Review of “Dred Scott and the Problem of Constitutional Evil” by Mark A. Graber

Mark Graber begins his book with the observation that legal scholars almost universally proclaim that the Dred Scott decision was wrong. But Graber argues that to the contrary, “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?

Graber focuses on the two primary parties having an input into constitutional interpretation in the antebellum United States – 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.

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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.”

In this respect Graber seems to ignore the fact that the slaves – 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 come live amongst them. It would seem to this reader that “justice” would be a paramount consideration.

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.”

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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?

Published by Cambridge University Press, 2006

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