"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)
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