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Preemptive opinions: The secret history of Worcester v. Georgia and Dred Scott
... Today, Jackson is derided for his role in tramping the rights of Native Americans and supporting slavery [38], yet Jackson was aided in these endeavors by a loyal attorney general, "political hack, Roger B. Taney" ( [39]: 554). At this time it is important to note that in some countries, government 'ministries' are called departments (e.g. the US Department of Justice). ...
... Calhoun ([42]: 612) adds that "Taney-as he sometimes did-found in the law what he wanted to find." Ultimately, Taney's "obsessive fidelity to Jacksonian tenets" was later rewarded, when Jackson appointed him to the Supreme Court as Chief Justice, upon Chief Justice Marshall's death ( [39]: 584). Taney was promoted to replace the man that he had been complicit in helping Jackson ignore! ...
A body of literature suggests that states with independent courts are more likely to protect human rights. A recent article challenges this notion by arguing that when both the president and his or her justice minister share the same party-i.e., they are copartisans-that state is less likely to protect human rights, as justice ministers may value their loyalty to the president over their duty to enforce court decisions. In this article, I estimate government respect for human rights accounting for both copartisan justice ministers and an independent judiciary. In the end, I find copartisan justice ministers to be negatively associated with high government respect for human rights, even after controlling for judicial independence. Many constitutions already seek to ensure an independent judiciary, but if copartisan justice ministers increase the likelihood that governments repress, then perhaps constitutional engineers should also consider options that would reduce the likelihood that both the president and his or her justice minister share the same party.
This book presents the history behind a revolution in American liberty: the 1868 addition of the Privileges or Immunities Clause of the Fourteenth Amendment. This exhaustively researched book follows the evolution in public understanding of “the privileges and immunities of citizens of the United States,” from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.
Prigg v. Pennsylvania (1842), has puzzled scholars for generations. Law professor David Currie has called it “perplexing.” It is a case over which scholars have come to a wide array of conflicting conclusions.
Civil War History 50.3 (2004) 229-260
On March 6, 1857, Chief Justice Roger B. Taney lashed out against the antislavery movement and simultaneously reaffirmed his court's support for the emerging corporate order. He did both in Dred Scott v. Sandford when he declared, accurately, that the Constitution recognized no black person as a citizen of the United States. The Dred Scott case, which also found that the federal government possessed no authority to limit the expansion of slavery into the territories, has long invoked contempt. As the antislavery lawyer John Appleton wrote shortly after the decision, "that the law has been disregarded or rather trampled under foot few will doubt." Appleton's perception of a "mutilation of fact [and] subversion of the law" in Dred Scott anticipated the stance that underpins recent investigations into the citizenship question, which scholars now realize raised fundamental questions concerning race relations within American society. By law, citizenship signified a legal relationship in which purportedly free individuals gave their allegiance to a sovereign community in exchange for the protection of a shifting bundle of rights that varied by race, gender, and jurisdiction. According to Taney, however, no such relationship existed between the federal citizenry and free blacks: "They are not included and were not intended to be included." To the contrary, they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race . . . and had no rights or privileges but such as those . . . the Government might choose to grant them." The chief justice supported his contentions with a lengthy historical argument that Appleton, among others, described as "falsified."
The most striking aspect of Taney's argument involved not so much what he said but rather the excessive manner in which he said it. The assertion that the constitutional order existed for white people only was hardly a novel stance. Taney expressed a belief—widely held at all levels of society and throughout every region of the Union—that the perceived inherent inferiority of black people rendered them unfit for citizenship. Taney himself began working out his thoughts on the subject as early as 1832, when, as Andrew Jackson's attorney general, he defended South Carolina's policy of imprisoning every free black sailor that entered the state. Despite its widespread character, the ideology of white superiority became increasingly contested in the antebellum period. Even in the Jacksonian South, as Lacy K. Ford has argued, the question of citizenship for free blacks remained open and deeply contentious; the debate was even more intense in the North and West. Taney's analysis in Dred Scott was sophisticated enough to handle the resulting ambiguity and in fact represented an accurate reading of American law and history. Even so, the chief justice went out of his way to stress what he saw as the inferiority of African Americans before the law and within society. He could have presented the substance of his argument in a paragraph or two—perhaps in five pages if he wanted to be thorough. Instead, he allotted more space (twenty-four pages) to the citizenship question than he did to any other, including the explosive territorial issue (twenty-one pages). In those two dozen pages A. Leon Higginbotham counted twenty-one separate references to either black inferiority or white superiority.
Behind the excessive display lay a pro-Southern political agenda. Taney's opinion, according to historian Don E. Fehrenbacher, expressed "the southern mood—fearful, angry, and defiant—in the late stages of a national crisis," and it launched "a sweeping counterattack on the antislavery movement." This interpretation contains merit. The Taney Court's members, with a few exceptions, revealed little patience for antislavery legal arguments, and they had no qualms about undercutting antislavery litigation strategies. Taney's opinion closed a jurisdictional pathway that the Court's previous rulings unintentionally had left open to free black people, but this interpretation does not explain fully why Taney devoted nearly half of his opinion to what scholars characterize as a "rambling and repetitious argument" or, even less charitably, a "tortuous forced march." In contrast to the territorial question, the...
In this essay for a festschrift in celebration of Philip Frickey and his work, I show how equal protection and federal Indian law can be reconciled without succumbing to what Professor Frickey has called the seduction of artificial coherence. Federal Indian policies increasingly face arguments that, in providing special treatment for individuals and groups defined in part by descent from indigenous tribes, they violate the requirement of equal protection before the law. I argue that such arguments ignore the congruence of federal Indian policy and equal protection as a matter of constitutional norms, constitutional history, and constitutional text. Federal Indian policies at their best undo the results of defining indigenous peoples as inferior racial groups rather than sovereigns entitled to political and property rights. This consistency between civil rights and protection of tribal rights was recognized by the framers of the fourteenth amendment, and is reflected in both judicial decisions and historical developments in federal Indian policy. American constitutional principles, in other words, support both equal protection and tribal rights, and militate against any false consistency that would undermine the principles of equality and respect on which both are based.
Historical accounts of the Privileges or Immunities Clause of Section One of the Fourteenth Amendment generally assume that John Bingham based the text on Article IV of the original Constitution and that Bingham, like other Reconstruction Republicans, viewed Justice Washington’s opinion in Corfield v. Coryell as the definitive statement of the meaning of Article IV. According to this view, Justice Miller in the Slaughterhouse Cases failed to follow both framers’ intent and obvious textual meaning when he distinguished Section One’s privileges or immunities from Article IV’s privileges and immunities. A close analysis of antebellum law, however, suggests that Justice Miller’s approach was faithful to long-standing legal doctrines regarding the meaning of Article IV and a distinct category of rights known as the “privileges and immunities of citizens of the United States.” As of Reconstruction, Article IV’s protection of “privileges and immunities of citizens in the several states” was broadly understood as providing sojourning citizens equal access to a limited set of state-conferred rights. The “privileges and immunities of citizens of the United States,” on the other hand, was an accepted term of art which referred to those rights conferred upon United States citizens by the Constitution itself. Even as the country came apart over the issue of slavery, slave-state advocates and the proponents of abolition both expressly maintained the distinction between Article IV and national privileges and immunities. In the Thirty-Ninth Congress, John Bingham, the drafter of Section One, insisted that this distinction informed the meaning of the final draft of the Fourteenth Amendment. According to Bingham, the Privileges or Immunities Clause protected “other and different privileges and immunities” than those protected by Article IV. Understanding the roots of this distinction in antebellum law helps illuminate Bingham’s explanation of Section One, and the likely reception of the Privileges or Immunities Clause by the public at large. This is the first of a three-part investigation of the origins of the Privileges or Immunities Clause. This first part explores antebellum law in order to determine the historical understanding of words, phrases, and case law at the time of Reconstruction. Part II, "John Bingham and the Second Draft of the Fourteenth Amendment" (also available on SSRN) considers how the historical understanding of "privileges and immunities" affected the debates on the first and second draft of the Fourteenth Amendment. It turns out that a critical number of Republicans in the Thirty-Ninth Congress maintained the antebellum distinction between Article IV privileges and immunities and federal privileges and immunities-a fact which ultimately led John Bingham to withdraw his original Article IV-based draft of the Fourteenth Amendment and replace it with a second and final draft which protected the privileges or immunities of citizens of the United States.
Argument from the “anticanon,” the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to conventional constitutional argument. This Article substantiates that claim and explores those reasons. I argue that anticanonical cases achieve their status through historical happenstance, and that their status is reaffirmed as subsequent interpretive communities avail themselves of the rhetorical resource the anticanon represents. That use is enabled by at least three features of anticanonical cases: their incomplete theorization, their amenability to traditional forms of legal argumentation, and their resonance with constitutive ethical propositions that have achieved consensus. I argue that it is vital for law professors in particular to be conscious of the various ways in which the anticanon is used—for example, to dispel dissensus about or sanitize the Constitution—that we may better decide if and when that use is justified.
Federal Indian law is often dismissed as esoteric and incoherent. In this Article, Professor Frickey argues that this need not - and should not - be the case. Rather, he claims, federal Indian law represents the intersection of colonialism and constitutionalism in the American historical experience. As such, it is central to our understanding of American public law. Moreover, Professor Frickey contends that a coherent, normatively sensitive approach to contemporary federal Indian law is possible. Professor Frickey identifies, in the three foundational federal Indian law opinions written by Chief Justice John Marshall, on ingenious, evolving effort to mediate the tensions between colonialism and constitutionalism. According to Professor Frickey, Chief Justice Marshall achieved this subtle accommodation by conceiving of Indian treaties and other documents that adjust the exclusive sovereign-to-sovereign relationship between the federal government and tribes as constitutive texts. As such, Chief Justice Marshall's interpretive approach to them mirrored his approach to the federal Constitution. Unfortunately, the Supreme Court and contemporary commentators have lost sight of Chief Justice Marshall's approach. Professor Frickey outlines the implications of a return to a constitutive vision and concludes that such a method is both more coherent and more sensitive to the underlying issues of federal Indian law.
As recent trade agreements such as NAFTA and the Uruguay Round of GATT illustrate, it has become common for Presidents to submit major international agreements to both Houses of Congress for simple-majority approval, even though Article II, section 2 of the Constitution provides for the President to submit treaties to the Senate for approval by two thirds of the Senators present. In a recent article in the Harvard Law Review, Professors Bruce Ackerman and David Golove recounted the rise of the "congressional-executive agreement" as an alternative to the treaty form. In addition to arguing that use of the congressional-executive agreement is consistent with constitutional text, Professors Ackerman and Golove asserted that political events in the 1940s so altered the proper understanding of the Constitution that, despite the absence of any amendment in accord with Article V, the Treaty Clause of Article II became purely optional. In this Article, Professor Tribe challenges both of those conclusions and the free-form method of constitutional analysis that underlies them. He suggests that modes of argument that regard the Constitution's instructions for treatymaking and for constitutional amendment as merely optional are not genuinely constrained by what the Constitution says or by how its parts fit together. Such modes of argument instead embody major errors in what Professor Tribe describes as the "topology" of constitutional construction - errors that, in his view, disqualify approaches like those of Professors Ackerman and Golove from serious consideration as legitimate forms of interpretation. Focusing particularly on Professor Ackerman's notions of "constitutional moments" and "higher lawmaking" outside of Article V, Professor Tribe seeks to show that resort to extraordinary theories of constitutional change threatens to undermine genuine inquiry into the meaning of the Constitution's text. Accordingly, Professor Tribe calls for an unabashed return to rigor and precision in the interpretive process - for a commitment to take text and structure seriously.
Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause that - though not explicitly invoked by the Romer majority - clarifies and supports the majority's theory: the Article I, section 10 Attainder Clause. My claim is not that the Equal Protection Clause, relied upon by the Romer Court, was incapable of doing the work; but that the sociology and principles underlying the Attainder Clause powerfully illuminate the facts of Romer, the opinions in Romer, and the spirit of the Equal Protection Clause itself.
Interpreters squeeze meaning from the Constitution through a variety of techniques - by parsing the text of a given clause, by mining the Constitution's history, by deducing entailments of the institutional structure it outlines, by weighing the practicalities of proposed readings of it, by appealing to judicial cases decided under it, and by invoking the American ideals it embraces. Each of these classic techniques extracts meaning from some significant feature of the Constitution - its organization into distinct and carefully worded clauses, its embedment in history, its attention to institutional architecture, its plain aim to make good sense in the real world, its provision for judicial review (and thus judicial doctrine), and its effort to embody the ethos of the American people. Here is another feature of the Constitution: various words and phrases recur in the document. This feature gives interpreters yet another set of clues as they search for constitutional meaning and gives rise to yet another rich technique of constitutional interpretation. I call this technique intratextualism.
We live in extraordinary times. In the past year the Supreme Court of the United States has decided an election and installed a president. In the past ten years it has produced fundamental changes in American constitutional law. These two phenomena are related. Understanding the constitutional revolution that we are living through means understanding their connections.
The new occupant of the White House—we will call him “President” after he has successfully prevailed in an election conducted according to acceptable constitutional norms—has taken the oath of office and has begun to govern. But his claim to the presidency is deeply illegitimate. He and the political party that he leads seized power through the confluence of two important events that would have caused widespread outrage and produced vigorous objections from neutral observers if they had occurred in a third world country.
Recent years have seen the introduction of fundamental tax reform proposals that call into question the meaning of Article I's "direct tax" clauses: "direct Taxes shall be apportioned among the several states" and "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census." Professor Ackerman argues that these clauses should be narrowly construed, and should not serve as constitutional bars to any of the wide range of reform proposals now under discussion.
His essay emphasizes the tainted origins of the direct tax clauses. At the Founding, they served as an essential component of the larger compromise over slavery that was the price paid for the formation of our "more perfect Union. " In recognition of this fact, the clauses were narrowly interpreted by a series of Supreme Court opinions handed down during the first century of the Republic. But in 1895, the Court broke with this tradition of restraint in Pollock v. Farmers' Loan & Trust Co., holding that an income tax statute violated the direct tax clauses.
Professor Ackerman traces the Court s gradual return to the pre-Pollock tradition of restraint during the course of the twentieth century after the enactment of the Sixteenth Amendment. On the basis of this historical review, he urges the rejection of recent academic calls to revive and broaden the scope of the direct tax clauses. Americans should be focusing on the future of tax reform without supposing that past constitutional texts and court decisions profoundly constrain their on-going pursuit of social justice.