path of the frontier, moving through Virginia and Kentucky before finally settling in Ohio in 1796. Because of this frontier upbringing, McLean lacked formal education for the vast majority of his youth, only beginning to study the classics at age sixteen. Despite these modest beginnings, his ascent was remarkably rapid. He apprenticed in a local court, studied law under notable regional figures, and eventually edited a newspaper before entering federal service. This self-made character defined much of his later jurisprudence and his tireless, if often criticized, ambition.

McLean’s political career was launched during the War of 1812 when he was elected to the U.S. House of Representatives at the age of twenty-eight. His administrative brilliance became evident early on, leading President James Monroe to appoint him Commissioner of the General Land Office and then Postmaster General. In this latter role, he transformed the postal service into a massive, efficient federal agency, but his principled stand against using the department’s vast appointment powers for political patronage brought him into direct conflict with Andrew Jackson. Jackson, frustrated by McLean’s refusal to fire competent postmasters to make room for political loyalists, famously “kicked him upstairs” to the Supreme Court in 1829. This appointment was less an honor and more a strategic maneuver by Jackson to remove a politically inconvenient but popular cabinet member from the executive branch.

Once on the bench, McLean remained a professional politician, a title that often shadowed his legal contributions. He was a perennial candidate for the presidency, seeking nominations from the Whigs, Anti-Masons, Free Soilers, and eventually the Republicans in nearly every election cycle between 1832 and 1860. His constant campaigning from the bench drew sharp rebukes from Chief Justice Roger B. Taney and others who believed it compromised the perceived neutrality of the Court. This political maneuvering was probably unparalleled in American history, as McLean frequently rationalized his political activities as being consistent with his judicial duty. Despite this distraction, McLean was an exceptionally hardworking justice, often traveling thousands of miles to fulfill his circuit court duties and writing hundreds of opinions that largely favored economic nationalism and federal power.

His judicial philosophy was deeply rooted in the belief that a strong national market was necessary for the country’s progress. He often clashed with the Taney Court’s states' rights leanings, particularly regarding the Commerce Clause. For example, he expressed a strong desire to protect vested property rights, arguing that the state should provide compensation for the loss of a franchise, reflecting his western perspective on the need for stable internal improvements. His personal life also reflected a complex set of moral values; though he often faced financial difficulties, he was known for his extensive acts of charity. Most notably, despite being in debt, he had purchased a family of slaves and emancipated them, and he later manumitted a servant in Washington rather than selling him for a significant profit.

This moderate antislavery stance reached its historic apex in the *Dred Scott v. Sandford* case of 1857. (For those not familiar with the case, I have a summary taken directly from McLean’s dissent in the appendix.) McLean’s role in this case was not merely as a dissenter but arguably as the catalyst for the broad, catastrophic ruling issued by Chief Justice Taney. When the Court initially considered the case, there was a possibility of a narrow ruling that would have avoided the larger constitutional questions of slavery in the territories and Black citizenship. However, McLean’s insistence on writing a full dissent that addressed these very issues forced the majority’s hand. Taney, wanting to settle the slavery question once and for all and perhaps hoping to undercut McLean’s potential 1860 presidential run, expanded his opinion to include the infamous declarations that Black people could never be citizens and that Congress had no power to ban slavery in federal territories.

The resulting dissents from McLean and Justice Benjamin Robbins Curtis provided the most significant judicial counter-narratives to the majority's opinion, though they approached the task with different focuses. Curtis provided a surgical, procedural dismantling of Taney’s logic, beginning with a challenge to the Court’s jurisdiction. He argued that if the majority truly believed the Circuit Court lacked jurisdiction because Scott was not a citizen, the Supreme Court had no authority to then rule on the merits of the case regarding the Missouri Compromise. Curtis’s most powerful historical contribution was his proof that African Americans were already citizens in five states—New Hampshire, Massachusetts, New York, New Jersey, and North Carolina—at the time the Constitution was adopted. He maintained that because these individuals were part of the “people of the United States” who ordained and established the Constitution, their descendants could not be categorically excluded from citizenship.

McLean, while supporting these jurisdictional points, focused more heavily on the principle of “positive law” and the collapse of judicial comity. He famously asserted that slavery is a local and municipal institution that can only exist by specific statute and does not follow a master into a free state. McLean was particularly scathing regarding the Supreme Court of Missouri’s decision to abandon its own twenty-eight-year-old precedent of “once free, always free.” He argued that rights to freedom that had vested for nearly three decades could not be repudiated with any semblance of justice simply because of a shift in local political sentiment. To illustrate this, McLean cited historical cases noting that once freedom vests by residence in a free jurisdiction, it cannot be reproduced by returning to a slave state.

The two justices also differed in their interpretation of the Constitution’s “Needful Rules and Regulations” clause. Curtis argued that the power to govern territories was a general one that necessarily included the power to prohibit slavery, a view supported by a long history of legislative acts beginning with the Northwest Ordinance. McLean went further, characterizing the majority's attempt to strip Congress of this power as a “Missouri question” that ignored the supremacy of federal law and the Illinois Constitution. He maintained that if a state court could disregard an act of Congress and the constitution of a neighboring sovereign state, then the laws afforded no protection to any human being. This foreshadowed much of the 14^th Amendment in its application of the bill of Rights to the states and right and privileges and the due process clauses. While Curtis’s dissent was a masterpiece of constitutional history, McLean’s was a defense of the law of nations and the moral necessity of maintaining a distinction between freedom as a natural right and slavery as a legal exception.

Physically, McLean was an imposing figure, described as a large man with an air of authority that matched his long tenure. Brady took his photograph; he was certainly a dour-looking man, but then most of them were then.) in Yet, as a jurist, he was often seen as safe rather than brilliant, a man whose long experience in public affairs made him a reliable, if not revolutionary, judge. He died in April 1861, just as the Civil War broke out, serving as a living link between the era of the Founders and the violent resolution of the slavery crisis he had spent decades trying to navigate. Though his political ambitions often clouded his reputation, his dissent in *Dred Scott* remains a landmark in American law, representing a moderate but firm refusal to allow the highest court in the land to turn the entire nation into a slave-holding republic.

Sources:

Curtis, Benjamin R., and John McLean. Dred Scott v. Sandford: The Dissents. Compiled by Doug Linder, Famous Trials, 2026. [Text of the two dissents.]

Finkelman, Paul. "John McLean: Moderate Abolitionist and Supreme Court Politician." Vanderbilt Law Review, vol. 62, no. 2, 2009, pp. 519-566. [This is an excellent and very readable summary of McLean’s life and the Dred Scott decision and ramification.]

Weisenburger, Francis P. The Life of John McLean: A Politician on the United States Supreme Court. Da Capo Press, 1971.

Appendix:

From McClean’s dissent: The parties agreed to the following facts: In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, Dr. Emerson took the plaintiff from the State of Missouri to the post of Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, Dr. Emerson removed the plaintiff from Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the territory Known as Upper Louisiana, acquired by the United States of France, and situate north of latitude thirty-six degrees thirty minutes north, and north of the State of Missouri. Dr. Emerson held the plaintiff in slavery, at Fort Snelling from the last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, Major Taliaferro took Harriet to Fort

Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at Fort Snelling, unto Dr. Emerson, who held her in slavery at that placeuntil the year 1838.

In the year 1836, the plaintiff and Harriet were married at Fort Snelling, with the consent of Dr. Emerson, who claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are

the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri at the military post called Jefferson Barracks. In the year 1838, Dr. Emerson removed the plaintiff and said Harriet and their daughter Eliza from Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of the suit, Dr. Emerson sold and conveyed the plaintiff, Harriet, Eliza, and Lizzie, to the defendant as slaves, and he has ever since claimed to hold them as slaves. At the times mentioned in the plaintiff's declaration, the defendant, claiming to be the owner, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than he might lawfully do if they were of right his slaves at such times.

As in real estate, location, location, location. Illinois was a free state and Scott argued once free, always free. He lost , as did the Missouri Compromise, resulting in a major justification for the Civil War.