Re: Scalia's Originalism
I have not followed the earlier strand of this discussion, but your reading of the Supremacy Clause is hardly dictated by its language -- though it has support in obiter dicta in Reid v. Covert. The clause may easily be read as placing treaties on the same level as the Constitution so long as they are enacted using the process that the Constitution indicates. While hardly the traditional U.S. approach, it is not clear from the text that the U.S. cannot ratify a treaty that gives an international human rights treaty a status equal to the Constitution and that establishes an international body as the authoritative interpreter of the international instrument. Given that public international law was often viewed in natural law terms in the 18th century, it might even be possible to argue that the Framers intended the U.S. to be able to enter into international agreements that would not be limited by the Constitution. -- It would be an interesting area for research. Jonathan Miller Professor of Law Southwestern University School of Law I know Prof. Martin thinks the Constitution has some status as a treaty. I do not. Federalist nos. 5 and 75 provide no evidence to the contrary. Nor does Ware v. Hylton bear on the issue he raises; it had to do with the supremacy of the Treaty of Paris (1783) over a law of Virginia. Scalia is quite right to disdain rulings of the European Court of Human Rights as relevant to American constitutional questions. Article VI identifies three sources of supreme law: the Constitution, acts of Congress, and treaties. No treaty to which the U.S. is a signatory obliges our judges, state or federal, to pay the least bit of attention to the rulings of the ECHR (thank goodness). Nor does customary international law have any bearing on the laws by which Americans govern themselves. Scalia's federalism--I have in mind those cases where the five conservative justices band together to defend sovereign immunity or tendentious readings of the Tenth Amendment or limits on the commerce power--is lousy originalism precisely because it forgets that the Constitution is not a treaty among the states, and because it rests on an ahistorical view of the proper reach of judicial review. 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] *** At 01:23 PM 8/1/2003 -0400, you wrote: Prof. Franck writes in relevant part: Scalia is a good originalist in Lawrence, and a lousy one when it comes to federalism and other Loch Ness monsters of the Constitution. Comment: It is not so clear to me that Scalia is a good originalist in Lawrence. He fails to recognize that the Eur.Ct.H.R. cases cited in the Court's opinion reflect customary international legal obligations with which the 14th Amendment's due process clause must be construed because of the Constitution's status as a treaty --something which both Federalist and Anti-Federalist recognized. See Federalist No. 5; Anti-Federalist No. 75. Customary international law is evolving -- also something that the Founding Fathers recognized. See Ware v. Hylton (1796). Good originalism recognize that the Constitution's provisions (viz., due process clause) must be construed in conformity with this evolving customary international law. Scalia misconstrues the constitutiona! l relevance of the Eur.Ct.H.R. cases by indicating that they are merely foreign law -- not evidence of the U.S.' customary international legal obligations. This is particularly contrary to originalism because the Founders specifically saw European customary international law as binding on the U.S. By the way, how is Scalia's federalism lousy? Francisco Forrest Martin - This message was sent using Endymion MailMan. http://www.endymion.com/products/mailman/
Re: Scalia's Originalism
Two sets of thoughts in different directions. 1. As I have no doubt stated before, I am inclined to think that the originalist case for Dred Scott is as good as the originalist case against (see my piece in Con Comm). Part of the problem is that the framers were not thinking about the specific issues in 1787. A greater part of the problem is that they were not thinking explicitly about expansion in 1787 (Sandy Levinson is good on this one). Another part of the problem, noted in my never finished book project, is that the framers were not thinking in the legal terms presupposed by originalism. Whatever, a lot of good scholarship done by historians, political scientists and lawyers suggests that the history of due process and slavery is more complicated then the simple New Deal account that this was all nonsense. 2. I think of myself (and friends such as Howard Gillman and Rogers Smith) as good historians for political scientists. On the other hand, I very much doubt my history would meet the highest professional standards (hope by combining a little history and political science to say something of value). So all of us might benefit from a little more modesty when walking outside of our areas of expertise. In this vein, one of the main problems with originalism may be that the persons who do originalism are amateurs who may simply select the most political correct historian who shares their viewpoint, rather than engage in serious historical analysis. Mark A. Graber [EMAIL PROTECTED] 08/01/03 17:27 PM Professor Franck wrote: The trouble with lawyers, I often think, is that they all went to law school. And the trouble with law schools is that their permanent population consists of law professors. He then proceeded to attack the analysis of Stephen Henderson's article on the Texas case, noting that he relied on three law professors including me. Franck wrote: Henderson relies on the views of three law professors for this attempt to associate Scalia with Taney's defense of slavery: Lea Vandervelde of the University of Iowa, Paul Finkelman of the University of Tulsa, and Kermit Roosevelt of the University of Pennsylvania. Henderson found only one dissenter from this characterization, and he wasn't at a law school Todd Gaziano of the Heritage Foundation. Franck then asserts: Taney's Dred Scott opinion was a mockery of the text, of the Framers' intent, of the history of American beliefs on race, and of the relevant precedents. Scalia, by contrast, got them all right in the recent sodomy case. Since I am a law professor who went to graduate school (in history), rather than law school, I might start by suggesting that the trouble with political science departments is that they are filled with people who have political science degrees and think they know something about history. (However with deference to Mark Graber I will not make such a point.) There is a strong argument that the Framers' intent was precisely as Taney saw it: to protect slavery and preserve it. That is why it is the only type of private property and the only social institution in the Constitution that gets special protection and extra political power in Congress. Taney's decision is far from being a mockery of the text, at least on the issue of slavery and its special place in the Constitution. On the contrary, does Prof. Franck really believe that the framers, like Charles Pinckney, Charles Coteswoth Pinckney, Pierce Butler, as well as the ratification conventions in Md., Va., N.C., S.C. and Ga. believed that they were entering a Union in which they free blacks would be considered full citizens and in which slavery would be threatened and hemmed in. The Northwest Ordinance can be read a limiting slavery, but it is also plausible to read it as an agreement that slaveowners are free to enter all other territories; moreover, under the NWO it the So! uth would have had the expansion potential as the North; the Missouri Compromise, at issue in Dred Scott, gave huge advantage to the North and virtually ended the potential for southern growth. It seems unlikely that anyone of the southern delegates or ratifiers intended this. I agree with Prof. Franck that Taney's analysis of the territories clause of Art. IV was a mockery of the text. I don't see how he can, with a straight face, make the same argument about Taney's 5th Amendment analysis or his overarching analysis that slavery was protocted by the Constitution. It the self-serving spirit of this list serve, I offer my own book, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON (2nd ed., 2001) in support of the proslavery intentions of the framers and of the text they wrote. -- 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]
Re: Scalia's Originalism
As a non-historian and a non-political scientist, let me asks the following questions: (1) Does originalism presuppose the Framers held one determinate view regarding constitutional meaning? Does it permit the Framers' holding several different views? (2) How does one establish such either view? (3) How do historians (and political scientists) deal with the problem of ascertaining "collective intent," a problem that Dworkin and more recently George Fletcher, as well as many others have emphasized? (2) Do those supporting original intent or original understanding appreciate the enormous commitments to differing philosophies of mind involved in either theory? (4) How do we ascertain the intent---subjective or objective---of a particular Framer? (5) How do we ascertain the public meaning of a critical political or legal term even in contemporary society let alone in the past? and (6) To what are we referring when we make claims that the original intent or understanding of a constitutional provision is X? (7) What evidentiary techniques are required to substantiate such claims? Apologies if some of these questions overlap. Bobby Lipkin Widener University School of Law Delaware
University of Wisconsin / Milwaukee Political Science Department has opening in public law / judicial politics
Title: Message -Original Message-From: Sara C. Benesh [mailto:[EMAIL PROTECTED] Sent: Thursday, July 31, 2003 12:02 PMTo: [EMAIL PROTECTED] . . . The University of WisconsinMilwaukee Assistant Professor: Public Law/Judicial Politics The Department of Political Science, pending budgetary approval, invites applications for an anticipated tenure track position at the rank of Assistant Professor in public law/judicial politics with a starting date of August 2004. We seek a scholar engaged in significant research in any area of the subfield. Primary teaching responsibilities will be constitutional law and other courses in the law studies option of the political science major, including law and society and judicial process. We are open to a wide range of additional graduate and undergraduate teaching interests within and beyond public law including methodology. The teaching load is two courses per semester and the salary is competitive with peer institutions and commensurate with experience. A Ph.D. in political science and evidence of excellence in research and teaching is required. The application deadline is October 20, 2003. Please send your application, including a vita, three letters of reference, a brief writing sample, and summary evidence of teaching competence (by U.S. mail) to Professor Howard Handelman, Chair, Department of Political Science, P.O. Box 413, University of Wisconsin-Milwaukee, Milwaukee, WI 53201. UWMilwaukee is an affirmative action, equal employment opportunity employer. Sara C. Benesh Assistant Professor Director of Undergraduate Studies Department of Political Science P.O. Box 413 Milwaukee, WI 53201 414.229.6720 voice 414.229.5021 fax [EMAIL PROTECTED] email http://www.uwm.edu/~sbenesh web
Dred Scott (was Scalia's Originalism)
Oh, dear. It seems my playful gibe about law professors didn't go over so well, at least with Paul Finkelman, though he seems to lend it credence by noting what I had forgotten when writing my NRO piece--his historian's credentials--thereby distancing himself from his law school colleagues, who are, it appears (to paraphrase Kipling), lesser breeds without the history. But then he thinks the same of political scientists (about which he is quite right in most cases). But conlawprof is not the place to engage in a disciplinary pissing match, so I will forebear to tender my own credentials. Instead let's cut to the matter at hand, about which even a cat can look at a king. I made three claims about Dred Scott that are relevant here. (I'll leave aside the fourth, regarding Taney's treatment of the Declaration of Independence, since Prof. Finkelman did not contest it, though I expect he would.) First, I said, Taney was wrong, as a matter of original understanding, to deny that free blacks could be considered citizens of the United States. Prof. Finkelman asks whether I really believe that various southerners at the time of ratification believed that they were entering a Union in which the free blacks would be considered full citizens and in which slavery would be threatened and hemmed in. The question is not what they believed. The question is what the Constitution permits and prohibits. If they didn't see that it permits the treatment of free blacks as citizens, and the hemming in of slavery, they weren't paying attention. Congress could, for instance--but did not--permit the naturalization of nonwhite immigrants in its first naturalization statutes. Free blacks who were not free immigrants but emancipated or born free in the U.S. were considered citizens by a number of states, and inasmuch as the Constitution was silent on what did or did not make someone born here a citizen, but permitted suits between citizens of different states in Article III, Taney was wrong to address the irrelevant question of whether free blacks were or could be citizens of the U.S. (an interesting move toward nationalization by a supposed states' rights man). It's a familiar judicial gambit: ask the wrong question and give the answer you like. My second point was that Taney was wrong to hold that Congress lacked power to outlaw slavery in the federal territories. Prof. Finkelman says he agrees with me (I think) about the Article IV power over territories, so what has become of his assertion that various framers could not imagine slavery being hemmed in by federal power? Whatever compromise anyone imagined to be embodied in the Northwest Ordinance about taking slaves into other territories, the Ordinance did not guarantee what treatment Congress would give to subsequently acquired territories. In fact, it was the perfect precedent for the Missouri Compromise that Taney overturned. My third point was that Taney was wrong to declare that such an act of Congress [banning slavery in a territory] inhibited a slaveownerÂ’s liberty without due process of law. Prof. Finkelman wants to know how I can such an argument with a straight face. Let's see. At page 450 of his opinion, Taney offered this and only this as a due process argument: [A]n act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. This is a perfect example of question-begging. The Missouri Compromise made it an offence against the laws to carry slaves into certain territories and there hold them as slaves. The penalty was that they were no longer slaves and the slaveholder lost his property. Sure looks like due process to me. Unless one is a fan of substantive due process, that highly useful judicial fraud. I am not. To borrow a bit from Lincoln and use it differently: what if the law had plainly said that one shall not bring hogs into a particular federal territory, and everyone was on notice that they would be taken away if discovered once one crossed the border? Does anyone imagine that this would run afoul of due process? I think that could hardly be dignified with the name of an argument. Prof. Finkelman is in accord with Taney's general view of the pro-slavery character of the Constitution. I am persuaded instead by Lincoln's Cooper Union speech, among many others. I know Prof. Finkelman's book to which he draws our attention. I am not persuaded by it, but by Lincoln, Douglass (not Douglas), Marshall, Story, and the works of Prof. Finkelman's Tulsa colleague Paul Rahe, Robert Goldwin, Herbert Storing, Harry Jaffa, and Thomas West. Not to mention the late Don Fehrenbacher, whose book on Dred Scott I have not opened lately but who I believe was in accord with every argument I make above. I thank Mark Graber for defending the
Treaties (was Scalia's Originalism)
Nothing I wrote stated or implied that the U.S. cannot ratify a treaty that gives an international human rights treaty a status equal to the Constitution and that establishes an international body as the authoritative interpreter of the international instrument. I suppose it could, though I'd like to give it further thought. This I do know: I'm glad it has never done so! 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] *** At 02:30 PM 8/1/2003 -0800, you wrote: I have not followed the earlier strand of this discussion, but your reading of the Supremacy Clause is hardly dictated by its language -- though it has support in obiter dicta in Reid v. Covert. The clause may easily be read as placing treaties on the same level as the Constitution so long as they are enacted using the process that the Constitution indicates. While hardly the traditional U.S. approach, it is not clear from the text that the U.S. cannot ratify a treaty that gives an international human rights treaty a status equal to the Constitution and that establishes an international body as the authoritative interpreter of the international instrument. Given that public international law was often viewed in natural law terms in the 18th century, it might even be possible to argue that the Framers intended the U.S. to be able to enter into international agreements that would not be limited by the Constitution. -- It would be an interesting area for research. Jonathan Miller Professor of Law Southwestern University School of Law I know Prof. Martin thinks the Constitution has some status as a treaty. I do not. Federalist nos. 5 and 75 provide no evidence to the contrary. Nor does Ware v. Hylton bear on the issue he raises; it had to do with the supremacy of the Treaty of Paris (1783) over a law of Virginia. Scalia is quite right to disdain rulings of the European Court of Human Rights as relevant to American constitutional questions. Article VI identifies three sources of supreme law: the Constitution, acts of Congress, and treaties. No treaty to which the U.S. is a signatory obliges our judges, state or federal, to pay the least bit of attention to the rulings of the ECHR (thank goodness). Nor does customary international law have any bearing on the laws by which Americans govern themselves. Scalia's federalism--I have in mind those cases where the five conservative justices band together to defend sovereign immunity or tendentious readings of the Tenth Amendment or limits on the commerce power--is lousy originalism precisely because it forgets that the Constitution is not a treaty among the states, and because it rests on an ahistorical view of the proper reach of judicial review. 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] *** At 01:23 PM 8/1/2003 -0400, you wrote: Prof. Franck writes in relevant part: Scalia is a good originalist in Lawrence, and a lousy one when it comes to federalism and other Loch Ness monsters of the Constitution. Comment: It is not so clear to me that Scalia is a good originalist in Lawrence. He fails to recognize that the Eur.Ct.H.R. cases cited in the Court's opinion reflect customary international legal obligations with which the 14th Amendment's due process clause must be construed because of the Constitution's status as a treaty --something which both Federalist and Anti-Federalist recognized. See Federalist No. 5; Anti-Federalist No. 75. Customary international law is evolving -- also something that the Founding Fathers recognized. See Ware v. Hylton (1796). Good originalism recognize that the Constitution's provisions (viz., due process clause) must be construed in conformity with this evolving customary international law. Scalia misconstrues the constitutiona! l relevance of the Eur.Ct.H.R. cases by indicating that they are merely foreign law -- not evidence of the U.S.' customary international legal obligations. This is particularly contrary to originalism because the Founders specifically saw European customary international law as binding on the U.S. By the way, how is Scalia's federalism lousy? Francisco Forrest Martin - This message was sent using Endymion MailMan. http://www.endymion.com/products/mailman/
Re: Scalia's Originalism
I will have to look for the Barnett article. For my money, the best defense and explication of originalism is Keith Whittington's Constitutional Interpretation. 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] *** At 04:28 PM 8/1/2003 -0700, you wrote: As a non-originalist, I suggest that the only coherent originalism theory is the textually (aka original meaning) theory which is well discussed in Randy E. Barnett, An Originalism for NonOriginalists, 45 Loyola L Rev. 611 (1999). This version of originalism renders the most perplexing of Prof. Lipkin's questions irrelevant. Malla Pollack Visiting, Univ. of Oregon, Law 541-346-1599 [EMAIL PROTECTED] - Original Message - From: Robert Justin Lipkin To: [EMAIL PROTECTED] Sent: Friday, August 01, 2003 3:53 PM Subject: Re: Scalia's Originalism As a non-historian and a non-political scientist, let me asks the following questions: (1) Does originalism presuppose the Framers held one determinate view regarding constitutional meaning? Does it permit the Framers' holding several different views? (2) How does one establish such either view? (3) How do historians (and political scientists) deal with the problem of ascertaining collective intent, a problem that Dworkin and more recently George Fletcher, as well as many others have emphasized? (2) Do those supporting original intent or original understanding appreciate the enormous commitments to differing philosophies of mind involved in either theory? (4) How do we ascertain the intent---subjective or objective---of a particular Framer? (5) How do we ascertain the public meaning of a critical political or legal term even in contemporary society let alone in the past? and (6) To what are we referring when we make claims that the original intent or understanding of a constitutional provision is X? (7) What evidentiary techniques are required to substantiate such claims? Apologies if some of these questions overlap. Bobby Lipkin Widener University School of Law Delaware
Re: Scalia's Originalism
Prof. Franck writes: "I know Prof. Martin thinks the Constitution has some "status as a treaty." I do not. Federalist nos. 5 and 75 provide no evidence to the contrary." Comment: John Jay indirectly referred to the Constitution as a treaty in Federalist No. 4 when he favorably compared it to the Treaty of Union (1707) between England and Scotland establishing United Kingdom and recognizing one British nation.Hampden in Anti-Federalist No. 75 also indirectly referred to the Constitution when he stated, "Who is it that does not know, that by treaties in Europe the succession and constitution of many sovereign states, ha[ve] been regulated?"There are numerous other reasons why the Constitution is a federal treaty -- too many to go into here. (If anyone would like a copy of my paper, I would be happy to email it to them.) Indeed, I cannot find any compelling reason why the Constitution isNOT a treaty. If someone can tell me why the Constitution is not a treaty, I would love to hear the reasons. Prof. Franck continues: "Nor does Ware v. Hylton bear on the issue he raises; it had to do with the supremacy of the Treaty of Paris (1783) over a law of Virginia." Comment: Ware v. Hylton distinguished between ancient and modern law of nations. This cannot be controversial. By definition, customary international law is CUSTOMARY, and customs change. Prof. Franck continues: "Scalia is quite right to disdain rulings of the European Court of Human Rights as relevant to American constitutional questions. Article VI identifies three sources of "supreme law": the Constitution, acts of Congress, and treaties. Comment: Treaties (especially multilateral treaties, such as the ECHR) are evidence of customary international law for a number of reasons (depending on the instrument); hence, customary international law is part of the supreme law of the land. Prof. Franck continues: "No treaty to which the U.S. is a signatory obliges our judges, state or federal, to pay the least bit of attention to the rulings of the ECHR (thank goodness). Nor does "customary international law" have any bearing on the laws by which Americans govern themselves." Comment: It does not matter whether the U.S. is a party to the ECHR for the ECHR to be evidence of the U.S.' customary international legal obligations. At least one federal court has recognized the ECHR as reflecting customary international legal obligations for the U.S. As for your statement "[n]or does 'customary international law' have any bearing on the laws by which Americans govern themselves," I am dumbfounded. Both the U.S. Supreme Court and state courts repeatedly have recognized that customary international law is binding on the federal government and the states. Prof. Franck continues: "Scalia's "federalism"--I have in mind those cases where the five "conservative" justices band together to defend "sovereign immunity" or tendentiouus readings of the Tenth Amendment or limits on the commerce power--is lousy originalism precisely because it forgets that the Constitution is not a treaty among the states, and because it rests on an ahistorical view of the proper reach of judicial review." Comment: Thanks for the clarification. I would just comment that the fact that the Constitution IS a "federal" treaty actually may support yourarguments againstScalia's federalism incommerce clause cases because "federal" treaties(which are similar to foedi) give greater authority to the central government in interstate affairs -- such as commerce.In the case of commerce clause cases, it is important to note that the interstate commerce claause sits right in-between the foreign commerce and Indian commerce clauses -- areasboth governed by international law (at least until 1871 for Indian commerce). It is reasonable to assume that the interstate commerce clause also must be construed in conformity with international law. Indeed, Madison, Randolph, and others argued in the Virginia state convention that the Constitution did not allow the federal government to violate state navigational rights (e.g, on theMississippi)because this would violate the law of nations – even if there was no explicit prohibition in the Constitution. Hence, interstate commerce (at least insofar as navigational rights were concerned) was governed by the law of nations, and the Constitution could not be construed to conflict with this law of nations. Francisco Forrest Martin
Re: Dred Scott (was Scalia's Originalism)
Some thoughts on Dred Scott. Professor Franck is quite correct that the conventional view is that originalism can justify Dred Scott. My view, I should emphasize, is that originalism provides as much support to Taney as to Curtis or McLean, not that Taney was right and they were wrong. Some specific commentary on points Professor Franck makes. Professor Franck declares: First, I said, Taney was wrong, as a matter of original understanding, to deny that free blacks could be considered citizens of the United States. Prof. Finkelman asks whether I really believe that various southerners at the time of ratification believed that they were entering a Union in which the free blacks would be considered full citizens and in which slavery would be threatened and hemmed in. The question is not what they believed. The question is what the Constitution permits and prohibits. If they didn't see that it permits the treatment of free blacks as citizens, and the hemming in of slavery, they weren't paying attention. Congress could, for instance--but did not--permit the naturalization of nonwhite immigrants in its first naturalization statutes. Free blacks who were not free immigrants but emancipated or born free in the U.S. were considered citizens by a number of states, and inasmuch as the Constitution was silent on what did or did not make someone born here a citizen, but permitted suits between citizens of different states in Article III, Taney was wrong to address the irrelevant question of whether free blacks were or could be citizens of the U.S. (an interesting move toward nationalization by a supposed states' rights man). It's a familiar judicial gambit: ask the wrong question and give the answer you like. Two thoughts (and I do not have the opinion close at hand). Taney actually only discusses whether former slaves can become citizens by virtue of emancipation. His opinion actually leaves open whether Congress can naturalize immigrants of color. Second, some free blacks were citizens in 1787, but I see little evidence that most southerners were aware of this. So suppose most southerners are under the impression that only whites are citizens and most northerners under the impression that persons of color can become citizens. No meeting of minds. Both Curtis and Taney have to strain history to conclude otherwise. Back to Professor Franck: My second point was that Taney was wrong to hold that Congress lacked power to outlaw slavery in the federal territories. Prof. Finkelman says he agrees with me (I think) about the Article IV power over territories, so what has become of his assertion that various framers could not imagine slavery being hemmed in by federal power? Whatever compromise anyone imagined to be embodied in the Northwest Ordinance about taking slaves into other territories, the Ordinance did not guarantee what treatment Congress would give to subsequently acquired territories. In fact, it was the perfect precedent for the Missouri Compromise that Taney overturned. A note: interestingly, about 75-80 of the slave state representatives who spoke during the Missouri Compromise debates either explicitly declared that Congress could not ban slavery in the territories or made arguments to that effect. I have have only one non-border south representative explicitly asserting a congressional right. Nevertheless, believing the morthern territories to be a vast wasteland they accepted to ban to get Missouri in. So it is a bit more complicated than traditionally thought to treat the Missouri Compromise as recognition of congressional power. Maybe it was a constitutional compromise as well. My third point was that Taney was wrong to declare that such an act of Congress [banning slavery in a territory] inhibited a slaveowner's liberty without due process of law. Prof. Finkelman wants to know how I can such an argument with a straight face. Let's see. At page 450 of his opinion, Taney offered this and only this as a due process argument: [A]n act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. This is a perfect example of question-begging. The Missouri Compromise made it an offence against the laws to carry slaves into certain territories and there hold them as slaves. The penalty was that they were no longer slaves and the slaveholder lost his property. Sure looks like due process to me. Unless one is a fan of substantive due process, that highly useful judicial fraud. I am not. To borrow a bit from Lincoln and use it differently: what if the law had plainly said that one shall not bring hogs into a particular federal territory, and everyone was on notice that they would be taken away if discovered once one crossed the border?
Re: Dred Scott (was Scalia's Originalism)
IF I recall correctly, free blacks were citizens in at least one southern state (North Carolina) in 1787. It is possible that ordinary southern whites weren't aware of this fact, but such an assumption is less plausible in the case of southern political elites and southern delegates to the state ratifying conventions. It is also, I think, implausible to assume that southern white elites were unaware that free blacks were citizens in several northern states. As to why southern whites might have been willing to accept the presence of free black citizens, it is important to realize that such citizens were few in 1787, and the Constitution left the definition of citizenship largely in the hands of the states. Thus, southern whites, if they considered this issue at all, may not have seen much of a threat here. Regarding the DoI, I don't have much to add to the vast literature on the subject. However, Thomas Jefferson and many other framers were lifelong opponents of slavery so it is perfectly plausible that they meant to include blacks in it. Jefferson was one of the main supporters of the Northwest Ordinance and attempted to pass emancipation legislation in Virginia. Obviously, neither Jefferson nor the others expected immediate emancipation as a result of the Declaration, and many were personally hypocritical in so far as they continued to own slaves themselves. However, it is not true that they didn't realize that the wording of the DoI applied to blacks too, at least to the extent of condemning their enslavement. Ilya Somin On Fri, 1 Aug 2003, Paul Finkelman 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]
