A review of Dred Scott and the Politics of Slavery, by Earl M. Maltz and Dred Scott and the Problem of Constitutional Evil, by Mark A. Graber

It was 150 long years ago that the Supreme Court handed down what is now considered the most disastrous decision of its career, in the notorious Dred Scott case. In that decision the Court held that the Missouri Compromise was unconstitutional, for Congress lacked the power to prohibit slavery in the territories of the United States. Since Abraham Lincoln and the Republican Party were seeking legislatively to control the further extension of slavery into the territories and hardly anything else, the decision in effect declared the party unconstitutional. The Court also ruled that black persons descended from slaves, whether free themselves or not, could never become citizens of the United States. What's more, Chief Justice Taney declared for the Court that in the eyes of those who made the Constitution, black people had no rights that white men were bound to respect.

It is astonishing that a decision making such strong claims was nearly unanimous in its main holdings. Seven justices accepted the conclusion that Dred Scott and his family were not free; six accepted the chief claims Taney made, although disagreeing in places with his line of reasoning. Two justices, McLean and Curtis, entered strong dissents to all aspects of Taney's decision.

But the decision was received with much less unanimity in the country at large, partly due to the fact that the Court had five Southerners and two Southern-sympathizing Northerners on it, a distribution hardly reflective of the nation. The Republicans, not surprisingly, were reluctant to accept Taney's attempt to read them out of existence and instead attacked the decision and the Court itself. Southern Democrats, also unsurprisingly, were more positive about the case. The people caught in the middle were Northern Democrats, who under the leadership of Stephen Douglas had been pursuing the temporizing policy of "popular sovereignty" in the territories. Dred Scott undercut the Douglas policy nearly as much as it undercut the Republican platform, ultimately leading to a split in the Democratic Party that made possible the election of Lincoln, which in turn led to secession and the Civil War. Dred Scott was thus part of a chain of events and actions that brought the United States to its greatest crisis and its bloodiest war.

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The Dred Scott case, of course, is no longer good law. The post-Civil War amendments largely were aimed by the victorious Republicans at overturning the various elements of Taney's decision. Nonetheless, this 150th anniversary year has seen an outpouring of conferences, law review issues, and books on the case. Earl Maltz, a law professor at Rutgers, and Mark Graber, a professor of law and government at the University of Maryland, have produced two of the most significant reconsiderations.

Their work more or less reflects two lines of interpretation that have developed in the years between the emergence of the Civil Rights movement and the present. Both are hostile toward the case itself. (No serious scholar is willing to endorse the outcome as correct in the larger sense.) Yet within this broad agreement there is a serious disagreement, which Graber well explains. He maintains that while most scholars have seen Dred Scott as a constitutional aberration, a wild burst of judicial activism in the service of a bad cause, he sees it as, if not the correct decision, then given the Constitution and the state of the law and politics of the day, at least a very plausible one, and centrist to boot. He is, to this extent, a neo-Garrisonian, accepting the notion that the Constitution and the structure of antebellum American politics were largely pro-slavery. Thus his title: the system contained "constitutional evil" in the form of its pro-slavery features, and the question was how best to deal with it. Of course, the Taney majority did not see things quite that way. What Graber thinks is constitutional evil Taney seems to have seen as constitutional—and political and moral—good.

Maltz, on the other hand, stands in a neo-Lincolnian tradition, which sees the decision as bad because it deviated from the Constitution at its best. Thus Maltz concludes his solid analysis of the various opinions in the case by affirming that dissenting Justice Benjamin Curtis "clearly had the better of the argument on the larger constitutional questions presented by Dred Scott." This is not a judgment shared by Graber.

Maltz's book surely does not supplant Don's Fehrenbacher's monumental 1978 study, The Dred Scott Case: Its Significance in American Law and Politics, but it has many virtues that make it a useful resource for the reader not quite up to Fehrenbacher's 700 pages of text and notes. Though not much more than one-fifth the size of Fehrenbacher's study, Dred Scott and the Politics of Slavery provides concise accounts of the legal and political context of the case, together with an uneven but in many parts very fine account of what the various Supreme Court Justices argued in their opinions. Maltz's book is less learned historically than Graber's, but it is more sure-footed in dealing with the legal issues, in some cases more so even than Fehrenbacher. Many of its great strengths are quiet ones. For example, Maltz provides a superb interpretation of Taney's opinion for the Court, giving an excellent account of the way in which Taney was able to make room for considering the Missouri Compromise, even though he had already denied jurisdiction in the case because Scott was not and could not be a U.S. citizen. The author likewise does a fine job of showing how the appeal to the due process clause fit into Taney's overall argument. His account of Curtis's dissent is also very good. Maltz's book is solid, useful, mostly sound—but not very exciting.

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Graber's book is nearly the reverse—exciting, novel, thought-provoking, irritating, learned, loopy, and unsound in many places. But it is a book worth reading. Graber insists that the Constitution made compromises with slavery, and that Lincoln much overstated the situation when he said that the founders dealt with slavery in such a way as to lead the public to believe that it was "in the course of ultimate extinction." Some Americans may have thought so, but not all by any means. Thus far, he is like the neo-Garrisonians. But Graber differs from them in a drastic way: he thinks "constitutional evil," the acceptance of injustice, is a likely component of political order in pluralistic societies. He contrasts two different reactions to the existence of such constitutional evil: a constitutional politics of justice—practiced by Garrison and Lincoln—and a constitutional politics of peace—favored by Graber.

The Constitution, both as adopted in 1787 and as it had evolved in practice up to 1857, was sufficiently ambiguous that competing versions of the Constitution of justice, as it were, could plausibly be extracted from it—and indeed were, ending in the "crisis of the house divided." But the sounder Constitution, truer to both the founding generation and the course of American constitutional development, pointed to a constitutionalism of peace, which Graber argues was better represented by the Taney position in Dred Scott than by Lincoln's position. Superior even to Taney, the author seems to think, was Stephen Douglas, who "better understood the Constitution of 1787 than did Lincoln." Lincoln "failed the Constitution by forgetting that his obligation to adopt a plausible interpretation of the Constitution that best preserved the social peace was constitutionally higher than his obligation to adopt a plausible interpretation of the Constitution that best promoted justice." In terms of constitutional theory Dred Scott and the Problem of Constitutional Evil is directed above all against the work of Ronald Dworkin. In terms of political theory and political history, Graber's book is an extended argument against Harry V. Jaffa's interpretation of Lincoln and the Civil War.

The "better understanding" of the Constitution that Graber unveils is one in which there were both constitutional norms and constitutional structures intended to guarantee that constitutional decisions about slavery would be bisectional, i.e., that political elites both North and South could sign off on them, perhaps in the form of big compromise packages. The original Constitution, Graber holds, was built around the assumption that population would shift to the South and Southwest, which fact, together with the three-fifths clause, would give slave-holders control of the House of Representatives. The North, with its smaller but greater number of states, would control the Senate. Any legislation regarding sectionally divisive issues would require both sections to agree.

But population patterns proved to be altogether different from expected, and the free states came over time to overwhelm the slaveholders in the House. For a long while, but no longer by 1857, the South had managed to maintain parity in the Senate. But the crucial institution that maintained the bisectional Constitution of peace was the Jacksonian Democratic Party, and to a lesser degree the national Whig Party. The Civil War crisis arose when the Whig Party collapsed and was superseded by the completely sectional Republican Party. This development disrupted the bisectional Constitution of the antebellum period. And thus Lincoln and the Republicans were to blame for the secession and war.

As should be apparent from this brief summary, it is not in fact Douglas who is Graber's constitutional theorist of choice but someone else rarely named in the book—John C. Calhoun. In one important passage, Calhoun is named as a theorist of "consensus democracy," the model Graber alleges was the true constitutional order and the one he clearly favors.

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There are too many dubious or mistaken aspects of Graber's argument to confront here, but let me mention two that are quite central. First, in his interpretation of the 1787 Constitution he is engaging in a peculiar form of Whig history. He reads back into the founding a level of concern with sectionalism and slavery that simply was not present at the time, though of course it became far more important later. He fails to put the making of the Constitution in its proper context—namely, federation-making. He assumes that the founders saw themselves as legislating for a sectionally divided nation. In fact, however, they understood themselves to be creating a federation, a new kind to be sure, but one that would as a matter of course have little to do with the purely internal governance of its member states. The framers thought slavery constitutionally protected in the states where it existed chiefly because the new federal government had no powers granted to it to deal with slavery in the states. Graber depreciates the significance of the Constitution's enumerated powers, offering instead his own highly speculative account of the founders' expectations of national population growth. His broader claim that the 1787 Constitution was designed to be a Calhounian instrument, i.e., a system of concurrent majorities, does not fit the actual history of the founding.

But even if we accept his Calhounian interpretation of the constitutional order, it is quite difficult to see how Dred Scottcan be properly read as an endorsement of that theory. Dred Scott denied and rejected the foundation or the chief means that had served most if not all of the bisectional accommodations hitherto. By denying Congress the power to prohibit slavery in the territories, the decision destroyed the possibility of a bisectional solution to the problem of slavery in the territories and guaranteed the solution favored by one section only—the slave-holding South.

Few readers will fail to find this provocative book stimulating, and no serious admirers of Lincoln can avoid facing Graber's challenge to their hero.