Prof. Finkelman cannot imagine SC ratifying if they believed blacks would be treated anywhere (including the federal courts under diversity jurisdiction) as citizens. But such evidence falls under the fourth of Blackstone's "signs," the "effects and consequences" (and it's a weak argument even on that score since the original Constitution doesn't breathe a word about race as such except for referring to Indians). If the words, the context, and the subject matter of the Constitution on the question of citizenship are all on the side of such citizenship's possibility, then southern howls about what for them would be unpleasant consequences are quite irrelevant to the question at hand. What is wrong with PF's analysis is exactly what was wrong with Taney's.
Ditto for PF's defense of Taney's reading of due process. One need not read the Fifth as an "abolitionist amendment" to conclude that its text, context, and subject matter offer no hope to those seeking a barrier against anti-slavery territorial legislation. (And, apropos of Mark Graber's comment, I doubt very much whether Lincoln ever said that a law forbidding the taking of "common farm animals" into the territories would be a violation of due process. He might have said such a law would be silly or even unjust, but that's another thing entirely.)
PF thinks that Lincoln's Cooper Union and other speeches were "fine political rhetoric" but not "serious historical analysis." He does not say what were the flaws in Lincoln's arguments. But I am content. He apparently thinks that in the Lincoln-Douglas debate, Douglas had the better of the argument about the principles of the American constitutional order.
On the Declaration of Independence, PF gives me two alternatives, given the fact that slaveowners embraced the document's principles: that they did not intend the document to refer to slaves, or that they were "dishonest, hypocritical, etc." Strike "dishonest" from the latter alternative and I will accept it with appropriate qualifications. There was a certain degree of hypocrisy among the slaveowners who knew full well that "all men are created equal" meant ALL men. One piece of PF's that I admire is his essay on Jefferson in the Onuf volume Jeffersonian Legacies. But his critique there of Jefferson relies for much of its force on the unstated (and sometimes contradicted) presupposition that Jefferson meant it when he condemned slavery in the Declaration and elsewhere. If he didn't mean it--if no one meant it--then what is the point of the critique? Is it a mere debunking impulse? If so, it doesn't achieve its object. "Jefferson said all men are created equal; Jefferson owned slaves both before and after saying so; therefore Jefferson did not believe what he appeared to say" is a perfect non sequitur.
Tom West has seen our recent postings and sent me an old conlawprof exchange between himself and Paul Finkelman on some of the matters currently controverted. It's from 3 years ago, before my time on the list. I'll post it or send it off-list if others wish it.
Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
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At 09:43 PM 8/1/2003 -0500, you wrote:
I agree with Franck that it was reasonable to argue that free blacks
were citizens of hte US if you lived in some parts of the north; one
assumes the Mass. framers believed this, from their experience. but the
va, sc and ga framers would never have understood this is what they were
doing. Can you imagine SC ratifiying if it pinckney had come back and
said you will have to deal with black us citizens? there wre multiple
intentions, as mark graber pointed out. The problem with
"originalism" and "intentions" is that we cannot know what it means; we
can look at text (is Franck now a strict constructionist/textualist?);
but the text says slavery is protected in many ways; intentions go
beyond text to the debates (where they can help us, but of course mostly
they can't). But on slavery it is quite clear the southern framers
*intended* to support slavery and ratified with that intention. See
Pinckney's speeches in SC or even Madison's and Randolph's in VA. Thus,
on this point, it seems to be, as Mark Graber said earlier, that Taney's
orginalism is as plausible as anyone else's; I would argue more so,
given the proslavery nature of the constitution.
I did not get into teh Dec of I, but the only reference to slavery there
is at the end, when the Dec complains about the king freeing slaves to
fight against the patriots (He has incited domestic insurrections.) If
something in the Dec. of I. was supposed to apply to slaves -- if that
ws the *intent* of the DofI, I am sure the 40% of Virginia that was held
in slavery would have been happy to know about it. But, neither the
primary author (the Master of Monticello) nor very many other southern
leaders, seemed to think that it applied. Now, that leaves Prof. Franck
two alternatives. Either he can concede that the Dec. of I's authors
did not intend it to apply to slavery or he can concend the founders,
starting with TJ, of being dishonest, hypocritcal, etc.
we agree on the territories clause; but I think Taney's 5th Amendment
argument is powerful and goes to the heart of what slaveholders intended
when the wrote and ratified that amendment. surely they did not intend
it to be an abolitionist amendment; they intended it to protect their
property.
Lincoln's Cooper Union speech -- as well as his House Divided Speech and
his debates with Douglas speeches are fine political rhetoric; I would
have voted for him; but it is not great history. It is important for
those of us who admire Lincoln, but who are modern scholars, to
understand the difference between a great speech that fits and era, and
serious historical analaysis. Lincoln was able to persuade the north
that his view of history was how it ought to be, but that does not mean
he was right about how it was. fortunately, Lincoln was neither an
orginalist nor a text bound literalist.
(ps, please excuse typoes, i am working with one hand, the other is
taped up.)
--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189
918-631-3706 (office)
918-631-2194 (fax)
[EMAIL PROTECTED]
