DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL

Vol. 16 No. 12 (December 2006) pp.939-943

DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL, by Mark A. Graber. New York: Cambridge University Press, 2006. 278pp. Hardback. $40.00/£25.00. ISBN: 0521861659. eBook format. $32.00. ISBN: 0511223196.

Reviewed by Thomas M. Keck, Maxwell School of Citizenship and Public Affairs, Syracuse University. Email: tmkeck [at] maxwell.syr.edu.

DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL is the most interesting and original book on American constitutionalism that I have read in years. In just over 250 pages of text, Mark Graber argues that the Taney Court’s infamous decision in DRED SCOTT v. SANDFORD was legally defensible no matter what theory of constitutional interpretation one adopts, that the complex electoral system created by the original Constitution caused the Civil War and exacerbates the polarization of American politics to this day, and that the American electorate in 1860 was wrong to choose Abraham Lincoln.

Graber’s ambitions here are so broad that they cannot be fully realized, but he makes a strong case on all three counts. The third one is the toughest sell, but even there, Graber’s striking – indeed, almost preposterous – framing of the argument (“Voting for John Bell”) serves to advance an intriguing point about the relative values of constitutional justice and constitutional peace.

In Part I of the book, Graber explores “The Lessons of DRED SCOTT,” and they are not the ones most often drawn. While advocates of virtually all modern constitutional theories present the decision as Exhibit A in their case against rival theories, Graber emphasizes that all theories of constitutional interpretation can yield unjust results. All of them, indeed, can yield Taney’s decision in DRED SCOTT.

Robert Bork criticized the decision on originalist grounds, but Graber makes a strong case that it was consistent with the original understanding: “Taney declared that his arguments were rooted in the original intentions of the framers and in judicial precedent” and “[m]uch historical evidence” supports this claim (p.46). Taney’s historical assertions were not infallible, but neither were those of dissenting Justices Curtis and McClean, and Taney’s arguments were at least as consistent with the 1787 Constitution as any other slavery policies that were on the table. Similarly, Robert Jackson and Robert McCloskey criticized the decision on judicial restraint grounds, but Graber makes a strong case that it was, “if not perfectly majoritarian, certainly consistent with the policy preferences of the dominant national coalition before the Civil War” (p.30). On Graber’s account, it is simply wrong to accuse Taney of “impos[ing] a judicial solution to the question of black citizenship or slavery in the territories on a hostile Congress or nation. The DRED SCOTT decision was as majoritarian as any other race or slavery policy made during the 1850s” (p.35). Finally, Christopher Eisgruber and William Wiecek criticize the decision for [*940] ignoring the aspirational principles of the Constitution, but Graber makes a strong case that the antebellum Constitution included powerful pro-slavery “aspirations.” Those may not be the aspirations we would emphasize today – and they were not the only ones available in 1857 – but “[j]ustices who make aspirational arguments will base their rulings on the values that they think place the constitutional order in its best light. For Southern Jacksonian jurists during the mid-nineteenth century, those values included both slavery and white supremacy” (p.76).

In short, “[s]lavery concerns were sufficiently accommodated throughout antebellum American history to provide committed proponents of human bondage with the evidence necessary to make plausible arguments for the result in DRED SCOTT using any constitutional logic. DRED SCOTT was constitutionally permissible because American popular majorities supported racist practices, the framers in 1787 provided some degree of protection for that racist institution, many framers had racist aspirations, and proponents of slavery had established additional precedents supporting their practice during the years between ratification and the Civil War” (pp.85-86). Building on Rogers Smith’s influential work, Graber argues that in a polity characterized by liberal, republican, and inegalitarian traditions, there will always be constitutional arguments available on both sides of tough questions. As with subsequent constitutional debates over school segregation, abortion, and the death penalty, proponents and opponents of slavery were each able to find ample constitutional traditions supporting their cause (p.87). The real lesson of DRED SCOTT, then, is that “constitutional theory cannot mitigate or eradicate constitutional evil” (p.18).

In Part II, Graber traces the constitutional politics of slavery from the founding to the Civil War, elaborating the complex interaction among partisan, electoral, and institutional dynamics during this period. He places particular emphasis on the ways in which the institutional design of the original Constitution, especially the complex system of electoral representation and separated powers, shaped subsequent patterns of partisan conflict and policy debate, in both intended and unintended ways.

Graber begins with a familiar observation regarding the framers’ skepticism of “parchment barriers”: in their virtually unanimous view, “the best way to limit government power was by careful design of government institutions” rather than by the specification of legally enforceable rules (p.98). This point is usually noted with regard to the absence of a Bill of Rights, but Graber emphasizes that the framers’ skepticism also applied to their effort to enumerate the legislative powers of the national government. On the slavery question, for example, the framers chose not to “bind government in advance to a specific set of policies,” but to “design[] governing institutions they thought would always be exquisitely sensitive to Southern concerns” (p.101). The idea here was that the electoral college, equal representation of the states in the Senate, and the partial counting of slaves for [*941] apportioning the House (i.e., the three-fifths clause) would effectively provide a sectional veto to both the north and the south. In other words, no national slavery policy could be adopted unless it received some bisectional support. In designing these institutions, however, the framers wrongly assumed that population would move southwestward, granting the South a lock on the House and the presidency. The unexpected northwestward movement during the Jacksonian era reversed the anticipated institutional loyalties, as the House became the most antislavery institution and the Senate became the South’s bastion of defense (pp.108-109). For a while, leading statesmen were able to adapt the original institutions to maintain the sectional balance of power; particularly significant here were the Jacksonian party system (with both parties competing nationally for votes) and the Court’s power of judicial review (with five southern circuits guaranteeing a pro-slavery majority).

But the center could not hold forever; “[a]s population moved northwestward and attitudes toward slavery hardened, a constitution designed to promote bisectional compromise proved a better vehicle for promoting candidates and parties with sectionally divisive platforms” (p.115). In 1820, free state and slave state legislators had been able to agree on the Missouri Compromise, but by 1850, continued population growth in the north had produced a large free state majority in the House and a smaller one in the Senate, and a potential free state lock on the electoral college as well. In this changing context, ambitious national political elites concluded that sectional conflict could promote their interests better than the existing lines of partisan cleavage. In the mid-nineteenth century – as in the early twenty-first – the system of local elections for the national legislature fostered sectional polarization. Similarly, the electoral college made it possible for a sectional candidate to win the presidency; “[a]fter 1845, antislavery advocates could gain the presidency by appealing to the average Northern voter instead of the average national voter.” Lincoln’s election in 1860 with less than 40% of the popular vote, Graber notes, “was made possible by constitutional rules no other democracy adopts” (pp.160-161).

Drawing out the lesson for modern constitutional conflicts, Graber observes that “[w]hen public opinion on any bitterly contested issue is geographically concentrated, an institution staffed exclusively by persons elected by local constituencies is unlikely to be capable of reaching a middle ground. Moderation is particularly unlikely when the decision-making process includes numerous veto points that enable sizable minorities to defeat centrist proposals. The institution most likely to fashion a workable compromise is one whose members are selected by a national political process that favors political moderates and whose decision rules empower the median member. The Taney Court was such an institution” and, Graber suggests, the modern O’Connor Court may have been such a “forum of compromise” as well (p.36). While constitutional theory cannot resolve polarized political conflicts, constitutional courts may be able to do [*942] so, provided they do not pursue constitutional justice at all costs.

In Part III, Graber argues that we should generally prefer constitutional peace to constitutional justice. In the course of this argument, he offers the most trenchant critique of Lincolnian constitutionalism that I have read. Lincoln advanced a majoritarian vision of the Constitution under which northern Republicans, once duly elected to national office, were free to ban slavery in the territories even without any southern support. One problem with this claim, Graber notes, is that Lincoln did not in fact have a working majority in favor of banning slavery in the territories. He was elected in 1860 with the smallest portion of the popular vote for any president in American history, and his Republican Party captured only 31 of 64 seats in the Senate and 106 of 237 in the House. In addition, Graber complains, Lincoln’s majoritarianism “is neither an axiom of democratic theory nor the fundamental procedural commitment underlying the Constitution of 1787” (p.187). The framers and the Jacksonian Democrats who followed them established what modern political scientists call a “consensus democracy” rather than a majoritarian one. A number of proposed antebellum constitutional amendments – most famously, John Calhoun’s system of concurrent majorities – would have made this commitment more explicit, but it was present nonetheless.

While Lincoln asserted that the original Constitution was committed to democratic majoritarianism and the eventual abolition of slavery, Graber argues that the original Constitution was more committed to maintaining the system of human bondage and to consensus on sectional issues more broadly (p.239). Since the constitutional rules designed to require bisectional compromise were no longer working, Lincoln was able to win office with no southern votes, and in this context, a vote for Lincoln represented a significant threat to constitutional peace. Lincoln’s gamble worked out pretty well, but it might have failed. If the south had won, the enormous human costs of the war would have been for naught, and so Graber casts his vote for John Bell, the candidate most committed to preventing secession and war.

As I have noted, it is difficult seriously to entertain the possibility of voting against Lincoln in 1860, but Graber uses this striking suggestion to call attention to the continued tradeoffs between constitutional justice and constitutional peace today. On Graber’s account, “[c]ontemporary Lincolnians assert constitutional commitments to the right to die, sexual privacy, and color-blind policies that are an anathema to many of their fellow citizens.” Contemporary followers of John Bell, in contrast, “regard constitutional theories based entirely on aspirations to justice as legally fruitless and politically offensive.” Since polarized constitutional controversies do not generally yield clearly correct answers, we should instead emphasize the ways in which “[c]onstitutional institutions foster social peace by privileging policies that most citizens will tolerate.” On this account, “[j]udicial review is constitutionally desirable . . . because [*943] justices often reach centrist decisions on matters that badly divide national legislatures” (pp.245-249).

Where regime survival is uncertain, the priority of constitutional peace is particularly crucial. Contemporary Americans have more leeway to pursue constitutional justice than did Americans in 1860 (or citizens of less stable democracies today), but we may still be seeking too much of it. While partisan activists and constitutional theorists have devoted most of their energy toward “advancing the best plausible interpretation of the Constitution,” some of our leading constitutional judges have instead tried to “fashion[] the most broadly acceptable plausible interpretation of the Constitution” (p.252). Graber’s call for us to join this latter effort deserves a wide audience, in the discipline and beyond.

CASE REFERENCE:

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856).

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