Today’s New York Times includes not one but two articles* that refer to “originalism,” the belief that the U.S. constitution must be understood as its framers would have understood it…that we must erase the 253 years of history, maturation, conflict, reconciliation, and blood that stand between us and 1789.

Appeals to originalism always remind me of the worst decision in the Supreme Court’s history, Dred Scott v. Sanford, the monstrous monument to originalism drafted by 80-year-old Chief Justice Roger Taney. Taney, who was born to a slaveholding family but freed his own slaves in 1818, may have sincerely believed that the decision would save the Union by laying the divisive quarrel over slavery to rest for good and all. Instead, it inflamed anti-slavery opposition and helped ignite the very war Taney had hoped to avoid.

We should reread his decision today, regularly, whenever judges try to deny rights or suppress freedoms in the name of the founders.

Dred Scott (the judicial holding, not man held in slavery) famously denied that black people, even free black people, could ever be citizens. Taney managed this trick of jurisprudential gymnastics by, of course, citing history, saying “When the Constitution was adopted, they were not regarded in any of the States as members of the community,” and so were not subsequently to ever count as citizens or possess the right to sue in Federal court.

Here’s the nub of his argument.

I-4) A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States.

I.-5) When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

Dred Scott v. Sandford, 60 U.S. 393 (1856)

The 13th and 14th amendments to the Constitution did away with even these specious arguments, but the rest of the decision is similarly riddled with tortured originalism.

For example, Taney, et al. (the decision was 7-2, with Justices John McLean and Benjamin Curtis dissenting), seemed determined to show that Scott (the man) could not have been a citizen of Missouri. Why? Because Congress’s authority to make rules for U.S. applies only to “territory within…the states when they were colonies of Great Britain.” Somehow, any territories acquired, organized, or admitted to the Union thereafter are territories, but not territories, are states, but not states.

I can’t really follow the logic here. As we used to dread hearing in physics class, “this is left as an exercise for the reader.” Here, in any case, is what Taney wrote: .

III-2) The clause in the Constitution authorizing Congress to make all needful rules and regulations for the government of the territory and other property of the United States applies only to territory within the chartered limits of some one of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of the States in the treaty of peace. It does not apply to territory acquired by the present Federal Government by treaty or conquest from a foreign nation.

Dred Scott v. Sandford, 60 U.S. 393 (1856)

The point here is not that the Dred Scott decision was a moral and legal disaster. The moral and legal disaster is, rather, treating the Constitution (and, by implication, the fabric of American society), as frozen in time on March 4, 1789. As has been pointed out repeatedly, ours is not a world lit by fire, held together by messengers on horseback, defended by muskets, or possessed only by white people. A Constitution read only by candlelight is as dead as a fly in amber, however pretty or interesting it might be to look at.

#from-the-timesFrom the Times, 5 Feb 2022: The Supreme Court is on the Wrong Path, an op-ed by Harvard law professor Adrian Vermeule and ‘Daddy, What’s an Originalist?’ by Blake Hounsell and Leah Askarinam of the Times’ On Politics newsletter.

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