Dred Scott and SDP

Read Paulsen p. 147-154 and Casebook p. 442-446. 

The Due Process Clause of the 5th Amendment provides that no person shall be "deprived of life, liberty, or property, without due process of law." When a Court creates new rights under substantive due process, it ignores the words "without due process" and instead pours new meaning into the word "liberty." In other words, the Court holds that some liberties may not be taken even if the claimant receives due process and a fair trial. 

This is how the Court in Dred Scott created a constitutional right concerning a slaveholder’s liberty to own slaves and to bring his human property into a U.S. Territory in which slavery was prohibited.

Let's take a careful look at the quote from Justice Taney’s opinion in Dred Scott on page 444:

"Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth  amendment to the Constitution, which provides that no person shall be deprived of life, liberty and  property, without due process of law. 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 offense against the laws, could  hardly be dignified with the name of due process of law."

  Here is how one commentator reads those two sentences.

    The first sentence quotes the guarantee of due process, which is simply a requirement that the substance of any law be applied to a person through fair procedures by any tribunal hearing a case.  The clause says nothing whatever about what the substance of the law must be.  But Taney’s second sentence transforms this requirement of fair procedures into a rule about the allowable substance of a statute.  The substance Taney poured into the clause was that Congress cannot prevent slavery in a territory because a man must be allowed to bring slaves there.  The second sentence is additionally dishonest because it postulates a man who had “committed no offense against the laws,” but a man who brings slaves and keeps them in a jurisdiction where slavery is prohibited does commit an offense against the laws.  Taney was saying that there can be no valid law against slaveholding anywhere in the United States.

As Paulsen says (p. 152), the Court "had invented" the doctrine of substantive due process and employed it to declare a federal civil rights law (the Missouri Compromise) unconstitutional thereby extending "slavery throughout all US territory."

A second holding of Dred Scott was "that blacks--free or slave--could never be citizens of the United States or of any state [and] were not protected by the Constitution in any way." (p. 150)

  What are your thoughts? Was Dred Scott an originalist decision? Or was it a decision that could only be reached under a Living (Common Law) Constitution?

Dred Scott was overruled by the Civil War and the 14th Amendment. And note well, the 14th Amendment (which we will not be studying in this course) expressly provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." All citizens of the United States are by law citizens of the state in which they reside whether the particular state likes it or not. Citizens choose states; states don't choose citizens!