The Right Coast

September 10, 2005
Dread Not Dred Scott?
By Maimon Schwarzschild

Mark Graber, a government professor at the University of Maryland, comes out swinging in defence of the Dred Scott decision -- which you thought was indefensible -- in a fascinating article in the North Carolina Law Review (June 2005). "Dred Scott is criticized on virtually every ground for which judicial decisions are criticized", says Graber:
The Taney Court's ruling that freed slaves were not American citizens and that slavery could not be banned in American territories is savaged for deciding issues not necessary to resolve the dispute before the Court, for failing to consider the original meaning of the Constitution, for remaining too tethered to the the original meaning of the Constitution, for failing to adhere to the plain meaning of the Constitution, for woodenly adhering to the plain meaning of the Constitution, and for ignoring distinctive issues that Mrs [Dred] Scott might have raised. A brief survey of the appropriate journals will no doubt reveal a scholarly consensus that [Chief Justice] Taney's penmanship in Dred Scott is the worst ever exhibited in a judicial opinion.
Graber argues that the Dred Scott decision was not the outrage that made the Civil War inevitable. On the contrary, Dred Scott enunciated a position that "moderate" (i.e. anti-secession) southern Democrats and northern Democrats (e.g. Stephen Douglas) could and did accept: and such Democrats were well positioned to hold power as a unionist majority in the 1850s.

In fact, says Graber, these Democrats were the only political force who could hold the country together and avoid civil war as the 1850s drew to a close: at the cost, of course, of continuing to have slavery in the United States. They were the "moderates" -- and at least for a time, a majority -- as against the southern secessionist "fire-eaters" and the northern abolitionists: extremists whom no one could hope to reconcile.

Dred Scott didn't break up the Democrats: they all accepted it. It was President Buchanan's support for the fraudulently-adopted pro-slavery Lecompton Constitution in Kansas, a territory whose majority was generally believed to be anti-slavery, that broke up the southern and northern Democrats. The (white) southerners wanted Kansas admitted as a slave state. This, unlike Dred Scott was too much for the northern Democrats to swallow. It was because of this that America's "moderate" pro-slavery majority now fractured. And thus Lincoln was elected... and the rest was history.

Is Mark Graber a pro-slavery political science professor? Hardly. He actually wants to support judicial activism, a completely conventional thing to favour in today's leftish professoriate. But Graber argues for it here in a rollickingly unconventional way. Graber says that Dred Scott is an example of judicial activism achieving a centrist compromise, at a time when the elected branches -- President and Congress -- were polarised to the extremes. Today, too, says Graber, the parties are polarised, and the Supreme Court is better than the politicians at coming to sensible, centrist compromises about abortion, affirmative action, gay marriage, and so forth.

I'm sceptical about the analogy. The anti-abolitionist but pro-unionist Democrats may have been a majority in the 1850s. Today's judicial "compromises" in favour of abortion, affirmative action, etc are more to the taste of a liberal-leaning minority -- albeit a majority, sometimes practically a unanimous one, in the newsrooms and among college faculty.

But the story that Graber tells about American politics and law in the 1850s is fascinating. Graber's article is well-documented, and it seems plausible to me. If he is right, of course, it raises the moral question of how to think about such a thing as a "moderate" pro-slavery compromise. That was the sort of compromise that the Taney Court and Dred Scott, on Graber's account, were offering.

Mark Graber's article is not online, alas. It's in the North Carolina Law Review, volume 83, page 1229 (June 2005). Put it on your list to read when (or if) you tear yourself away from TheRightCoast for a library break.