David S. Schwartz, University of Wisconsin Law School, has posted An Ugly Common Ancestor: Dred Scott, Roe, and Enumerationism:
If you’ve been sleeping on the emergence of the anti-enumerationist, Madison-marginalizing revision of American constitutional history, Professor Schwartz’s paper is a good entree. See also his paper with my Georgetown Law colleague John Mikhail (The Other Madison Problem) and Professor Mikhail’s The Necessary and Proper Clauses and The Original Federalist Theory of Implied Powers, the latter of which will bring you up to speed quickly.The Dred Scott case holds a deserved place in the constitutional “anti-canon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the lead opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This essay argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that created the Republican backlash at the time—reflected, not a strong precedent for substantive due process, which was a mere makeweight argument, but instead turned on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.
Roger Taney, CJ (LC)
–Dan Ernst
