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Dred Scott and "Substantive Due Process":

In The Tempting of America, Robert Bork claims that Justice Taney's opinion in Dred Scott marked the "first appearance of in American constitutional law of the concept of 'substantive due process.'" In fact, as Mark Graber, Jim Ely, and others have pointed out, by the time Dred Scott came around, there was a substantial body of state court decisions using a substnative intepretation of due process of law, or the analogous "law of the land," to protect property rights. In fact, the Supreme Court itself had invalidated several federal laws that redistributed property rights as violations of the 5th Amendment's Due Process Clause.

But beyond the general accuracy of Bork's claim, he makes a very explicit attempt to link Roe v. Wade to Lochner, and Lochner and Roe in turn to Dred Scott, the better to discredit Roe and other modern due process decisions by associating them with Taney's infamous decision.

However, it turns out that not only did Justice Taney NOT invent "substantive due process" in Dred Scott, but that the idea that the concept of "due process of law" provided Americans with substantive protections was a quite common in abolitionist circles, and often arose in their public pronouncements.

For example, the 1843 National Liberty Convention of the abolitionist Liberty party passed a resolution stating that the fundamental truths of the Declaration of Independence, that all men are created equal and are endowed by their Creator with certain inalienable rights, was made part of the fundamental law of the national government by the Due Process Claus of the 5th Amendment. [UPDATE: I think I'm the first one to note the '43 Convention, which I found in a digitized newspaper database.]

The 1848 platform of the Free Soil Party, a precursor to the Republican Party which absorbed many Liberty part members, suggested that any federal recognition of the slavery violated the Due Process Clause:

4. Resolved, That our fathers ordained the Constitution of the United States in order, among other great national objects, to establish justice, promote the general welfare, secure the blessings of liberty; but expressly denied to the federal government, which they created, a constitutional power to deprive any person of life, liberty, or property, without due legal process. 5. Resolved, That in the judgment of this convention Congress has no more power to make a slave than to make a king; no more power to institute or establish slavery than to institute or establish a monarchy. No such power can be found among those specifically conferred by the Constitution, or derived by just implication from them.

The 1856 and 1860 Republican platforms explicitly argued that permitting slavery in the territories violated the Due Process Clause, because it took the liberty of the slaves without due process of law.

Both Justice McLean's dissenting opinion in Dred Scott and Abraham Lincoln in his public speeches argued that the problem with Taney's opinion was not its protection of property rights through the Due Process Clause, but that slaves could not be considered mere property, like hogs or horses.

So, say what you will about "substantive due process" (an anachronistic term not used until the 1940s), the Borkean notion, unfortunately repeated by many conservative opponents of SDP, that the concept has some special link to defending slavery is counterhistorical. Indeed, the reliance of abolitionists on "due process of law" helps explain why free labor advocates of the late 19th century were not the least bit embarassed to rely on a doctrine that Taney had used in Dred Scott.

UPDATE: In response to a query, I've posted the Google Books link to Bork's argument. If Bork was aware that "substantive due process" wasn't simply made up by Roger Taney, its not apparent in the book.

Henry679 (mail):
Bork was "slimed" by his opponents, no question. But whether it was principally a result of this horrible experience or not, Bork has proved to be a character I am very glad is NOT on the Supreme Court. Considerable intellect is not everything--overarching bitterness, and a tendency towards intellectual dishonesty, should never be welcomed at that Court, regardless of ideology.
2.24.2009 11:02am
Vermando (mail) (www):
Well that was quite interesting. Thank you.

Any idea on how the myth which Bork propagates became so well established? Was it just him and a lot of people who wanted to believe him, or was there something else at play in the historical record?
2.24.2009 11:12am
Timothy Sandefur (mail) (www):
I blogged about this subject in some depth:
here and here.

The due process clause appears in only a single sentence in Dred Scott, and that one sentence makes a valid argument (with faulty premises). The argument is simple:

a) A congressional enactment that exceeds Congress' constitutional authority is not a law;
b) Congress has no authority to ban slavery in the western territories;
c) The Kansas-Nebraska Act bans slavery in the western territories;
d) The Kansas-Nebraska Act is therefore not a "law";
e) To deprive a slaveowner of slave property in any manner that is not pursuant to a "law" violates the owner's right not to be deprived of property without due process "of law."

The argument is valid. The flaw is in (b), since Congress certainly did have authority to ban slavery in the western territories. (See, e.g., Lincoln's Cooper Union address.)

The principle enunciated in (e), which is now known as substantive due process, was well known to Roger Taney's generation--having been most famously articulated in Daniel Webster's oral argument in Dartmouth College v. Woodward.
2.24.2009 11:17am
DavidBernstein (mail):
I wouldn't be surprised if some of Bork's anti-SDP precursors had made the same argument, but I think Bork's argument is the product of a very bad tendency of law professors in the old days to do "Constitutional history" by reviewing a few famous cases, and then using those cases to support a preconceived ideological position.
2.24.2009 11:17am
Timothy Sandefur (mail) (www):
I believe the originator of the argument that substantive due process originated in Dred Scott was Ely, in Democracy And Distrust. Bork, however, is the most well-known defender of that thesis.
2.24.2009 11:18am
Seamus (mail):

Indeed, the reliance of abolitionists on "due process of law" helps explain why free labor advocates of the late 19th century were not the least bit embarassed to rely on a doctrine that Taney had used in Dred Scott.


Then too, the reliance by both Taney and the abolitionists on the concept (thought not the name) of substantive due process demonstrates that the concept is so malleable that it has little actual content, but instead amounts to a delegation to judges of the authority to impose their personal views of fairness on the land as a kind of super-constitution.
2.24.2009 11:22am
Timothy Sandefur (mail) (www):
Or it might be that one side was right and the other was wrong.
2.24.2009 11:26am
pireader (mail):
Professor Bernstein -- Thank you. This is just the kind of scholarly, insightful and relevant posting that I come to this website looking for.
2.24.2009 11:28am
Nelson Lund (mail):
Seamus is correct, except perhaps in using the term 'delegation to' rather than 'assumption by.' Dred Scott, moreover, was the first U.S. Supreme Court opinion to rely on this interpretation of the Fifth Amendment, and Taney's opinion does not contain any explanation, let alone any justification, for doing so.
2.24.2009 11:39am
DavidBernstein (mail):
I don't have the book in front of me, but my notes tell me that Mark Graber's Dred Scott and the Problem of Constitutional Evil identifies more than one pre-Dred Scott USSC case that relied on "SDP" at page 46.
2.24.2009 11:49am
DavidBernstein (mail):
And as my friend and colleague Nelson knows, I think the reason that Taney didn't bother to justify his use of due process of law is that the concept was relatively well-accepted and unremarkable (as witnessed by its acceptance by Republican critics of Dred Scott), and thus saw no need to defend it.
2.24.2009 11:50am
DavidBernstein (mail):
Finally, I'm not arguing whether SDP is write or wrong, in general or in any of its particular applications. But Bork's Dred Scott to Lochner to Roe chronology goes well beyond "too simplistic."
2.24.2009 11:52am
DangerMouse:
Finally, I'm not arguing whether SDP is write or wrong, in general or in any of its particular applications. But Bork's Dred Scott to Lochner to Roe chronology goes well beyond "too simplistic."

Fundamentally, though, he remains correct. Whether SDP was "write" (sic) or wrong, Bork is correct that Dred Scott, Lochner and Roe are all SDP cases and are premised entirely on SDP reasoning.
2.24.2009 12:18pm
Dilan Esper (mail) (www):
I suspect this analogy didn't arise out of thin air. The pro-life movement likes to self-consciously compare itself to the abolitionist movement, which was also religious and was motivated to protect a group of human persons who were being treated as having no worth (which is certainly how most pro-lifers view themselves, although pro-choicers including myself have much different viewpoints about pro-lifers' motivations).

So there was obviously a great temptation to pick up the Dred Scott = Roe analogy.
2.24.2009 12:34pm
Bart (mail):
The facts that Taney did not invent substantive due process or that Abolitionists also used the substantive due process fiction are not a rebuttals to the argument that the Court erroneously used substantive due process in Dred Scott, Lochner and Roe.
2.24.2009 12:38pm
Peter A (mail):
Dred Scott may not have been the first use of substantive due process; I believe that honor goes to Wynehamer v. The People, the NY state case in which a quasi prohibition law was held void on unconst grounds by the NY App Ct. Still Dred Scott turns on it, as Taney struggled to find a way to evaluate laws of terr legs until he turns to the B of Rts and the 5th Amendment. Substantive due process was not commonly relied upon in antebellum America, despite the creative approach of abolitionists. After there is but a single case of anyone actually applying subst due process, though the SC hints at it in an 1854 case.

Before Dred Scott, proslavery lawyers and pols based their arguments on the rts of the states in the terrs (based upon the idea the states owned the terrs); after Dred Scott they focused on the property rts of slaveowners and claimed those rts would be violated by laws barring slaves in the terrs. Lincoln for his part derided the idea that a law barring slavery on one side of a geographical line deprived a man of his property without due process of law if he happened to cross that line with his slaves and had them removed from him. So Dred Scott and subst due process produced a real change in the way proslavery lawyers attacked the legality of prohibitions of slavery in the terrs. In sum, Bork is right, and you are wrong.
The fifth amendment may have been cited in Dartmouth, but the contract clause was the basis for the ruling.
2.24.2009 12:39pm
Anon321:
If Timothy Sandefur's synopsis of Dred Scott's reasoning is correct (and I apologize for not taking the time to review the opinion myself), I have a bit of a hard time seeing how Dred Scott is an example -- or at least a clear or paradigmatic example -- of substantive due process at all.

As I understand it, substantive due process refers to the practice of relying on the Due Process Clause to invalidate a law that infringes on unenumerated rights. If we accept the premise that slaves were property, which can't be taken without due process, then we're not talking about an unenumerated right at all. If Congress's law banning slavery exceeded Congress's powers and thus was void, then isn't it just a straightforward application of the Due Process Clause (in its non-controversial, non-substantive form) to say that property can't just be confiscated without due process?

Could someone shed more light on why exactly this is substantive due process? Did Taney say there was an unenumerated natural right to own slaves, thus rendering the law void? Or did he just say that the law banning slavery in the western territories violated Congress's powers?
2.24.2009 12:40pm
wm13:
What Timothy Sandefur said, i.e., the identification of Dred Scott as the source of "substantive due process" jurisprudence, and the linkage of Dred Scott to Roe v. Wade, seem to have begun with John Ely. I would add that Ely was (a) the dean of Stanford Law School, not a crank or wingnut, and (b) generally, a liberal, though a critic of Roe v. Wade. Nor was he active in the pro-life movement, he just thought that Roe v. Wade was a bad decision. So Dilan Esper's theory is somewhat flawed.

Ely opposed Roe v. Wade because he thought it would politicize the Supreme Court and, by discrediting the Court, serve as a barrier to further judicial activism, especially activism of the type that he wanted (i.e., on behalf of poor people and minorities). It's tought to say that he was wrong.
2.24.2009 12:42pm
U.Va. Grad:
Bart &DangerMouse:

It's true that the three cases are linked by their reliance on SDP. But Bork's not simply arguing that these three cases came out wrong, and some uses of SDP are better than others. He's arguing that the reasoning of Lochner and Roe is tainted because they rely on a doctrine first laid down in a case that's universally reviled and regarded as incorrectly decided. The fact that SDP existed pre-Dred Scott destroys that argument.

It may well be that Roe was a bad use of SDP, and it may well be that SDP is a doctrine that should be done away with entirely. But Bork's argument that SDP is a bad thing because it came about in this awful case is pretty soundly defeated by a showing that SDP pre-existed Dred Scott.
2.24.2009 1:27pm
Splunge:
It's ahistorical to use the thinking of antebellum abolitionists as any guide at all to mainstream thought in that period. They were a small fringe minority, and widely regarded -- both in North and South -- as cranks and kooks.
2.24.2009 1:35pm
Peter A (mail):
Bork argues subst due process is bad because it takes a doctrine that limited the power of courts and law enforcement officers and applied it to legislatures. The due process clause originally did not apply to legislative bodies. Bork is arguing that Dred Scott demonstrates that evils that result when you give courts an amorphous vague doctrine they can use to invalidate laws they find offensive. Dred Scott, Lochner, and Roe are all ex's of that. Dred Scott's particular significance is that it was the first time the doctrine was used by a fedl court to invalidate a major law (or any law). Banning an item in a particular area is not the equivalent of confiscating it, thus the takings clause is not implicated. The reasoning of these cases is all bad, in part because they rely on a doctrine that is judicially created, with no warrant in history, and because in the end, there isnt much reasoning at all, just rationalizations based upon an erroneous view of due process.
2.24.2009 1:37pm
Timothy Sandefur (mail) (www):
Ely may have been the sorce of the myth of Dred Scott as an SDP case, but he was certainly not the source of hostility to SDP, which was really a product of the Progressive era. SDP was, until that time, not only a widely accepted proposition of law, but so widely accepted that it would have been thought absurd to object to it.

I was at an event not long ago where Professor Lund, who has appeared in this thread, claimed before a large audience of lawyers that the Supreme Court had "never even tried to explain" how the due process clause can have a substantive component. Given the fact that everyone in that room could easily read, say, Loan Ass'n v. Topeka, Davidson v. New Orleans, or Hurtado v. California,--let alone Daniel Webster's oral argument in Dartmouth College in 1819--four decades before Dred Scott--I wonder if he is willing to stand by that claim.

Substantive due process is as legitimate and essential a constitutional concept as separation of powers or the protection of the citizen against arbitrary government acts (two things which, we might note, are also not specified in the literal language of the Constitution). Indeed, rightly understood, procedural due process is only a subset of so-called "substantive due process." And the attempt by judicial conservatives to ignore the mountain of historical evidence and common law legal theories regarding "Due Process" and "Law of the Land"--dating back well before even Dartmouth College--is, no less than the Dred Scott slander, an illogical, and in my view unscholarly way to avoid confronting a body of law that they find unappealing for policy reasons.
2.24.2009 1:43pm
Timothy Sandefur (mail) (www):
In response to Anon321, you're right. Dred Scott cannot really be fairly characterized as a substantive due process case, although of course due process figured into the decision. It's really a case about whether or not the Kansas-Nebraska Act is ultra vires. And where do we find the constitutional prohibition against ultra vires acts? In the due process of law clause, that says Congress, when it acts, may only act in a lawful manner. Thus the due process clause puts substantive limits on government--specifically, the limit that Congress may only act pursuant to its constitutional authority, and may not act arbitrarily or in excess of that authority. How do we ensure against arbitrary actions by government? Among other things, by requiring government to follow certain procedural steps when it deals with us. That's why procedural due process is only a subset of so-called substantive due process.

This idea was taken for granted by every competent lawyer in the 19th century. (Wynehamer was not the first SDP case, either; that was a case about the sovereignty of states, and a fascinating one--but, also not the first. See, e.g., Sharpless v. Mayor of Philadelphia and Billings v. Hall.) It was left to 20th century Progressives to try to blow up SDP, because they believed something that 19th century lawyers did not believe: that whatever the legislature does is law. And that proposition proceeds from the Progressive belief that democracy, and not liberty, is the Constitution's central value.

For those interested, I highly recommend G. Edward White's The Constitution And The New Deal, which so far as I know is the only book that gets this history right. White, BTW, is not exactly a libertarian ideologue.
2.24.2009 1:52pm
Oren:

White, BTW, is not exactly a libertarian ideologue.

Nor does DB particularly support the modern, expansive view of SDP. Both are at least intellectually honest though.
2.24.2009 1:54pm
Peter A (mail):
The due process clause is rooted in English legal history--Parliament in fact could do anything wanted. There was no due process limitation on its powers. The idea that due process limited the powers of legislatures was an American invention, and one that made only a very limited appearance before the Civil War. Webster also cited natural rights, but no one believes natural rights barred the st of New Hampshire from taking over Dartmouth College. He was a lawyer, he threw every argument he could think of at the court. Dred Scott turned on it because Taney couldnt figure out another way to determine which territorial laws (whether passed by Congress or legislatures) could be evaluated for constitutionality. He resorted to the bill of rights.
2.24.2009 1:59pm
1Ler:

[H]e makes a very explicit attempt to link Roe v. Wade to Lochner, and Lochner and Roe in turn to Dred Scott, the better to discredit Roe and other modern due process decisions by associating them with Taney's infamous decision.



I don't have the book in front of me, but I have to say that I never was under the impression that this was Bork's point. My impression was that Bork felt that a theory of substantive due process allows a judge to substitute his own policy views for those that would be established through the political process, even though the Constitution should not require that result, and that these three cases were prime examples. But that's not the same as just calling Roe and Lochner guilty by association with a theory that supported slavery.

Also, it should be noted that Bork did note Judge Chase's diatribe in Calder v. Bull as being in the same vein as the substantive due process theory. Because Chase's theory was explicitly based on extra-Constitutional rights, it obviously could not be a part of "substantive due process." But I think that Bork would lump it into the same category, meaning that he does acknowledge some theories of "law of the land" (or something similar) as existing before Dred Scott.
2.24.2009 3:01pm
Timothy Sandefur (mail) (www):
Virtually nothing that Peter A says is true. The theory of substantive due process (or what is now called that) was widely known and understood and accepted before the Civil War. Obviously it took off dramatically afterwards, and why not? There was (a) a vastly more industrialized and litigious society and (b) a new, second, Due Process clause, specifically applied to the states.

As for "no one believes natural rights barred the st of New Hampshire from taking over Dartmouth College"--speak for yourself, please. For New Hampshire to take over a private corporation certainly did violate the natural property rights of the owners of that corporation. This is hardly a difficult proposition for natural rights theory.

And "Dred Scott turned on [the Due Process Clause] because Taney couldnt figure out another way to determine which territorial laws (whether passed by Congress or legislatures) could be evaluated for constitutionality"--this sentence means nothing. Of course there's no other way to determine which laws are and are not constitutional, since the due process of law clause is where Congress is forbidden from acting in any manner other than a lawful manner--i.e., in a manner consistent with its constitutional authority. How else would one do it? The Court can't issue an advisory opinion. It can only rule on the constitutionality of a law when a litigant argues that (a) he's been deprived of life, liberty or property pursuant to it, and (b) that it is not actually a law because it exceeds the authority granted in the Constitution. To say that Dred Scott is a Due Process Case, however, is like saying that Wickard v. Filburn was a commerce clause case--it's true, except it's also deeply misleading. Wickard was a necessary and proper clause case, and Dred Scott was a case about Congress' authority to ban slavery in the western territories (and other things, of course, like whether former slaves or descendants of slaves could be American citizens--it is a rather unruly opinion). Due process figures into it, but it is not fair to characterize it as a due process case.
2.24.2009 3:13pm
MarkField (mail):
John Orth's book, "Due Process of Law", also provides background into the common law use of substantive due process.
2.24.2009 3:24pm
Dilan Esper (mail) (www):
I would add that Ely was (a) the dean of Stanford Law School, not a crank or wingnut, and (b) generally, a liberal, though a critic of Roe v. Wade. Nor was he active in the pro-life movement, he just thought that Roe v. Wade was a bad decision. So Dilan Esper's theory is somewhat flawed.

I didn't hypothesize about who first said it. I hypothesized as to why we hear it so often.
2.24.2009 4:03pm
davidbernstein (mail):
2.24.2009 4:09pm
wm13:
Well, Dilan Esper, your original post referred to how the analogy "arose," so the fact that it arose from a liberal, very mainstream, mildly pro-choice writer does seem to refute what you said somewhat. But if your post were rewritten to begin "this analogy is popular for a reason . . . ," then I wouldn't disagree with what you wrote.
2.24.2009 4:16pm
Nelson Lund (mail):
Timothy Sandefur wrote:


I was at an event not long ago where Professor Lund, who has appeared in this thread, claimed before a large audience of lawyers that the Supreme Court had "never even tried to explain" how the due process clause can have a substantive component. Given the fact that everyone in that room could easily read, say, Loan Ass'n v. Topeka, Davidson v. New Orleans, or Hurtado v. California,--let alone Daniel Webster's oral argument in Dartmouth College in 1819--four decades before Dred Scott--I wonder if he is willing to stand by that claim.


We are all prone to misunderstanding or misremembering oral statements, and I believe that's what happened here. What I have consistently said is that the Supreme Court has never attempted to explain how what we call substantive due process can be derived from the text of the Due Process Clause. I stand by that statement (and I would add that Daniel Webster and the Supreme Court are different entities).
2.24.2009 6:00pm
Oren:

What I have consistently said is that the Supreme Court has never attempted to explain how what we call substantive due process can be derived from the text of the Due Process Clause.

I think they have explained it a few times.


The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall . . . deprive any person of life, liberty, or property, without due process of law."

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also [Long list of unenumerated rights snipped out ] The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.
2.24.2009 7:32pm
pluribus:
Perhaps I am overlooking the obvious, but the rule seems to me to be this: The United States or a state may deprive a person of life, liberty, or property if the deprivation is by due process of law, but it may not do without due process of law. This seems to flow directly and naturally from the text. Of course, terms have to be defined. What is the protected liberty? What is the protected property (a slave)? What are the essential components of due process of law? But definitions are always necessary when reading a text. Text consists of words, and words must always be defined.
2.24.2009 8:17pm
Feldman:
"and words must always be defined"

Under Marbury, the SCt defines them. At any rate, the idea that SSDP sprang from the slavemongering mind of CJ Taney is absurd. What's the point of a written consititution but to set forth the valid process by which the government can deprive free men (and now women) of life, liberty and property.
2.24.2009 10:12pm
ReaderY:
I believe Judge Bork's argument was that Dred Scott was the first time the Supreme Court had used the concept. Professor Bernstein has brought up some state cases and arguments, but this doesn't counter the claim.

The difficulty with abolitionist's use of the Due Process Clause is much the same as abortion today -- proponents of slavery, noting the religious terminology which abolitionists tended to use, argued that the question of whether a Negro was a person or not was an essentially religious question that the United States was barred by the First Amendment from taking a position on. Calhoun in particular defended slavery in unmistakenly modern terms, stressing the need for pluralism and tolerance and characterizing abolitionists as intolerant blue-noses and moral-mongers bent on imposing a dull uniformity on society -- almost precisely the terms and indeed almost the same vocabulary that proponents of abortion use to describe the abolitionists of today. Southern slaveholders were our country's first rainbow people, its first advocates of multiculturalism as a fundamental social value.
2.25.2009 12:53am
ReaderY:
Its first alternative lifestyle choice, indeed, its first queer (peculiar) institution.
2.25.2009 12:56am
pluribus:
ReaderY:

[P]roponents of slavery, noting the religious terminology which abolitionists tended to use, argued that the question of whether a Negro was a person or not was an essentially religious question that the United States was barred by the First Amendment from taking a position on.

The Constitution settled the question of whether blacks (Negroes) were "persons." The Three-fifths Clause describes them as "all other persons." The Fugitive Slave Clause describes them as "persons[s] held to service or labor" under the law of one state who escape into another. This was a constitutional, not a religious, question, settled by the constitutional text.
2.25.2009 6:07am
Peter A (mail):
Timothy,

Absolutely nothing I said is true?

I noticed you didnt attempt to refute the most important point--due process is doctrine that developed in England over several centuries, where it did not serve to limit the power of Parliament. The idea that it limits legislative bodies is an American invention.

I dont deny subst due process appeared before the Civil War, but it was limited and treated harshly by commentators. See Corwin's article on due process before the Civil War in the Harvard Law Review, about 1911 or 1912. He cites reaction of state judges to wynehamer; they belittle the idea of subst due process.


I think there are a grand total of four or five state cases in which subst due process was used before the Civil War. I Does that sound like widespread acceptance, Timothy?

Feel free to name more cases from before the civil war in which due process was used.

During the first two decades of the 19th century, lawyers routinely argued that certain laws must be held void because they impaired natural rights, but this approach was very unpopular. The need to find an actual constl basis to invalidate laws led lawyers first to the contract clause and then the due process clause. Even then they ran into the hostility of judges and commentators, thus the very limited use of subst due process before the Civil War.
It is reasonable to view Dred Scott as a subst due process case because that subst due process is the basis upon which the Sup Ct held the Missouri Compromise void. There is nothing misleading about it.

Dred Scott turned on the due process clause, but Taney could have relied upon other means to limit the power of Congress in the territories. He could have used Calhoun's approach and argued that Congress only holds the terr's as a trustee, and cannot enact laws that harm the interests of states and effectively keep citizens from certain states out of the terrs (by prohibiting them from bringing their slaves). See the dissent of Curtis--he views it as a due process case because, as he points it, the clause is the only thing cited for the proposition that Congress cant ban slavery in the terrs.

Frankly, Timothy, I'll take Ben's opinion over your's.
2.25.2009 10:17am
Smallholder (mail) (www):
Splunge wrote:

It's ahistorical to use the thinking of antebellum abolitionists as any guide at all to mainstream thought in that period. They were a small fringe minority, and widely regarded -- both in North and South -- as cranks and kooks.



No.

This may have been true in the 1820s, but the hinge of fate had been swinging against slavery for some time. By the time of Dred Scott, the majority of Northerners were abolitionists - though most of those abolitionists preferred "gradual extinction" as opposed to uncompensated, revolutionary seizure. This is why Lincoln won the nomination in 1860 rather than William Henry "Higher Law than the Constitution" Seward. Of course, by the 1850s, gradual emancipation was just as objectionable to Southerners as the immediate kind.

Arguments over the Federal government's constitutional authority to ban slavery in the territories trace back to 1850.

A la Seward, most Americans realized the irrespressible conflict between slavery and free labor. Dred Scott is a horribly argued case designed to do one thing: Solve the question of which system would triumph in favor of slavery. Taney was throwing in everything, including the kitchen sink, to justify his pre-determined decision.

As such, although his SDP argument was used later in Lochner and Roe, it is a shaky case on which to build constitutional interpretation. I have always been a little alarmed when individual-rights proponents of the 2nd Amendment use Taney's throw away line about arming blacks (how absurd! They'd go all Nat Turner on us!) to support their side of the gun argument.
2.25.2009 11:23am
Smallholder (mail) (www):
As for the argument that Republican silence on Dred's SDP claims indicates acceptance, I would suspect (IANAL) that the refusal to engage was because they also used SDP to claim that a man could not be enslaved for that reason (among others). Furthermore, by 1857 we were beyond judicial settlement of the slavery issue. It could only be decided by, if I may be a bit anachronistic, blut und eisen.
2.25.2009 11:26am
Smallholder (mail) (www):
Peter A. mentions the contract clause. Full faith and credit was an argument used since at least 1850 to argue the unconstitutionality of Northern personal liberty laws, anti-fugitive slave law tactics, banning of slavery in the territories, and even state bans of slavery within their own borders - if Virginia recognized a bill of sale for a slave, Wisconsin must do the same thing.

I really enjoy exploring this with my students - they love the full faith and credit argument as a tool to promote gay marriage, but get uncomfortable when they realize the same argument was made in the service of the expansion of slavery.
2.25.2009 11:30am
Bart (mail):
U.Va. Grad:

Bart &DangerMouse: It's true that the three cases are linked by their reliance on SDP. But Bork's not simply arguing that these three cases came out wrong, and some uses of SDP are better than others. He's arguing that the reasoning of Lochner and Roe is tainted because they rely on a doctrine first laid down in a case that's universally reviled and regarded as incorrectly decided. The fact that SDP existed pre-Dred Scott destroys that argument.

Professor Bernstein did not offer prior case law, but rather noted that the argument for the substantive due process fiction was advanced in abolitionist political circles prior to Dred Scott. Thus, this is not a rebuttal to the claim that Dred Scott and then Lochner laid the legal precedent for this pernicious doctrine that was later employed by the Roe Court.
2.25.2009 3:03pm

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If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.