In my first post, I said that the basic premise of the Constitution is that people are fundamentally free, and that political institutions are created through that freedom, and are legitimate only insofar as they respect that freedom. The central value of the Constitution, I argue, is the liberty that the Declaration of Independence proclaims as the birthright of all people.
But can that be what the founders thought? After all, they lived with the institution of slavery, which obviously violated these principles. Can the founders have meant the Constitution to embody a classical liberalism that they were simultaneously flouting? Today it’s common to hear people say that the Declaration’s reference to equality actually only meant white men; that the Constitution was written only for white men—because the authors of these documents owned slaves. There’s one person who comes to mind who believed that the founders’ personal ownership of slaves was dispositive in interpreting the Constitution they wrote: Roger B. Taney. The fact that Jefferson and others owned slaves and did not immediately free them was, Taney asserted in Dred Scott, sufficient to show that they did not mean all men when using the phrase “all men” in the Declaration, and did not mean to include black people among the “people of the United States” referred to in the Constitution. Abraham Lincoln showed at tedious length in his Cooper Union speech how flimsy this argument really is, and it is tragic to see that many people today who consider themselves friends of equality and liberty—including even Justice Thurgood Marshall—endorse Taney’s shoddy Dred Scott reasoning.
Yet we can’t understand Dred Scott unless we understand that Taney was hoping his decision would deal the death-blow to a rising tide of anti-slavery constitutional thinking—a strain of thought that seems to be largely
Read the rest at The Volokh Conspiracy…