The McClean Dissent, Part Deux

When I consider this dissent in the light of Dworkins writings, I am immediately reminded of the discussion of checkerboard policies versus law as integrity. As we are now well aware, Dworkin proposed that integrity – or continuity – is necessary in the law, such that equity and justice cannot be rightly done by when predictability in how the law will act upon a person is lacking. McClean’s dissent offers a rather striking dichotomy when looked at in this light. On the one hand, his appeal to the persuasive literature provided by the Framers, and to the precedents of the Court – not to mention his appeal to Somersett v. Stewart, represent an attempt at giving the law a measure of integrity – to at least the extent that integrity means continuity. His arguments that there were no established precedent forbidding Black citizenship, and that there was precedent allowing for the Congress to exert legislative control over territories represented an attempt to establish a clear, distinct, and straight line of legal reasoning. However, there is an irony in this, because in allowing the Missouri Compromise to stand as McClean wished would represent the implicit continuance of checker-board policies, which run contrary to Dworkin’s vision of law as integrity. As Dworkin discussed – and as I have discussed previously – checkerboard policies are those that affect different locales, populations, or communities differently. In this spirit, the Missouri Compromise, which allowed slavery in some communities but not in others, is a checkerboard policy. Hence the dichotomy I spoke of earlier. While McClean’s logic in his dissent represents a clear attempt at law as integrity, some 130-odd years before it was written of, it is repugnant on its face to Dworkin’s writings on checkerboard policies. I added the emphasis in the last sentence to make very clear that in Dworkin would in no way have supported the majority decision in this case, and that while the dissent is repugnant on its face to Dworkin’s writing in this area, it would certainly have been a step in the right direction as far as Dworkin – a natural law and human rights theorist – would have been concerned.



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