Daniel A. Farber (University of California, Berkeley – School of Law) has posted A Fatal Loss of Balance: Dred Scott Revisited on SSRN. Here is the abstract:
This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress’s enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in fair procedure within the Court itself.
Taney's exercise in originalism highlights some pitfalls that present-day originalists would do well to avoid. His effort to read all of the Constitution through a states' rights, pro-slavery lense also dramatizes the risks of foundationalism. Taney's opinion lacks any sense of balance – a failing at any time for a judge, but particularly dangerous when the nation is poised over a historic abyss.
Sadly, Dan Farber seeks to tar originalism with Taney's opinion in Dred Scott. But this is wrong. Both Taney's majority opinion and Curtis's dissent were originalist opinions. And in my view, Taney's was clearly bad originalism. In fact, the best argument against Taney's opinion is that it was not the original meaning.
Posted at 2:34 PM