Taney

[Michael McConnell]

Sandy Levison writes:

> Yes, and one can read the original Constitution all day and find no
> explicit or implicit statement (unless one puts great stock
> in the use of
> male pronouns) that women can be treated as second-class
> citizens.  Still,
> any well-socialized legal interpreter, prior to the 20th
> amendment, alas,
> would have had little trouble agreeing that that is the case.
>  (Of course
> they would have denied that denying women the right to vote,
> join the bar,
> etc., constituted second-class citizenship.  How important is this?)
> Taney's argument is that the Constitution didn't need to spell out its
> racist assumptions; they were just there, to be apprehended by anyone
> cognizant of American political culture.

But the cases are just not parallel. The Constitution explicitly states that
electoral qualifications are to be set by the states.  The absence of any
"explicit or implicit statement" about women thus meant that the states
could decide whether or not to allow women to vote. Silence meant that the
states could decide. By the same token, there is no explicit or implicit
statement in the Constitution that states could not recognize free persons
of African descent as citizens, thus suggesting -- contrary to Taney -- that
this was a question the states were free to decide. (And, as Benjamin Curtis
pointed out in dissent, some six states, including one slave state, allowed
free blacks to vote at the time of ratification of the Constitution.)
Similarly, the authority of Congress to regulate the territories was not
limited by any explicit or implicit statement protecting slavery, and the
First Congress had exercised precisely that authority in banning slavery
from the Northwest Territories.

Thus, to uphold the denial of female suffrage required only that the silence
of the Constitution be read as not limiting the discretion of the states;
while to decide Dred Scott required that the silence of the Constitution be
read as affirmatively limiting the discretion of the states and of the
Congress, in a manner contradicted by conspicuous practice contemporaneous
with ratification. I cannot fathom how any faithful originalist could defend
Dred Scott, but Minor v. Happersett was almost certainly correct.


Michael McConnell
University of Utah College of Law
332 South 1400 East Rm. 101
Salt Lake City, UT 84112