The NY Times Finds A Codebreaker

The NYTimes cracks the Dred Scott code. 

We think Jack Balkin is wrong (and boy, do we hate to argue constitutional law with a constitutional law professor, but here is our post - see the Lincoln bit. [In the UPDATE, I drag in a constitutional law prof to help my side.  His intials are "JB".  A gracious email from Prof. Balkin is re-run at the bottom of the comments confirming that the Times fluffed this a bit.])  The subject in dispute:

But to liberal jurists, Mr. Bush's reference to Dred Scott in the second debate, on Oct. 8, was particularly puzzling. Saying he would appoint strict constructionist justices who adhered to the intent of the Constitution's framers, Mr. Bush cited the Dred Scott case as an example of judicial reliance on personal opinion.

But Dred Scott is an example of the opposite - a decision based on original intent, said Jack M. Balkin, a constitutional law professor at Yale University.

Slavery was constitutional at the time, and the decision was based on original intent. Asserting that the framers did not envision blacks as citizens, they ignored the fact that some states recognized freed slaves as citizens at the time of the Constitutional Convention, he said.

What about Lincoln, the Missouri Compromise aspect of the Dred Scott decision, the Cooper address? I am right about this - Lincoln insisted that Dred Scott was an example of judicial activism, and Bush was echoing that.

Maybe the prof had a truncated quote [Yes, his nuance was lost on the Times.  A clue is in the Times story:

Asserting that the framers did not envision blacks as citizens, they ignored the fact that some states recognized freed slaves as citizens at the time of the Constitutional Convention, he said.

When a judge claims he is being an originalist but ignores actual history, that is either "bad originalism" or "activism".  Lincoln (and eventually, Bush) said "activism".  In his comments to the Times, Prof. Balkin said that:

...both holdings could be seen as activist.

4. The first holding was premised on original intent, but the history is bad, because blacks were citizens at the time of the founding in several states. This is like Scalia saying that Bush v. Gore is justified by original intent when he doesn't know the history of the Fourteenth Amendment. Bad originalism of this sort can be just as activist as decisions that originalists themselves decry.]

MORE:  I have lost the links, but in researching the Dred Scott case a few days ago, I came across an article that hinted at the yawning intellectual divide [Here].  Conservatives like to cite Dred Scott as a ghastly example of judicial activism, and point to the Missouri Compromise portion.  Their opponents like to cite the slavery portion as an example of "original intent" run amuck.  Justice Scalia advanced the conservative case, and the article I read reviewed both sides.

So, knowing how a person feels about Scalia is probably a reliable predictor about their opinion of Dred Scott.  The Times reporter, thinking that Dred Scott was a dusty old case from 1857, may not have realized it was as fresh as Florida orange juice, or at least Florida 2000.

Now, is Prof. Balkin, in his role as educator, under any obligation to alert the Times reporter to the existence of this dispute?  Probably not, although one wonders what he teaches in his classes.

And was the Times reporter "wrong"?  Well, it was an easy and comfortable mistake - it is an old case, Bush is ignorant of the constitution, here is an expert quote to say so, next point.

UPDATE:  As noted Jack Balkin has a blog, and, in our now-copious free time we see that he has thoughts on Scalia, Dred Scott, and the debate.

First, he does not like Scalia.  Imagine my surprise.  BTW, I am inferring that from his title, "Scalia Blowing Smoke Again", rather than opining on the merits of his argument.

Secondly, he thinks Dred Scott is an example of "conservative activism", based on these posts from March 2004.  An excerpt:

I offer Dred Scott as an example of my general point there is a long line of conservative activist decisions throughout American history.

Another:

Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens...

Clear?  Dred Scott is an example of conservative judicial activism.

Or not.  Here is a post commenting on the second debate.  He notes (as I did) that Bush's answer won't be going into a legal textbook, and then says:

Oh, and by the way, Chief Justice Taney defended his view that blacks couldn't be citizens on the ground that it was the original intention of the Framers and that it was wrong to embrace the idea of a living Constitution that changed with the times...

Prof. Balkin then links to an excerpt making this point.

My ruling on this - specious, and the Prof knows it.  First, what about the Missouri Compromise portion?  Secondly, how often does one read an opinion where the judge writes something to the effect of "I am inventing this out of whole cloth to suit my mood and my sense of the temper of the times".  Of course Taney invoked "original intent" - everyone does, all the time.  Look, even in Roe v. Wade, Blackmun pretended that the emanations and penumbras were on his side.  Let's offer some red meat from the right side of the grill to support that.

OK, we are having fun - has new research been presented since March to change the Professor's view that Dred Scott was an example of conservative activism?  Is he now taking seriously Taney's claim that the opinion was guided by original intent, despite his own characterization of the decision as activism?

Would he care to comment on the validity of Lincoln's argument that, whatever he may have said, Taney did not reflect the original intent of the founders?  It seems to this layman that at least one prominent contemporary of Taney's considered the opinion to be judicial activism - does Prof. Balkin now disagree?

Does Prof. Balkin think it might be fair to say that the Party of Lincoln shares Lincoln's view that Dred Scott is an example of judicial activism?

And how can we interpret the quote in the Times:

Mr. Bush cited the Dred Scott case as an example of judicial reliance on personal opinion.

But Dred Scott is an example of the opposite - a decision based on original intent, said Jack M. Balkin, a constitutional law professor at Yale University.

Slavery was constitutional at the time, and the decision was based on original intent. Asserting that the framers did not envision blacks as citizens, they ignored the fact that some states recognized freed slaves as citizens at the time of the Constitutional Convention, he said.

If he was misquoted, fine - I am sure the Times would be happy to print a letter from him clarifying his position.

However, the Professor's real position would seem to be that Taney engaged in conservative activism while invoking "original intent".  Well, if invoking and doing were the same, this would be a different world.

If Prof. Balkin wants to argue that conservative activist judges do the same things liberal activists judges do, then fine, say it.  But when Bush cites Dred Scott as an example of judicial activism, let's not turn around and say that it is not.

Not if he publishes a lot on the net, anyway.

Comments

[Sam Merritt]

I've had Professor Balkin for a class (not on the Constitution), and have had several friends who have been in his constitutional law classes. As far as I've seen, he is not in any way blinded by any ideology - and in fact often argues opposite sides of issues with equal force. I don't know whether the quote was truncated, but I've never gotten the feeling that Balkin is pushing an agenda.

[TM]

That is still my first theory, and I hate the way I have phrased the second bit - I am pretty sure there are folks out there pushing an agenda, but I have no reason (other than a possibly bum quote) to think he is.

[TM]

OK, a bit of free time gives me this:

Like many people, Jonah fails to realize that liberals have no monopoly on judicial activism. Conservatives, if anything, have a much longer history of reading their values into the Constitution. Here are only a few examples: The decision in Dred Scot v Sanford striking down the Missouri Compromise and holding that blacks could never be citizens...

From Jack Balkin

[Brad DeLong]

Balkin is saying (I think), that Taney's decision in Dred Scott is an "original intent" decision, and that it was a *bad* original intent decision because Taney's argument that the Founders were certain that Blacks would never be citizens is false.

Take a look at: http://balkin.blogspot.com/2004/10/scalia-blowing-smoke-again.html: "My larger point is that originalism as actually practiced by Scalia (and Taney too) is bad originalism. It is sloppy and self-serving. It does not do the hard work necessary to understand what the different generations who drafted the Constitution and its various amendments were trying to do, and what their commitments might mean for us today. It is sloganeering rather than serious historical analysis; it uses the mantra of originalism as a weapon to attack political results it does not like and defend political results it does like. Bad originalism of this sort is virtually identical in my view to the sorts of judicial decisionmaking that Scalia continually fulminates about. Before he makes another of these speeches, he ought to take a good hard look in the mirror..."

Balkin believes (I think correctly) that "original intent" and "judicial activism" are not necessarily opposites--especially if there is bad faith in the reading of what the "original intent" was, as Balkin argues is the case in both Dred Scott and in Bush v. Gore...

[Beldar]

Kudos on a very fine post, Tom!

Harold Holzer's Lincoln at Cooper Union: The Speech That Made Abraham Lincoln President is not the first, or probably even the third or fifth, book one ought to read about Lincoln, but for those interested in how Lincoln came to be the Republican nominee in 1860, it's essential reading. Reading the Cooper Union speech, one gets an excellent flavor for Lincoln as a lawyer. It's emphatically not the Gettysburg Address, nor was it intended to be, but it's arguably a more significant speech in its significance in determining the fate of our country.

[Originalist]

Insofar as "bad originalism" doesn't bother trying to accurately divine original intent, it isn't originalism. One might as well call having a one-night stand every day of the week "bad chastity", and then argue that chastity and promiscuity are not necessarily opposites. It's nonsense, and should be dismissed as such.

Argue that Scalia is not an originalist, fine. Argue that originalism doesn't work in a changing society, fine. But don't pretend that a decision that ignores original intent is, in any way, "originalism". That's just deliberate obfuscation.

[borkagsm]

Bork. Bush is restating Bork. I shake my head. Bork, you fools.

[TM]

Responding to the prof - in an article devoted to speaking in code, the Times might not want to invent a new code of their own.

If Bush is saying that Dred Scott was an example of judicial activism, and the Times quotes Balkin as saying Dred Scott is an example of the opposite - a decision based on original intent", the Times has a bit of an obligation to explain that "opposite" does not mean "opposite" and that "original intent" is Balkin-speak for "conservative activism".

Otherwise we might come away thinking that Dred Scott was not an example of judicial activism, when both Bush and Balkin think that it is.

BTW - a snippet of what Bush said:

BUSH: Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

I don't think it is a stretch to interpret that as "Dred Scott was an example of judicial activism".

Oh, and here is the article criticizing Scalia for Dred Scott-like reasoning in his dissent on Lawrence.

It presents the notion that Dred Scott is used by both sides of the debate.

[TM]

MORE: That said, my use of 'specious" may be a complete missing of the point by me - if JB is being sarcastc, and saying, "here is the rhetoric offered by conservative activists before they do whatever the heck they want", well, OK, I missed it, "specious" is wrong, and the recent blog post does not contradict the earlier ones.

But the MAIN point about the NY Times quote stands.

[Cecil Turner]

I've always been impressed with experts who can make difficult concepts accessible to laymen. And when I see a particularly convoluted argument by the authority on a particular subject, I wonder if the goal is obfuscation.

In this case (based on his $1,000 contribution to John Kerry for President, Inc.), I'd suggest Professor Balkin is not entirely neutral on the subject. Consequently his opinion, though expert, is less compelling.

[Razzen]

I can't understand the perspective that Taney's holding in Dred Scott v. Sandford was at all an originalist decision, since it runs contrary to the original construction of the Constitution.

Part of Taney's holding (indeed a crucial part) was that "negro slaves" were not regarded as persons by the Constitution, and as such they had no rights of due process as outlined by the 5th Amendment. Furthermore, they were reasoned as having the essential quality of property, and whether they were "free" or "owned" was of no consequence. Therefore Scott, who had been living in a state that outlawed slavery before returning to a slave state, was still not considered by the court to have the right to due process.

This is, of course, utter hogwash, and not just from the perspective of living under the post-Civil War amendments but under the Constitution as written at the time. Lincoln pointed out routinely in his arguments against the Dred Scott decision that the Constitution, in its understanding of who slaves were, only distingued between "free" and "not-free persons" in the infamous 3/5 Clause. A not-free person (a slave) then is still a person and therefore has every right under the Constitution that is held by a free person (the 5th Amendment only mentioning "person" as the standard for its protections, not free or unfree).

Lincoln was right, it was an activist decision, on the part of someone with very strong pro-slaveholder leanings. And it goes to show that the Constitution right there was written to allow for slaves to be regarded as persons and as such have the right to due process of law.

[John Anderson]

Razzen says it better, but I'd stil like to add a point.

Dred Scot was activist, in that it was not based on the intent of the Framers en masse. Jefferson (and Washington), for example, were against slavery - if too cheap to emancipate their own slaves except posthumously.

By Lincoln's presidency, even in the South slavery was being dismantled. I learned recently that Liberia started as a place Southern aristos offered to send former slaves, freed by laws setting limits on length-of-servitude and children-of-slaves, with a homestead and some start-up money. When the money ran out, there were enough former US slaves there with problems with the local governance to overthrow it and take over.

[Noel]

Instead of calling it "conservative" activism, one could just as easily call it "Democrat" activism; Taney meant to wreck the Republican Party.

While the Constitution allowed slavery, it also contemplated its eventual extinction (see Art.1, sect. 9).

Justice Benjamin R. Justice (whose name should be known to every school-child) eviscerated Taney's opinion in his dissent.

Curtis methodically proved that the voting & citizenship rights of black freemen had been recognized by at least five states at our Founding; and that Congress had acted fourteen separate times under seven different presidents, beginning with Washington, to limit the spread of slavery in the territories. His penumbra never emenated:

"Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."

"When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely...the will of Congress; or what, in my opinion, would not be preferable...

...the individual political opinions of the members of this court."

[Noel]

correction: Justice Benjamin R. CURTIS, whose name is known to me. Honest.

btw, his entire dissent can be found here:

http://www.founding.com/library/lbody.cfm?id=425&parent=422

[Tom Maguire]

Let me round out the record with this email from Prof. Balkin;

What I told the Times reporter was:

1. Bush said that Dred Scott held that slavery was constitutional because it was a property right and that was a personal choice.

2. The holding the slavery itself was constitutional was unremarkable in 1857.

3. Dred Scott has two holdings (among many) that are important. The first is that blacks can't be citizens. The second is that the Missouri Compromise is unconstitutional. Neither was necessary to decide the case, and in both cases Taney reaches out to decide matters in a way that helps the cause of the slaveocracy. So both holdings could be seen as activist.

4. The first holding was premised on original intent, but the history is bad, because blacks were citizens at the time of the founding in several states. This is like Scalia saying that Bush v. Gore is justified by original intent when he doesn't know the history of the Fourteenth Amendment. Bad originalism of this sort can be just as activist as decisions that originalists themselves decry.

5. The second holding is based on due process. It argues that southerners will be at a disadvantage with northerners if they can't bring their property into federal territory. This argument is bad because a sovereign (here the federal government regulating the territories) can declare certain property contraband, (e.g., alcohol, drugs) and therefore may refuse to allow a person to keep it when they enter the territory. This means Taney must be arguing that slave property is a kind of property specially protected by the Constitution. This is a view expressed by some in the slaveocracy, but it is also an incorrect reading of the original understanding, and hence is another example of bad originalism.

I am not surprised that the times reporter distilled this into something that appeared misleading to you. That's what happens whenever you talk to reporters about complicated subjects, and you just have to take the risk that they won't mangle what you say too badly.