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.Read the whole thing.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...
--The Editors
