Plus the Reconstruction-Era XIV-Amendment redemption. In which I go down a rabbithole of “original public meaning” or whatever. A law student’s white nationalist screed wins a prize, echoing...
I think the appropriate races at the time of the Constitution were people descended from the English, Scots, Dutch, and French. No Italians (Badalamenti), Russians (Damsky), Germans, or Irish. This was the belief of JP Morgan. My father remembered as a child in Kansas City that Italian immigrants were considered swarthy people little better than blacks. Immigrants sure pull the ladder up fast.
Originalism and purity had better not look too long in the mirror.
I am not a lawyer, and never would have survived in that environment. In my 20s I began my career as what they called then, an Industrial Relations trainee. After a couple of years, I "graduated" to representing the company at grievance hearings, which were essentially debates about the meaning of the language in the contract. So, not a lawyer to be sure, but not much different from what lawyers and academics debate (aka argue about) these days.
To illustrate how idealistic and naïve I was at the time, it would often make some of the union stewards laugh when they would pull out their pocket-sized contracts and wonder why I didn't have mine. My response was, "I didn't need a copy, because if the answer were in the contract, we wouldn't be here to start with." A few years later, I "graduated" again and represented the employer in arbitration cases, and when friends would ask me what an arbitrator's role was, I would tell them it was to "tell me what I meant in a contract that I had written." Again, and unhappily, not unlike today's world.
All that said, and what I came to understand years later, as my idealism faded with the passage of time and my immersion in the real world, it was about those with power and those without, and at least to date no matter how much one reads into history, here or anywhere else, civilization has not (to borrow the concept) figured out how to treat each other as they would like to be treated, and given that this seems to have been the case for thousands of years, it very much feels like with today's technology, it seems inevitable that someone will feel so strongly that they are "right" that a button will be pushed, and then they'll be dead right.
1. Taney's opinion is pretty much eviscerated by the dissents of McLean and Curtis. Taney not only invented "facts", but refused to change his opinion in the face of proof that he was wrong. Among the problems is the fact that it doesn't make much sense to speak of "national" citizenship before the Constitution. There could not have been any such thing before the adoption of the Articles of Confederation, for obvious reasons. Under the Articles, the states retained full sovereignty (sic) except as expressly stated therein (Article II), and the topic of citizenship is not mentioned. That means that the individual states controlled citizenship prior to the ratification of the Constitution. As McLean and Curtis demonstrated, free blacks were in fact citizens of several states during that time.
2. Taney's opinion violated a basic principle of judicial opinions by finding 2 separate and distinct grounds for ruling against Dred Scott. Courts don't do this because one of the two grounds will, by definition, be essentially an advisory opinion, the first being sufficient to decide the case. Taney wrote that (a) blacks could not be citizens, so that they could not sue in federal court; and (b) the Missouri Compromise was unconstitutional. If (b) is correct (it was not), then there was no need to reach (a), and vice versa.
3. Birthright citizenship (technically, being a subject of the king because of the monarchy) was the rule at common law, and there was no distinction based upon skin color.
4. Relying on point 3, the 14th Amendment was explicitly intended to confirm birthright citizenship and was so described in the ratification debates.
5. The argument that the 14th Amendment was improperly ratified is an old one. In fact, it was made in the losing briefs in the Wong Kim Ark case, which confirmed birthright citizenship.
Now, a bit of detail on the student essay. It has been customary for at least 50 years to give an award to the highest grade in a particular class. That award is described in the Times article as a "book" award, because traditionally the student received a book on the class subject. It is outrageous that the professor in this class awarded the highest grade to such a poorly reasoned racist screed.
Yes. McLean and Curtis did a good job. Taney's argument has to be that (a) New Englander Puritans and Pennsylvania Quakers are weirdos, whose beliefs that Blacks can be citizens have no bearing on us, and (b) in the pre-Jacksonian era where the rich are a superior caste and the only ones who can vote, enough wealth can purge you of your taint of Negrohood, but we are Jacksonians who believe in equality, and so there is no caste edge produced by wealth to take into consideration. As I said, Taney did not have to decide that a grant of Illinois citizenship did not entail the granting of federal citizenship, but it was a hair he could split to get Dred Scott out of his court. The mystery to me is why he felt he had to write the rest of his opinion, which (a) did nothing to the situation on the ground, but (b) was an extraordinary gift to the nascent Republican Party's ability to organize:
> Mark Field: Ok, let's sort this: Taney's opinion is pretty much eviscerated by the dissents of McLean and Curtis. Taney not only invented "facts", but refused to change his opinion in the face of proof that he was wrong. Among the problems is the fact that it doesn't make much sense to speak of "national" citizenship before the Constitution. There could not have been any such thing before the adoption of the Articles of Confederation, for obvious reasons. Under the Articles, the states retained full sovereignty (sic) except as expressly stated therein (Article II), and the topic of citizenship is not mentioned. That means that the individual states controlled citizenship prior to the ratification of the Constitution. As McLean and Curtis demonstrated, free blacks were in fact citizens of several states during that time...
That the 14th Amendment was unconstitutional because improperly ratified was a staple of segregationist argument when I was growing up in SC. The amendment owed its ratification to the requirement that it (and later the 15th Amendment) be ratified as a condition for ex-Confederate states to rejoin the Union. That it was forced down the throats of those states (or those white oligarchs who controlled those states at the time, of course) meant that it was not freely ratified and thus invalid, went the argument.
I agree with many of Brad's points, but think he may have used the wrong metric. In 1789, male voting was limned around with property requirements. Jury service was the democratic power, since state power of the time could not operate but through a jury. And jury power only grew through the first decades of the 19th century, as judges limited themselves to law, and gave jurors all power over facts.
My understanding is that black men (sic) seldom served on juries before 1870, but it seemed a matter of custom as much as law.
Maryland did in fact permit voting by free black people with property until 1803 when the property requirement was dropped for white men. One of the commenters has missed the real significance of the Dredd Scott decision however. Slaves in slave states had been bringing succesful suits against their owners for decades before Dredd Scott for having sojourned in free states. Dredd Scott began as a routine suit with success reasonably likely, It was not a test case at the start. Taney's opinion reverses decades of jurisprudence. It was more similar to Dodds reversing Roe v. Wade than to Roe v. Wade itself. It was actually a worse opinion that most even know.
Yes, the Dred Scott case began in state court. The Missouri Supreme Court overruled decades of precedent to deny him his freedom. He brought the federal action afterward. There were 2 arguments on the merits: that being in IL had caused Scott to become free; and that being in Wisconsin Territory had done so. The Missouri Court had rejected the first argument and Taney didn't need to reverse any precedent because that had already happened. Taney then went on to reject the time spent in Wisconsin Territory as material on the ground that the Missouri Compromise was unconstitutional.
doesn't just show one of the many ways in which originalism is vacuous - the bill of rights only applies to the states becasue of theh 14th amendment, but then the meaning of the bill of rights depends on their meaning from the revolutionary period.
1/ Is there any evidence that the members of the Constitutional Convention had a particular thought, at the time, of what "We the people" meant? I do not recall, but I am not intimately familiar with the diaries of the members. Is this possibly a mere literary device?
The issue at the time, and later too for that matter, was whether the Constitution was made by the people or by the states. In the VA ratifying convention, Patrick Henry went on a rant about who authorized "we the people" instead of "we the states". Gouverneur Morris put in the Preamble because he was on the "people" side.
As for it being a literary device, the rule in statutory interpretation is that the heading or title is not considered part of the statute. Courts have applied that rule to the Preamble (wrongly in my view).
I had thought the heading or preamble was not part of the statute, but that the purposes contained therein were to guide interpretations of statutory language: that it did matter whether the preamble was "the farmer and the cowman should be friends" or "the interest of the cowman in open range should be secured"?:
> Mark Field: The issue at the time, and later too for that matter, was whether the Constitution was made by the people or by the states. In the VA ratifying convention, Patrick Henry went on a rant about who authorized "we the people" instead of "we the states". Gouverneur Morris put in the Preamble because he was on the "people" side. As for it being a literary device, the rule in statutory interpretation is that the heading or title is not considered part of the statute. Courts have applied that rule to the Preamble (wrongly in my view).
The purpose of a law is definitely one element of statutory interpretation. Headings or titles *can* be used to establish the purpose.
But this means that the Preamble (or any other title) is not a grant of power, but merely one among many means to help interpret the powers granted within the body of the text. I think it fair to say that before the Civil War, the "We, the People" language was ignored in favor of "states rights".
The Court never reversed its Dred Scott decision because it was correct. The injustice was removed by subsequent Constitutional amendments. If Dred Scott had been incorrect, the amendments would not have been necessary.
I'm sure that virtually all of the delegates to the constitutional convention in 1787 assumed that "we the people" meant only white people, not Indians or Blacks. In regards to Dred Scott, I wonder what if Dred Scott had been decided differently? What if, based on a theory of states rights, the Supreme Court had ruled that since slavery was illegal in Illinois, that Dred Scott became a free man once he entered Illinois? What then? Well the southern states would have been outraged, and they might have seceded from the union in 1857 instead of 1861. Does anyone really think President Buchanan would have gone to war to prevent this? So as bad as the Dred Scott decision was, it bought the union more time until Lincoln could be elected.
I think the appropriate races at the time of the Constitution were people descended from the English, Scots, Dutch, and French. No Italians (Badalamenti), Russians (Damsky), Germans, or Irish. This was the belief of JP Morgan. My father remembered as a child in Kansas City that Italian immigrants were considered swarthy people little better than blacks. Immigrants sure pull the ladder up fast.
Originalism and purity had better not look too long in the mirror.
For sure!
Welsh?
I am not a lawyer, and never would have survived in that environment. In my 20s I began my career as what they called then, an Industrial Relations trainee. After a couple of years, I "graduated" to representing the company at grievance hearings, which were essentially debates about the meaning of the language in the contract. So, not a lawyer to be sure, but not much different from what lawyers and academics debate (aka argue about) these days.
To illustrate how idealistic and naïve I was at the time, it would often make some of the union stewards laugh when they would pull out their pocket-sized contracts and wonder why I didn't have mine. My response was, "I didn't need a copy, because if the answer were in the contract, we wouldn't be here to start with." A few years later, I "graduated" again and represented the employer in arbitration cases, and when friends would ask me what an arbitrator's role was, I would tell them it was to "tell me what I meant in a contract that I had written." Again, and unhappily, not unlike today's world.
All that said, and what I came to understand years later, as my idealism faded with the passage of time and my immersion in the real world, it was about those with power and those without, and at least to date no matter how much one reads into history, here or anywhere else, civilization has not (to borrow the concept) figured out how to treat each other as they would like to be treated, and given that this seems to have been the case for thousands of years, it very much feels like with today's technology, it seems inevitable that someone will feel so strongly that they are "right" that a button will be pushed, and then they'll be dead right.
Ok, let's sort this:
1. Taney's opinion is pretty much eviscerated by the dissents of McLean and Curtis. Taney not only invented "facts", but refused to change his opinion in the face of proof that he was wrong. Among the problems is the fact that it doesn't make much sense to speak of "national" citizenship before the Constitution. There could not have been any such thing before the adoption of the Articles of Confederation, for obvious reasons. Under the Articles, the states retained full sovereignty (sic) except as expressly stated therein (Article II), and the topic of citizenship is not mentioned. That means that the individual states controlled citizenship prior to the ratification of the Constitution. As McLean and Curtis demonstrated, free blacks were in fact citizens of several states during that time.
2. Taney's opinion violated a basic principle of judicial opinions by finding 2 separate and distinct grounds for ruling against Dred Scott. Courts don't do this because one of the two grounds will, by definition, be essentially an advisory opinion, the first being sufficient to decide the case. Taney wrote that (a) blacks could not be citizens, so that they could not sue in federal court; and (b) the Missouri Compromise was unconstitutional. If (b) is correct (it was not), then there was no need to reach (a), and vice versa.
3. Birthright citizenship (technically, being a subject of the king because of the monarchy) was the rule at common law, and there was no distinction based upon skin color.
4. Relying on point 3, the 14th Amendment was explicitly intended to confirm birthright citizenship and was so described in the ratification debates.
5. The argument that the 14th Amendment was improperly ratified is an old one. In fact, it was made in the losing briefs in the Wong Kim Ark case, which confirmed birthright citizenship.
Now, a bit of detail on the student essay. It has been customary for at least 50 years to give an award to the highest grade in a particular class. That award is described in the Times article as a "book" award, because traditionally the student received a book on the class subject. It is outrageous that the professor in this class awarded the highest grade to such a poorly reasoned racist screed.
Yes. McLean and Curtis did a good job. Taney's argument has to be that (a) New Englander Puritans and Pennsylvania Quakers are weirdos, whose beliefs that Blacks can be citizens have no bearing on us, and (b) in the pre-Jacksonian era where the rich are a superior caste and the only ones who can vote, enough wealth can purge you of your taint of Negrohood, but we are Jacksonians who believe in equality, and so there is no caste edge produced by wealth to take into consideration. As I said, Taney did not have to decide that a grant of Illinois citizenship did not entail the granting of federal citizenship, but it was a hair he could split to get Dred Scott out of his court. The mystery to me is why he felt he had to write the rest of his opinion, which (a) did nothing to the situation on the ground, but (b) was an extraordinary gift to the nascent Republican Party's ability to organize:
> Mark Field: Ok, let's sort this: Taney's opinion is pretty much eviscerated by the dissents of McLean and Curtis. Taney not only invented "facts", but refused to change his opinion in the face of proof that he was wrong. Among the problems is the fact that it doesn't make much sense to speak of "national" citizenship before the Constitution. There could not have been any such thing before the adoption of the Articles of Confederation, for obvious reasons. Under the Articles, the states retained full sovereignty (sic) except as expressly stated therein (Article II), and the topic of citizenship is not mentioned. That means that the individual states controlled citizenship prior to the ratification of the Constitution. As McLean and Curtis demonstrated, free blacks were in fact citizens of several states during that time...
That the 14th Amendment was unconstitutional because improperly ratified was a staple of segregationist argument when I was growing up in SC. The amendment owed its ratification to the requirement that it (and later the 15th Amendment) be ratified as a condition for ex-Confederate states to rejoin the Union. That it was forced down the throats of those states (or those white oligarchs who controlled those states at the time, of course) meant that it was not freely ratified and thus invalid, went the argument.
Yes, in the 1990s when I could still stand to read that sort of thing it was a commonplace on the extreme Right.
I agree with many of Brad's points, but think he may have used the wrong metric. In 1789, male voting was limned around with property requirements. Jury service was the democratic power, since state power of the time could not operate but through a jury. And jury power only grew through the first decades of the 19th century, as judges limited themselves to law, and gave jurors all power over facts.
My understanding is that black men (sic) seldom served on juries before 1870, but it seemed a matter of custom as much as law.
Maryland did in fact permit voting by free black people with property until 1803 when the property requirement was dropped for white men. One of the commenters has missed the real significance of the Dredd Scott decision however. Slaves in slave states had been bringing succesful suits against their owners for decades before Dredd Scott for having sojourned in free states. Dredd Scott began as a routine suit with success reasonably likely, It was not a test case at the start. Taney's opinion reverses decades of jurisprudence. It was more similar to Dodds reversing Roe v. Wade than to Roe v. Wade itself. It was actually a worse opinion that most even know.
Thanks... - B.
My ears are burning....
Yes, the Dred Scott case began in state court. The Missouri Supreme Court overruled decades of precedent to deny him his freedom. He brought the federal action afterward. There were 2 arguments on the merits: that being in IL had caused Scott to become free; and that being in Wisconsin Territory had done so. The Missouri Court had rejected the first argument and Taney didn't need to reverse any precedent because that had already happened. Taney then went on to reject the time spent in Wisconsin Territory as material on the ground that the Missouri Compromise was unconstitutional.
doesn't just show one of the many ways in which originalism is vacuous - the bill of rights only applies to the states becasue of theh 14th amendment, but then the meaning of the bill of rights depends on their meaning from the revolutionary period.
1/ Is there any evidence that the members of the Constitutional Convention had a particular thought, at the time, of what "We the people" meant? I do not recall, but I am not intimately familiar with the diaries of the members. Is this possibly a mere literary device?
2/ Any chance Ben Fraklin was being ironic?
The issue at the time, and later too for that matter, was whether the Constitution was made by the people or by the states. In the VA ratifying convention, Patrick Henry went on a rant about who authorized "we the people" instead of "we the states". Gouverneur Morris put in the Preamble because he was on the "people" side.
As for it being a literary device, the rule in statutory interpretation is that the heading or title is not considered part of the statute. Courts have applied that rule to the Preamble (wrongly in my view).
I had thought the heading or preamble was not part of the statute, but that the purposes contained therein were to guide interpretations of statutory language: that it did matter whether the preamble was "the farmer and the cowman should be friends" or "the interest of the cowman in open range should be secured"?:
> Mark Field: The issue at the time, and later too for that matter, was whether the Constitution was made by the people or by the states. In the VA ratifying convention, Patrick Henry went on a rant about who authorized "we the people" instead of "we the states". Gouverneur Morris put in the Preamble because he was on the "people" side. As for it being a literary device, the rule in statutory interpretation is that the heading or title is not considered part of the statute. Courts have applied that rule to the Preamble (wrongly in my view).
The purpose of a law is definitely one element of statutory interpretation. Headings or titles *can* be used to establish the purpose.
But this means that the Preamble (or any other title) is not a grant of power, but merely one among many means to help interpret the powers granted within the body of the text. I think it fair to say that before the Civil War, the "We, the People" language was ignored in favor of "states rights".
Lincolns Cooper union address is another view.
The Court never reversed its Dred Scott decision because it was correct. The injustice was removed by subsequent Constitutional amendments. If Dred Scott had been incorrect, the amendments would not have been necessary.
I'm sure that virtually all of the delegates to the constitutional convention in 1787 assumed that "we the people" meant only white people, not Indians or Blacks. In regards to Dred Scott, I wonder what if Dred Scott had been decided differently? What if, based on a theory of states rights, the Supreme Court had ruled that since slavery was illegal in Illinois, that Dred Scott became a free man once he entered Illinois? What then? Well the southern states would have been outraged, and they might have seceded from the union in 1857 instead of 1861. Does anyone really think President Buchanan would have gone to war to prevent this? So as bad as the Dred Scott decision was, it bought the union more time until Lincoln could be elected.