Monday, March 14, 2011

Farber, A Fatal Loss of Balance: Dred Scott Revisited

A Fatal Loss of Balance: Dred Scott Revisited has just been posted by Daniel A. Farber, University of California, Berkeley - School of Law.  Here's the abstract:
This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress’s enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in fair procedure within the Court itself.

Taney's exercise in originalism highlights some pitfalls that present-day originalists would do well to avoid. His effort to read all of the Constitution through a states' rights, pro-slavery lense also dramatizes the risks of foundationalism. Taney's opinion lacks any sense of balance - a failing at any time for a judge, but particularly dangerous when the nation is poised over a historic abyss.