various things

I came across this quote from the dissent in Dred Scott (the case that overturned the Missouri Compromise and held that a black cannot be a citizen of the US):

"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).

This quote was in the full text of Scalia dissent in Casey. Not addressing the merits of the dissent, it disgusts me that the all-knowing editors of our Con Law book edited out his most well reasoned arguments against the majority. Is it that bad for students to hear both sides of the argument? They put in thirteen pages of the majority after all. This also bothered me in the class discussion about Roe. Trying not to sound too full of myself, I think (and Patrick and JP agree) that I could probably articulate the anti-choice viewpoint better than most of the class. Bergen tried to call on people who haven't spoken, and in so doing allowed the bone marrow hypo to go essentially unanswered. Discussing it after class, I argued at least to draw and (again, according to Patrick) possibly bested her on it.
While I see the benefit in trying to get other people to speak, but it bothers me for two reasons. The first is that people should hear both sides of the argument; there is little intellectual value in hearing a law professor (who is published on the topic) arguing against a confused law student. The other reason, this being more personal, is that it was tantamount to punishing me for participating fully in previous class discussions. If I can manage to argue a point on the separation of powers or the Dormant Commerce Clause, why should I be punished for it on the day when I finally have something interesting to say.

I think (again, selfishly) that there should be some sort of reward for helping the class discussion on the boring topics. With blind grading and the fact that professors can't raise a grade for good participation, the only possible benefit would be allowing me to talk in the biggest class discussion of the semester. Not only that, but she would know that, by calling on me, she would at least get an intelligent anti-choice argument beyond the standard "but it is alive, damnit" and the well thought out "you should have known better." Moreover, she moved the discussion in such a manner that it was assumed that there is a right to an abortion encompassed in the right to privacy; we merely argued if the state has an interest sufficient to override that right. I seriously doubt that today in Casey we'll go back to discuss whether the right actually exists in the Constitution. Between the lack of substance in the discussion and the fact that I have a zero percent chance of being called on, I'm not even sure why I'm going to show up.

In retrospect, I was indeed called on in Con Law during the abortion funding cases. Though I wasn't able to talk about abortion, I did get to make a comment on the Tax and Spend Clause. If I'm lucky, I'll get to talk about the effects of the partial birth abortion ban on interstate commerce; after all, she does enjoy calling on me for the Dormant Commerce Clause.

This post really started out simply to put in the Dred Scott quote, but I seem to have gotten off track.