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 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? 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 honor of political scientists in his characteristically mild fashion, even though he left me out of his honor roll!
Matt
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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 04:27 PM 8/1/2003 -0500, you wrote:
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]
