Justice McLean on Originalism

“Antiquity has its charms, as it is rarely found in the common walks of professional life; but it may be doubted whether wisdom is not more frequently found in experience and the gradual progress of human affairs; and this is especially the case in all systems of jurisprudence, which are matured by the progress of human knowledge.  Whether it be common, chancery, or admiralty law, we should be more instructed by studying its present adaptations to human concerns, than to trace it back to its beginnings.  Every one is more interested and delighted to look upon the majestic and flowing river, than by following its current upwards until it becomes lost in its mountain rivulets.”

Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296, 307 (1858)

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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.