Prof. Nowlin writes: > 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.
Comment: This bifurcation of originalism and the "living constitution" idea is a false dichotomy when you recognize that the Founding Fathers understood the Constitution as a treaty that must be construed in conformity with customary international law that itself is evolving. Francisco Forrest Martin
