Monday :: Mar 26, 2007

The Uselessness (?) of Dred Scott


by dj moonbat

A couple weeks ago, a commenter noted the distastefulness of a recent appellate opinion (Parker v. District of Columbia, the D.C. gun control case) citing Dred Scott v. Sanford in an opinion. I noted at the time that aspects of Scott are still "good law," by which we lawyers mean that certain legal propositions used to adjudge the case are still winners in court today.

The inestimable Jack Balkin notes today the ways in which Scott still has value. Although some of Balkin's piece is perhaps unnecessarily forgiving of Justice Taney's notions of "equality," he also covers the important ways in which Dred Scott v. Sanford held that the rights guaranteed by the Constitution should apply wherever the United States held territory (which would be an extremely important issue in deciding the rights of, say, habeas corpus petitioners at GTMO):

...As the United States became a world power, it occupied military bases around the world, including Guantanamo Bay, Cuba, where, as we noted previously, the government has argued that foreign detainees have no constitutional rights that the United States must respect. In a stunning example of ideological drift, Taney’s arguments that slaveholders retained basic rights when they traveled to territories held by the United States take on a very different meaning in today’s world, in which the United States stores detainees in prisons around the world, hoping to keep them well beyond the reach of American courts—and American constitutional rights. Although Taney’s specific argument sought only to protect the rights of citizens in territory controlled by the federal government, his larger principle-- that the Constitution should follow the flag-- has far greater reach.

Citing Dred Scott as positive authority for anything these days may give people pause, somewhat like citing Nazi medical experiments on Jewish prisoners for the useful information they might contain. The proper response to unmitigated evil, one might argue, is to refuse it even the most minimal affirmative recognition. Perhaps this is correct with regard to Nazi experiments. But is it a fit response to the legal arguments in Dred Scott? Or, on the contrary, should we recognize that elements of Dred Scott can make valuable contributions to our constitutional discourse even today?

I've been reading law review articles so long I don't know whether Professor Balkin's style is genuinely accessible to the lay reader, although I can say he's a far more elegant writer than most law professors. It's an interesting piece; go take a look.

dj moonbat :: 12:34 PM :: Comments (3) :: Digg It!