Given the genesis of this discussion thread in Stephen Henderson's Knight
Ridder piece, part of the general thrust of which (as I read it) is that
there are good reasons to prefer "living constitutionalism" to the kind of
"cramped" originalism that purportedly underlays Dred Scott, and Matthew
Franck's response to this piece, preferring originalism to "living
constitutionalism" and placing Dred Scott in the latter, "living
constitutionalist" camp as an example of what might be called faux or phony
originalism, I think one issue worth reflecting on is whether Dred Scott
would have come out any differently in the end had the Court (depending on
your viewpoint) embraced or openly embraced some form of living
constitutionalism as its interpretive approach.
My own guess, which is only a guess, is that, given the strength of the
originalist legal arguments in the Curtis and McLean dissents, it is
unlikely that any justice would have felt compelled by a commitment to
originalism to adopt Taney's positions if his political leanings were in
fact anti-slavery in nature. Nor, of course, is it likely that any
pro-slavery justice would have felt compelled by a commitment to "living
constitutionalism" to "update" the Constitution in an anti-slavery rather
than pro-slavery direction. Very likely, then, the "living Constitution" of
the Taney Court would have been pro-slavery in nature and the outcome of
the case, if not the opinion itself, very much the same, if the Court had
adopted (or openly adopted) a "living constitionalist" approach. If this
view is correct, then in no sense did deployment of a "cramped" originalism
produce a deplorable outcome in Dred Scott that could have been avoided by
an embrace of living constitutionalism, even if one were to concede (what
may or may not be the case) that Taney's opinion is a good faith and at
least a minimally competent exercise in originalism. Even on this view,
there were originalists on both sides of the debate in Dred Scott, and
there would have been "living constitutionalists" on both sides as well.
Best,
Jack
Jack Wade Nowlin
Jessie D. Puckett, Jr., Lecturer in Law
Assistant Professor of Law
University of Mississippi School of Law
University, MS 38677
(662) 915-6855
[EMAIL PROTECTED]
