Monday, January 09, 2006

The Conservative Dred Scott Decision

I just reread the Dred Scott Decision, and I was struck with how the conservative values of today were embodied in the decision. Dred Scott (along with Plessy) is often used by Conservatives as a tool to attack Roe v. Wade, in essence saying that the Supreme Court has been wrong before, just as they are wrong in Roe, and therefore stare decisis is not a bar to reconsideration.

But I don't think that the Dred Scott decision violates the conservative interpretation of the Constitution. From its take and reliance on the "Founders" opinion on whether free blacks could be citizens (which according to Chief Justice Taney was "no") to restraint on the federal government to its enumerated rights and an originalist reading of the Constitution, Dred Scott could be written today (but for the 13th and 14th amendments). In dicta he even was pretty strong on the second amendment as being a right of the people to bear arms that the feds cannot regulate, with no mention of the militia.

I wonder if there is a Conservative who could show how Taney was wrong in the Dred Scott decision using an originalist reading of the Constitution.

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