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Wrongheaded analysis of Scalia's Lawrence dissent.


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The trouble with lawyers, I often think, is that they all went to law school. And the trouble with law schools is that their permanent population consists of law professors.

Such thoughts came to mind when I read a piece by Stephen Henderson on the Knight Ridder website. Titled “Anti-sodomy dissent mirrors justification for slavery, scholars say,” Henderson’s article relied on several law professors for the proposition that “Justice Scalia’s angry dissent” in the recent Lawrence case “echoed the reasoning used in the court’s 19th-century decision that justified slavery,” the Dred Scott ruling.

Here are the back-to-back paragraphs that purport to establish the parallel:

In Dred Scott, Chief Justice Roger B. Taney said the Constitution and the nation’s legal history offered no suggestion that blacks should have the rights other Americans enjoyed. The laws defined them as property, not people, he said, so they couldn’t be citizens.

Similarly, Scalia’s dissent from June’s landmark ruling that invalidated anti-sodomy laws argues that the Constitution and the nation’s legal history contain no explicit protections of gay sex. So gays have no fundamental right to engage in the private, intimate relations that other Americans take for granted.

Henderson relies on the views of three law professors for this attempt to associate Scalia with Taney’s defense of slavery: Lea Vandervelde of the University of Iowa, Paul Finkelman of the University of Tulsa, and Kermit Roosevelt of the University of Pennsylvania. Henderson found only one dissenter from this characterization, and he wasn’t at a law school — Todd Gaziano of the Heritage Foundation. And the reporter quickly dismisses Gaziano’s views in order to return to the evident “similarities between Scalia’s and Taney’s views on liberty.”

The real point of the article is to discredit textualism and original intent as approaches to interpreting the Constitution. Since Scalia uses such approaches in Lawrence, and Taney used such approaches in Dred Scott — well, Q.E.D.: attention to the text and to history is Clearly a Bad Thing. Instead, as Vandervelde argues, “liberties should be expanding with human progress”; and, of course the Supreme Court should be the agent of that “progress.”

But let’s look at those “similarities” again. There’s just one thing wrong with them. Taney’s Dred Scott opinion was a mockery of the text, of the Framers’ intent, of the history of American beliefs on race, and of the relevant precedents. Scalia, by contrast, got them all right in the recent sodomy case.

True, Taney trumpeted his commitment to faithfully following the original understanding of the Constitution. But he was wrong, as a matter of original understanding, to deny that free blacks could be considered citizens of the United States. He was wrong to hold that Congress lacked the power to outlaw slavery in the federal territories. He was wrong to declare that such an act of Congress inhibited a slave owner’s liberty without due process of law. And he was wrong, most of all — as Jefferson, Adams, Madison, Hamilton, and Marshall would all have testified, and as Lincoln demonstrated — to claim that the Declaration of Independence did not really mean “all men” when it said that “all men are created equal.” In short, he got the original understanding wrong in almost every conceivable way.

There were precisely no critics — none, zip, nada — of Taney’s opinion at the time who argued that original intent should not guide the interpretation of the Constitution. All agreed that it should (today’s jazzy alternatives to such a traditional approach all being latter-day inventions). What they claimed was that Taney’s opinion was a prime example of “original intent” done badly. Worse than that, they said, his claim to be relying on original intent was a fraud, given the lie by his false history, pro-slavery bias, and fallacious legal reasoning. And a fraud it was — as Justices McLean and Curtis showed in their dissents, and as Lincoln showed in numerous speeches.

So far, apart from a tendentious “historians’ brief” relied upon by Justice Kennedy in his majority opinion in Lawrence (and we can save what’s wrong with historians for another day), no one has attempted to refute the arguments in Scalia’s dissent on his own chosen ground of text and history. With good reason: It can’t be done.

What can be done, of course, is a crude hit job on Scalia, in which his refusal to overturn sodomy laws permitted by the Constitution is compared to Taney’s eagerness to overturn anti-slavery laws permitted by the Constitution. But for those who would rather the Court make the law than interpret it, this will suffice: Taney said that he believed in original intent and defended slavery, a bad thing. Scalia says that he believes in original intent and would uphold sodomy laws; that must be a bad thing too.

This kindergarten reasoning presupposes that our three law professors believe that in Dred Scott, Taney was right about the meaning of the Constitution the Framers made. Is that what they teach their law students? Two of Henderson’s sources, he tells us — Vandervelde and Finkelman — have written extensively about the Dred Scott case. It seems they still don’t understand it.

Matthew J. Franck is professor and chairman of political science at Radford University.



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