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Sent: Friday, August 01, 2003 9:43 PM
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Subject: Re: Dred Scott (was Scalia's Originalism)
I agree with Franck that it was reasonable to argue that free blacks
were citizens
/2003 -0700, Automatic digest processor wrote:
Date:Fri, 1 Aug 2003 16:48:05 -0400
From:Matthew J. Franck [EMAIL PROTECTED]
Subject: Re: Scalia's Originalism
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I know Prof. Martin thinks
Please accept my apologies in advance for the length of this
post. However, there issues do not lend themselves to sound bite treatment.
At the outset, we must decide whether we are talking about objective
originalism (what Barnett calls original meaning) or subjective
originalism--an
Jay never refers in Federalist no. 4 to the Treaty of
Union establishing the United Kingdom, which by the way is known
and has always been known as the Act of Union--no small
difference. He does talk about the advantages of Union in the U.S.
by discussing how the militia will be placed under one
it is
unsound, as in federalism cases, it becomes a mask for
another agenda entirely. In my article that started all this, I
only meant to defend the soundness of Scalia's originalism in
Lawrence.
Matt
***
Matthew J. Franck
Professor and Chairman
Department of Political Science
Prof. Franck writes: "Jay never refers in Federalist no. 4 to the "Treaty of Union" establishing the United Kingdom, which by the way is known and has always been known as the Act of Union--no small difference."
Comment: Oops, I meant to say (as I did in my previous post) Federalist No. 5. The
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
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
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?
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
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
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
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
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
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
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