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Dred Scott and the Problem of Constitutional…
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Dred Scott and the Problem of Constitutional Evil (Cambridge Studies on the American Constitution) (vuoden 2006 painos)

Tekijä: Mark A. Graber (Tekijä)

JäseniäKirja-arvostelujaSuosituimmuussijaKeskimääräinen arvioMaininnat
782340,735 (3.75)1
Dred Scott and the Problem of Constitutional Evil , first published in 2006, concerns what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of the good society. In order to form a 'more perfect union' with slaveholders, late-eighteenth-century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.… (lisätietoja)
Jäsen:cciboston
Teoksen nimi:Dred Scott and the Problem of Constitutional Evil (Cambridge Studies on the American Constitution)
Kirjailijat:Mark A. Graber (Tekijä)
Info:Cambridge University Press (2006), Edition: 1, 280 pages
Kokoelmat:CCI Library
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Dred Scott and the Problem of Constitutional Evil (tekijä: Mark A. Graber)

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We tend to place the Constitution on a pedestal, although if you asked the average person which Constitution (Articles of Confederation, 1789, or post-Civil War) he revered, his eyes would glaze over. J.P. Morgan famously said, "I don't hire a lawyer to tell me what I can't do... I hire him to do what I want to do." So it is. We want lawyers to be advocates, to find the "right" legal interpretation that will best serve our interests. So it is with the Constitution. Political theorists of all political persuasions display less interest in determining what is constitutional than making arguments that will advance their own social agenda within a constitutional framework.

Graber makes the startling claim that the Dred Scott decision may have been constitutionally correct given its emphasis and protection for property rights, (I have made similar arguments in the past to gasps from my listeners) but he does so in the context that the Constitution that existed before the post-Civil War amendments --13th-15th - the third Constitution I call them -- was essentially evil in that it supported the institution of slavery and how Taney's decision influenced judicial interpretation ever since.

People can hold diametrically opposed positions on many subjects: abortion is murder, capital punishment is barbaric, etc. For each there is an opposing view that may be just as strongly held. Constitutionalism is the theory that these divisive disagreements can be adjudicated through interpretive means using the Constitution's various interpretations to "prove" one side or another is correct. It's the "challenge of creating and preserving political relationships among people who hold conflicting conceptions of justice [that] requires that compromises be forged in every dimension of political life." But, compromises (like that in 1850 and those in writing the Constitution) he argues merely dilute the arguments and postpone resolution. Social groups in power are unlikely to accept any policy or opinion they view as constitutionally incorrect.

The book consists of three sections followed by a coda. The first essay criticizes constitutional theorists who misuse the case. The second defends Chief Justice Roger Taney's ruling as consistent with the vision of the framers. The third criticizes Abraham Lincoln's constitutionalism as inconsistent with the vision of the framers.

The 1857 decision in Dred Scott v Sandford said that blacks could not be citizens regardless of where they had been or come from and more secondly that the Missouri Compromise which had banned slavery in northern territories was unconstitutional. Nor could they delegate that power to territorial legislatures. African Americans could not be citizens because there was a consensus among the founders that "they had no rights which the white man is bound to respect." Congress could not ban slavery in the territories because slaves were "property" and therefore protected by the due process clause of the Fifth Amendment ("an act of Congress which deprives a citizen ... of his ... property, merely because he ... brought his property into a particular Territory of the United States ... could hardly be dignified with the name of due process of law").

The first essay argues that Taney's judgement was not the "bad judging" fostered by current scholars both on the right and left. He argues they are wrong and that to suggest the decision was anti-majoritarian, simply the result of pro-slavery judges, or a misinterpretation of the founders' wishes is just wrong. The original intent of the framers was much more pro- than antislavery, despite the Northwest Ordinance, which had banned slavery in one territory but "acquired a strong antislavery gloss" only later (p. 72). "If the persons responsible for the Constitution intended that Congress have the power to ban slavery in every territory, then this was the best-kept secret in American politics during the late 1780s" .

The second section discusses the compromises and predictions for the future made by the authors of the Constitution. The theory, he argues, was that the southern slave holding states would hold power in the House and presidency (with the 3/5ths rule) while the smaller but more numerous northern states would hold sway in the Senate where, by design, they would also control nominations to the Supreme Courte. That way a balance of power was achieved giving both slave states and free states a virtual veto on national policy. All this would lead to bi-sectional coalitions.

By 1857, northern growth foresaw domination of both houses by the north and Graber says the logical result was Taney's decision in Dred Scott was favorable to the wishes of the Framers. It effectively removed abolition from national policy. But at what cost!

The third section of the book deals with Lincoln and his abandonment of bi-sectional coalitions.

The last section is the most troublingly problematic, and I hate to indulge in any spoilers here. Let's just say it involves an argument for why the candidate of choice in 1860 should have been John Bell. ( )
  ecw0647 | Jun 26, 2022 |
Mark Graber begins his book with the observation that legal scholars almost universally proclaim that the Dred Scott decision was wrong. To the contrary, Graber argues that "the result in Dred Scott v. Sandford may have been constitutionally correct...." The consensus that it was wrong, Graber suggests, inhibits a serious discussion of the problem of constitutional evil. Specifically, he contends that the Constitution represented a bargain made between the North and the South, and the South understood that bargain as one that would protect its interests as slaveholders. What is the proper response, Graber asks in this book, to a constitution that secures a practice considered to be evil?

Somewhat bizarrely, Graber writes as if the only parties having an interest in Constitutional interpretation in the antebellum United States were the white anti-slavery and white pro-slavery adherents. He delineates the pros and cons of different methods of compromise that could have made both parties happy or at least non-bellicose, always with the end in mind of the best way to preserve the peace, rather than a consideration of what was happening to black people.

Lincoln, he writes, “failed the Constitution” because he chose to promote justice over peace. People are inherently diverse, Graber observes, so that “[f]inding grounds on which these people can live together – not implementing some vision of justice – is the fundamental constitutional task.”

It never seems to occur to Graber, infatuated with abstract theories as he is, that this diverse people included those of color; that men, women and children had their lives stolen from them; they were not only forced to work at hard labor for no wages whatsoever; they were also branded, shackled, raped, mutilated, whipped, and beaten. Families were routinely torn asunder, either for economic reasons or just for punishment. Slaves, with rare exceptions, were not allowed to be educated. Free blacks were often treated as if they were potential slaves, and certainly if they did not have papers on them establishing their status as free, they were subject to becoming enslaved. Many in the north were against slavery not because they loved blacks but because they hated them; they did not want free blacks to live amongst them.

Graber in fact argues that John Bell, the compromise candidate in 1860, was probably a better choice than Lincoln because he was more interested in compromising with the South so as to keep the peace. Lincoln, he maintains, by being unwilling to find a middle ground between the right and the wrong, was not really protecting the Union. But, as Lincoln emphasized, he wanted a Union worth protecting. As he said in Peoria in 1854:

Our republican robe is soiled, and trailed in the dust. Let us repurify it. Let us turn and wash it white, in the spirit, if not the blood, of the Revolution. Let us turn slavery from its claims of "moral right," back upon its existing legal rights, and its arguments of "necessity." Let us return it to the position our fathers gave it; and there let it rest in peace. Let us re-adopt the Declaration of Independence, and with it, the practices, and policy, which harmonize with it. Let north and south—let all Americans—let all lovers of liberty everywhere—join in the great and good work. If we do this, we shall not only have saved the Union; but we shall have so saved it, as to make, and to keep it, forever worthy of the saving. We shall have so saved it, that the succeeding millions of free happy people, the world over, shall rise up, and call us blessed, to the latest generations.

I approached this book with interest, because I agree with much of what Stephen Douglas and Justice Roger Taney contended about the actual intentions of the Founding Fathers. I.e., when they referred to “we the people” they were referring to “we, the white, property-holding male people.” But Lincoln’s brilliant co-optation of the words used by the Founders – his insistence that this country live up to the words that comprise the compact agreed to in 1787, was a stroke of lawyerly genius that could not be gainsaid by the South. Graber, on the other hand, who also finds that Douglas and Taney were not entirely in error, takes a different approach. He insists that, if it turns out that a Constitution, or compact, has, by necessity, encompassed evil, then it is incumbent upon the signatories of that compact to respect the conditions and expectations by which that document was signed.

In 1787, the South had the expectation that it would always have a measure of control over the federal government. Southerners believed that population growth would occur in the southwest rather than the cold, inhospitable north and northwest. Therefore, Southerners with their “three-fifths” bonus headcount for each slave, would always outnumber northerners in both the House and Senate. Indeed, certain states, such as South Carolina and Georgia, may never have signed the compact had they not thought they could always protect the institution of slavery.

Northerners did not pay as much attention to the issue as they should have; they expected slavery to die out, especially since they had succeeded in getting a provision inserted into the Constitution allowing for (but not guaranteeing) anti-slave trade legislation after twenty years. [But even at the end of the Revolutionary War, American treaty writers were forced to point out that mulattoes also counted as negroes for purposes of returning purloined “property” to the United States. In other words, even then, Northerners knew that white Southern men were “creating” enough of their own slaves for the slave trade not to be a huge factor in generating more “property.”]

Graber maintains that for Northerners not to find more grounds for consensus with Southerners was a violation of the terms of the contract they believed they were signing. John Bell’s compromises might have avoided the Civil War. Lincoln’s insistence on justice, so troublesome for Graber, resulted in over 600,000 dead. But also, it resulted in the end of human bondage. It resulted in millions of people, brought over to this country against their will, to be free of the living hell that took their lives away from them as well as their freedom. Is this a “Constitutional evil” worth fighting for? Dare anyone contend it is not? ( )
  nbmars | Mar 26, 2009 |
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Dred Scott and the Problem of Constitutional Evil , first published in 2006, concerns what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of the good society. In order to form a 'more perfect union' with slaveholders, late-eighteenth-century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.

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