"Who Killed Cock Robin?" A Retrospective on the Bork Nomination and a Reply to "Jaffa Divides the House" by Robert L. Stone
In an utterance that may have changed the history of the United States, and of the world, Lincoln argued that the grounds upon which one opposed the extension of slavery into the territories was inseparable from opposition to slavery itself. Similarly, I maintain that the ground upon which one argues for a constitutional jurisprudence of "original intent" is inseparable from such a jurisprudence. No one has ever formulated the doctrine of "original intent" jurisprudence with greater perspicacity or eloquence than did Chief Justice Taney in his opinion in Dred Scott. Furthermore, his judgment that a property interest in slaves in the Territories was guaranteed by the "original intent" of the Constitution is reasonable if one takes the text and history of the Constitution, apart from its moral grounding in the principles of the Declaration of Independence, as the guide to that intent.
Harry V. Jaffa, "Who Killed Cock Robin?" A Retrospective on the Bork Nomination and a Reply to "Jaffa Divides the House" by Robert L. Stone, 13 SEATTLE U. L. REV. 511 (1990).