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? Does anyone imagine that this would run afoul of due process? I think that "could hardly be dignified with the name" of an argument. I reply. I do not have the quotes on me, though they are in my Dred Scott piece. Lincoln, Mclean and Justice brown (40 years later) indicate that Cognress could not consistently with due process ban people from bringing common farm animals into the territories. Professor Franck again: I thank Mark Graber for the honor of political scientists in his characteristically mild fashion, even though he left me out of his honor roll! Back to me I hadn't meant to leave anyone out by omission. I disagree with certain historical claims Professor Franck makes, some of the disagreements have been published, but I take them to be disagreements among scholars who read the historical evidence differently MAG
