Benjamin R. Curtis, who sat on the United States Supreme Court between 1851 and 1857, is best remembered for his dissent in the Dred Scott case (1857). Curtis offered a point-by-point rebuttal to Chief Justice Roger B. Taney's notorious opinion for the Court, which held that no African American could be a citizen of the United States and that Congress lacked power to regulate slavery in US territories. Abolitionists circulated the dissent as a pamphlet, and Lincoln based his famous Cooper Union speech on Curtis's argument. Among modern scholars and jurists, Curtis has maintained a high reputation, largely on the strength of his Dred Scott opinion. Benjamin Cardozo ranked Curtis's opinion as one of the judiciary's ‘great dissents’, a paradigmatic instance of a justice ‘speak[ing] to the future’ (Law and literature (1931), p. 36). Recently, Justice Stephen Breyer praised Curtis's dissent, noting that ‘it paints the Taney majority into a logical corner from which it has never emerged’ (‘Guardian of the constitution: the counter example of Dred Scott’ (speech), 1 June 2009).

But, as Stuart Streichler demonstrates in this thorough, informative, and insightful study of Curtis's role in the constitutional debates of the Civil War era, there was much more to Curtis than his dissent in Dred Scott. In fact, placing the Dred Scott dissent as the centerpiece of Curtis's historical legacy is potentially misleading. Curtis was hardly a judicial counterpart to the Radical Republicans or even the more moderate Lincoln. He was certainly no abolitionist. Prior to his joining the Court, the anti-slavery element in his home state of Massachusetts vilified Curtis for his constitutional defence of the Fugitive Slave Law and his insistence that the Massachusetts courts had a responsibility to return escaped slaves to bondage. While Curtis acknowledged that slavery implicated an important moral issue, he argued ‘the moral duty we owe to our country and its laws’ was more important than the moral duty owed to slaves (p. 45). There was no shortage of irony in Curtis, whom abolitionists denounced as an apologist for the southern slave power, drafting one of the central documents for the antislavery movement.

Not only does his Dred Scott dissent risk painting Curtis as some sort of abolitionist when this was far from the case, it also tends to divert attention from Curtis's important role in the other major constitutional debates of his time. Streichler's book is particularly illuminating in capturing the wide range of Curtis's influence on constitutional issues, both on and off the bench. Curtis wrote the Court's opinion in Cooley v. Board of Wardens, the 1851 case that sought to carve out a workable middle ground in the debate over whether the power to regulate interstate commerce was held exclusively by the federal government or whether states had concurrent power in this area. Curtis attempted to resolve the doctrinal impasse by shifting the focus from an abstract evaluation of the commerce power to an inquiry into the nature of the particular regulation at issue. His approach provided the central guidelines for development of dormant commerce clause doctrine into the twentieth century.

Curtis left the Supreme Court soon after Dred Scott – motivated by both financial concerns and frustration with the Court – but he remained an influential voice on the major constitutional controversies of the day. He quickly reverted to his role as a thorn in the side of abolitionists and Radical Republicans. He was a vocal and influential critic of Lincoln's use of executive power during the Civil War, including the Emancipation Proclamation. After the war, he supported President Andrew Johnson's stand against Republican plans for Reconstruction and, in 1868, he defended Johnson in his impeachment trial in the Senate. Some at the time attributed Johnson's acquittal to Curtis's powerful opening statement.

Although the focus of Streichler's book is relatively narrow, limited to an evaluation of Curtis's role in the constitutional controversies between 1850 and 1868, the combination of Curtis's wide-ranging interests and Streichler's thorough explication of the background of numerous areas of constitutional law results in a book that covers a great deal of ground. Justice Curtis in the Civil War era is more constitutional history than biography. Most of the chapters centre around a constitutional dispute – fugitive slaves, federal–state conflict, due process, Dred Scott, presidential war powers, impeachment – and in places Curtis disappears as Streichler provides the relevant historical and legal background. This approach can make for a diffuse read, favouring comprehensiveness over narrative flow.

Yet Streichler makes an effort, largely effective, to bring a thematic unity to his book by emphasizing Curtis's distinctive judicial philosophy. Curtis was a legal minimalist, an adherent to the idea, most commonly associated with Edmund Burke, that sudden shifts in policy are generally detrimental to society, that gradual evolution is the path to progress, and that tradition must be given due deference. Streichler identifies Curtis's ‘disdain for idealism and preference for experience’ as characteristic of Massachusetts Whigs. The rule of law, Curtis believed, was an essential barrier to the lawless attitude that was on the rise in antebellum America. He advocated a common-law style of constitutional interpretation. His was a vision of a living Constitution whose growth was carefully cultivated by judges respectful of tradition and precedent, as well as the changing needs of a developing society. It was based upon his commitment to these principles that he could defend the Fugitive Slave Act and condemn the Emancipation Proclamation while also rejecting the regressive originalism Taney relied upon in Dred Scott. One of Streichler's most insightful contributions is to explain how Curtis's consistent judicial vision could produce such a surprising array of constitutional positions.