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View Diary: Dred Scott, Explained: It's About Abortion (338 comments)

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  •  Dicta vs. Holding (none)
    Taney's introductory remarks, and the response of the dissent are arguments extending from the holding of the case.  Which is that a slave, legally held in one state (Scott), by virtue of his presence in a state whose laws would give him legal standing to sue, may not be given acces to  the Federal Courts without implicating the property rights of the slave's putative owner.
    One can speculate that Scott might have been used as precedent to prohibit Blacks from citizenship (although even Taney's introduction as you've read it would leave intact the citizenship of Blacks who immigrated free and their descendants), but an admittedly cursory search shows no indication of anyone making a motion to dismiss for lack of standing (or the equivalent) an ordinary civil suit by a free black citizen.  Lawyers were perfectly sharp back them and somebody would have tried it if it were credible.
    I beleive that my argument that an understanding of Scott as a blanket denial of legal personhood to all blacks that was cured by the Civil rights Amendments leads to an unduly narrow understanding of those Amendments.  
    What I meant wass, if Scott is simply absurd, then the Civil Rights Amendments only cure that absurdity.  If Scott was reasonable under the Constitution as it stood, then the Civil Rights Amendments must be understood as making the life and liberty interests of all persons at least coequal to property interests and recognizing that government is created to protect and preserve those rights for all persons.
    The narrow historical analysis is used by the Court (particularly O'Connor) in the congruence and proportionality test for 14th Amendment legislation.  So far it has been used to shoot down the Violence Against Women Act (Morrison) and portions of the ADA.  
    As to the nature of the current Court and your analysis of the so called "strict constructionists", I heartily agree.

    Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

    by Myrkury on Mon Oct 11, 2004 at 08:48:27 PM PDT

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    •  One Man's Holding Is Another Man's Dicta (none)
      As pointed out here, the dissent argued that the denial of citizenship was the holding:

      This was only the second time that the Supreme Court had found an act of Congress to be unconstitutional. Curtis, in dissent, attacked that part of the Court's decision as obiter dicta, on the ground that once the Court determined that it did not have jurisdiction to hear Scott's case its only recourse was to dismiss the action, not to pass judgment on the merits of his claims. The dissents by Curtis and John McLean also attacked the Court's overturning of the Missouri Compromise  on its merits, noting that none of the Framers of the Constitution had ever objected on constitutional grounds to the United States Congress' adoption of the antislavery provisions of the Northwest Ordinance passed by the Continental Congress, or the subsequent acts that barred slavery north of 36 30'.

      Operation 'Fool Me Once' -- Targeting Papers That Endorsed Bush in 2000

      by Paul Rosenberg on Tue Oct 12, 2004 at 03:33:03 AM PDT

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      •  Consensus reached ;-) n/t (none)

        Might and Right are always fighting In our youth it seems exciting. Right is always nearly winning. Might can hardly keep from grinning. -Clarence D

        by Myrkury on Tue Oct 12, 2004 at 07:55:11 AM PDT

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