LET'S REPRISE THIS GREAT BITCH!
Tuesday, October 22, 2019
JOST THOMAS ABANDONING STARE DECISIS DRED SCOTT RUBBER MEETS THE ROAD
Jost criticizes Thomas for abandoning it.
I see Dred Scott as having been well decided under stare decisis.
I am guessing that Bobbitt would classify it as a doctrinal argument, but do not know. See Constitutional Fate, p 7, and Ch 4.
Lincoln returned to politics against it. Claimed it was wrongly decided.
He obviously did not give a good Goddamn about stare decisis.
Bobbitt, on the other hand, appears to have reached conclusion similar to mine. Constitutional Fate, p 86, 87.
Although Bobbitt has a different jurisprudential theme in this attack on Bickel re structural arguments, he mentions Dred Scott in terms of constitutional authority;.
Here is the stake in Bickel's heart:
"IF there are any rights which the Constitution confers on the basis of the citizen-relation to government, it confers these rights without discrimination. Yet with respect to the most basic aspect of the citnzen-state structural relationship, namely representation, slaves were from the start explicitly treated as something less than citizens.
"Dred Scott, does not, then, support Bickel's attack, because it does not present the spectre of a government withdrawing a human or political right by withdrawing citizenship. In America, this simply was not conferred on the Negro slave."
See Bobbitt Ch, "Doctrinal Argument", re the distinctions between types of argument re stare decisis. Doctrinal argument is overwhelmingly stare decisis driven. Other types, not.
Where does Jost, critic of Thomas, upholder of stare decisis, controlling precedent, stand on Dred Scott?
I think you will find that he is with Lincoln, and thus, with the new Thomas he hacks for abandoning stare decisis!
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