Seattle University Law Review 13:3 (1990). Reprinted in Original Intent & the Framers of the Constitution (Washington, DC: Regnery Publishing, Inc., 1994).

Abstract:

In an utterance that may have changed the history of the United States, and of the world, Lincoln argued that the grounds upon which one opposed the extension of slavery into the territories was inseparable from opposition to slavery itself. Similarly, I maintain that the ground upon which one argues for a constitutional jurisprudence of “original intent” is inseparable from such a jurisprudence. No one has ever formulated the doctrine of “original intent” jurisprudence with greater perspicacity or eloquence than did Chief Justice Taney in his opinion in Dred Scott. Furthermore, his judgment that a property interest in slaves in the Territories was guaranteed by the “original intent” of the Constitution is reasonable if one takes the text and history of the Constitution, apart from its moral grounding in the principles of the Declaration of Independence, as the guide to that intent.

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Seattle University Law Review