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I would think that's exactly what the liberals said about Dredd Scott back in the 19th century. And it's true that it took a Civil War to right it. But, I believe people back then also decided that then treating the Court openly like a Senate doesn’t just accept the problem, it accelerates it, turning something imperfect into something fully broken, that's why they didn't just tear it down. My belief is that each pillar of government is a pressure valve. The fact that the Court gets more and more partisan is proof that the other two are in disorder. The American people doesn't elect good lawmakers, so they turn to the presidency for quick executive actions, when that fails, the American people clamor for relief by wanting to stack the court in whatever direction they prefer.
I agree with you that "living constitution" is not a good name nor idea for the current US, especially when unlike other countries, the Founders did not conclusively made clear on guidance of how to interpret the Constitution, nor has there been Amendments since to make that democratically clear. I would also like to point out that there are plenty of examples in history where there are things that are Legal, yet does not make it Just, and that tension is exactly why people veer into the extreme of legal cynicism where "might make right". Right now you say that the Liberals overreached because from your perspective the current court, that you agree with, is overturning liberal decisions from the last 80 years and reaching the "correct-er" decision. But around 80 years ago, we would have Brown v. Board of Education overturning the conservative even older Plessy v. Ferguson with regards to "separate but equal". Or maybe we would talk about West Coast Hotel Co. v. Parrish which gutted the older Lochner v. New York and upheld minimum wage (this would be similar to how we talk about the recent Louisiana v. Callais gutting the VRA). I'm sure for many people, that was also the "correct-er" decision. Even for the Dredd Scott decision, technically that's constitutional, it was just superseded. It would take a full arc of history for us to really see what is the most "correct-est" decision. And unfortunately for us humans, it takes debate, it takes pendulum swings from left to right, back to left, back to right, and so many more turns. The point is we don't want the breakdown of the rule of law. Dredd Scott led to the breakdown of the rule of law as Northern States did not enforce the decision, even though there were many calling for everyone to follow the law, I would guess that both of us agreed with fighting slavery being the morally correct choice. But we celebrate Lincoln because he preserved the constitution and the rule of law. He made sure that the 13th amendment was passed democratically, settling the debate for generations to come. That is virtue, for only when is it costly that a virtue is true. And that's what I'm imploring for all actors in the legal system.
Wasn’t Dred Scott correctly decided? Their listed in constitution as property?
If Democrat and Republican Law is different then we have a Senate. If liberal and conservative are different then we have a Senate. It needs to just be words on paper. Like if I am reading a Spanish author and give the book to 10 translators they basically give me the same English text.
Took me quite a bit to research all this. I can definitely say now I know more about Dred Scott than the average person.
First, I would like to draw your attention to "What Was Wrong with Dred Scott, What's Right About Brown" written by Robert A Burt. Much of what I say next will just be a rehash of what was written there.
In summary, Dred Scott has serious legal problem (in either textual or originalist readings) even back in 1857. Let's examine each of the holdings that Taney decided in Dred Scott:
1. Black people can never be U.S. citizens. Justice Curtis's dissent dismantled this with historical fact: at ratification, free Black men actually voted in five states — New Hampshire, Massachusetts, New York, New Jersey, and North Carolina — making them state citizens, and through that, U.S. citizens. Taney had to argue state citizenship and federal citizenship were separate and should be severed from each other, which contradicted standard doctrine. Curtis dissent was so persuasive Taney delayed the ruling to add 18 pages of rebuttal.
Now if one asks "would the Founders have explicitly excluded Black citizenship had they foreseen 1857?" Taney might have been right. But that's not a legal question. The Constitution as written by the Founders didn't exclude black people from citizenship. In a textual reading, judges interpret what was written, not what someone might have written under different circumstances. In an originalist reading, clearly for the Founders, they must have considered it because clearly there were states that had black people as citizens at the time of the drafting and they continued to be citizens post-ratification. Furthermore, one might even say that at the time of ratification, slavery seemed to be in decline with many states putting in laws that seem to indicate emancipation was just around the corner. This is the case seeing as Jefferson wrote in his 1787 Notes on The State of Virginia:
I think a change already perceptible, since the origin of the present revolution. The spirit of the master is abating, that of the slave rising from the dust, his condition mollifying, the way I hope preparing, under the auspices of heaven, for a total emancipation, and that this is disposed, in the order of events, to be with the consent of the masters, rather than by their extirpation.
2. Congress can't ban slavery in territories. Taney's argument here had two claims.
First, he claimed Article IV, Section 3, which says "Congress shall have Power to... make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States", only applied to territories the U.S. owned at ratification, not anything acquired later. His support was a semantic comparison to the Article I, Section 8, Clause 17 "D.C. clause". Taney's argument: since the Framers used stronger, more sweeping language ("exclusive Legislation in all Cases whatsoever") for D.C., the weaker language ("needful Rules and Regulations") for territories must mean less power. Or even more specifically, less power than would be needed to ban slavery. I will concede that there is a certain textual reading that can push for this claim, but I think we can see there is no originalist reading of this as Taney cited no Founder, no ratifying convention, no contemporary witness for this.
Second, he argued structurally that since territories must eventually become states "on equal footing" (further reading is Equal Footing Doctrine) Congress couldn't make decisions, like banning slavery, that would prejudge what those future states could choose. By itself, this already contains much textual contradiction. With that logic, Congress couldn't regulate territories on anything that future states might want to decide differently. And if we judge it by originalist reading, it's contradicted by the Founders' own behavior: the Northwest Ordinance, passed in 1787 while the Constitutional Convention was meeting, banned slavery in territories. The First Congress re-enacted it in 1789 under the new Constitution. Same Founders, did exactly what Taney said they intended to forbid.
3. Freeing slaves violates the 5th Amendment property clause. Taney argued the 5th Amendment's protection against deprivation of property without due process meant Congress couldn't ban slavery in territories, since slaves were property. He grounded this in the Article IV, Section 2, Clause 3 or better known as the "fugitive slave clause", which he read as recognizing "the right of property of the master in a slave."
First, the textual problems are serious. the 5th Amendment guarantees due process, which is a procedural protection requiring fair process before deprivation, not a substantive ban on deprivation itself. Taney's reading was the first major use of what we would call "substantive due process" to strike down federal legislation (in Taney's case: the Missouri Compromise).
Second, the originalist problems are worse. Tracing the Constitution drafts, one can see how there was a last minute change to the wording merely two days before the signing. The clause acknowledges state-created status, not federally-protected property, and was clearly meant to only imply it was permissible under state laws. It was important to the Founders that the Constitution never uses the word "slave" or "slavery" anywhere in its original text, not once. The Framers went out of their way to avoid it, using circumlocutions like "person held to service or labour," "other persons," and "such persons as any of the States now existing shall think proper to admit." The change at the last minute struck the word "legally" from the fugitive slave clause specifically to avoid implying slavery had moral legitimacy under federal law, as Madison's notes from the Convention record him saying it was "wrong to admit in the Constitution the idea that there could be property in men". The word "slavery" doesn't appear in the Constitution until the 13th Amendment, which abolished it.
Furthermore, going back to the Northwest Ordinance from before, which banned slavery in territories, if the Founders thought slaves were federally-protected property under the 5th Amendment, that ban would have been unconstitutional, and they certainly didn't think it was.
Contemporary Reactions to Dred Scott v Sanford
Some, like let's say Stephen A Douglas, says if the Court decided it, it must be legal:
Lincoln, in his response to the above, quickly pointed out the flaws of the majority opinion, undoubtedly referring to the points made in Curtis's dissent. And how he feels precedents are being overturned by this decision and that the decision on how it came about is just as important as what. Bolded mine:
Douglas would win against Lincoln for Illinois senate seat in 1858, but Lincoln's position was what propelled him into the national stage.
Final Thoughts
I hope I have demonstrated for you that Dred Scott was not "correctly" decided. It's only correct if one holds the philosophy that whatever the court rules is the law and everyone should just bow to it from then on. I also hope to demonstrate for you that conservative judges, even one who think he is reading the text on its own and interpreting it based on "original intent", can certainly do great twisting and read certain things into the text if they so wish. I also hope to demonstrate for you that judges don't make good historians. This is not considered the worst Supreme Court decision of all time merely because of its moral implications, but also because of how badly the law was decided. There was indecision written into the Constitution, and it was left for the public to continually wrestle about it. And Taney could have written a much narrower decision, but by falling so hard on the side of the conservatives, he contributed to the breakdown of the country, poured oil into the fire of sectional tension, and simply made things worse.
PS:
Have you read different translations of the same work? Why do you think the Catholic Church throughout its history is adamant that it is the final authority on authorized translations and some regions and rulers at certain times even prohibit "vernacular Bible". One simply has to look at the East-West Schism as to how different understanding of the same word can have wide reaching consequences (see this video for a recap). And then we have the Constitution. Yes, the champion of textual clarity with such phrases such as "cruel and unusual punishments", "general welfare", "unreasonable searches and seizures", "necessary and proper", etc. The ambiguity was by design.
PPS: I highly recommend reading the full linked Robert A Burt writing. The contrast between Dred Scott v Sanford with the more modern Brown v Board of Education is great but I didn't want to make this any longer and I didn't want to deep dive into another case.
PPPS: I should have made this as a top level comment lol
You are likely right it was decided wrong. And I did read some of the source. I’m not sure how much of it was decided wrong though but certainly seems like some of it was flawed.
Yes no one would read your post at this point. And I have no idea how you could tie it into something else.
Biblical translations are not the same thing as translating Spanish today. And it is one issue where discrepancies occur with Con Law today which is an interesting point. Bible was written in dead languages. And the translations are hundred of years even thousands of years later. It is in fact a hard translation with few source materials to really understand the earlier words. Con Law runs into this issue as English vernacular has changed over 250 years, but I assume far less than a bible translation. I would think if someone is translating Game of Thrones into Spanish the meaning of the words would not change that much. They wouldn’t be identical translations. Some translators are better poets and would make the story more enjoyable to read in Spanish. But for the most part meaning should not differ between translators.
Thanks, I appreciate that.
Lol yeah
I would like to draw your attention to this excellent article on "The Peculiar Perils of Literary Translation" where you can find such quotes like: "Translation is writing. It's rewriting a literary work. You write the same book but in a different language, which means it's not the same book anymore. It's a sibling. It's not a twin.".
I would like to further emphasize how a translation is essentially a recreation of the work, so much that "[the original author] himself read One Hundred Years of Solitude in the [English] Harper & Row edition and pronounced it better than his Spanish original". That's very recent history, where the translator and the author are both alive and can correspond with each other.
Since I am not a Spanish speaker, I would like to present you the reverse: what happens to different translations of Spanish novel, Don Quixote, into English. Like just compare these 4 recent translations:
Sure, the grand meaning might be nearly the same, but I do think if we are to examine these interpretations of the same text, they're quite different! "son of my brain" vs "child of my understanding" vs "child of my intellect" vs "child of my imagination". These are quite broad, and the readers of these different translations would come out with quite different feelings.
So back to your analogy of translating GOT to Spanish and comparison to constitutional law. It would be more appropriate to compare to a situation where George R.R. Martin hands ten writers a one-page outline saying "a great battle happens, the heroes face hard choices, there are consequences," and asking them each to write the chapter. You'd get ten different chapters, all faithful to the outline, none of them "wrong". And that's exactly what the genuinely contested constitutional clauses are. "The court is just a Senate" only lands if there's a "real" reading judges are failing to apply. For cases on contested clauses, the text often runs out (and as I mentioned, sometimes deliberately made to run out) and someone has to decide. They don't have a choice but to interpret.
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