the joy that is legal retrospection
reading dred scott v. sanford makes me want to puke in anger. it's hard to read it dispassionately for the quality or lack thereof of purely legal constitutional argumentation. lots of historical arguments, textual arguments, some structural arguments.
oh yes, and one particularly charming example of a prudential/historic argument:
It cannot be supposed that they intended to secure to them rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
OH NOES, they would be able to walk around wherever they wanted at any time of the day or night and would be free from harassment providing they didn't break any laws that apply to white folk too! THIS CANNOT STAND!
insanely enough, taney (chief justice who presided over this case and wrote this opinion) actually apparently emancipated his own slaves and once far earlier on in his career defended a methodist minister who had been indicted for inciting slave rebellion, condemning slavery in his opening argument as a "blot on our national character."
oh yes, and one particularly charming example of a prudential/historic argument:
It cannot be supposed that they intended to secure to them rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
OH NOES, they would be able to walk around wherever they wanted at any time of the day or night and would be free from harassment providing they didn't break any laws that apply to white folk too! THIS CANNOT STAND!
insanely enough, taney (chief justice who presided over this case and wrote this opinion) actually apparently emancipated his own slaves and once far earlier on in his career defended a methodist minister who had been indicted for inciting slave rebellion, condemning slavery in his opening argument as a "blot on our national character."