Just to be clear, nothing in my post was intended as a specific response to Professor Graber, whose work I admire, or to suggest that he holds the views I suggested were likely mistaken. Rather the post was intended simply to emphasize-in the context of Dred Scott-a point on which I think we clearly agree: that the interaction of interpretive methods, judicial politics, and legal conclusions is often quite complex, making it difficult to generalize about the effects of interpretive theories on individual rights in particular cases without a host of case-specific qualifications.
Jack Wade Nowlin At 01:46 PM 8/3/2003 -0400, you wrote: >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. > >
