For the record, my argument is that Dred Scott privileges no constitutional theory, whether that theory be originalism, aspirationalism, institutionalism, or the living constitution. My belief, in print, is that plausible arguments in all constitutional languages can be made for and against. So, my work is not a truck for the living constitution. Rather, I would argue that as a matter of constitutional sociology, that when substantial political forces have done battle over a long period times, both sides are likely to be making plausible constitutional arguments, that we should not expect constitutional theory to declare a winner.
Mark A. Graber >>> [EMAIL PROTECTED] 08/03/03 12:00 PM >>> 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.
