The notorious Dred Scott decision is often invoked as a warning: interpreting texts according to the original meaning can lead to outright evil results. In this post, I hope to orient readers to the Dred Scott opinion, give a brief primer of what is known as originalism, and explain why Dredd Scott is not a threat to originalist jurisprudence.
Dred Scott is a Shameful Decision
The Dred Scott decision (Scott v. Sandford, 60 U.S. 393 (1857)) is the most reviled piece of writing ever to issue from the Supreme Court of the United States. It has something for everyone to hate. It is considered one of the political causes of the War Between the States; it is cited as a reason to oppose judicial supremacy (and sometimes even judicial review); it is long and rambling and full of intentional obiter dicta. But even without these well-reasoned grounds, reading evokes a visceral kind of psychological nausea. It is impossible to survey Chief Justice Taney's propositions without being deeply, foundationally troubled. A conscientious reader knows that each of the major themes represents some systemic infirmity.
The opinion is very long, but here is the gist. Dred Scott is a former slave whose master took him along on an Army deployment to the Northwest Territory, where Congress has prohibited slavery. Eventually, he came to be "owned" (how do you talk about one man owning another without quotes?) by a resident of New York. Scott sued this man, Sandford, under the ancient form "tresspass vi et armis" - basically, alleging battery. Since it is impossible for a person to trespass against his own property, the case turned in part on whether Scott was still a slave. Scott argued that he had become free in the territories and was thereby a citizen of Missouri, his current state of residence.
Federal courts have limited jurisdiction, and at that time one of the few ways to sue someone in federal court was if the other party was a citizen of a different state. Taney dissembles at length about this jurisdictional question, taking a long tour through the history of the Constitution's enactment. In one particularly maddening description,
This particular part of the opinion resonates with those of us who were educated in the era of critical-everything studies. An old white man is finally being honest for once about how old white men really think. It's like finding an internal memorandum from the Squash Club that just tells us what we already knew: the founders were proto-rednecks with fancy words.
I am not here concerned with whether the founders were really racists, or otherwise wicked men. My concern is how Dred Scott is brought to bear to understand constitutional interpretation, and especially the model known as originalism.
Dred Scott is Bad Originalism
Why Originalism? And What Is Originalism?
First of all, originalism should own its full implications. If the original meaning of the Constitution did prohibit blacks from being citizens, then the Court is duty-bound to so declare. It has no power outside of the instrument that creates it. This is a different question than the wisdom or morality of the law in question. It is also a different question than the duties of an individual before God and his conscience. If the Constitution expressly said, "No blacks shall be citizens," then a justice has a countervailing duty to refuse to partake in such an injustice.
If Taney really thought the Constitution compelled him to send a man back to chains, he should have started a revolution, publicly refused to execute that duty, or at least resigned. At the outset of the Civil War, he displayed admirable courage when defying Lincoln on the habeas question - perhaps he had reflected during the intervening decade.
That aside, much is made of the fact that Taney repeatedly talks of the intent of the framers. Some look at this and ask why that intent should matter at all. Taney, remarkably, gives an excellent answer to this question in the midst of misapplying it.
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.
Just so. Would that he had written only that! The idea that a written constitution's meaning is fixed at the time of enactment is both simple and needlessly complex. The simple version is that the text was enacted as law on the understandings of the people who ratified it - that law, as a public thing, is a function of the public understanding. Some of the best defenses of originalism come from early Supreme Court cases, Story's Commentaries, and the letters of men like Madison and Jefferson. The more complex version involves linguistics, political theory, philosophy of mind, sociology, et cetera, et cetera. I'll take John Marshall over W.V.O. Quine any day - you can decide for yourself.1
The history of originalism as a social movement is also a little complicated. But it is fair to say that when it emerged in the 1970s, the primary concern was with how much latitude judges had because they did not feel bound by the text. Some people suppose that judicial restraint is the heart and soul of originalism, but those people are a few decades behind the times. The case for originalism is one rooted in the legitimacy of the constitution and the nature of law. It has positive and normative components.
Originalism is also not a monolithic enterprise. The diversity of originalist thought is the subject of concern or ridicule, depending on your sympathies. Keith Whittington at Princeton helpfully details the difference between "Old Originalists" and "New Originalists." Old originalists tended to talk about original intent of the framers, or original understanding of the ratifiers. Old Originalism was, also, more preoccupied with reining in judicial excesses. In contrast, some New Originalists are far more activist than Earl Warren on a bad day. (I am thinking of the libertarian presumption-of-liberty, Ninth Amendment is a portal folks; Jack Balkin is hardly a restraintist but we're not sure what to do with him just yet.)
As originalism progressed, its more notable figures (including Justice Scalia, Steven Calabresi, and Michael McConnell) adopted a version of "original public meaning" originalism. This camp looks almost exclusively at dictionaries, grammars, and contemporary usages of the words. Some modern originalists do not completely discount intent (or at least the speaker's identity); these are the modern heirs of old originalism's intentionalism. I count in this camp Larry Alexander, Steven D. Smith, and Keith Whittington.
Another interesting flavor calls itself "Original Methods Originalism." Most prominently advanced by John O. McGinnis and Michael Rappaport, adherents to this kind of originalism believe there are normative reasons to interpret the text in the manner its promulgators would have expected.
A word on another originalist myth here. When originalism proper got underway in the 70s and 80s, two prominent counteroffensives were opened against it. One of these is represented in H. Jefferson Powell's article "The Original Understanding of Original Intent." Powell purports to show that the founding generation themselves looked to the objective meaning of words rather than the intent of the founders. For some reason I can't determine (though partly owing to originalism's subsequent shift to public meaning), people think that Powell quickly and decisively won that debate. The opposite is true. Raoul Berger himself responded at length, turning Powell's evidence against him and piling on in typical Berger fashion. More recently, the historian par excellence Rob Natelson has really Powell's contention to bed.
What if the people today disagree with what the people back then enacted? This is a version of the "dead hand" objection to originalism. The first answer is a little glib: if you don't like it, change it or get over it. Article V provides such a mechanism. We can contemplate other measures - after all, the Constitutional Convention was at variance with the Articles of Confederation. Sometimes change is unpleasant. The more immediate answer is to ask another question: if the Constitution is to be changed, who should be the one to do it and how should it be done? Surely most people are bothered by the prospect of judges "updating" the fundamental law of our nation according to their moral philosophy (as Dworkin advocates) or social science data or evolving norms or whatever.
What's more: most law was promulgated by past generations. Are we free to revise the Administrative Procedure Act or Roe v. Wade based on the current meaning of words? The so-called dead hand "problem" is a feature of law, not a bug.
Back to Dred Scott. Taney's brief lucidity is gone with his very next line: "What the construction was at that time we think can hardly admit of doubt." That may well be true, but it certainly does not apply to his construction. Does he think that Justice Curtis is irrational? I think of The Princess Bride when Taney says this, "'Hardly admit of doubt' - you keep saying that. I don't think it means what you think it means." This is just the beginning of his troubles.
For an originalist, especially one who takes originalism seriously and wants others to do the same, the Dred Scott opinion is especially frightening. If Brown vs. Board is "the crown jewel of the United States reports" (to quote Stanford's Pamela Karlan), then Dred Scott is the ugly costume jewelry we all wish we could forget. Couldn't the printer have spilled ink on the original copy? (Is that how it worked in 1857?)
The problem, you see, is that it looks like a thorough-going originalist opinion. Taney goes on about the text, the history of the Constitution, and the intent of the framers. What more could Robert Bork and Antonin Scalia want?! The scholarship linking originalism with the Dred Scott case is easy enough to find. Since this is a blog post, I'll let you Google that for yourself and refrain from citing to all of it.
On the other hand, originalists have not simply ignored Dred Scott. The fact is that Taney's opinion is a shining example of bad originalism. No one has ever claimed that a jurisprudence of original meaning was somehow immune to incompetence, expediency, or vice, qualities that Taney exhibits in some combination. In fact, the earliest refutation of his analysis comes instantly, in the form of a dissent from Justice Benjamin Curtis. Curtis challenges Taney's historical evidence, point out, for example, that five states allowed blacks to vote during the ratification era.
For another example, look at the above quoted material where Taney construes the Constitution in light of (some of) the framers' ownership of slaves. Some problems of that argument arise as a matter of simple logic. Taney makes the daft statement that the framers of the Declaration were "incapable of asserting principles inconsistent with those on which they were acting." Had Taney never heard of "aspirations"? James Wilson was in debtor's prison while a sitting justice on the Court; Benjamin Franklin was a known adulterer; John Adams surely believed in free speech before he passed the Alien and Sedition Acts; and James Madison has been the subject of more flip-flopping attacks than Romney and Kerry combined. There is no way the Chief Justice of the United States overlooked the fact that principles and practice are often at odds.
From an originalist perspective, Taney may be engaging in what is sometimes called "original-expected-applications originalism." What role do original practices have on the interpretation of meaning? The question is the subject of the ballyhoo between Justice Scalia and Ronald Dworkin in the delightful little book A Matter of Interpretation. Scalia says that the Eighth Amendment does not prohibit the death penalty because 1) the document itself contemplates its existence and 2) capital punishment was nearly unanimously accepted in the early republic.
When Dworkin presses him on why it matters what they did when Scalia purports to care about what they said, Scalia shifts (or maybe clarifies) just slightly. He says that it doesn't actually matter - that he merely used it as a rhetorical support for his main textual argument. There is no problem with looking at original practice for information about what words meant at the time, but this is at best corroborative. Taney uses this limited source of information in a suspiciously circuitous way: because black citizenship would have unpleasant implications, and the founders owned slaves, we must conclude that the word "citizen" in the Constitution excludes blacks as as definitional matter. A problem with discussing originalism is that sometimes originalists are unclear in how they are using original practices; making matters worse, their critics are usually willing to conflate the issue.
Taney references the fugitive slave clause and the sunsetting provision on prohibiting slave imports. Both of these clauses fastidiously avoid mentioning "slaves" or "blacks"; the same is true of the infamous "three fifths clause." And one of those prohibitions expired automatically, a very strange occurrence in the Constitution. Not long after it was constitutionally permitted to do so, Congress prohibited the slave trade as piracy - punishable by death! As Professor Kreimer put it, that seems like a less than full-throated embrace of slavery in the document. But Taney rests his argument in part on this pillar of textual interpretation.
The opinion makes two other arguments that stand on firmer ground. One is about Congress's power to outlaw slavery in new states; the other is about the power of naturalization. (These come in different parts of the opinion - I am recalling them only as less egregious violations of constitutional interpretation.)
I have had little good to say about Chief Justice Taney in this post, and so I would point out that Dred Scott is certainly a low point for him. In 1861, he rebuffed Lincoln's attempt to unilaterally suspend the writ of Habeas Corpus. He thought he would be arrested (and some scholars think Lincoln considered it). To whatever extent I have besmirched the Dred Scott opinion, it had no honor left to sully.
Originalism may well be a dumb or even a pernicious theory. I obviously don't think it is. But I think we can all agree that it is unfair to use an example of poorly attempted originalism as evidence for undermining the theory. The same applies to those who point to Lochner or Korematsu to undermine the doctrine of unenumerated rights (I've seen it). Even if we were handed our constitutional theory from on high, our constitutional actors would still be flawed with ambition and cognitive limitations.
Finally, Ryan Williams points out to me some originalist nuance on the topic. It appears that the exclusion of blacks as citizens was the prevalent judicial view by the time of Dred Scott, so Taney was not a particularly abbreational judge. And the originalist evidence regarding the original meaning of the Constitution's provisions is not decisive. On questions where the meaning is obscured by time or circumstances, interpretation enters a different mode (some might say this is where "construction" begins). Though it may seem my verbosity knows no end, this is a topic I will leave for another day.
1. Slight hyperbole. I have also explored more modern theorists and find them worthwhile alongside the early American writers.
Further Reading: Professor Somin has a post about Justice Thomas's possible cofusion on this point. Scholarly works include Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics and Graber, Dred Scott and the Problem of Constitutional Evil.