Constitutional Rights and Powers of the People.
Constitutional Rights and Powers of the People By Wayne D. Moore. (Princeton and Chichester, West Sussex: Princeton University Press, 1996. Pp. xii, 289. $39.50.)
The first, and perhaps best, chapter of this book focuses on the case of Dred Scott v. Sanford as an "official pronouncement" on citizenship. Wayne Moore's analysis of Dred Scott is an effort to understand who makes up "the people" who ordained the Constitution. Moore deals intelligently and skillfully with both the legal and the political aspects of the opinions of Chief Justice Roger B. Taney and the dissenting Justice Benjamin R. Curtis. Moore tests the analysis of both justices' opinions and our own understanding of those opinions against the life and actions of Frederick Douglass. Douglass had been born a slave in a slave state. By Taney's lights, Douglass could not be a U.S. citizen. Yet Douglass exercised political rights, including voting for Presidential electors, in the free state of New York.
As powerful and interesting as Moore's analysis is, there is no discussion of the Dred Scott anti-slavery dissent of Justice John McLean, nor any reference to James H. Kettner's The Development of American Citizenship, 1608-1870 (1978). Though helpful to his ultimate viewpoint, Moore's treatment of citizenship omits any account of Attorney General Bates's 1862 opinion defining citizenship in a way that denied the legitimacy of Dred Scott or the citizenship clause of the 1866 Civil Rights Act.
Yet Moore's subsequent chapters are equally interesting and detailed. They treat enumerated and implied powers; checks and balances; delegated powers; economic rights and powers; claims of sexual and reproductive autonomy; and the Kentucky and Virginia Resolutions. Proceeding topically, rather than chronologically, Moore's presentation analyzes the text of the Constitution, court cases, and the writings of Hamilton, Madison, and Jefferson. Court opinions by Chief Justice Marshall, Chief Justice Taney, Justice Blackmon, and Justice Goldberg are all equally relevant to his project.
Even though Moore's analysis "leads in many directions," there is a "big idea" in Moore's work (275). He posits an "[e]xcessive preoccupation with the role of judges within the constitutional system," claiming that this has obscured the roles of others in making, enforcing, and changing the constitution (4). He favors a system that encourages interpretative plurality and recognizes many actors in constitutional interpretation. In supporting this view, he melds together lessons from the concept of delegated government, reserve rights under the Ninth and Tenth Amendments, and the analysis of the Kentucky and Virginia Resolutions condemning the Alien and Sedition Acts to argue that "[c]onstitutional theory and practice should.., embrace the core principle of state interpretative autonomy..." (274). By this argument, Moore means that state actors should be welcomed as people who can validly express opinions on the meaning of constitutional provisions even if, or especially if, those ideas are different from those pronounced by the federal courts.
Richard L. Aynes The University of Akron
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|Author:||Aynes, Richard L.|
|Article Type:||Book Review|
|Date:||Sep 22, 1998|
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