Today in Supreme Court History

Today in Supreme Court History: March 6, 1857

|The Volokh Conspiracy |

3/6/1857: Dred Scott v. Sandford decided.

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  1. The Mount Everest of originalism.

    1. More like the birth of substantive due process, the theory of “due process” by which abortion (or slave ownership or anything else for that matter) can be transformed into a constitutional right. The Court might as well have said that the right to own slaves can be found in the “penumbras and emanations” of the Constitution.

      By saying, “Sorry, Congress and state legislatures, you have nothing to say on the topic. Slave ownership is a right!” an arrogant Court thought it had settled the issue, but, in fact, it made the Civil War inevitable.

      1. You should re-read the decision, it didn’t make owning slaves a constitutional right, it affirmed that black people (even free ones) could not be citizens

        The solution of course, rather than appointing “right minded” jurists to overturn the decision, was to congress to pass and state legislatures to ratify the 14th amendment to correct the oversight in the constitution

        1. Kevin, and if not for the Civil War, it’s doubtful the 14th Amendment would have been ratified. So what’s the originalist solution then; slaves just continue to be slaves?

          1. Again the decision had nothing to do with slaves (nor does the 14th amendment) Please try to keep up

            1. Right, and World War II was all about Poland.

              1. No, literally while the ruling was motivated by Taney’s desire to protect slavery, the key point of the ruling was to deny that blacks, not slaves, had any constitutional rights, or ever could. The ruling was as applicable to free blacks as it was enslaved ones.

                1. It was a gratuitous point not necessary to the decision, but that’s a separate question from whether he got the answer to that gratuitous point right under an originalist interpretation. Had the question “Do Blacks have rights under the federal Constitution” properly been before the court, the originalist answer would have been no. Even if some states did make them citizens.

                  1. I fail to see how originalism would arrive at this decision when the constitution literally makes no distinction between blacks and whites.

                    It does make a distinction between free persons and slaves (which I assume is why you want to pretend the scope of the decision only encompassed slavery) but to extend that distinction to free blacks requires a “living, breathing constitution” interpretation

                    1. It probably depends on whether the original public meaning of “people” or “persons” only meant white people or persons.

                    2. Right, that’s my point. Taney was actually engaged in living constitutionalism, NOT originalism.

                    3. As to the original public meaning of “persons” and whether blacks qualified, there IS the 3/5″ compromise:

                      “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

                      Indeed, if blacks had been held not to be “persons”, they would have counted for zero in terms of apportionment, just as sheep and cattle did.

                    4. Because since there is nowhere in the Constitution in which the words “Blacks are/are not eligible for federal citizenship” occur in that order, originalism requires that we try to determine what the framers would have intended. (Since we’re not clairvoyant, that alone should disqualify originalism from serious consideration, but I digress.)

                      And since my guess as to what they would have intended is as good as yours, I’m going to go out on a limb here and suggest that the framers believed that they — meaning white Europeans — were establishing a Constitution “for ourselves and our posterity.” See Preamble. The idea of black equality would have been completely foreign to most of them, especially given that the Southern ones mostly were slaveholders, and their slaves were mostly if not entirely black.

                      If you have some evidence that they were more egalitarian than I think they were, I’ll be happy to look at it.

                    5. I linked above to an article on the legal status of free blacks in the founding era. In the North, at least, they were sometimes accorded the same rights as whites. Even in the South they were permitted to own property, and there were a few plantations owned by free blacks. They were certainly not treated, as Taney held it, as having “no rights which the white man was bound to respect.” He pulled that out of his ass.

                      I think the founders were open to an egalitarianism of rights, while they had no belief in an egalitarianism of capacities.

                    6. “Because since there is nowhere in the Constitution in which the words “Blacks are/are not eligible for federal citizenship” occur in that order, originalism requires that we try to determine what the framers would have intended.”

                      No it doesn’t. It doesn’t require that at all. It requires us to determine what the text of the Constitution meant to the people that ratified it including, in some states, free black men. And if that doesn’t answer the question then you are free to resort to other methods of answering it.

                      “If you have some evidence that they were more egalitarian than I think they were, I’ll be happy to look at it.”

                      There is evidence that one of the reasons they were willing to punt on the slavery question was because it appeared to be on the way out as an economic institution, only to be revitalized by the cotton gin.

                  2. “Had the question “Do Blacks have rights under the federal Constitution” properly been before the court, the originalist answer would have been no.”

                    Bullshit. There is absolutely nothing in the text of the Constitution that allows for the conclusion that blacks didn’t have any rights under the Constitution. Even if you think that the Constitution recognizes and protects slavery as an institution, that’s a far cry from saying that no blacks have any rights under the Constitution. There’s nothing paradoxical about one brother being a slave and the other a free man.

                    1. “The law, in its majestic equality, forbids both rich and poor to steal bread, sleep under bridges, or beg in the street.” Anatole France.

                      You are technically correct that the words “Blacks have no rights under the Constitution” do not appear in the Constitution. But only a massive dose of willful blindness to the reality of the times could overlook that that was the basic assumption. Taney was dead on accurate about what the framers most likely believed.

                    2. “You are technically correct that the words “Blacks have no rights under the Constitution” do not appear in the Constitution.”

                      You really don’t seem to understand what originalism entails.

                      ” But only a massive dose of willful blindness to the reality of the times could overlook that that was the basic assumption.”

                      Bullshit. There is absolutely nothing in the text of the Constitution that allows for the conclusion that blacks didn’t have any rights under the Constitution.

                      “Taney was dead on accurate about what the framers most likely believed.”

                      Doubt it. The founding generation was well versed in Roman history, where a citizen could become a slave and a slave a citizen.

                      But who cares? Even if you argue that the Constitution should be interpreted as recognizing the right of a state to create the institution of slavery, and even if you argue that slavery was limited to blacks, there’s still no hook for you to go beyond that and say that slavery means that no blacks have any rights.

              2. You have that backwards, WWII was not all about Poland and this decision was not all about slavery

                1. My Poland comment was rhetorical. Dred Scott *was* all about slavery (at least as a practical matter, even if that wasn’t strictly speaking the question before the court), and World War II wasn’t all about Poland.

                2. You’re backtracking a bit from having “nothing to do with slavery” to “not all about” slavery.

                  1. Well in the context of the metaphor I can’t really say WWII had nothing to do with Poland, could I?

                    1. Right. Just like you can’t say slavery had nothing to do with Dred Scott.

                  2. I’m using the rhetorical device of understatement. Am I the only person here who gets the concept of rhetorical devices?

                    1. We get it. You’re just not good at it. Maybe you should try simply saying what you mean. No sarcasm. No rhetorical devices. Just plain speech. See if that works better.

                    2. I get it. Some people like to pretend to be dense and not understand rhetorical devices so they can change the subject and not respond to the underlying point.

                    3. I will concede that some people are intentionally dense. You should also consider, however, that we don’t have a sarcasm font and that when people say that you’re being unclear, at least some of them are doing so in good faith. In other words, what sounds like golden prose in your head probably isn’t to the rest of us. So unless you enjoy the kind of bickering that’s in this thread, I suggest in all seriousness that you consider toning down the “rhetorical devices” and write plainly.

          2. The originalist solution was to prevent slavery from being extended beyond the slave states, and then declare that slaves, just as anybody else born in the country, were citizens, possessing the full range of civil rights.

            Slavery would have been untenable if the slaves were citizens with their civil liberties respected, and Taney was quite clear that this exactly was his reason for denying that blacks could be citizens:

            ” It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”

            1. Brett, the point you’re ignoring is that unless and until slavery were abolished legislatively (by which I include amending the Constitution), some people would continue to be slaves. What is the remedy for those individuals? Just continue to be slaves until that bright day finally dawns at some point in the future?

              1. Look, the point of originalism is that the job of judges is to uphold the Constitution we actually have, instead of some imaginary Constitution the judge might prefer we had.

                Certainly, some of those imaginary Constitutions that never got written and ratified might be better than the one we actually have. Many of them will be worse. It’s impossible to craft a system where judges can impose the ones that are better, without ending up with a system where they can also impose the ones that are worse.

                Why do you imagine it’s the job of judges to do what legislatures won’t? The judge who can do good things legislatures won’t, can do bad things legislatures won’t. Don’t embrace dictatorship, even by judges, just because it’s possible for it to be better than democracy. “Possible” isn’t the same thing as “remotely likely”.

                You think originalism would have made the Dred Scott decision less than ideal? Living constitutionalism on the part of Taney made it much, much less ideal than originalism would have been.

                ” What is the remedy for those individuals? Just continue to be slaves until that bright day finally dawns at some point in the future?”

                Keep going North, to Canada.

                1. Brett, that’s precisely the rationale for why fewer and fewer people care about originalism. If it produces the result that some people will have to spend their lives as slaves (or that a bloody civil war will be needed to end slavery), it can go straight to hell. I think that looking at results is a legitimate rationale for deciding which method to use. I’m not interested in a methodology that makes slaves of some people.

                  1. But it wouldn’t have produced the same result as Taney. It would have produced a less than perfect result, but the absence of originalism on Taney’s part freed him to be much, much worse.

                    There’s no judicial doctrine of interpretation, in that era, that would have produced a better outcome than originalism. Free the judges to violate originalist principles, and you get Dred Scott. GOT Dred Scott.

                    You don’t seem to understand this: Free judges to rule as they like, and you can imagine perfection all you like, but Taney is who you’d have freed, not Ruth Bader Ginsberg.

                    1. Originalism still frees judges to rule as they like. It just depends on how they read what they believe to be the historical record to support their conclusion.

                    2. Only in the sense that accounting rules “free” accountants to embezzle, because they are capable of lying about following them.

                      No matter how little you claim originalism constrains judges in practice, it’s going to constrain them more than explicitly authorizing them to pull rulings out of their rear ends.

                    3. I don’t think that’s true. It gives them license to ignore precedent and to cherry-pick history to reach desired results. Originalists today scoff at the constraints that living constitutionalists believe exist: precedent, current public meaning, constitutional structure, pragmatic effect, etc. I don’t see how Thomas is more constrained than other judges considering these issues (often in addition to historical or original approaches) when his decision can simply turn on what he thought of the most recent Randy Barnett article.

                    4. “Originalists today scoff at the constraints that living constitutionalists believe exist: precedent, current public meaning, constitutional structure, pragmatic effect, etc.”

                      What is your theory of living constitutionalism and how do those apply?

                    5. Well as I understand the idea of living constitutionalism is that the words in the constitution, often speaking in quite general terms, could or should be interpreted in light of their current prevailing understanding or their application to modernity. Take the Eighth Amendment. Many originalist scholars and judges believe it does not contain a proportionality principle. But modern understandings of what it means to be cruel and unusual would probably prevent imposing a sentence of life without parole for stealing a loaf of bread. The living constitutionalist judges are constrained by current prevailing understandings of what it means to be cruel and precedent imposing a proportionality principle. By contrast the originalist may be less constrained because they can adopt an “anything goes as long as it was okay in the eighteenth century” approach.

                    6. “Well as I understand the idea of living constitutionalism is that the words in the constitution, often speaking in quite general terms, could or should be interpreted in light of their current prevailing understanding or their application to modernity.”

                      That doesn’t seem like much of a methodology.

                      “Take the Eighth Amendment. Many originalist scholars and judges believe it does not contain a proportionality principle.”

                      Show me one. And if you can pull that off, show me that’s the prevailing interpretation among originalists. Because I certainly don’t think that’s the case.

                      “But modern understandings of what it means to be cruel and unusual would probably prevent imposing a sentence of life without parole for stealing a loaf of bread.”

                      “The living constitutionalist judges are constrained by current prevailing understandings of what it means to be cruel and”

                      Where do these prevailing understandings come from? Do you really want our rights determined by the whims of the masses? Will the First Amendment have to accept a “hate speech” limitation in a couple of years?

                      “precedent imposing a proportionality principle.”

                      What happens when the prevailing understandings and precedents conflict?

                      “By contrast the originalist may be less constrained because they can adopt an “anything goes as long as it was okay in the eighteenth century” approach.”

                      Or they may be more constrained. Liberal icon Oliver Wendell Holmes and his fellow living constitutionalists approved of the forced sterilization of a rape victim for the public interest. Do you really think they would have objected to the forced sterilization of criminals as well?

                      Or let’s look at Brown v. Board of Education, one the favorite cases people use to challenge originalism. Under your explanation of living constitutionalism, it’s hard to see where the Court was justified in striking down segregated schools. Precedent said that separate but equal was okay. It’s possible that more than 50% of the population at the time believed that segregated schools were unconstitutional, but I’m skeptical. Why was the Court justified in striking down segregated schools?

                    7. Well, the lack of proportionality principle was Scalia’s position in Harmelin v. Michigan, 501 U.S. 957 (1991).

                    8. LawTalkingGuy, I think you’re accurately describing what living constitutionalism purports to be. I don’t believe for a second you’re describing how it works in practice.

                      The relevant “current prevailing understandings” are only those of the judges and people they’re sympathetic to, and there’s no formal constraint to keep the judge from just pretending prevailing opinion has changed. When have you ever seen a living constitutionalist ruling from a judge who personally disliked the outcome? It doesn’t happen, the law only “evolves” in directions the judges evolving it want it to.

                    9. “Well, the lack of proportionality principle was Scalia’s position in Harmelin v. Michigan, 501 U.S. 957 (1991).”

                      I stand corrected.

                  2. “that’s precisely the rationale for why fewer and fewer people care about originalism.”

                    You have it backwards. More and more people care about originalism.

                    “If it produces the result that some people will have to spend their lives as slaves (or that a bloody civil war will be needed to end slavery), it can go straight to hell. I think that looking at results is a legitimate rationale for deciding which method to use. I’m not interested in a methodology that makes slaves of some people.”

                    What methodology do you propose? How would it have prevented Dredd Scott? How would it avoid judges ever making bad decisions?

                    1. I doubt that anything will avoid judges “ever” making bad decisions, but pound for pound the living constitution decisions have probably produced far less human misery than the originalist ones. For starters, most really bad legislation is done at the state level, and under originalism there aren’t all that many constraints on how badly the states can treat people. Including, according to Brett, have slavery as a legal institution, at least up until the 14th Amendment was ratified.

                      Here’s what I would propose: As any first year contract law student should remember from Lucy v. Zehmer, what the document says carries far more weight than what the framers of the document meant. So on a lot of issues, I’m fine with keeping the language of the Constitution as it is; I’m just willing to give those words a meaning more in accordance with 21st century values. And I trust most judges to have a better sense of 21st century values than I would James Madison. Nothing against Madison; he just had different values than we do.

                      So, for example, the framers did not understand the 8th Amendment ban on cruel and unusual punishment to forbid public floggings, but I would. The authors of the 14th Amendment probably didn’t intend for it to protect women and certainly didn’t intend for it to protect gays, but I would. Equal protection means just exactly that. It’s not necessary to re-write those constitutional provisions; merely to ask what we in the 21st century understand them to mean.

                    2. Krychek_2,

                      A 21st century reference point for constitutional text might be important for the document’s overall legitimacy. If judges routinely come up with interpretations at odds with what people today think the Constitution means based on their interpretation of historical sources that most people would not have access to, then the document could become essentially meaningless to most people.

                    3. “I doubt that anything will avoid judges “ever” making bad decisions, but pound for pound the living constitution decisions have probably produced far less human misery than the originalist ones.”

                      This is what you call a completely unsupported statement.

                      “For starters, most really bad legislation is done at the state level, and under originalism there aren’t all that many constraints on how badly the states can treat people. Including, according to Brett, have slavery as a legal institution, at least up until the 14th Amendment was ratified.”

                      For fucks sake people, the Thirteenth Amendment abolished slavery, not the Fourteenth. And I’m not aware of any “theory” of living constitutionalism that makes it any easier for the federal government to place constraints on states. Not even the most brazen fans of living constitutionalism have suggested that it gives them a free floating right to invalidate state laws, at least not that I’m aware of.

                      “Here’s what I would propose: As any first year contract law student should remember from Lucy v. Zehmer, what the document says carries far more weight than what the framers of the document meant.”

                      Lucy v. Zehmer is not about the interpretation of a contract but the circumstances of its formation.

                      “So, for example, the framers did not understand the 8th Amendment ban on cruel and unusual punishment to forbid public floggings, but I would.”

                      What if I wouldn’t? How does that help us decide whether or not lethal injections or solitary confinement are cruel and unusual punishments?

                      “The authors of the 14th Amendment probably didn’t intend for it to protect women and certainly didn’t intend for it to protect gays, but I would. Equal protection means just exactly that. It’s not necessary to re-write those constitutional provisions; merely to ask what we in the 21st century understand them to mean.”

                      You still haven’t proposed a methodology. Who determines what we in the 21st Century understand them to mean? Should we just do away with the courts and use public polling instead? Was Loving v. Virginia wrong if the majority of Americans were against interracial marriage at the time? What about Obergefell (support for gay marriage was hovering at right about 50% at the time of the decision)? Was it correct if it was decided on a day when 50.1% were in favor, and incorrect if it was decided on a day when only 49.9% were in favor? Or do the people not matter, only the opinions of their betters?

                      Apply your methodology, such as it is, to Dred Scott. At the time it was decided, can you really say it was incorrect?

                    4. You’re right; my use of the word “probably” indicates that it is an unsupported statement, but it’s one that is probably true. If you disagree, I’d be interested to hear why. And the text of either the Thirteenth or Fourteenth Amendment would support the abolition of slavery (hard to reconcile slavery with equal protection), but if being pedantic is what you do, then being pedantic is what you do.

                      I did not say courts should have a free floating right to invalidate state laws; they need to find something in the Constitution to pin it on. I just don’t think that something needs to be explicit. That sodomy laws, for example, aren’t mentioned in the Constitution doesn’t mean there isn’t an underlying principle to invalidate them. (And Lucy v. Zehmer absolutely is about the interpretation of a contract; one of the parties was arguing that what was said wasn’t really what was meant.)

                      Here’s the methodology: Begin with the fact that liberty is a fundamental right, so laws against, i.e., abortion and inter-racial marriage, are greeted with skepticism. That’s not enough to overturn them, but it does abolish the presumption of constitutionality and places both the Lovings and the State of Virginia on a level playing field.

                      You then look at not just where society is, but the direction in which it is moving. There may or may not have been majority support for gay marriage when Obergefell was decided, but the trend was there, which is part of the reason opponents of gay marriage were putting it in state constitutions: to make it harder to legalize once the trend had solidified.

                      You also look at the reason for the law. If the law was passed because the majority, or their elected representatives, don’t like someone, that’s probably not a good enough reason. Probably 90% of the opposition to both gay marriage and inter-racial marriage was pure and simple prejudice against gays and blacks. If you’re going to disadvantage someone, it has to be for a better reason than you just don’t like them.

                      You also look at what is happening in other Western democracies. That’s persuasive precedent rather than binding precedent, but it counts for something.

                      There are other factors too. Those are just a start and not exhaustive.

                      How would Dred Scott have been decided under my methodology? I absolutely agree with Brett that it should have been a far narrower decision than it was; I’d have limited it to the question of whether a slave becomes a free man when he crosses a state line. And based on the factors I’ve listed above, I probably would have held that the answer is yes.

                    5. “You’re right; my use of the word “probably” indicates that it is an unsupported statement, but it’s one that is probably true. If you disagree, I’d be interested to hear why.”

                      I don’t agree or disagree, I just find the statement meaningless.

                      “And the text of either the Thirteenth or Fourteenth Amendment would support the abolition of slavery (hard to reconcile slavery with equal protection),”

                      Well no, because the Thirteenth Amendment already outlawed slavery and applies to private conduct, while the Fourteenth Amendment is limited to state governments.

                      “but if being pedantic is what you do, then being pedantic is what you do.”

                      Pointing out that a mistake that has been repeatedly made is a mistake is hardly being pedantic.

                      “I did not say courts should have a free floating right to invalidate state laws; they need to find something in the Constitution to pin it on. I just don’t think that something needs to be explicit. That sodomy laws, for example, aren’t mentioned in the Constitution doesn’t mean there isn’t an underlying principle to invalidate them.”

                      This isn’t any different than originalism.

                      “(And Lucy v. Zehmer absolutely is about the interpretation of a contract; one of the parties was arguing that what was said wasn’t really what was meant.)”

                      One of the parties argued that he was drunk, they were joking around, and he didn’t really mean to enter into a contract to sell his property.

                      “Here’s the methodology: Begin with the fact that liberty is a fundamental right, so laws against, i.e., abortion and inter-racial marriage, are greeted with skepticism. That’s not enough to overturn them, but it does abolish the presumption of constitutionality and places both the Lovings and the State of Virginia on a level playing field.”

                      So you support the originalist position that laws are not entitled to a presumption of constitutionality. I like it so far.

                      “You then look at not just where society is, but the direction in which it is moving. There may or may not have been majority support for gay marriage when Obergefell was decided, but the trend was there, which is part of the reason opponents of gay marriage were putting it in state constitutions: to make it harder to legalize once the trend had solidified.”

                      Now you are losing me. What if society is moving in the wrong direction, or has already gotten there? Trends on free speech are decidedly unfavorable, but I don’t think judges should throw in the towel and go along for the ride.

                      “You also look at the reason for the law. If the law was passed because the majority, or their elected representatives, don’t like someone, that’s probably not a good enough reason. Probably 90% of the opposition to both gay marriage and inter-racial marriage was pure and simple prejudice against gays and blacks. If you’re going to disadvantage someone, it has to be for a better reason than you just don’t like them.”

                      Okay. What other reasons are unacceptable? If the reason is acceptable, but it’s a restriction on liberty, does the law stand or fall?

                      “How would Dred Scott have been decided under my methodology? I absolutely agree with Brett that it should have been a far narrower decision than it was; I’d have limited it to the question of whether a slave becomes a free man when he crosses a state line. And based on the factors I’ve listed above, I probably would have held that the answer is yes.”

                      If you answer that question as yes, you couldn’t limit it to that. You would have to answer the further question of whether a freed slave could access the courts.

                    6. jph12, if devoting the first six paragraphs of your response to tangential issues isn’t being pedantic, I don’t know what is. And no, it’s not pointing out mistakes; it’s an honest difference of opinion between us on the meaning of Lucy v Zehmer and the relevance of the 14th Amendment to slavery. Since I try not to be pedantic, however, I will leave those issues behind and return to the main issue of originalism vs. living constitutionalism.

                      There may be some originalists who hold that laws are not entitled to a presumption of constitutionality, but that is not the originalist position. The originalist position is that the states may do as they please absent a constitutional prohibition. Since there’s nothing in the Constitution that specifically mentions abortion, or gay rights, those matters are up to the states. Which is why living constitutionalism has *probably* produced less human misery; the states have far less leeway to make life miserable for their non-conforming citizens. If you have citations that show otherwise I’ll be glad to look at them, but that has been the position taken by every originalist I’ve ever talked to. It’s also Anthony Kennedy’s understanding of originalism; I know this because he was my constitutional law professor at McGeorge Law School shortly before his appointment to the Supreme Court.

                      What if society is moving in the wrong direction? That’s occasionally going to happen, but I still find it preferable to wrongful policies being cast in constitutional concrete that we are stuck with indefinitely. And think about that for a minute: Even under the most reverential treatment of the framers, they were fallible men who didn’t get everything right, and they also left us with a Constitution that is extremely difficult to amend. So their mistakes we are going to be stuck with, maybe forever. Isn’t it preferable to live with the bad turns society occasionally takes, knowing that eventually it will probably pass?

                      If a law has an acceptable rationale but restricts liberty you look case by case at whether the law’s benefits outweigh the infringement on liberty. Every law infringes liberty; the question is whether the infringement is worth it for whatever compensatory benefit the law provides. One of the reasons for Obergefell is that restricting marriage to heterosexual couples really didn’t provide any social benefits — once the rationale for the law was examined it pretty much fell apart — while at the same time causing severe harm to gay couples. On the other hand, laws against murder restrict the liberty of would-be murderers but there are significant social benefits to criminalizing murder, so that law stands.

                      And no, I would not have had to answer the question of whether a freed slave had access to the courts. The fact that there was a property dispute within the territorial jurisdiction of the court gave the court jurisdiction to resolve the property dispute. Non-citizens have access to the courts if it otherwise has jurisdiction. I have a case right now in which an English subject is suing a Canadian corporation in Florida state court over a real estate transaction that went south. Neither party is a citizen, but because the property is here, this is where the litigation is taking place.

                      So even under Taney’s gratuitous analysis of black citizenship, the court should still have reached the merits of whether the party now claiming to be an ex-slave was in fact the chattel property of his master. Which makes Taney’s decision all the more loathesome.

                    7. If it makes you feel better, you can pretend that the Thirteenth Amendment didn’t outlaw slavery.

                      “There may be some originalists who hold that laws are not entitled to a presumption of constitutionality, but that is not the originalist position.”

                      Sure it is. Originalists aren’t the ones that came up with the hypothetical rational basis test.

                      “The originalist position is that the states may do as they please absent a constitutional prohibition.”

                      That’s also the living constitutionalist position. Which you’ve admitted. “I did not say courts should have a free floating right to invalidate state laws; they need to find something in the Constitution to pin it on.” So I have no idea why you are pretending this is just an originalist position.

                      And this is a separate question from whether laws deserve a presumption of constitutionality.

                      “Since there’s nothing in the Constitution that specifically mentions abortion, or gay rights, those matters are up to the states.”

                      Subject to the restrictions of the Constitution. Again, that’s both sides.

                      “Which is why living constitutionalism has *probably* produced less human misery; the states have far less leeway to make life miserable for their non-conforming citizens.”

                      You haven’t provided anything that provides any kind of limit on state power to make the lives of anyone miserable, except for the whim of the judge who happens to hear the case. And given that it was living constitutionalist judges that gave us separate but equal and Jim Crow, I’d like to see your math.

                      “If you have citations that show otherwise I’ll be glad to look at them, but that has been the position taken by every originalist I’ve ever talked to. It’s also Anthony Kennedy’s understanding of originalism; I know this because he was my constitutional law professor at McGeorge Law School shortly before his appointment to the Supreme Court.”

                      How very special for you.

                      “And think about that for a minute: Even under the most reverential treatment of the framers, they were fallible men who didn’t get everything right, and they also left us with a Constitution that is extremely difficult to amend. So their mistakes we are going to be stuck with, maybe forever.”

                      Which mistakes are we stuck with?

                      “Isn’t it preferable to live with the bad turns society occasionally takes,”

                      No.

                      “knowing that eventually it will probably pass?”

                      Well that’s just super for everyone who is affected in the meantime. And once courts start going along with the wrong turn, I’m not nearly as hopeful as you.

                      “If a law has an acceptable rationale but restricts liberty you look case by case at whether the law’s benefits outweigh the infringement on liberty.”

                      How does a judge figure out the costs or benefits of the law before its goes into effect? Sure, if you want to steal a retired woman’s seaside cottage, the City can come up with a bullshit study about how much money they’ll be able to make by giving her house to a drug company, and living constitutionalist judges will go right along with them, but what if there aren’t any dollars on either side, or just on one side?

                      “Every law infringes liberty; the question is whether the infringement is worth it for whatever compensatory benefit the law provides.”

                      If the legislature passed a law, haven’t they already decided that the benefits outweigh the costs? Why does a judge get to decide otherwise? What makes a judge better equipped to conduct the cost-benefit analysis?

                      “One of the reasons for Obergefell is that restricting marriage to heterosexual couples really didn’t provide any social benefits — once the rationale for the law was examined it pretty much fell apart — while at the same time causing severe harm to gay couples.”

                      I’m right there with you, as long as you are willing to say that all morals legislation is illegitimate. Now that will get rid of a whole lot of laws, but I’m good with that.

                      “The fact that there was a property dispute within the territorial jurisdiction of the court gave the court jurisdiction to resolve the property dispute. Non-citizens have access to the courts if it otherwise has jurisdiction.”

                      Federal courts don’t have the power to resolve all property disputes within their jurisdiction. It wasn’t a federal question, so the federal courts would have to rely on diversity jurisdiction. Where’s your diversity if Scott isn’t a citizen of the United States, and of a particular state as well? He wasn’t a citizen or subject of a foreign power.

                      “I have a case right now in which an English subject is suing a Canadian corporation in Florida state court over a real estate transaction that went south. Neither party is a citizen, but because the property is here, this is where the litigation is taking place.”

                      State courts are courts of general jurisdiction. Federal courts are courts of limited jurisdiction.

                    8. When I read your claim that I didn’t think the Thirteenth Amendment abolished slavery, my initial response was to draft a testy reply that since you’re not even bothering to honestly interact with what I said, I’m moving on to other things. It then occurred to me that you inadvertently underscored the issue as between originalists and constitutionalists, and not in a way that flatters originalists.

                      If there are two legislative provisions — call them 13 and 14 — and either one of them independently produces the result of abolishing slavery — which they do, 13 explicitly and 14 because the state violates equal protection if it allows one person to own another — it is not incorrect to point to either of them as forbidding slavery. In fact, since 14 does the more thorough job by adding an extra layer of protection to 13, it might even be preferable to cite to 14. It’s a logical fallacy to say that if 14 forbids slavery, then 13 doesn’t. And even if you wouldn’t have analyzed it that way, my analysis is hardly erroneous.

                      But no, from your originalist position, there are two kinds of analysis: Yours, and people who are wrong. The idea that different people might read the same text and reach different conclusions about what it means simply is outside your realm of comprehension. If I don’t see it the same way you do, I’m either lying or stupid.

                      So, thank you for underscoring that issue, and I’m now going on to other things.

                    9. “It’s a logical fallacy to say that if 14 forbids slavery, then 13 doesn’t.”

                      Only an idiot would argue that the Thirteenth Amendment doesn’t forbid slavery because you might be able to twist an amendment that was passed three years later into doing the same thing.

                      “And even if you wouldn’t have analyzed it that way, my analysis is hardly erroneous.”

                      No, it’s erroneous. And it’s indicative of your entire philosophy where words don’t matter, only feelings.

                      “The idea that different people might read the same text and reach different conclusions about what it means simply is outside your realm of comprehension.”

                      No it isn’t. And I’m not the one whose entire judicial philosophy is just to let judges do whatever the hell they feel like because I think most of the time they’ll agree with people like me.

                      “If I don’t see it the same way you do, I’m either lying or stupid.”

                      Or forgetful. Or careless. Or any number of things. You weren’t even the first person to make the mistake. You were just the one to keep doubling down on it.

                    10. Actually, the 13th amendment doesn’t completely forbid slavery. It limits slavery to being a penalty for criminal convictions. “except as a punishment for crime whereof the party shall have been duly convicted”

            2. That “originalist” understanding doesn’t really work with the Fugitive Slave Clause of Constitution which contemplated a system where slavery extended beyond the slave states in the sense that slaves were to be returned to their master in the state from which they fled.

      2. F.D., this is satire, right? Slave ownership is specifically mentioned in the Constitution; I don’t have it in front of me but it’s the clause that says slaves may continue to be imported until 1808 and counted as 3/5 of a person for census purposes. No need to go looking for penumbras when it’s right there in plain English.

        This was originalism at its worst.

        1. No, it wasn’t. Because, while slave ownership was specifically mentioned in the Constitution, nothing in the Constitution links slavery to race. That’s the part that Taney just pulled out of his ass.

          Had he ruled that “slaves” couldn’t be citizens, he might have had a legitimate legal point. But there was no legal basis for saying that free blacks could not be citizens.

          1. I was always under the impression that the ruling was equivalent to saying that dogs couldn’t be citizens; it specifically took the “scientific” attitude that blacks were not human.

            1. Pretty much. And in that regard was legally untenable from an originalist standpoint, because you could point to free blacks in the founding era being accorded full rights, and because nothing whatsoever in the Constitution gave even the slightest hint that this wasn’t at least permissible.

              But Taney wasn’t content to say they didn’t have to be given citizenship, he needed to deny that they COULD be given citizenship, and that had no basis at all beyond his fear that free black citizens would make maintaining slavery impossible.

              1. What made it interesting to me when I first heard it, aside from a snapshot into the pre-Darwin ideas of race and evolution, was wondering when the question would be revived for apes, monkees, dolphins, etc, wondering whether anybody would cite Dred Scott as precedent, and so on. There have been several recent lower court cases of PETA and others trying to get some animals defined as having civil rights.

                1. I think citing Dred Scott in a legal brief is much like referencing Hitler in an internet discussion.

                2. A famous paper on this question is called “Do Trees Have Standing.”

          2. I agree with you that it should have been a far more narrow decision than it was, although under an originalist interpretation the bottom line for Dred Scott probably would have been the same.

            But that wasn’t even the issue in Dred Scott. The issue was whether he had become free by virtue of crossing a state line.

            1. Right, I agree, under an originalist interpretation Scott specifically would not have won his freedom, simply crossing a state line wasn’t enough to accomplish that. The Constitution did indeed recognize slavery as a legal institution, and originalism can’t be better than the Constitution.

              But the Dred Scott decision was far worse than the Constitution, and originalism would have stood in the way of that.

              1. “under an originalist interpretation Scott specifically would not have won his freedom, simply crossing a state line wasn’t enough to accomplish that. The Constitution did indeed recognize slavery as a legal institution”

                Even if you argue that the Constitution does recognize slavery as a legal institution, the Constitution is completely silent on the question of what happens when a master voluntarily takes a slave into a free state.

                1. It’s also completely silent on what happens when you take your horse across state lines. Or your money. Or any property.

                  1. Neither money nor a horse is a person. To read the “slavery” clauses of the Constitution as protecting the right for states to create the institution of slavery, you have to recognize that slaves are persons. Why should a state that outlaws slavery be forced to recognize the laws of a state that legalized it? States are co-equal.

                    Slave owners were well-aware that their slaves became free people when they took them to countries that outlawed slavery. Thomas Jefferson had to convince Sally Hemmings to come back to Virginia with him. She had every right to stay in Paris, and he couldn’t have done anything to stop her. Why would it be any different with a free state?

                    If anything, the Fugitive Slave Clause supports the position that states could make slaves enter the state with the permission of their master free. It recognizes that states have the power to set slaves free, then prohibits them from doing so only for fugitive slaves. Dred Scott was not a fugitive slave.

                    1. This is reasoning on a par with claiming that, because the 5th amendment says, “nor shall private property be taken for public use, without just compensation”, that it implicitly says it’s OK for the government to take private property and just hand it to somebody for PRIVATE uses without compensation. Or arguing that while the 4t amendment states the requirements for issuing a warrant, it doesn’t technically say that you have to bother getting one.

                    2. “This is reasoning on a par with claiming that, because the 5th amendment says, “nor shall private property be taken for public use, without just compensation”, that it implicitly says it’s OK for the government to take private property and just hand it to somebody for PRIVATE uses without compensation.”

                      No it isn’t. Nothing in the Constitution recognizes the power of the federal government to take private property and give it to someone else for private use. Any law that attempted to do that would have been a due process violation, at least until the expansion of the government’s powers under the Fifth and Fourteenth Amendments.

                      “Or arguing that while the 4t amendment states the requirements for issuing a warrant, it doesn’t technically say that you have to bother getting one.”

                      So, you mean, accurate? That’s an odd criticism. The Fourth Amendment merely protects against unreasonable searches and seizure and establishes the requirements for issuing a warrant. There is no plausible argument that it requires a warrant for a search or seizure, especially not on originalist grounds.

              2. But if you concede that under an originalist interpretation he wouldn’t have won either, then living constitutionalism is hardly to be blamed for the result.

                1. Not when, as it’s been repeatedly pointed out but you don’t seem to understand, that Taney used the same living constitutionalism approach of finding the desired policy end result and backwashing the legal reasoning (unsupported by constitutional text) to make his decision.

                  1. But that’s not what Taney did. What Taney did was to answer a question that was not properly before the Court. Originalism is about how you answer questions, not what the question is. Had he used an originalist approach to answer the question that was actually before the court, the bottom line result would have been the same.

                    1. When Taney logical leaps unsupported by the text of the Constitution and apart from history (that there were free blacks with full political rights) in order to say that blacks were never meant to be citizens…that’s not originalism. It’s akin to living constitutionalism. Would Scott have been freed under an “originalist” decision? Likely not, as has been pointed out, but neither could you come to the conclusion in the decision that Congress had no right to prohibit slavery in the territories and that blacks couldn’t be citizens either.

                    2. Mad Kalak, there’s a distinction I don’t think you’re drawing. There were free blacks under state constitutions, but that’s a different question from whether they were equal under the federal constitution. That Massachusetts allowed blacks to vote in state elections does not answer the question of whether they are entitled to vote in federal elections. So I’m not sure his historical and textual leaps were as big as you do.

                    3. Mad_kalak,

                      If its a bad reading of history, how is that “living constitutionalism?” It’s just original intent interpretation gone awry. The same could have happened with an attempt at an original public meaning approach. Both methods depend on the judge’s ability to interpret history in one way or another. That analysis could be flawed, incomplete, idiosyncratic, or done in bad faith but with just enough heft to make it plausible. Taney likely could have reached the same result using original public meaning as his approach if he was so inclined.

                    4. Krychek, you’re also skipping over the part about how the decision said Congress couldn’t prohibit slavery in the territories. That was unmoored from the constitution, which says “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”. You can’t get there with orginalism.

                      Also, there were lots of citizens who couldn’t vote in 1857, they had two XX chromosomes, so that distinction you think matters doesn’t matter as much as you think it does. I said there were free blacks who were citizens, not just that they could vote. States always have the right to run elections how they saw fit, which is why you had women voting prior to the 19th Amendment.

                    5. LTG, Taney ruled the Missouri Compromise unconstitutional. He did this because he said the 5th amendment protection against seizure of property superseded the text that allows for regulation of the territories. That is impossible to get to with “original public meaning” unless you can show that the original intent and meaning of the 5th amendment included preventing the spread of slavery. But the very some people who wrote the Constitution ratified the 5th Amendment, and orginalist analysis would have pointed this out. In otherwords, Taney used a living constitutional approach to retroactively make the 5th amendment mean that it applied to slaves as property in the territories, a contrivance of his policy goal of trying to settle the slavery question as a win for the South.

                    6. Krycheck, I think you are confused in your examples (at 1:14 above). There were no federal elections at the Founding. There still are no federal elections. We participate in state elections, some of which include candidates for federal offices. But our eligibility to vote for those federal candidates is determined exclusively by the states.* If a free black in MA voted for DeWitt Clinton, there was neither any legal or practical way to filter out that vote. It counted just as much as the vote of a free white in MA.

                      * Yes, there are some federal guardrails such as no poll taxes. But states have have exclusive say and often reach very different conclusions about, for example, whether convicts may vote even today.

                2. Well, except that Taney went out of his way to issue a much worse decision than originalism would have permitted, and living constitutionalism can be blamed for THAT.

                  1. No it can’t. Not when originalism, answering the question actually before the court, would have arrived at the same result.

                    And by the way, I don’t agree it was living constitutionalism. I’m saying that even if it was, your conclusion doesn’t follow from your premise.

        2. “Slave ownership is specifically mentioned in the Constitution”

          No it isn’t.

          The Three-Fifths Compromise doesn’t mention slaves or slave ownership. “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

          The Migration and Importation Clause doesn’t mention slaves or slave ownership. “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

          Not even the so-called Fugitive Slave Clause actually mentions slaves or slave ownership. “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.”

      3. I think we can safely say that nobody in 1787 believed that life began at conception.

        1. It’s not wise to speak in absolutes.

          The Hippocratic Oath originally had doctor’s vowing not to practice euthanasia and induce abortions. “I will give no deadly medicine to anyone if asked, nor suggest any such counsel; furthermore, I will not give to a woman an instrument to produce abortion.” In the 1700s European medical schools used a translation. I am sure there are some classically trained docs from 1787 who thought life began at conception, as much as they understood the biology of things.

          Catholics, whom existed in 1787, believe(d) that as soon as Jesus was conceived in Mary, he was “alive”. The first-century church father Didache wrote that “You shall not kill an unborn child or murder a newborn infant.” Surely there were Christians who agreed with Didache in 1787.

          Expecting people in 1787 who didn’t understand the exact biology of things to say explicitly “life begins at conception” is like asking Newton, who understood gravity but not black holes, to comment on the gravitation effects of black holes.

          I think I have found a black swan to falsify your “all swans are white” statement.

          1. The 1787 general idea of when a fetus becomes a “life” with legal protections is about where most pro-choice people think it is now. It might not have been that different even among the (few) Catholics who participated in writing the Constitution.

    2. Pfft. Hardly. More like the first major example of living constitutionalism. (Even then, a Democratic party pastime!)

      Dred Scot’s conflation of “black” and “slave”, to claim that blacks were not, and never could be, citizens, runs into some serious originalism problems. Such as the fact that, in the founding era, many whites were slaves, and many blacks were free. (Yes, even in the South.) That there was even a history of blacks having voted in the North.


      The African American Odyssey: A Quest for Full Citizenship

      Taney was just flat out wrong from an originalist standpoint.

      1. Where are people getting this idea that Dred Scott was an example of “living constitutionalism?” Looking back at the decision, Taney was mostly trying to come up with an original intent rationale supported by his reading of history. This is different than the original public meaning approach favored by originalists today, but that doesn’t make it living constitutionalism. Those aren’t the only two theories of interpretation. Moreover, he says some things that seem to verge on original public meaning:

        “In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.” Scott v. Sandford, 60 U.S. (19 How.) 393, 407, 15 L.Ed. 691 (1857).

        Whatever this is, it isn’t “living constitutionalism.”

        1. “Looking back at the decision, Taney was mostly trying to come up with an original intent rationale supported by his reading of history. ”

          He was basically doing what Stephens was doing in his Heller dissent: Aping the forms of originalism, (Which wasn’t called that at the time, of course.) while actually substituting his own preference for what the Constitution ought to mean.

          1. In the discussion thread about the McGinnis article, you guys were claiming that originalism isn’t new, but how things were done before living constitutionalism reared its ugly head. Now in this thread CJ Taney is a living constitutionalist? So who was doing originalism originally? Marshall? Was Marbury an originalist decision? Did all the framers agree with that decision? Did it match all their understanding of original public meaning?

            What a load of horse shit.

            1. Neither living constitutionalism nor originalism were born in the 20th century. Pulling rulings out of your ass has been around as long as judges have been around. What was new in the 20th century was people claiming that it was a legitimate thing to do.

  2. The most evil Supreme Court decision. It nearly destroyed the country. Chief Justice Roger B. Taney thought he could resolve the slavery issue with a mere stroke of his pen. He could have decided the case on narrower grounds, but his ego would not allow it. He is one of the principle causes of the bloodbath that was the Civil War.

    1. It would still have been an evil decision, but perhaps not so cataclysmic, if it hadn’t invalidated the Missouri Compromise. The vast majority of people in the 1850’s would probably have agreed that blacks could not be full citizens, and probably didn’t care much what happened to Dred Scott.

  3. I agree that Dred Scott was the classic substantive Due Process clause. And the Supreme Court in fact held both that blacks are effectively not persons based on the justices’ personal view of biology and what they claimed was the universal view by which they were regarded, and that there is a constitutional right to own a slave. In doing both, they simply ignored the Constitution’s text.

    The long specter of Dredd Scott and its basic illegitimacy explains why the Roe Court was careful to found its discussion of the applicability of the word “person,” not on biology or on claimed universal views, but on a careful analysis of the Constitution’s text.

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