I See I Have Made Gene Callahan Terribly Unhappy: Dred Scott v. Sanford Blogging
Callahan writes:
Brad DeLong: How Low Can He Go?: DeLong decides to smear Daniel McCarthy as being pro-Dred-Scott simply because he favors the Constitution over the Declaration. Gee, Brad, why not throw in a comment about how Dan must be a sociopath as well?
I've kept DeLong on my sidebar because, despite his frequent ugly displays of character assassination, he often says very interesting things. But I've had it: I can't with good conscience promote this verminous human being any longer.
Oh, dear, dear, dear...
In 1857 Dred Scott was not a close decision.
It was 7-2 against Mr. Scott. The northern justices split 2-2. The southern justices were 5-0. Only if you read the Constitution as an imperfect attempt to implement the principles of the Declaration is a decision for Dred Scott likely--and that is, indeed, one of the things the Civil War is about.
McCarthy says that the Constitution is not an attempt to implement the principles of the Declaration of Independence but rather merely a "carefully considered and debated document in all its modesty" setting out the rules of the game for political action.
If you read the pre-1865 Constitution in that way and not as an attempt to implement that principles of the Declaration, the 7-2 vote in Dred Scott becomes comprehensible--even reasonable. The pre-1865 Constitution takes no notice of slavery. It does, however, take a good deal of notice of property--the Fifth Amendment states that you cannot be deprived of your property without due process of law.
Now a state may or may not be able to free your slave if you carry him into that state--that depends, but there is a lot of precedent from John Marshall around state powers to deal with bankruptcy that could have been extended to say that states did not have the right to free slaves brought within their borders.
But, unless you read the Constitution as an attempt to implement the principles of the Declaration, it seems hard to argue that the mere act of carrying your property into territory under federal jurisdiction deprives you of it. Where is your due process of law then?
I realize that Callahan does not like the implications of reading the pre-Civil War Constitution as a carefully considered and debated document in all its modesty. But that he does not like the implications does not make the implications false. And that he does not like the implications doesn't give him a reason to throw a tantrum.
Just saying…
