RE TANEY DRED SCOTT DECISION SUBSTANTIVE DUE PROCESS ETC ETC

Having taken a close look at this thing, my conclusion is that seldom has a better, thorough, and well reasoned opinion ever been rendered by any court here.

This thing, in its time, was certainly solid as a rock, and still is, in proper context, and was generally so considered except by whackos like Lincoln, who actually claimed to believe the so called letter of the constitution (Jeffersonian flights of utopian Lockean verbiage) rather than its actual meaning to those of its contemporaries, including Jefferson himself, who mattered. Dred Scott was the long established law of the land before the Civil War.

Even Bobbitt admitted much the same thing. 

So I am in rather good, but hardly perfect, intellectual company....

Friday, June 2, 2017

RE DK POST RE DRED SCOTT DECISION

Looking back through Bobbitt, I find an interesting passage in Constitutional Fate, p 86, 87, discussing Bickel's The Morality of Consent, a chapter called Structural Argument, (although the decision has normally been seen, including by DK,  as an historical one, or perhaps as he says a right wing originalist one). 

Here it seems to be squibbed as an example of structuralist jurisprudence, and we see Bobbitt concluding that Justice Taney in Dred Scott was perhaps tragically, as he put it, not so far wrong.

I fail to see it as tragical. I think Taney was quite right, and very thorough, with a few caveats in some details. I still have to read the dissents. He seems not to have known that Indians were enslaved too.

It seems both originalist and structuralist at the same time, not so hard to grasp really.

Maybe more a structural than an originalist one, given its topics in detail, in my judgment.