B.R. & G.T. Curtis


This is our introduction to the first installment of a larger planned Green Bag salute to Benjamin R. Curtis of Massachusetts. Why Curtis and why the salute? Curtis, because he is an interesting and important figure in nineteenth-century American law who has not received the scholarly attention he deserves. The salute, because March 2007 is the 150th anniversary of one of Curtis's highest achievements and one of the lowest moments of the court on which he was serving in 1857: the Supreme Court's decision in the case of Dred Scott v. Sandford. Curtis dissented, comprehensively and authoritatively. Now seems like a good time to recall Curtis and his work.

Benjamin Robbins Curtis (1809-1874) served on the Supreme Court of the United States from 1851 to 1857. Other than the mere holding of that office, he has four major claims to fame: First, he wrote the majority opinion for the Supreme Court in Cooley v. Board of Wardens, in which he masterfully fabricated the forerunner of modern Commerce Clause jurisprudence. Second, he wrote the best dissent (and thus also the best opinion) in the Dred Scott case. Third, in 1862 he wrote a widely read pamphlet titled "Executive Power," in which he took President Abraham Lincoln to task for two acts that exceeded, according to Curtis, the President's power under the Constitution — the suspension of the writ of habeas corpus and the issuance of the Emancipation Proclamation. Fourth, he was lead counsel for the defense in the impeachment trial of President Andrew Johnson in 1868.