Saturday, January 14, 2006

Summary: Desperately Ducking Slavery (Dred Scott)

Desperately Ducking Slavery, Graber, 1997
14 Const. Commentary 271

Take away point: Dred Scott was pretty plausible at the time. No
current constitutional theory, transplanted back, would likely have
avoided the result. All theories can generate evil results. Special
application to me: a lot of arguments I like are made by Taney, yet
they lead to an evil result. Enumerated powers, anti-special-class
legislation, originalism, etc. So maybe not only could originalism
*not* get Brown, it couldn't even avoid Dred Scott. Click on Read....

That means that an honest and strict evaluation of the document itself
is more important than ever, and the only good way for change is using
Article V and not trying to cook up good results using the Framers'
"special wisdom". This is a fundamentally anti-Amar point, I
think. It's documentarian. I don't think Amar really is.


DESPERATELY DUCKING SLAVERY: DRED SCOTT AND CONTEMPORARY
CONSTITUTIONAL THEORY -- GRABER (1997)
14 Const. Commentary 271

Contemporary constitutional theory rests on three premises: Brown was
right, Lochner was wrong, and Dred Scott was horrible. While a few
disagree with the first two statements, no one likes Dred Scott
(DS). The paper gives strong examples of its villification.

Each school of contemporary constitutional thought claims DS
embarrasses rival theories. Pro-restraint: Taney didn't defer to
elected branches. Originalists: Taney didn't respect original
meaning. Aspirationalists: Taney was *too* tethered by original
meaning and precedent. Every theorists: DS would have been different
under *my* theory!

But, in fact, DS was plausibly decided under any theory.

This paper isn't intended to rehabilitate the Taney court, but to show
that all modern theories are results oriented. Everyone says their
theory gets right results, but usually they have to stretch a lot.

The consensus that DS was wrong (and Brown right) inhibits serious
discussion of constitutional evils. It minimizes the original
document's imperfections, and ignores the discussion of what to do
when your constitution sanctions evil results.

I-----The DS decision

The precise holding isn't totally clear: all nine wrote an opinion!
Conventionally, though, it stands for (1) blacks can never be
citizens, and (2) slavery can't be prohibited in the
territories. (Only three of Taney's colleagues endorsed (1), and (2)
might have been mere dictum since (1) meant DS couldn't have been
brought in first place.)

Institutionalist critics ("which branch should decide?"), like
Sunstein and Bickel, say the court should have left it to the
legislature. Historicists like Bork and Currie say Taney relied on his
own idea of justice instead of the document. Aspirationalists like
Thurgood Marshall say the court should have tempered the document with
broader notions of constitutional and human rights.

All these guys want to beat up their opponents. Why care, though? The
Reconstruction amdts made this moot. But everyone wants to show their
theory would have minimized the negative impact of slavery even in the
original document, and so is in accord with the Framers' "special
wisdom." Plus, we don't want any more DS-like cases to recur.

II-----Critiquing the critiques

Both majority and dissenting opinions have their share of dubious
assertions, and neither side should be held to be the patron saint or
demon of any current constitutional theory. Using any theory, DS is
plausible. No contemporary approach of the judicial function is immune
to reproducing DS. Taney's constitutional claims were in fact quite
mainstream, as we'll see.

II-A: Institutionalists (Sunstein, Bickel)

Taney in DS was not in fact countermajoritarian. DS is made out to be
the victory of most extreme pro-slavery people. The opposite is the
case: had DS come out differently, *then* it would have been
countermajoritarian!

The paper lists the evidence for this, including Lincoln saying he had
never complained about DS on black citizenship, and didn't favor
letting blacks be citizens of Illinois. Furthermore, DS was probably a
solid compromise that made war less likely (as Taney probably
intended). Buchanan and the Lecompton-Kansas fiasco were bigger
problems.

II-B: Historicists (Bork, Currie)

Taney explicitly, and somewhat successfully, built his theory on the
original intent of the Framers, despite modern attacks to the
contrary. The dissents had bigger originalist problems.

II-B-1: black citizenship

While the dissent points out that some blacks voted in 1787 (and so
original intent must have included the possibility of black citizens),
Taney rebuts this: not all voters are citizens. A state can give the
right to vote to free blacks, but that doesn't necessarily make them
citizens of that state, much less of the US.

Abraham Lincoln and his attorney general agreed! "Suffrage and
eligibility have no necessary connection with citizenship."

While blacks have no rights whites are bound to respect, whites can
gratuitously give blacks the right to vote. Blacks may have some legal
rights, but no constitutional rights. Black voting was not a right of
a citizen, but a communal grace.

Other restrictions indicate free blacks weren't citizens. In NH (the
most anti-slave state), only whites could be members of militia: this
traditionally means the black isn't part of the state.

Disabilities suffered by women were not the same as those suffered by
blacks. There's a *reason* for the female limitations: they get their
rights from males, and instead of political power they have domestic
power. Blacks had no protectors, and had no special sphere of
power. Blacks couldn't exercise civic duties because they were "unfit
to be citizens", not because they had some special contribution to the
polity (like raising kids) that was inconsistent with political
rights.

Taney was, though, wrong in saying blacks had never been regarded as
citizens of any state. The Curtis dissent is right that some free
blacks were citizens of MA during the ratification. But the question
is: did the ratifiers intend and sanction black citizenship? If the
average ratifier thought blacks were unfit for citizenship, then the
presence of some black citizens in MA doesn't change anything.

The main point is that blacks appeared to be in sort of a middle
ground. Both the majority and dissenters suppressed a bit of the
historical record. But the majority probably had the better arguments
historically. For example, the naturalization power in Art I Sect 8
said congress had exclusive power to create citizens. States could not
create citizens by manumitting them. The idea that if you're born in
America you're a citizen was not well established.

II-B-2: slavery in the territories

Taney made a plausible case that congress couldn't outlaw slavery in
the territories. This is an enumerated power argument: congress isn't
granted that power. While the feds can protect property, they can't
define what it is, and so can't distinguish between slaves and other
goods.

This is an old issue of "special legislation". It was well accepted
that the territories were to be shared in common, so that all could
use them. Restricting slavery gave the territories to northerners,
effectively, which was unequal.

Also, everyone agreed that Americans had an unenumerated right to
bring their property into the territories. The dissent only disputed
that slaves were property like other goods. But it was also usually
accepted that the constitution protected slave property as strongly as
other property. And from an originalist perspective, Madison had said
people should be able to bring slaves to the territories.

The dissent attack these ideas pretty well, like demolishing the
efforts of the majority to explain away the earlier ban on slavery in
the Northwest Territory. But the dissents had just as many weaknesses
as the majority, like the fact that southern states would not have
consented during ratification to territories being anti-slavery, and
whether restricting slavery was a "necessary and proper" exercise of
power. [It seems to me the dissents win on this, probably.]

III-C: Aspirationalists (Marshall, etc.)

The problem here is that which values you think are important makes a
big difference. Southerners constantly extolled slavery as great,
trying to protect and nurture it. A proslavery aspirationalist
constitutional theory would likely have been even more susceptible to
DS-type cases.

IV-----The tyranny of examples

DS shows that in the wrong hands or in the wrong circumstances, all
theories may yield unjust conclusions. Institutional arguments turn
bad when the populace support evil goals. Historical arguments turn
bad when the original document framers constitutionalized evil
practices. Aspirational arguments turn bad when interpreters have evil
values.

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