Excellent essay by @JeannieSGersen, with nods to @MJSteilen @nikobowie & @jamalgreene. But one thing that troubles me about the discourse over Dred Scott: Why don’t more scholars talk about Justice Curtis’s dissent? 1/6 newyorker.com/news/our-colum…
Many argue that Taney’s racist opinion in Dred Scott was faithful to the “original intent” of the Founders, but Curtis’s dissent utterly obliterated the majority opinion as a matter of original meaning. 2/6
Curtis demonstrated that free blacks were citizens of five states before the adoption of the Constitution. The Constitution therefore took them as it found them, because nothing in the Constitution strips their citizenship, nor does Congress have an enumerated power to do so. 3/6
The power of naturalization is the power to *make* new citizens—not to take away existing citizenship. More still, the natural born citizen clause in Article II as a qualification for the presidency implies that children of free black citizens are also citizens. 4/6
So some say Dred Scott is originalist, but it’s really not. Taney was adopting the racist prejudices of the Southern aristocracy of *his* time. 5/6
If you’re interested in learning more about antebellum constitutional struggles for racial equality, I hope you check out my new book! /end amazon.com/Second-Foundin…

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More from @ilan_wurman

7 Jun
Short 🧵! A great unanswered question in constitutional law is whether the President must enforce a statute s/he believes to be unconstitutional. Many think not because the Constitution is also a law that must be faithfully executed. But I’m not sure that’s the right answer. 1/3
After all, the President gets a suspensive veto only. Congress can override it. If the President vetos a law on constitutional grounds and Congress overrides it, can the President really refuse to enforce it anyway? Wouldn’t that turn the suspensive veto into an absolute one? 2/3
Jefferson’s precedent on alien & sedition is against this view. But if I were President I would enforce laws that Congress enacts over vetos or that previous Presidents have signed. Maybe that’s too pro-Congress, but that strikes me as the best balance. So, good for Biden! 3/3
Read 4 tweets
3 Feb
The author says that Chief Justice Marshall believed in living constitutionalism because he said in McCulloch that the Constitution was "intended...to be adapted to the various crises of human affairs." This is a common misinterpretation. A thread! 1/7 newrepublic.com/article/161162…
First, context. Marshall is interpreting the necessary and proper clause: does it permit only means "absolutely" necessary, or merely convenient? Thus he says, famously, we must remember it is a constitution we are expounding. He meant that if the N&P clause were read narrowly 2/
the Framers would have had to provide so much more in the Constitution's text to make it work--and then it would have the "prolixity of a legal code," not a constitution. Hence the *best original meaning* of the N&P clause is that the means can be merely convenient. 3/7
Read 7 tweets
9 Jul 20
This morning, I filed a petition for special action in the Supreme Court of Arizona on behalf of 26 small business owners whose bars have been shut down by Governor Ducey’s executive orders. I will link to my briefing for anyone to use. 1/10
This case is based on state, not federal, constitutional law claims, but those claims—violations of the nondelegation doctrine, the state’s privileges or immunities clause, and, relatedly, due process—are broadly applicable. 2/
Here’s how the petition starts: “This case is about whether the citizens of Arizona are governed by laws, or by the whims of one man.” 3/ Image
Read 10 tweets
5 Nov 18
This @nytimes review is nuts. I haven't read Ellis's book (yet), and can't be sure what he says. But the notion that Madison believed in a "living Constitution" is absolutely belied by the evidence. Just consider two statements from Madison, one in 1790 and another in 1826. 1/5
In response to Jefferson's "the earth belongs to the living" letter, Madison responded that the Constitution is an improvement that forms a "debt against the living," which can only be discharged "by a proportionate obedience to the will of the authors of the improvement." 2/5
This exchange gives the title to my book, in which I explain (among other things) that all the Founders (as far as I can tell) were originalist. 3/5 amazon.com/Debt-Against-L…
Read 5 tweets

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