Thursday, June 4, 2009

Leonard on Dred Scott

Gerald Leonard, Boston University School of Law, has a new essay, Law and Politics Reconsidered: A New Constitutional History of Dred Scott. It will appear in Law and Social Inquiry (2009). Here's the abstract:

This essay synthesizes recent writing on the constitutional history of slavery, featuring Mark Graber’s Dred Scott and the Problem of Constitutional Evil (2006). It offers a historical and legal analysis of Dred Scott that attempts to clarify the roles of both law and politics in controversial judicial decisions. It joins Graber in rehabilitating Chief Justice Taney’s Dred Scott opinion as a plausible implementation of a Constitution that was born in slavery and grew only more suffused with slavery over time. It integrates much recent writing on the social, political, and constitutional history of slavery to develop the context in which the Dred Scott opinions must be read. And it finds that Justice Curtis’s celebrated dissent amounted to an unjudicial manipulation of the law, not the judicial masterpiece of historiographical lore, although driven by the higher purpose of striking at the political hegemony of the slaveholding class.

This essay is an unabridged version of a shorter work that is forthcoming in Law and Social Inquiry (Summer 2009).


Alfred Brophy said...

The abstract's really enticing. I'm looking forward to reading it--but Gerry doesn't seem to have posted the article, only the abstract.

Since I haven't read Gerry's piece, let me limit my comments to Graber: to the extent that Taney's opinion is in some way "legally" defensible, I think it so because attitudes (judicial and otherwise) towards slavery had so evolved--in a proslavery direction--from 1787 to 1857 that he seemed to be within the "mainstream." There's an important story here--which many people have told--of a shift from the Enlightenment values of 1787 to the proslavery values of the Civil War. The declension over that time (to adapt Perry Miller's phrase) explains why what was unquestioned as late as the Missouri Compromise becomes unconstitutional in 1857.

This realization that what arguments are acceptable/winning changes dramatically over time is a central tenet of legal history. How that realization relates to contemporary constitutional practice is a subject worthy of a lot of ink.

Mark Field said...

Alfred Brophy's comment was spot on. I found Graber's book unpersuasive precisely because he, like Taney, treated the attitudes of 1857 as those of 1776-88. Moreover, Graber went much too far in his claims, it seemed to me, when he argued not just that Taney had plausible arguments on his side (he did, to some degree), but that Taney was right. That conclusion strikes me as unjustified legally (on both procedural and substantive grounds) and factually.

Graber's speculation that electing John Bell would have been more consistent with Constitutional principles strikes me as fatuous. For one thing, ignoring the moral difference between Lincoln and Bell is inexcusable. For another, it implicitly assumes that the nation as a whole was bound to continue to follow Constitutional practice which was not firmly rooted in the text. While "stare decisis" is a good rule, it's never intended to be permanent, and that's even more true when the rule is based on historical practice rather than text and principle.