First, I found a case where, as a young attorney, the future
Justice Taney defended a minister charged under Maryland's slave
codes, for having delivered a sermon on the evils of slavery and the
need for abolition. Taney gave a stirring argument, to the effect
that the evils of slavery were common knowledge to the framers,
quoting Jefferson and others on the question, saying that what the
minister had said was mild by comparison to the position of
Jefferson, etc., and asking whether the jury could convict the
founding fathers of the country for having dared say what they did.
He won. Does give a rather different picture of Taney.
Amar does point out that Dred Scott does stake a very aggressive
claim (esp. for the time) as to what the BoR means (*if* a person is
a citizen).... political meetings on any subject, carry arms wherever
you go, etc.
Second, 'way back I found another Justice McReynolds opinion (I
think same term... I was researching the cases of that term) in which
the curmudgeon staked out a position on the 4th amendment which would
have been right out there with Douglas, and today might well be
beyond the liberal wing of the court.
Guy with a reputation for bootlegging (I seem to recall three
arrests, but no convictions) was driving down a highway in Michigan,
said highway being a major trafficking route for liquor. Feds stopped
him and found booze. He argued 4th amendment as to the stop, and of
course lost. Just as he'd lose today, maybe 9-0, if we substitute
drugs for booze and a highway in the southwest for a highway in
Michigan.
McReynolds dissented. Arrests without convictions prove
nothing. Every highway in Michigan can be described as a major
trafficking route. So the court is now saying that once a Michigan
resident gets arrested for bootlegging, or gets a "reputation" for
bootlegging, he is subject to stop anytime he drives on a highway?
The court might as well be honest and declare the Fourth Amendment a
nullity.
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