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.
No comments:
Post a Comment