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The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber
The Fourteenth Amendment And The Unconstitutionality Of Secession, Daniel A. Farber
Daniel A Farber
To understand fully the relevance of the first two clauses of the Fourteenth Amendment to secession, we need to examine the antebellum disputes about citizenship and sovereignty, the subject of Part II below. Issues about citizenship arose in the context of specific disputes about naturalization, expatriation, and the rights of freedmen, but they implicated conflicts over the seat of allegiance and the nature of the Union. Part III turns to the Reconstruction debates and shows how they reflect a fundamentally nationalistic view of citizenship. The Reconstruction Amendments to the Constitution were connected with a powerful vision of national citizenship and …
A Fatal Loss Of Balance: Dred Scott Revisited , Daniel A. Farber
A Fatal Loss Of Balance: Dred Scott Revisited , Daniel A. Farber
Daniel A Farber
This essay focuses on three aspects of the Dred Scott opinion: its effort to ensure that blacks could never be citizens, let alone equal ones; its deployment of a "limited government" argument for a narrow interpretation of Congress's enumerated power over the territories; and its path-breaking defense of property rights against government regulation. These constitutional tropes of racism, narrowing of federal power, and protection of property were to remain dominant for another seventy-five years. Apart from the failings of the opinion itself, Dred Scott also represents an extraordinary case of presidential tampering with the judicial process and a breakdown in …