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October 16, 2004


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.


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.


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...


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.


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.


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


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.


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.


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.


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."


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

btw, his entire dissent can be found here:


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.

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