Judged Dred

Dred Scott v. Sandford is the ultimate trump card in constitutional arguments. This infamous case -- in which the Supreme Court held that Congress could not regulate slavery in the territories and that African Americans had “no rights the white man is bound to respect” -- provides such rhetorically compelling ammunition because everyone today considers the outcome to have been grossly immoral. (And make no mistake, the legitimacy of Supreme Court decisions over time rests on their substantive outcomes.)

Dred Scott has served an all-purpose function in political and legal debates for years. In a typical case, George W. Bush -- demonstrating the forthright advocacy of conservative jurisprudence for which Republicans are famous -- went out of his way to assure the public during one of the 2004 presidential debates that he would not, in fact, appoint Supreme Court justices who would interfere with the ability of Congress to ban slavery in Puerto Rico. Bush's strange remarks were widely interpereted as a dog-whistle signal to his anti-abortion-rights base, some of whose intellectuals (most notably Justice Scalia in his dissents in Planned Parenthood v. Casey and Stenberg v, Carhart) have compared Roe v. Wade to Dred Scott. Jeffrey Rosen turned this comparison against Scalia in his merciless evisceration of the justice's support for the Court's egregious Bush v. Gore decision. And on it goes. But should this much weight really be put on Dredd Scott?

Political scientist Mark Graber's new book tackles this and related questions to sensational effect. Dred Scott and the Problem of Constitutional Evil is one of the best and most fascinating works of constitutional theory to emerge in the past decade, and I say this even though most readers (including this one) are unlikely to agree with the counterfactual punch-line that concludes it. In the first two sections of the book, Graber mounts a convincing argument that attempts to use Dred Scott as a club in contemporary debates are not only ahistorical and bogus, but also prevent us from fully confronting the extent to which the American constitutional order circa 1857 was profoundly compromised by evil.

Dred Scott is invoked by almost everyone trying to sell a grand theory of constitutional interpretation. As Graber points out, this is curious: everyone agrees that Dred Scott was legally (as well as morally) indefensible, but disagrees about exactly what was wrong with it. Originalists like Robert Bork attack Chief Justice Taney's opinion for its reading of property rights into the due process clause of the 5th Amendment. As Graber points out, however, the idea that taking someone's property without a legitimate public purpose is illegal has much deeper roots in American law than some originalists admit. Indeed, in his dissent Justice John McLean agreed that citizens had substantive property rights protected by the Constitution: His dissent was instead based on the morally immense but legally narrow grounds that Dred Scott did not count as property, since “a slave is not property beyond the operation of the local law which makes him such.” (Even more embarrassing for originalists like Scalia who fulminate about the use of international law in American Supreme Court opinions, the dissenters' arguments that slaves were not property relied heavily on decisions made by courts outside the United States. European courts had ruled that because slavery violated natural right, slaves immediately became free when they left jurisdictions where the institution was established by positive law.)

Taney did say things -- especially concerning the history of American citizenship -- that were not true, but the erroneous arguments were not necessary to reach his central conclusions, and the dissenters also engaged in historical overreaching. Which is to say that both sides of the dispute had to exaggerate in order to claim certainty on a constitutional question that the framers of the Constitution deliberately left ambiguous. A failure to apply "originalism" is not a plausible accounting of Dred Scott's problems.

As Graber makes clear, however, “living constitution” aspirationalists cannot provide an unambiguous answer to the questions presented by Dred Scott any more than originalists can. If asked to achieve a resolution to the case based on the legal materials available in 1857, I would join the dissenters, on the grounds that when given a case where the Constitution is ambiguous, a judge should choose the outcome that isn't grossly immoral. The problem, of course, is that this is also what Taney thought he was doing. Dred Scott was a contested issue precisely because many Americans thought slavery was at least acceptable, and an overwhelming majority of Americans, North and South, agreed that African Americans were not members of the American political community. (Indeed, as Graber points out, Benjamin Curtis -- the other dissenter in the case -- was a white supremacist at least as virulent as Taney.) “Aspirational” jurisprudence is only as good as the aspirations of the judge involved, and given the realities of Jacksonian constitutionalism, the outcome of the Dred Scott case was virtually inevitable.

The most common attack on Dred Scott, however, does not concern the finer points of interpretive theory. Rather, it's a critique borne out of a romanticized view of legislatures as being better able to resolve difficult social questions than courts. The claim that, with Dred Scott, the Supreme Court precipitated a national crisis by “imposing” a solution on Congress rather than allowing the democratic legislature to work its way to a compromise is almost universal conventional wisdom. (The Wikipedia entry on Dred Scott reflects it, asserting that the decision's “polarization of the slavery debate” was a major factor leading to the Civil War.)

This is, however, almost certainly false. Far from the Supreme Court imposing its will on a resistant Congress, the Court was responding to Congressional pleas that it decide the issue. In fact, Congress expanded the jurisdictional powers of the Court precisely in the hope that it would resolve the question of Congress's ability to regulate slavery in the territories. And far from making a compromise impossible, Dred Scott was the compromise that the governing Democratic coalition sought -- southern Democrats, of course, liked the decision because of its legitimization of slavery, but northern Democrats could live with it both because they believed that most territories would choose to be free and because continued congressional authority to regulate slavery in the territories would kill their chances of winning elections against Republicans and Free Soilers. Buchanan's attempt to ratify the fraudulent Lecompton constitution was the real death knell for the Democratic coalition; Dred Scott, if anything, held it together for another year.

Moreover, with respect to its most normatively appalling holding -- the denial of citizenship for American-born free blacks -- the Court was deferring to majority opinion, not opposing it. In short, using Dred Scott as evidence for the proposition that courts are inherently less able to resolve contested issues than legislatures is simply a non-starter. As Graber points out, “no contemporary constitutional theorist claims Kansas-Nebraska or Lecompton demonstrates that elected branches of government are not institutionally capable of resolving hotly disputed issues through compromise.”

Graber's analysis gives us at least two lessons that are relevant to contemporary debates. The first is that, because of the symbolic significance of its opinions, the Supreme Court generally gets too much retrospective credit for the things it does right and too much blame for the things it gets wrong. The Supreme Court -- the Taney Court emphatically included -- generally represents the center of elite opinion, and its decisions rarely conflict with the priorities of the governing coalition of the time. To blame the Civil War on a rogue Supreme Court is an easy way out that allows us to ignore a fundamental problem: the extents to which the 1787 Constitution was compromised by slavery and Jacksonian political culture was saturated with white supremacy. The Supreme Court can be justly criticized for going along with these evils, but it did not invent them; and had Dred Scott reached the normatively correct result, it would not have put the slightest brake on the march to war.

The second lesson is that grand theories of constitutional interpretation can only provide widely accepted solutions to questions that are no longer significantly contested. Constitutions inevitably allow reasonable people to disagree about questions where there isn't a consensus. The question of whether Congress could regulate slavery in the territories was not resolved by the 1787 Constitution, because there existed fundamental disagreement about the issue; strategic ambiguity was the only route by which people with radically different views could sign the same Constitution. As Graber argues, the question of slavery in American law demonstrates that “in the wrong hands or in the wrong circumstances, all constitutional theories lead to unjust conclusions.” There is no escape from politics, and no constitutional escape route from core disagreements in society. And divining lessons from discredited, century-and-a-half-old Supreme Court decisions in an effort to solve our own hotly contested constitutional controversies is an inherently futile enterprise.

Scott Lemieux is an assistant professor of political science at Hunter College, CUNY, and writes for the blog Lawyers, Guns, and Money.

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