Dred Scott, Military Enslavement, and the Case for Reparations

Authors

• Hugh Barrett McClean, University of Baltimore School of LawFollow

Document Type

Article

Journal Title

Kentucky Law Journal

Volume

113

First Page

555

Publication Date

2025

Abstract

For more than a decade, Dred Scott was enslaved by a U.S. Army officer in a military system that perpetuated the institution of slavery in the free states and Northern territories of the antebellum period. Scott’s life, his lawsuit for freedom, and the U.S. Supreme Court case holding that Black people have “no rights which the white man was bound to respect” became infamous. But the history of the Dred Scott case and the military’s use of enslaved persons is largely unknown. Drawing on reparations advocacy in the Rosewood and Tulsa race massacre cases and other historical precedent for reparations, this Article examines the military’s racial history and argues that military has a duty to confront its past and provide reparations. The Trump administration eliminated one avenue for reparations when it ended affirmative action at military service academies. However, because the Supreme Court left open the question of whether affirmative action is constitutionally permissible in service academy admissions in its 2022 decision ending affirmative action in higher education, the issue is likely to reemerge under future administrations. This Article argues that the military’s affirmative action admissions programs provide an important opportunity for the military to make reparations for past wrongs. Using a dual strategy approach to reparations advocacy, the Article argues that the military must maintain affirmative action admissions programs and use any litigation as a springboard for broader action. Broader action includes developing a detailed factual record of racial atrocities and discrimination in the military to support the military’s diversity rationale. It also includes articulating a remedial justification for the military’s race-conscious admissions programs. The Article concludes by offering reparative measures beyond affirmative action that Congress and the Department of Defense (“DoD”) must consider to move the reparations agenda forward and to mitigate the risks presented by legal challenges to affirmative action.

Recommended Citation

Hugh B. McClean, Dred Scott, Military Enslavement, and the Case for Reparations, 113 Kentucky Law Journal 555 (2025).
Available at: https://scholarworks.law.ubalt.edu/all_fac/1213