Dred Scott question
emaltz at camden.rutgers.edu
Mon Jun 6 08:33:53 PDT 2005
I'm not asking about whether he is right. I'm asking whether McLean in
fact believes that Missouri was required to recognize Dered Scott's freedom
either by the Constitution itself of the Northwest Ordinance operating
through the Supremacy Clause.
At 10:06 AM 6/6/2005 -0500, Paul Finkelman wrote:
>I am not sure what you are asking? Opinion about what? Whether McLean is
>right on the Illinois/comity issue? Or right on the Sec. 25 issue, or both?
>Earl Maltz wrote:
>>I have a question regarding McLean's opinion in Dred Scott. Both McLean
>>and Curtis conclude that, because the Missouri Supreme Court departed
>>from state precedent in Scott v. Emerson, they were not bound to consider
>>the decision an authoritative exposition of Missouri law.
>>However, it appears to me that McLean is also arguing that the decision
>>also violated the federal Constitution [or, at the very least, the
>>Northwest Ordinance]. He states on p. 559 that "I am unable to reconcile
>>[Scott v. Emerson] with the respect due to the state of Illinois. Having
>>the same rights of sovereignty as the State of Missouri in adopting a
>>Constitution, I can perceive no reason why the institutions of Illinois
>>should not receive the same consideration as those of Missouri" and
>>later, at 564 "The Missouri court disregards the express provisions of an
>>act of Congress and the Constitution of a sovereign State, both of which
>>laws for twenty-eight years it had not only regarded, but carried into
>>effect. If a State may do this, on a question involving the liberty of a
>>human being, what protection do the laws afford? So far from being a
>>Missouri question, it is a question, as it would seem, within the
>>twenty-fifth section of the judiciary act, where a right to
>>freedom being set up against the act of Congress, and the decision being
>>against such right, it may be brought for revision before this court."
>>Anyone out there have an opinion on this?
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>Chapman Distinguished Professor of Law
>University of Tulsa College of Law
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