Lemieux writes:

As [Mark] Graber makes clear, however, "living constitution" aspirationalists cannot provide an unambiguous answer to the questions presented by Dred Scott any more than originalists can. If asked to achieve a resolution to the case based on the legal materials available in 1857, I would join the dissenters, on the grounds that when given a case where the Constitution is ambiguous, a judge should choose the outcome that isn't grossly immoral. The problem, of course, is that this is also what Taney thought he was doing. Dred Scott was a contested issue precisely because many Americans thought slavery was at least acceptable, and an overwhelming majority of Americans, North and South, agreed that African Americans were not members of the American political community. (Indeed, as Graber points out, Benjamin Curtis -- the other dissenter in the case -- was a white supremacist at least as virulent as Taney.) "Aspirational" jurisprudence is only as good as the aspirations of the judge involved, and given the realities of Jacksonian constitutionalism, the outcome of the Dred Scott case was virtually inevitable.

Dred Scott is invoked by almost everyone trying to sell a grand theory of constitutional interpretation. As Graber points out, this is curious: everyone agrees that Dred Scott was legally (as well as morally) indefensible, but disagrees about exactly what was wrong with it. Originalists like Robert Bork attack Chief Justice Taney's opinion for its reading of property rights into the due process clause of the 5th Amendment. As Graber points out, however, the idea that taking someone's property without a legitimate public purpose is illegal has much deeper roots in American law than some originalists admit. Indeed, in his dissent Justice John McLean agreed that citizens had substantive property rights protected by the Constitution: His dissent was instead based on the morally immense but legally narrow grounds that Dred Scott did not count as property, since "a slave is not property beyond the operation of the local law which makes him such." (Even more embarrassing for originalists like Scalia who fulminate about the use of international law in American Supreme Court opinions, the dissenters' arguments that slaves were not property relied heavily on decisions made by courts outside the United States. European courts had ruled that because slavery violated natural right, slaves immediately became free when they left jurisdictions where the institution was established by positive law.)

Taney did say things -- especially concerning the history of American citizenship -- that were not true, but the erroneous arguments were not necessary to reach his central conclusions, and the dissenters also engaged in historical overreaching. Which is to say that both sides of the dispute had to exaggerate in order to claim certainty on a constitutional question that the framers of the Constitution deliberately left ambiguous. A failure to apply "originalism" is not a plausible accounting of Dred Scott's problems.

I disagree with most of this, including Lemieux's acceptance of the division on Dred Scott as being one of originalists and proponents of a "living Constitution." It seems undeniable to me that Dred Scott was a results oriented decision. And in that respect, Lemieux's statement that "[a]spirational" jurisprudence is only as good as the aspirations of the judge involved" is obviously correct. However, that does the "theory of a living Constitution" short shrift. The theory (or at least my theory) of a Living Constitution does not rest on "aspirational jurisprudence", but rather on common law judicial principles and the Constitution itself. Let me explain.

I reject the idea that proponents of a Living Constitution are not originalists, in the sense that the idea of a Living Constitution is to promote original Constitutional purpose to current circumstances.

My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented. I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints.

The first great Chief Justice, John Marshall, did yeoman work in establishing this role and approach for the Supreme Court. I argue that Marshall's jurisprudence established that Constitutional interpretation requires both respect for the original purpose and application of Common Law principles to discern the proper application of original purpose to the specific case presented.

The phrase "Living Constitution" is often used to disparage this approach. But I think, properly understood, the phrase is very appropriate - the purpose of the Constitution lives and grows - and the original PURPOSES are essential to that growth - by understanding the WHY the Framers wrote what they wrote and serving the original PURPOSE by transposing that purpose upon the specific case.

But Dred Scott is wrong on even the most basic levels. And Abraham Lincoln argued the case well in his Coope r Union speech, relying on the understood meaning of the Territorial Clause prior to 1855:

What is the frame of government under which we live?

The answer must be: "The Constitution of the United States." That Constitution consists of the original, framed in 1787, (and under which the present government first went into operation,) and twelve subsequently framed amendments, the first ten of which were framed in 1789.

Who were our fathers that framed the Constitution? I suppose the "thirty-nine" who signed the original instrument may be fairly called our fathers who framed that part of the present Government. It is almost exactly true to say they framed it, and it is altogether true to say they fairly represented the opinion and sentiment of the whole nation at that time. Their names, being familiar to nearly all, and accessible to quite all, need not now be repeated.

I take these "thirty-nine," for the present, as being "our fathers who framed the Government under which we live."

What is the question which, according to the text, those fathers understood "just as well, and even better than we do now?"

It is this: Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories?

Upon this, Senator Douglas holds the affirmative, and Republicans the negative. This affirmation and denial form an issue; and this issue - this question - is precisely what the text declares our fathers understood "better than we."

Let us now inquire whether the "thirty-nine," or any of them, ever acted upon this question; and if they did, how they acted upon it - how they expressed that better understanding?

In 1784, three years before the Constitution - the United States then owning the Northwestern Territory, and no other, the Congress of the Confederation had before them the question of prohibiting slavery in that Territory; and four of the "thirty-nine" who afterward framed the Constitution, were in that Congress, and voted on that question. Of these, Roger Sherman, Thomas Mifflin, and Hugh Williamson voted for the prohibition, thus showing that, in their understanding, no line dividing local from federal authority, nor anything else, properly forbade the Federal Government to control as to slavery in federal territory. The other of the four - James M'Henry - voted against the prohibition, showing that, for some cause, he thought it improper to vote for it.

In 1787, still before the Constitution, but while the Convention was in session framing it, and while the Northwestern Territory still was the only territory owned by the United States, the same question of prohibiting slavery in the territory again came before the Congress of the Confederation; and two more of the "thirty-nine" who afterward signed the Constitution, were in that Congress, and voted on the question. They were William Blount and William Few; and they both voted for the prohibition - thus showing that, in their understanding, no line dividing local from federal authority, nor anything else, properly forbids the Federal Government to control as to slavery in Federal territory. This time the prohibition became a law, being part of what is now well known as the Ordinance of '87.

The question of federal control of slavery in the territories, seems not to have been directly before the Convention which framed the original Constitution; and hence it is not recorded that the "thirty-nine," or any of them, while engaged on that instrument, expressed any opinion on that precise question.

In 1789, by the first Congress which sat under the Constitution, an act was passed to enforce the Ordinance of '87, including the prohibition of slavery in the Northwestern Territory. The bill for this act was reported by one of the "thirty-nine," Thomas Fitzsimmons, then a member of the House of Representatives from Pennsylvania. It went through all its stages without a word of opposition, and finally passed both branches without yeas and nays, which is equivalent to a unanimous passage. In this Congress there were sixteen of the thirty-nine fathers who framed the original Constitution. They were John Langdon, Nicholas Gilman, Wm. S. Johnson, Roger Sherman, Robert Morris, Thos. Fitzsimmons, William Few, Abraham Baldwin, Rufus King, William Paterson, George Clymer, Richard Bassett, George Read, Pierce Butler, Daniel Carroll, James Madison.

This shows that, in their understanding, no line dividing local from federal authority, nor anything in the Constitution, properly forbade Congress to prohibit slavery in the federal territory; else both their fidelity to correct principle, and their oath to support the Constitution, would have constrained them to oppose the prohibition.

Again, George Washington, another of the "thirty-nine," was then President of the United States, and, as such approved and signed the bill; thus completing its validity as a law, and thus showing that, in his understanding, no line dividing local from federal authority, nor anything in the Constitution, forbade the Federal Government, to control as to slavery in federal territory.

No great while after the adoption of the original Constitution, North Carolina ceded to the Federal Government the country now constituting the State of Tennessee; and a few years later Georgia ceded that which now constitutes the States of Mississippi and Alabama. In both deeds of cession it was made a condition by the ceding States that the Federal Government should not prohibit slavery in the ceded territory. Besides this, slavery was then actually in the ceded country. Under these circumstances, Congress, on taking charge of these countries, did not absolutely prohibit slavery within them. But they did interfere with it - take control of it - even there, to a certain extent. In 1798, Congress organized the Territory of Mississippi. In the act of organization, they prohibited the bringing of slaves into the Territory, from any place without the United States, by fine, and giving freedom to slaves so bought. This act passed both branches of Congress without yeas and nays. In that Congress were three of the "thirty-nine" who framed the original Constitution. They were John Langdon, George Read and Abraham Baldwin. They all, probably, voted for it. Certainly they would have placed their opposition to it upon record, if, in their understanding, any line dividing local from federal authority, or anything in the Constitution, properly forbade the Federal Government to control as to slavery in federal territory.

In 1803, the Federal Government purchased the Louisiana country. Our former territorial acquisitions came from certain of our own States; but this Louisiana country was acquired from a foreign nation. In 1804, Congress gave a territorial organization to that part of it which now constitutes the State of Louisiana. New Orleans, lying within that part, was an old and comparatively large city. There were other considerable towns and settlements, and slavery was extensively and thoroughly intermingled with the people. Congress did not, in the Territorial Act, prohibit slavery; but they did interfere with it - take control of it - in a more marked and extensive way than they did in the case of Mississippi. The substance of the provision therein made, in relation to slaves, was:

First. That no slave should be imported into the territory from foreign parts.

Second. That no slave should be carried into it who had been imported into the United States since the first day of May, 1798.

Third. That no slave should be carried into it, except by the owner, and for his own use as a settler; the penalty in all the cases being a fine upon the violator of the law, and freedom to the slave.

This act also was passed without yeas and nays. In the Congress which passed it, there were two of the "thirty-nine." They were Abraham Baldwin and Jonathan Dayton. As stated in the case of Mississippi, it is probable they both voted for it. They would not have allowed it to pass without recording their opposition to it, if, in their understanding, it violated either the line properly dividing local from federal authority, or any provision of the Constitution.

In 1819-20, came and passed the Missouri question. Many votes were taken, by yeas and nays, in both branches of Congress, upon the various phases of the general question. Two of the "thirty-nine" - Rufus King and Charles Pinckney - were members of that Congress. Mr. King steadily voted for slavery prohibition and against all compromises, while Mr. Pinckney as steadily voted against slavery prohibition and against all compromises. By this, Mr. King showed that, in his understanding, no line dividing local from federal authority, nor anything in the Constitution, was violated by Congress prohibiting slavery in federal territory; while Mr. Pinckney, by his votes, showed that, in his understanding, there was some sufficient reason for opposing such prohibition in that case.

The cases I have mentioned are the only acts of the "thirty-nine," or of any of them, upon the direct issue, which I have been able to discover.

To enumerate the persons who thus acted, as being four in 1784, two in 1787, seventeen in 1789, three in 1798, two in 1804, and two in 1819-20 - there would be thirty of them. But this would be counting John Langdon, Roger Sherman, William Few, Rufus King, and George Read each twice, and Abraham Baldwin, three times. The true number of those of the "thirty-nine" whom I have shown to have acted upon the question, which, by the text, they understood better than we, is twenty-three, leaving sixteen not shown to have acted upon it in any way.

Here, then, we have twenty-three out of our thirty-nine fathers "who framed the government under which we live," who have, upon their official responsibility and their corporal oaths, acted upon the very question which the text affirms they "understood just as well, and even better than we do now;" and twenty-one of them - a clear majority of the whole "thirty-nine" - so acting upon it as to make them guilty of gross political impropriety and willful perjury, if, in their understanding, any proper division between local and federal authority, or anything in the Constitution they had made themselves, and sworn to support, forbade the Federal Government to control as to slavery in the federal territories. Thus the twenty-one acted; and, as actions speak louder than words, so actions, under such responsibility, speak still louder.

. . . [S]ixteen of the "thirty-nine," so far as I have discovered, have left no record of their understanding upon the direct question of federal control of slavery in the federal territories. But there is much reason to believe that their understanding upon that question would not have appeared different from that of their twenty-three compeers, had it been manifested at all.

. . . The sum of the whole is, that of our thirty-nine fathers who framed the original Constitution, twenty-one - a clear majority of the whole - certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories; while all the rest probably had the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question "better than we."

How is the argument of the original understanding of the Constitution vis a vis the federal government prohibiting slavery in the Territories (the question of whether rights could be conferred upon Negroes is a separate issue) rebutted? Taney wrote:

The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for, if the authority is not given by that instrument, it is the duty of this Court to declare it void and inoperative and incapable of conferring freedom upon anyone who is held as a slave under the laws of any one of the states.

The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States"; but, in the judgment of the Court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States and was within their boundaries as settled by the treaty with Great Britain and can have no influence upon a territory afterward acquired from a foreign government[!!.] It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more... [!!]

. . . Upon these considerations it is the opinion of the Court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner with the intention of becoming a permanent resident.

This is, in a word, drivel. There is no support for it in the text of the Constitution, nor in the understanding of the Territorial Clause, as Lincoln demonstrated. In short, it is made out of whole cloth by Taney to support his result and nothing more. Consider the Insular Cases, which decided that the Constitution does not apply in full to territories unless "incorporated." And that remains the law today.

One need not engage in mental contortions to find Dred Scott an outrageously bad decision, irrespective of the moral questions.

However, Lemieux argues that:

Originalists like Robert Bork attack Chief Justice Taney's opinion for its reading of property rights into the due process clause of the 5th Amendment. As Graber points out, however, the idea that taking someone's property without a legitimate public purpose is illegal has much deeper roots in American law than some originalists admit. Indeed, in his dissent Justice John McLean agreed that citizens had substantive property rights protected by the Constitution: His dissent was instead based on the morally immense but legally narrow grounds that Dred Scott did not count as property, since "a slave is not property beyond the operation of the local law which makes him such."

My response is so what? No one was taking property by prohibiting slavery in certain territories. Was there a Constitutional right to carry your slaves to territories? That is a property right? Based on what? The right to travel? The full faith and credit clause? The import of such a view was obvious to Lincoln:

That whether the holding a negro in actual slavery in a free State makes him free, as against the holder, the United States courts will not decide, but will leave to be decided by the courts of any slave state the negro may be forced into by the master. This point is made, not to be pressed immediately; but, if acquiesced in for a while, and apparently indorsed by the people at an election, then to sustain the logical conclusion that what Dred Scott's master might lawfully do with Dred Scott, in the free State of Illinois, every other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in any other free State.

While it is true that the incorporation of the Bill of Rights and its application to the States was not yet formalized, Taney's opinion made clear that slaves could be carried into free states and remain slaves despite the illegality of slavery in that State. He relied principally on Article IV, Section 2 of the Constitution:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

"Escaping into another." It is obvious what this means. NOT carried into another by his master. The phrasing is precise and clear. And Taney chose to ignore this. He chose to read it as the presence of a slave in a free state did not free the slave. The clause simply does not say this. It implicitly says the opposite.

Long story (ok very long story) short, Dred Scott was obviously wrongly decided; the case was not ambiguous. I disagree with Lemieux's characterization. And it is a wholly unnecessary one in my view, because Lemieux's central point holds without this concession:

Grand theories of constitutional interpretation can only provide widely accepted solutions to questions that are no longer significantly contested. Constitutions inevitably allow reasonable people to disagree about questions where there isn't a consensus. . . . There is no escape from politics, and no constitutional escape route from core disagreements in society. And divining lessons from discredited, century-and-a-half-old Supreme Court decisions in an effort to solve our own hotly contested constitutional controversies is an inherently futile enterprise.

Of course this is true. And it is precisely why the question of Roe and choice remains hotly contested and precisely why the Senate has every right to know how all Supreme Court nominees will vote on the Roe question. The idea that the question is improper to ask of a nominee is ridiculous.

But this conclusion does not require giving the Dred Scott decision more due than it deserves. It was wrong on every level. In its time.