Strengthening Constitutional Self-Government

No Left Turns

Masugi et al vs. Bork

Ken Masugi and Harry Jaffa respond to Robert Bork’s WSJ op-ed, as do Richard Reeb and Hugh Hewitt.

Discussions - 2 Comments

I’m no big fan of Bork’s "originalism." But surely he’s right that we can see that DRED SCOTT was wrongly decided without using any evidence exterior to the Constitution itself. The Court had two conclusions: None of the descendents of the Africans brought over to the United States to be slaves can be citizens of the United States. And the Missouri Compromise is unconstitutional because it is based on a distinction between slavery and other forms of property not found in the Constitution. As the dissents say, it’s enough to refute the first claim to show that some of those descendents were citizens and voters in the states at the time of the Constitution’s ratification--part of "We the people..." And the Constitution, whatever its concessions to slavery, does distinguish in many ways between enslaved human beings and non-human property. It purposefully, for example, never used the terms Negro, slave, or property when referring to human beings and it never refers to the justice of the laws of some of the states protecting slavery. The objection to the Missouri Compromise from the perspective of the Constitution of 1787 is that allowed for expansion of slavery beyond the states existing at the time of the Constitution’s ratification.

Taney’s alleged "originalism" is really an imposition of an alien pro-slavery perspective--that of the South of the 1850s--onto the Constitution. Bork’s point is that judges can’t read the Declaration into the Constitution without specific textual evidence that the Declaration is really there, and then that evidence, not the Declaration, is the real foundation of judicial review.

Confining judicial review to specific constitutional texts is the best antidote the contemporary Court’s view of substantive due process: Liberty is whatever the judges say in light of its progressive unfolding generation after generation.

If Jaffa and Masugi were on the Court things might be different. But fat chance! Bork’s point is that principled activism will always favor the reigning elite.

Can someone confirm this: is the following url really the blog of Harriet Miers?

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