Originalism, for those who don’t know, is a constitutional philosophy practiced by a majority of the Supreme Court, and it states that the Constitution should be interpreted based on how people at the time of the ratification of the Constitution (or the specific Amendment, in cases of the Amendments) would have understood it. So-called originalism was used by Sam Alito in overruling
Roe v.
Wade. (
I have talked previously about how shallow the history cited by Alito was in this decision.)
But right now, I want to talk about a foundational mythology in the religion of modern originalism: the originalist myths around Dred Scott.
Dred Scott was an enslaved man who had lived in Illinois (he had been brought there by a former enslaver) for long enough that under Illinois law, he was considered free. He brought suit in federal court to be declared free. Under Chief Justice Taney, the Supreme Court held that “a negro whose ancestors were imported into this country and sold as slaves” (Dred Scott v. Sandford) could never become a citizen of the United States, and therefore was unable to sue in federal court; and also, that the Missouri Compromise, which stated that there were free states and slave states, and allowed each state to make rules about what it meant to be free or enslaved, was unconstitutional because it took the property of slave owners (by this, Taney meant people) without due process of law.
Today, it is widely recognized that Dred Scott was a monstrous, racist opinion that helped precipitated the Civil War. Abolitionists had been trying to find piecemeal solutions: ways to use the law to free enslaved people; ways to use free states to end slavery as much as possible. After Dred Scott, it became clear that there was no legal solution—not under this Constitution, and not under that Court.
So now we come to the myth that originalism tells about Dred Scott. Originalism declares that in order to find a right under the Fourteenth or the Ninth amendments of the Constitution, the right must be “deeply rooted in [our] history and tradition” and “essential to our Nation’s “scheme of ordered liberty.” Originalism also declares that it is the job of judges to determine what a law meant at the time it was enacted, and not to make policy from the bench. And here’s the kicker: originalists claim that Dred Scott is the primary example of what happens if you ignore this.
In Dobbs, Alito, for the Court said this: “In Dred Scott v. Sandford, the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.” Scalia, in dissent in Casey, more dramatically, compared abortion jurisprudence to Dred Scott: “[T]hose of us who know how the lustre of [Taney’s] great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court and its soon-to-be- played-out consequences for the Nation—burning on his mind.” And Robert Bork, who I believe is the originator of this lie, said that Dred Scott was “possibly the first application of substantive due process in the Supreme Court, the original precedent for Lochner v. New York and Roe v. Wade.”
If all you ever read about Dred Scott was what originalists said about the opinion, you would believe that Chief Justice Taney spat upon the original intent of the Constitution and the laws and boldly made policy from the bench, thus precipitating a civil war solely from his own biases.
Here is what Taney actually said in Dred Scott:
“It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.”
Dred Scott v. Sandford, 60 U.S. 393, 405 (1856).
At every point in this unreasonably long opinion, Taney bends over backwards to situate his reasoning in the Constitution and in the deeply rooted history of our nation. In declaring Scott not a citizen of the United States, Taney says “the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people.” Id. at 407.
And in declaring the Missouri Compromise unconstitutional, Taney said: “A brief summary of the history of the times, as well as the careful and measured terms in which the article is framed will show the correctness of this proposition.” At no point in this opinion does Taney engage in the kind of analysis that happens in Roe and Casey, where the Court considers what liberty means in a modern sense.
The closest Taney comes is this: “And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law,” and I actually think that most originalists would agree with the proposition (in general) that Congress, under the Fifth Amendment, cannot take property from citizens without due process; the issue is not with the legal proposition, but with the monstrous declaration that the descendants of enslaved people from Africa could only ever be property, and never citizens.
So I want you to know this, in the years to come: Originalists are liars. They are bold-faced liars. Anyone can see that they are lying. They are lying about history; they are lying about their past.
Dred Scott is an originalist opinion, through and through.
