More Dred Scott v. Sanford Blogging for Martin Luther King Jr. Holiday Weekend!

Yet More Martin-Luther-King-Holiday-Weekend Blogging!

Mark Graber reples to my "To Secure the Blessings of Liberty" by reiterating his claims that (i) Dred Scott v. Sanford was rightly decided, and (ii) it was Lincoln and the Republicans in the 1850s--rather than either Roger Taney with his southern power grab in 1857 or the slavemaster secessionists firing on Ft. Sumter in 1861--who broke the constitutional order set up in 1857. It's an interesting way for him to celebrate Martin Luther King holiday weekend

As you may or may not remember, I read Mark Graber's Dred Scott and the Problem of Constitutional Evil as making seven claims:

1. The 1787 Constitution intended "contested constitutional questions... be settled by the bisectional coalitions."
2. The framers thus set John C. Calhoun's principle of "concurrent majorities" in the Constitutional bedrock
3. The Republicans of the 1850s, who stuck to the letter of the Constitution, refused to admit that they were undermining its spirit.
4. In Dred Scott, Roger B. Taney replaced failing the political protections of slavery provided by sectional balance in numbers of states and populations per section with legally-enforceable protections.
5. In violating the letter of the Constitution, Taney was being faithful to the spirit of the Constitution, and so was preserving it.
6. In criticizing Taney for violating the letter of the Constitution, Lincoln was being unfaithful to the spirit of the Constitution, and so was destroying it.
7. Dred Scott was rightly decided.

Claim number two, especially, struck me as simply weird. Read John C. Calhoun's Discourse. John C. Calhoun himself did not believe that his principle of concurrent majorities was part of the 1787 constitutional order. He believed that it would have been wise for the framers to have made it part of the order. He believed that the constitution should in his day be amended to make it part of the order. He believed that without this principle the country might disintegrate. But he did not believe that the North had any sort of constitutional responsibility or obligation to treat his principle of concurrent majorities as part of the 1787 constitutional order.

Mark Graber has gotten himself to the right of John C. Calhoun. This is a position painful and ludicrous for a twenty-first-century American legal academic to assume. It is a position so painful and ludicrous that it should induce any twenty-first-century American academic to undertake an agonizing reappraisal--particularly over Martin Luther King holiday weekend.

But Mark Graber doesn't. Let's turn the mike over to him:

Balkinization: [A] fundamental principle of an empirically realistic constitutional theory ought to be that constitutional bargains survive only when interpreted, however creatively, in ways that create opportunities for mutually beneficial cooperation.... Of course, members of [the North] will have the luxury of knowing, as civil war wracks their country, that [the slavemasters of the South] was the party responsible for abandoning the constitution. This, however, is unlikely to reduce their casualities....

[C]onstitutional bets made by one generation... should not be enforceable against the next when the result is a sharp imbalance in the benefits... constitutions are best interpreted in ways that enable all parties... to believe that they are better off continuing to cooperate than going at matters alone (or engaging in civil war)....

I think DeLong is mistaken when he insists that northerners ratified on the basis of their belief that slavery would diminish over time (while most hoped so, the best evidence indicates that concerns with slavery were not central for most northern proponents of ratification). But even conceding the point for argument's sake, the more vital constitutional consideration is that as a political matter people are not going to pay off constitutional bets made by their ancestors when the payment requires a sacrifice of crucial interests with inadequate present payoffs.... [T]he constitutional bargain was likely to continue only if the winner, in this case the free states, did not collect. The Constitution of the United States... could survive only when all crucial parties believed that cooperative served their interests, as they presently defined their interests...

I want to make two points in response.

My first point: pacta sunt servanda. Agreements should be kept. We use analogies derived from the law and practice of private contracts in our reasoning about public moral and legal constitutional obligations. Whether it makes sense for us to use these analogies is a deep question well above my pay grade. But we do use them: it is the style of constitutional reasoning that we have. And it tells us that pacta sunt servanda: agreements should be kept.

Oftentimes prudence, empathy, the desire to make additional agreements in the future, et cetera will lead both parties to agree to renegotiate a contract when circumstances change. But that doesn't mean that a dissatisfied party has the right to unilaterally change it. In private law a dissatisfied party's options are to fulfill the terms, to breach and renegotiate, or to breach and litigate. The breach-and-renegotiate option between say, Target and a supplier of electric toothbrushes entails an acknowledgement of breach and negotiations among the parties, with mediation a welcome aid. It doesn't entail the guy who has the job of monitoring compliance--the guy driving the truck and checking in the shipment at Target's loading dock--saying "There are only 100 gross of toothbrushes here, but we'll say there are 144 gross because the original contract turns out to have been unfair."

In this analogy, Roger B. Taney in Dred Scott is not the mediator at the renegotiation. He is the truck driver checking in the shipment. He was not acting as the agent of the High Contracting Parties in their renegotiation. If he were, there would not have been such anguished cries from the free-soil north in resonse to his ruling.

My second point: Go back to how Mark Graber opens his post this Martin Luther King holiday weekend. He opens with an analogy. He sets forth what he regards as a situation capturing the key aspects relevant to Dred Scott of the evolution of the United States over 1787-1860. Here's what he says:

Suppose two tribes who have some reason to cooperate but whose members do not like each other very much ratify a constitution that grants the northern half of their territory to Tribe A and the southern part to Tribe B. Each party is rather happy with the bargain. Each believes that, in the next hundred years, climate changes are likely to enhance the value of their land and make the other tribe’s land nearly uninhabitable. As a result of this constitutional bargain, members of both tribes are able to form an army that provides for the common defense and make mutually beneficial trade agreements with other nations.

After 100 years of no apparent changes, evidence conclusively indicates that Tribe A has won the constitutional bet. The soil on the northern half of the continent is becoming increasingly fertile, while the soil of the southern half of the continent (for natural reasons) is slowly killing the members of Tribe B...

There are two parties to the constitutional contract in Mark Graber's imagination. There is Tribe A--the North. There is Tribe B--the slaveholders of the South. Notice anybody missing? Yep. There is no Tribe C--the slaves. One of the most ancient principles of any law worthy of the name is that, at some appropirate level, quod omnes tangit ab omnibus approbari debet. And the slaves of the United States America were certainly in the direct object of the verb tangit, as far as contemplated revisions of the 1787 constitutional order were concerned.

Mark Graber says that if changes in circumstances greatly disadvantage how a constitution impacts some group, that constitution should be revised and amended so that the losers should not have to pay up the full amount of the constitutional bet that they have lost. Well, there were powerful changes in circumstances from 1787 to 1860. In 1787, with the exhaustion of tobacco soils, Thomas Jefferson believed he would someday free all his slaves. In 1860m, with with the profits of cotton and sugar, Jefferson Davis was damned sure he would not free any of his. These changes in circumstances greatly, greatly disadvantaged Tribe C. Does not Graber's argument that the free-soil North should not have collected on its victorious bet from the slavemasters of the South have further consequences? Doesn't it carry with it a much stronger argument about relations between slavemasters and slaves? Doesn't it entail that the slavemasters of the South--transformed by the profits of cotton from seeing slavery as a temporary evil to seeing slavery as a permanent good--should not have collected on their victorious bet from the slaves?

But in the world of Mark Graber's imagination there is no "Tribe C." There are only Tribes A and B: only free-soil Northerners and slavemaster Southerners. The slaves have vanished. They are socially dead. They, you see, have not made a constitutional bet because they are not parties to the constitution. They are not and never can be citizens of the United States. They are not among the people who have inalienable rights. Governments are not instituted to secure their rights to life, liberty, or the pursuit of happiness: they have none. Their claim that they are among the "we the people" for whom the constitution is supposed "to secure the blessings of liberty" is null and void, if not simply laughed out of court.

We don't have to think about the impact on Tribe C. For, as Roger B. Taney wrote, African-Americans are:

beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.

But I maintain the contrary. I maintain that we do have to think about Tribe C. I maintain that everybody doing politics and law in the United States--today or in the 1850s, whether Roger B. Taney or Mark Graber--ought not to pretend that Tribe C is absent from the table. Tribe C has a seat at the table, for as Abraham Lincoln said in 1858:

I agree with Judge Douglas that [the Negro] is not my equal in many respects, certainly not in color--; perhaps not in intellectual and moral endowments; but in the right to eat the bread without the leave of any body else which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every other man.

Comments

[Joe S.]

I have no dog in the fight between you and Graber, and agree with your "Tribe C" argument.
But I have some problem with pacta sunt servanda (which, BTW, is a maxim of treaty law, not contract law.) Back in the 17th century, our common law adopted this principle--the usual case cite is Paradine v Jane. By the 19th century, we had an industrial economy to administer. The courts began to see that Paradine might be a decent baseline principle, but just didn't work for many real commercial cases. The 19th and 20th century courts invented a slew of doctrines that let a party back out of its contract: impossibility, impracticability, force majeure, mistake, and the like. And (AFAIK) the Continentals were always way ahead of us on this.
As far as Constitutional law is concerned, your pacta sunt servanda principle is pretty damned close to original intent. Are you sure you want to be there?

[John Emerson]

"Thou dost not know, my son, with how little wisdom the world is governed": Count Oxenstierna.

The Constitution was pretty obviously a time bomb postponing a lot of big questions. The compromises by which these questions were postponed were messy and fragile. Graber seems to think differently, that the original messy constitutional arrangement was a real, stable solution to these big questions and should have been held sacred.

And he seems to get this by alleging an implicit understanding as to goals and results, beyond the letter of the law, such that the letter of the law could be overriden in favor of the implicit agreement.

Isn't an argument like this pretty loony from a technical legal point of view? I'm not a constitutionalist at heart anyway, but I do recognize that in the US this is how the game is played. If I thought that Graber's specific argument here, and his method of argumentation here, were valid ways of treating constitutional law, my respect for constitutionalism would go to about zero. I would come to understand the constitution as the bizarre superstition of people alien to me.

To present an argument as convoluted as this one, supporting the Confederate position, on MLK Day seems especially bizarre. Graber isn't a neo-Confederate as far as I know; apparently this is the kind of thing you end up with when you take the law seriously.

[bakho]

The cheers for Tribe C. Good argument.

The disagreement that led to the American Civil War had more to do with the imminent EXPANSION of slavery rather than its abolition. The original bargain left questions of slavery up to the states, but the composition of the states also changed between the founding and 1850.

The seizure of Western North America from Mexico required that a new bargain be made over the issue of slavery in the new territories. The Missouri Compromise finessed some of those issues, but bloody Kansas exacerbated the tensions. The North could only diminish slavery by stopping its expansion. The South could only continue slavery by expanding it to the new states.

The Confederate desire to expand slavery into the new territory was pursued by their attempts to invade New Mexico and Colorado in 1862 which were thwarted at Glorieta Pass.

[John Emerson]

Reading Graber a little bit more carefully, it seems clearly to be pure inside law, with no real reference to slavery per se. But my doubts about law as a tool for dealing with reality remain.

[One might question the wisdom of writing a book of "inside law" with "no real reference to slavery" and calling it _Dred Scott and the Problem of Constitutional Evil_... ;-)]

[A Patriot]

It's interesting how having monsters in the white house allows monsters in acedemia to feel free to voice their monstrous opinions. Hopefully soem day a reckoning will come, and scum like Graber will get what's coming to them.

[howard]

I'm going to repeat something i've said in this space before. when i was an adolescent, in the late '60s, i was watching firing line with my mother one night.

"boy that bill buckley is smart," she said (and she was - and remains - a liberal).

"no mom," i said, "he's articulate. if he were smart, he wouldn't say so many dumb things."

Graber is not smart, that's for damn sure.

[Cal]

It's like Ann Coulter defending McCarthy. It is a tee-hee-hee b***s*** Conservative circle jerk mentality that places ideological correctness over any question of morality.

[Gene O'Grady]

The reference to the campaign at Glorietta suggests an observation and a question. Once the struggle/war moved into New Mexico, pretty clearly we were up against tribes D and E, neither of which have ever fit well into the constitutional arrangements, hence the sixty year delay in New Mexico statehood.

Even the drunken General Sibley must have figured out the New Mexico, Arizona, and Colorado were not suitable for expanding slavery. Was the Confederate invasion really still concerned with the expansion of slavery or getting their hands on the mineral wealth in the West? I suppose you might have had slave operated mines, but what I know about mine slavery as opposed to agricultural or light industrial slavery from the Greco-Roman context makes me think even Jeff Davis would have drawn the line before that point. After all, apparently he thought his slaves loved him so much that he was surprised they ran away when the Union army showed up.

[TomF]

One odd echo in your description of Graber is an echo of the position of Buchanan and other like-minded Democrats-- the view that the northerners have to give the southerners what they demand to save the union. What the northerners could not seem to recognize was that there were no limits to the southerner's demands. Each concession from the northerners like Buchanan produced another demand.

Graber is their direct descendant.

That said, my understanding of Calhoun was something between what you (DeLong) describe and Graber's. That is, Calhoun argued that his views about concurrent majorities were mandated by the way he thought the constitution had to work, almost akin to a claim of natural law-- "this is the correct rule for interpretting our constitutional structure"-- though not contained in the language & intent of the founders. Once again, the southerners were saying "it's my way or the highway."

So what, exactly, was Graber thinking could have been saved? The existing constitutional order with slavery intact? As if that would have been better? I suppose given my understanding of the southern view (btw, I'm a southerner), I've never been able to see a way the sin of slavery could have been absolved short of civil war.

[David]

I find this "debate" really confusing. As far as I can tell, Graber is essentially making an argument about the limits of efforts to use the Constitution as a blackjack against your opponents--something, BTW, that both sides in the sectional conflict did to ultimately murderous effect. Thus he's not really arguing that Dred Scott v. Sanford was "rightly decided" so much as that, in strict constitutional terms, it was as plausibly decided as the alternatives. Brad, on the other hand, *cherishes* his right to use the Constitution as a blackjack against his opponents. None of this has much of anything to do with the actual history. Could the slavery issue have been settled by constitutional means? Brad seems to be saying yes--at least if the Chief Justice in 1857 had been a philospher king named Brad DeLong, to whose judgment about the meaning of words such as "liberty" the fractious polity of the time would have simply deferred. But isn't profound division over the meaning of such words precisely the issue that wound up sending 600,000 soldiers to their deaths? I know nothing about Graber's politics, but his argument is hardly inconsistent with, say, that of a William Lloyd Garrison or a Frederick Douglass when they condemned the US Constitution as fundamentally a slaveholders' document. To attack him as a wingnut for pointing out the skeleton in America's closet--that slavery was so inextricably woven into the fabric of American life and culture as to require no less than a second American revolution--is, to my mind, profoundly ad hominem [I know, this is the blogosphere--ad hominem argumentation is respectable here] and intellectually dishonest. Yes, slavery is immoral, but that didn't make it unconstitutional or unAmerican prior to the Thirteenth Amendment, however hard Lincoln and Company tried to make it such; in fact, as little as it flatters our self-esteem to say so, it was all *too* American, all too rooted in our *real* value system, which prizes mastery over others at least as much as equality. Part of the tragedy/farce of the Civil War is the degree to which both sides played these silly legal-constitutional games; indeed, what's most striking about the Third Tribe, and their Radical allies, was their recognition that slavery could never, in the end, be extirpated in a nice, legal manner. That we continue to pretend that our fundamental law was, somehow but from the very beginning, antislavery has to do less with the actual historical record than with our own self-congratulation as Americans--and, I might add, our continuing obliviousness to the injustices still embedded within our notions of "liberty."

Finally--Attacking Graber for posting his argument on MLK weekend is grossly unfair. *You* started this, Brad--Doesn't the poor guy have the right to defend himself in a timely manner?

[shah8]

Graber is clueless.

I'd just go up to the first reply by Joe S.

The issue of slavery became a situation beyond what pacta sunt servanda could provide for...

and then Tribe C gets to the table.

What Graber fundamentally ignores, was that the South wanted to increase its rights at the expense of the rest of the state, to the point of regional warfare in Kansas and the like. The South, for all it's protested devotion to the law, was lawless in spirit.

[sm]

The rotten seed of slavery continues to debilitate the American imagination.

[Jonquil]

"Yes, slavery is immoral, but that didn't make it unconstitutional or unAmerican prior to the Thirteenth Amendment,"

A British friend of mine, seeing this argument, pointed me to Lord Mansfield's decision of 1772 (http://en.wikipedia.org/wiki/William_Murray,_1st_Earl_of_Mansfield), holding that slavery was inherently incompatible with English common law. Had this decision been binding on the then American colony -- it was not -- the matter would have been settled ab initio.

My point being that there was a credible argument to be made that as a matter of English common law, on which American law at the time of the Constitution and since was based, slavery was indeed illegal. That argument obviously did not prevail at the writing of the Constitution, but neither was it created by the 19th-century abolitionists.

[John Emerson]

Guess what Dred Scott's owner's name was?

[Joe S.]

Jonquil,
There is no credible argument that English common law is relevant. In the eighteenth century, the tradition of parliamentary sovereignty was very strong. Once slavery was hard-wired into the Constitution (and it was!), common law was irrelevant.

I remember that Jefferson tried to use inconsistency with common law to argue against the Constitutionality of the Bank of the United States in 1791. His arguments were greeted with silence. Madison and Edmund Randolph used more normal Constitutional arguments against the Bank, based on text and structure. (Washington wasn't impressed, and signed the bill.)

[Altoid]

Although it's ingenious, there's no need to get into hypotheticals about different tribes. It gives up too much ground. Based on what I'm seeing here, Graber is trying to begin with the proposition that *political* expectations should have *constitutional* status. If you want to regard constitutions as fundamental law, that just doesn't make sense on the face of it.

People of the time almost all took as a given that political life is contingency and change. Their expectation would have been that their own political expectations should be irrelevant in a constitutional sense.

Besides, demonstrating that first fatal proposition isn't a trivial problem. Graber should at least wink in the direction of Jack Rakove, who points out that not only did the different participants in Philadelphia have their own expectations, but everyone who voted in the different ratification conventions had *their* own expectations. Unless there's a lot of evidence I haven't seen, Graber seems to be trying to finesse this question.

Does Graber believe that organized political parties should be outlawed, on the basis that the framers of 1787 had no expectation that they would exist-- in fact abhorred them? This expectation is actually demonstrable, and my conclusion is as consistent with Graber's first proposition as is his idea that concurrent majority is part of the constitution.

Personally, I'd have to view Taney's Dred Scott opinion as an attempt to prevent political change and contingency from having its effect within a constitutional system. Of course, if I wanted to own slaves I might think differently.

But I presume this isn't why Graber's advancing this argument. I wonder why he is trying to smuggle political expectation into fundamental law so blatantly. Or if that isn't it, the confusion of constitution and politics makes the argument just nonsensical.

[Maynard Handley]

Compare and contrast:
- The constitution supports slavery, and certain ways of deciding issues, therefore we should allow slavery to continue
- god told us somewhere in the old testament to kill gays
- gold told us, somewhere in the koran, that women are only worth 1/4 as much as a man

jesus christ, Brad. It is depressing to see a mostly intelligent decent guy wasting his time on so pointless an exercise. WTF cares about the issue in these particular terms?
Are we going to go back to slavery on the basis that Dred Scott was in fact correctly decided?
Alternatively, are we going to justify the whole appartus of Civil Rights on the slender reed of arguments for why Dred Scott was wrongly decided? After all, the constitution DID legitimate slavery, and would slavery have been less bad if there'd been an understanding in place that Southerners shouldn't take their slaves with them when they visited the North?

I'm sorry, but when I see grown men arguing about these ridiculous theological issues, whether they regard the number of angels dancing on pinheads or pretending that the law is some sort of platonic ineffable entity rather than an imperfect and malleable creation of humanity, I weep for the stupidity and the wasted time and talent.

[Joe]

I only looked at Graber's book though read some commentary and such as well as remarks by him over at Balkanization. Doesn't look promising.

I accept the "articulate" sentiment up to a point ... I read his reply to Brad, and honestly, it was a tad confusing. The "key" supplied here helped. The changing status of "Tribe C" is telling. It reaffirms my thought that MG's calculus was badly made, showing why uprooting normal rules of republican government was not legitimate.

MG argued that the choice to make in 1860 was the Constitutional Union Party. It is telling really that no one at the time took them seriously. Come down from the clouds, Mark.

[John Emerson]

The idea that the anti-slavery people were the only aggressors seems silly. Someone was going to lose eventually, and the slaveowners pushed their case hard too.

This is off topic, but the Dred Scott Wiki has some interesting things. Dred Scott won his initial case, but the slaveowner appealed. Scott then appealed twice and lost twice.

Scott's lawsuit was financed by the previous owners who had sold him to the new owner.

[John Emerson]

The Missouri State Supreme court which ruled against Scott had thrown out existing precedent, which the lower court had followed in freeing Scott. They explicitly stated anti-abolitionist political motives.

The Dred Scott decision overturned a law passed by Congress, and this was only the second time this had been done.

Part of the ruling was that, while blacks could be citizens of particular states, they could not be citizens of the US.

So we see judicial activism, and we see federal annullment of state law. I guess Southerners just pick up the deep fundamental principle which is handiest for them at the time.

http://www.csamerican.com/SC.asp?r=60+U.S.+393

[anne]

http://www.calvorn.com/gallery/photo.php?photo=7048&u=91407,16

Red-headed Woodpecker Feeding
New York City--Riverside Park.

Interesting considered comments.

[BG]

I don't want to get deeply into the substance of the discussion here. I just want to make two points.

Number One. From what I can tell, Graber is not a neo-confederate, a racist, etc. Looking over his past postings on Balkinization, it would appear that he is a left liberal, much like the other members of that blog. I should emphasize that I haven't read Graber's book, but my guess is that the subtext of Graber's argument is anti-originalism. (Hence the argument that in spirit if not in letter the Dred Scott decision was an originalist one.)

And this leads into point Number Two. For if my suppositions are correct, and this is Graber's purpose, it seems to me a little bit cheap to mention that this is the weekend of Martin Luther King Day. And, further, it seems to me that some of the comments to this post -- implying that Graber is indeed a neo-confederate, a racist, etc. -- are even cheaper.

[Most people who think Abraham Lincoln got it wrong think that (a) the goal of extinguishing slavery was worth the high cost of the Civil War, but (b) there were other much cheaper ways to extinguishing slavery by, say, 1890 or so--Stephen Douglas's way, for example, by which you give the South meaningless formal concessions without substance to appease it while slavery gradually withers away. Graber is, in my knowledge, alone in both (a) favoring John C. Bell (rather than Lincoln or Douglas) in the election of 1860, and (b) favoring John C. Bell because (on Graber's reading) Bell believed in an affirmative duty to protect and nurture slavery unless slaveholders themselves wanted to get rid of it.]

[andres]

Maynard, I sympathize with your position, but it's not quite that simple. Graber's argument is that (a) the Constitution accepted slavery, (b) through the medium of concurrent majorities (Calhoun), the Constitution actually _encouraged_ slavery, and (c) Taney and the 1857 Supreme Court came to the right decision given that it was the Constitution that accepted and encouraged slavery.

But the Constitution is _not_ a sacred document in the manner of the Bible or Koran. It was created by human beings who were both fallible and vulnerable to compromise (if you view that as a vulnerability, that is). It is one thing to argue that the Constitution _tolerated_ slavery as the only means to ensure a united country after the overthrow of British rule. It is quite another to say that the Constitution _encouraged_ slavery, as Calhoun and Graber seem to imply.

To accept the latter position turns Lincoln and the abolitionists into putschist rebels who overthrew the previous constitutionally legitimate regime, an argument that though plausible, is nevertheless both wrong and morally repugnant. But the plausibility of the argument means that it has to be demolished in detail rather than being dismissed out of hand.

[Ian Whitchurch]

Andres,

No, I'm perfectly prepared to dismiss it out of hand.

Slavery is wrong.

The overthrow of governments that support slavery is right.

As an aside, I put ius ad bello pretty darn high with campaigns against slave states.

For example, it is a tactical decision whether in this circumstances it is appropriate to hang slaveowners as punishment for owning slaves, or to pardon them in hopes of encouraging their fellows to surrender quietly.

The murder of pro-slavery theoreticians and propagandists is also morally acceptable.

Ian Whitchurch

[Comte de Rochambeau]

Arguements are candy and history is sandpaper. The need for a reaction when confronted with intellectual candy is akin to using
sandpaper to read a book. Grind away the layers instead of just turning the page. Slavery was never acceptable but to the profiteers. Try to image the process of evolution. We, the humans are merely complicated by design. We are only what nature found to be useful. Within our tenure we have been less than forthcoming when presented with oppurtunities to exceed our own limiting interactions. The Constitution is wonderful and damning in its scope. Amending the original document has rightly been difficult. When viewed through hindsight it has severe faults. The discussion here serves Mr. DeLong better
than Mr. Graber while recognizing both have points to promote.
Alas Mr. Graber has chosen to be the goat by his awlful timing
and obtuse arguement.

[John Emerson]

I somewhat agree with BG, as my second post indicates. Perhaps his piece is intended as a reductio ad absurdum of intentionalism, and is actually intended to discredit, not legal logic, but one particular form of it. On the way to that, though, it seems to me he was too friendly to Taney's position, and too unfriendly toward Lincoln's, seemingly going on to conlcude that there was no way within the constitution to oppose slavery at all, and that (as Taney ruled) even compromises like the Missouri compromise were invalid -- only amendment being an allowable method. (One result of this was that free states would have to treat slaves visiting from slave states as slaves, and another being that no black person could ever be a US citizen, but only a state citizen. This coming from a states-rightser!)

Since I am neither a constitutional lawyer nor, ultimately, a constitionalist, the whole thing is pretty foreign to me.

[wkwillis]

Are you sure he does not mean trisectional coalitions?
'and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.'
NH, MA, RI, and CT had 17 Representatives and 8 Senators for New England, NY, NJ, PA and DE had 19 Representatives and 8 Senators for the Middle Atlantic states, and MD, VA, NC, SC, and GA had 29 Representatives and 10 Senators for the South.
VT in New England did ratify the Constitution, for another 1 Representative and 2 Senators to make 18 Representatives and 10 Senators for New England. Not sure why it isn't listed in the Constitution. Maybe they didn't send a delegation to the Constitutional Convention?
All the states except VT had slaves. NY had more slaves that Georgia IIRC.

[Gerard MacDonell]

Delong is criticized here for seeming to endorse original intent. A liberal like him presumably would not want to go that route, one poster warns.

But why not? Isn't the problem with original intent mostly one of guilt by association with right wing nuts who would use it selectively to turn back social progress? If you consider the issue in the abstract, isn't it fairly mundane that contracts should be interpreted on the basis of what the signatories meant to say or were understood to say? If Bork were not an originalist, many here would be, I bet.

I don't know if Delong would really sign on for original intent with all its implications. But nor is that likely the salient issue. The point seems more psychological. Well-intentioned people like the good doctor want to believe that just institutions are part of the natural order of things. If the Founders were wise and good people, then they MUST have really wanted blacks to be equal with whites, eventually, upon the perfection of America.

Another post here has raised this same point and concluded that many Americans just want to believe that the AMERICAN ideal has been just from the time of its founding. But I doubt this is really a point of American exception. It reflects a habit of mind that easily crosses borders.

I was not born American but I was born Catholic. And in my schooling I had drilled into me that there exists a unique morally correct course, that the universe is logically ordered, that rights cannot be in conflict etc. etc. If this is your world view, then it is hard to accept that the constitution might have been with the south in some regards or that blacks got formal political equality with whites because of some fluke of history, like the North being economically and militarily superior to the South. It is hard to accept that the constitution was brought nearer perfection by brute force and other extra-constitutional means.

It is much more satisfying to believe that such a course was an inevitable expression of what nature, reflected in the founding documents, originally intended: slavery would be contained and would wither. It is a nice story which may even be true. But the truth of it is not why the constitution got amended. Northern victory is why.