Hi two points of correction to this post - (pointed out by jack rakove) These come from writing posts from memory at 1 a.m. in the morning.
1) When I said Blacks were members of the boston tea party - i should have said Boston Massacre. Don't know whether balcks were members of the boston tea party) 2) When I said blacks voted IN the ratifying convention, that was a typo. I meant blacks would have voted FOR the ratifying convention delegates, not that blacks were themselves delegates to the ratifying conventions. (although they may have been I don't know.). yb ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***************************************************** > ---------- > From: Barksdale, Yvette > Reply To: Discussion list for con law professors > Sent: Wednesday, August 06, 2003 1:30 AM > To: [EMAIL PROTECTED] > Subject: Re: Dred Scott (was Scalia's Originalism) > > Sorry I'm late to this thread. I haven't checked in on list for a while. (And I'm > not trying to restart it). One question: > > Paul Finkelman writes: > > "Can you imagine SC ratifiying if it pinckney had come back and > said you will have to deal with black us citizens? " > > Paul, are you sure about this, re southern views re race (as opposed to slavery) in > 1787. Much of the virulently racist defense of slavery by southerners was developed, > wasn't it, in the Nineteenth century as a response to antislavery arguments. And > with the exception of South Carolina and Georgia whose economies were most heavily > dependent on slave labor, most slave states around the founding time, encouraging > voluntary manumission of slaves. Also, free blacks often owned substantial property > in many Southern states (don't know about South Carolina, per se) Is it so clear > that SC at the time of the founding (as opposed to so pro-slavery) would have > objected so automatically to a race-neutral concept of citizenship. > > I've learned the hard way to defer to you on the history questions but are you > sure about this. > > (OF course, this discussion bypasses the question, of whether, even if you take an > originalist approach, a pre-condition of fidelity to original intent, is the > legitimacy of the group of persons whose original intent you are referencing. There > is no reason why an African-American for example, should accept the legitimacy of > any nation founding in which they were arbitrarily excluded from citizenship, even > though African-Americans were the majority of the population in many states, had > critical battleground roles in the Revolutionary War (including being members of > the Boston Tea party), voted in the ratifying conventions for the Constitution, > etc., etc. Some minimal form of inclusiveness is a necessary precondition to > legitimacy of any founding isn't it? Unless, of course, power is justified solely by > power. IOW, would Pinckney have had the legitimate authority to exclude > African-Americans from citizenship, even if he had been determined to.) > > yb > > > > ********************************************* > Professor Yvette M. Barksdale > Associate Professor of Law > The John Marshall Law School > 315 S. Plymouth Ct. > Chicago, IL 60604 > (312) 427-2737 > (email:) [EMAIL PROTECTED] > ***************************************************** > > > > ---------- > > From: Paul Finkelman[SMTP:[EMAIL PROTECTED] > > Reply To: Discussion list for con law professors > > Sent: Friday, August 01, 2003 9:43 PM > > To: [EMAIL PROTECTED] > > Subject: Re: Dred Scott (was Scalia's Originalism) > > > > I agree with Franck that it was reasonable to argue that free blacks > > were citizens of hte US if you lived in some parts of the north; one> > > assumes the Mass. framers believed this, from their experience. but the > > va, sc and ga framers would never have understood this is what they were > > doing. Can you imagine SC ratifiying if it pinckney had come back and > > said you will have to deal with black us citizens? there wre multiple > > intentions, as mark graber pointed out. The problem with > > "originalism" and "intentions" is that we cannot know what it means; we > > can look at text (is Franck now a strict constructionist/textualist?); > > but the text says slavery is protected in many ways; intentions go > > beyond text to the debates (where they can help us, but of course mostly > > they can't). But on slavery it is quite clear the southern framers > > *intended* to support slavery and ratified with that intention. See > > Pinckney's speeches in SC or even Madison's and Randolph's in VA. Thus, > > on this point, it seems to be, as Mark Graber said earlier, that Taney's > > orginalism is as plausible as anyone else's; I would argue more so, > > given the proslavery nature of the constitution. > > > > I did not get into teh Dec of I, but the only reference to slavery there> > > is at the end, when the Dec complains about the king freeing slaves to > > fight against the patriots (He has incited domestic insurrections.) If > > something in the Dec. of I. was supposed to apply to slaves -- if that > > ws the *intent* of the DofI, I am sure the 40% of Virginia that was held > > in slavery would have been happy to know about it. But, neither the > > primary author (the Master of Monticello) nor very many other southern > > leaders, seemed to think that it applied. Now, that leaves Prof. Franck > > two alternatives. Either he can concede that the Dec. of I's authors > > did not intend it to apply to slavery or he can concend the founders, > > starting with TJ, of being dishonest, hypocritcal, etc. > > > > we agree on the territories clause; but I think Taney's 5th Amendment > > argument is powerful and goes to the heart of what slaveholders intended > > when the wrote and ratified that amendment. surely they did not intend > > it to be an abolitionist amendment; they intended it to protect their > > property. > > > > Lincoln's Cooper Union speech -- as well as his House Divided Speech and > > his debates with Douglas speeches are fine political rhetoric; I would > > have voted for him; but it is not great history. It is important for > > those of us who admire Lincoln, but who are modern scholars, to > > understand the difference between a great speech that fits and era, and > > serious historical analaysis. Lincoln was able to persuade the north > > that his view of history was how it ought to be, but that does not mean > > he was right about how it was. fortunately, Lincoln was neither an > > orginalist nor a text bound literalist. > > > > > > (ps, please excuse typoes, i am working with one hand, the other is > > taped up.) > > > > -- > > Paul Finkelman > > Chapman Distinguished Professor of Law > > University of Tulsa College of Law > > 3120 East 4th Place > > Tulsa, OK 74104-3189 > > > > 918-631-3706 (office) > > 918-631-2194 (fax) > > > > [EMAIL PROTECTED] > > >
