Justice McLean on Originalism

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Shag from Brookline says:

    How does this compare with his dissent in Dred Scott?

  2. Joe says:

    Not sure exactly, but I like his dissent. Curtis’ dissent is seen as “the” dissent, but his has some good stuff in it too.

  3. Shag from Brookline says:

    Each dissent in Dred Scott had lots of good stuff. Perhaps the status of Justice McLean’s dissent suffered from the fact of his political ambitions, including seeking the presidency*. McLean had earlier in his judicial career attacked slavery whereas Justice Curtis as a young attorney in Boston attempted to “discredit” Lord Mansfield’s decision in the Somerset case, which formed the basis for the MA Supreme Judicial Court decision (C.J. Lemuel Shaw) in Commonwealth v. Aves (1836) on the status of a non-fugitive slave being brought into a non-slave state: slave can decide his/her freedom. Justice Curtis’ views changed over the years, as noted in his dissent. Following Dred Scott, it was thought that the Supreme Court would, in a proper case, deem Somerset as not applicable under the Constitution. The NY Lemon case might have been that case, but state appeals, etc, delayed an appeal to the Supreme Court, and then a war broke out.

    *See: http://www.scotusblog.com/2012/04/legal-scholarship-highlight-presidential-ambitions-of-supreme-court-justices

  4. Shag from Brookline says:

    By the way, it has been said that C.J. Taney’s opinion was a demonstration of originalism. Today, presumably because of the infamy of the Dred Scott decision, some originalists deny this. Perhaps some originalists might wish to suggest that the dissents were based upon originalism. [Hopefully this might lead to a “civil” discussion of the “war” between originalism and non-originalism.]

  5. Joe says:

    The usual defense is that Taney did a bad job but critics note that this seems to happen a bit too often. Some time back, I read Don Fehrenbacher’s book on the case & each opinion is interesting. Of course, there is a lot to consider there — see, e.g., Balkin and Levinson’s bakers dozen of thoughts.