Saturday, March 17, 2007

Taylor and Einhorn on Graber, Dred Scott and the Problem of Constitutional Evil

Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press, 2006) has just been reviewed on H-CivWar by Michael J. C. Taylor, Department of Social Sciences, Dickinson State University, and circulated via H-Law. The review celebrates Graber's analysis of Dred Scott, but then takes him to task for not writing a more popular narrative history. This strikes me as an odd criticism, for Graber, a writer of particular clarity in constitutional studies, has not set out to be the David McCullough of constitutional history. The review appears at the same time as a review of another book which also finds legal history less than gripping: "The slow process of legal deliberations, dragging on year after year, is not necessarily the stuff of pulse-pounding prose, so [the author] works diligently to make the story interesting to the reader." In essence, Taylor's criticism of Graber is that he has not accomplished something that does not appear to have been the goal of his book.

A review that takes up the book on its own terms appeared on H-Law before the Legal History Blog was created. This ones speaks more to the question of the relationship between the way historians do history, and the way constitutional scholars do it. It is by Robin L. Einhorn, Department of History, University of California, Berkeley. She writes:
Mark A. Graber has written a brilliant book that is flawed in a way that only a brilliant book can be. It consists of a provocative introduction, three long essays (essentially law review articles), and a short coda, all taking Dred Scott v. Sandford (1857) as a jumping-off point for reflections about constitutional interpretation and politics. 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 coda, verging on the bizarre, urges contemporary Americans to treat our own constitutional disputes as if we were voting for John Bell over Abraham Lincoln in 1860.

Although readers of H-Law are unlikely to need reminding, the 1857 ruling in the Dred Scott case was twofold: that African Americans could not become citizens of the United States and that Congress could not ban slavery in the territories (or 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").

Graber is a political scientist and constitutional lawyer; I am a historian. While political scientists and historians are both intended audiences for this book, it is aimed most of all at the lawyers. Graber wants to persuade lawyers, judges, and legal theorists that "constitutional evil" is a real, even inherent, problem of political life that cannot be evaded or defined away--but that also cannot be confronted without risking cataclysmic violence. He presents this understanding of constitutional evil as an originalist basis for future constitutional interpretation by making a historical argument that the framers designed the Constitution around it, and a normative argument that the framers were right, that their solution remains the only hope for peace in an ideologically polarized society. The problem of constitutional evil exists when there is basic disagreement in a society about what counts as evil. For the framers, this disagreement was about slavery. For the United States today, Graber's main example is abortion, where the evil is either abortion or public control over women's bodies. In other societies, such disagreements usually arise from diverse ethno-religious commitments.

For the rest of Einhorn's review, click here. For Michael J.C. Taylor's review, click here. For Graber's blogging on on Dred Scott, constitutional history and other topics at Balkinization, click here.