Mark Graber, John Yoo, and the Problem of Academic Evil

Law professor Mark Graber--who we last saw using Martin Luther King Day weekend to blog about how Dred Scott was rightly decided by Roger Taney, and how Taney's opinion was legally correct when it stated that no Black man had any rights that the white man was bound to respect--pokes his head out of his whatever-it-is and becomes the first man I have seen who comes to the substantive defense of John Yoo:

Balkinization: Having just excerpted the Yoo memo... let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials.... I was no more impressed by the Roberts opinion in Parents Involved (the Seattle school district case) then the Yoo memo.

The notion that Yoo ought to be disciplined for his involvement in a criminal conspiracy also strikes me as a bit strange. I confess to thinking that both that Yoo probably knew he was facilitating torture, but that there was no conspiracy in the non-legal sense of the word.... President Bush and the Republican Party, however, repeatedly and publicly declared that their philosophy during the war on terrorism was "whatever it takes." Of course, there were occasional denials... but I suspect they were not believed or even intended to be believed.... If there is a conspiracy, we probably should arrest about 60% of the country.... [T]he Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States.... [A]s a legal matter, you could still confine conspiracy to Yoo and a few others, but there would be an awful lot of unindicted co-conspirators.... [T]he constitutional support for Yoo's position is gaining strength.... Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

I confess I don't see an argument here.

Of course, I didn't really see an argument in Graber's applause for Roger B. Taney either. If there was an argument it seemed to be: "The southern slaveholder aristocracy would never have ratified the Constitution if they had thought that its proper interpretation would ever piss them off, so the first principle of interpreting the Constitution of 1789 must be to interpet it in a way that doesn't piss the southern slaveholder aristocracy off." And this was profoundly stupid--it leads to the conclusion that no constitution can ever be interpreted to mean anything that pisses anybody off (except slaves, women, the propertyless, subsequent immigrants, etc.--all those who didn't get to vote on it--it's OK to piss them off). And this was empirically false: in the Nullification Controversy Andrew Jackson and the Democratic congress interpreted the tariff clause in a way that pissed the slaveholding aristocracy of South Carolina off mightily--and made it stick, with President Jackson reportedly swearing that if the legislature of South Carolina did not back down he would seize its leading politician and his own Vice President John C. Calhoun and hang him on the south lawn of the White House.

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Time to hoist my earlier views of Mark Graber from the archives:

http://delong.typepad.com/sdj/2007/08/law-professor-m.html

Mark Graber is back: This time it is one of the most bizarre ripping-of-quotations-from-context I have ever seen, asserting that the differences on slavery between Roger B. Taney and Abraham Lincoln were "almost trivial." In making this argument, Graber lets Lincoln speak for one single clause before silencing him and hustling him offstage:

Balkinization: A good case can be made for tearing down the bust of Roger Brooke Taney that stands in front of the city hall in Frederick.... Taney wrote the opinion for the Supreme Court in Dred Scott v. Sandford (1856)... that persons of color could not be American citizens and that slavery could not be prohibited in American territories.... While the bulldozers are rented, we might get our money’s worth and tear down all statues honoring Abraham Lincoln. Lincoln insisted he "never complained especially of the Dred Scott decision because it held that a negro could not be a citizen..."

From a contemporary perspective, the differences between Lincoln and Taney seem almost trivial. The sixteenth president opposed making persons of color citizens of Illinois, advocated federal fugitive slave laws, endorsed slaveholding in the nation’s capital, and insisted that the federal government had no power to interfere with slavery in any state in which human bondage was legal. Their only serious dispute was over whether slaveholders could take their human property to North Dakota, a place few if any slaveholders had expressed interest in settling...

Let us bring Abraham Lincoln back on stage, and let him say more than the nineteen words from his Alton speech that Graber lets him say. Here is what Lincoln said about the "almost trivial" differences between him and the anti-anti-slavery Democrats like Stephen Douglas (let along the pro-slavery Democrats like Roger Taney):

Last Joint Debate, at Alton. Mr. Lincoln's Reply. Lincoln, Abraham. 1897. Political Debates Between Lincoln and Douglas: Judge Douglas... says he “don’t care whether [slavery] is voted up or voted down” in the Territories. I do not care myself, in dealing with that expression, whether it is intended to be expressive of his individual sentiments on the subject, or only of the national policy he desires to have established. It is alike valuable for my purpose. Any man can say that who does not see anything wrong in slavery; but no man can logically say it who does see a wrong in it, because no man can logically say he don’t care whether a wrong is voted up or voted down. He may say he don’t care whether an indifferent thing is voted up or down, but he must logically have a choice between a right thing and a wrong thing. He contends that whatever community wants slaves has a right to have them. So they have, if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong.... You may turn over everything in the Democratic policy from beginning to end, whether in the shape it takes on the statute book, in the shape it takes in the Dred Scott decision, in the shape it takes in conversation, or the shape it takes in short maxim-like arguments, it everywhere carefully excludes the idea that there is anything wrong in [slavery].

That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles—-right and wrong—-throughout the world. They are the two principles that have stood face to face from the beginning of time, and will ever continue to struggle. The one is the common right of humanity, and the other the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same spirit that says, “You work and toil and earn bread, and I’ll eat it.” No matter in what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle...

Mark Graber may think this difference is "almost trivial." I cannot find anybody else who does.

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"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.

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http://delong.typepad.com/sdj/2007/01/to_secure_the_b.html

Consider Mark Graber (2006), Dred Scott and the Problem of Constitutional Evil. At the start of his book, Mark Graber sets out seven propositions:

1. The original Constitution of 1787 intended that "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: the framers regarded it as substantively unconstitutional for legislation affecting slavery to be passed by a section-specific majority.
3. The Republicans of the 1850s, who stuck to the letter of the Constitution, refused to admit that they were undermining its spirit, which was the "original constitutional commitment to bisectionalism."
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 acceptable to the "Jacksonians" (who were the people who counted).
5. In violating the letter of the Constitution, Taney was being faithful to the spirit of the Constitution, and so was preserving it via his little Constitutional Moment.
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.

For example, see pp. 4-5, 12-13:

Confident that population was moving southwestward, the persons responsible for the Constitution assumed that representation by population, the electoral college, and the three-fifths clause would ensure Southern control.... [T]he antebellum regime disintegrated when an unexpected northwestward population explosion undermined these power-sharing arrangements....

[...]

The framers expected that contested constitutional questions would be settled by the bisectional coalitions they anticipated would be elected.... The framers never considered [that]... the letter of the constitutional rules [might subvert]... the bisectional contitutional purposes underlying those rules.... [The] real debgate [in the 1850s] was whether the original constitutional commitment to bisectionalism should be modified or abandoned.... In Dred Scott the Supreme Court fostered sectional moderation by replacing the original Constitution's failing political protections for slavery with legally enforceable protections acceptable to Jacksonians.... Republicans[']... refusal to acknowledge the constitutional commitment to bisectionalism... [was] a de facto renunciation of the original constitutional understanding that slavery would never be left to the mercy of Northern majorities.... Taney was more faithful to the original Constitution [than Lincoln] when [Taney] championed policies that could be supported by Jacksonians throughout the nation...

But there is an alternative, a more conventional story: that at the original Constitutional Moment slaveholders were betting that their power would increase over time (hence the Constitution was worth ratifying even though it did not include unneeded long-run explicit protections of slavery) and those who wanted to preserve the possibility of future abolition were betting that slaveholders' power would diminish over time (hence the Constitution was worth ratifying as long as it did include dangerous long-run explicit protections of slavery). According to this more conventional story, the abolitionists won their bet and the slaveholders lost theirs. According to this more conventional story, there was nothing in the Constitution that said that slaveholders got a "do over" if they lost their bet. In this story, Roger B. Taney's little Constitutional Moment in Dred Scott was illegitimate: an effective amendment of the Constitution that did not have the overwhelming support that whatever your theory may be of "Constitutional Moments" requires.

This more conventional story seems much stronger to me than Graber's story. At least, I didn't find anything in Graber's book that seemed inconsistent with it. And on p. 101 ff, Graber appears to sound a lot like this alternative, more conventional story--the story not of a bedrock constitutional principle of concurrent majorities but of different expectations about what the future was likely to hold:

The framers thought it "wrong to admit in the Constitution the idea that there could be property in men."... Slavery was [thus] protected by political arrangements.... [F]ramers... assumed that population increases would be greatest in the South and Southwest... [and] guarantee to the slave states the control of the House of Representatives and the executive branch necessary to secure slaveholding interests.... [T]he framers self-consciously rejected more explicit textual restraints on federal power over slavery... opposed Roger Sherman's proposal... that "no state shall without its consent be affected in its internal police."... [I]n the bill of RIghts, no slave state's representative demanded a ban on federal laws interfering with slavery....

The confidence with which the most fervent supporters of human bondage believed population was flowing southward explains their willingness to accept a mere twenty-year moratorium on federal laws banning the international slave trade.... Federalists in some Northern states and in Virginia declared that this clause [allowing the Congress to prohibit slave imports in 1808 and thereafter] doomed slavery, which required continuous importation.... Deep South representatives expected their political strength in 1808 would render unnecessary the legal protection for slavery demanded in 1787....

Certainly John C. Calhoun did not believe that the 1787 Constitution enacted his principle of "concurrent majorities." He thought that the principle of concurrent majorities was wise. He believed that it was probably necessary if the United States were to survive. He believed that the framers had made a mistake by not incorporating it--perhaps through a two-person presidency. But he was very clear in his Discourse that he did not believe that it was a bedrock principle of the pre-Civil War Constitution: he believed that the Constitution ought to be amended to enact it.

Mark Graber, in his assertion that Calhoun's concurrent majority principle--"bisectional coalitions" he calls it--was bedrock in the pre-Civil War Constitution has managed to get himself to the right of John C. Calhoun. Whenever any modern academic gets himself to the right of John C. Calhoun, it is time to check your wallet and count the spoons. Nice try.

What was really going on? Those who set up our original Constitution had lots of hopes. To create a fit instrument of government for the advance of human liberty was one. To avoid sectional strife was a second. There were a lot of others. Lots of unexpected things happened between 1787 and 1860 that caused Constitutional history to flow in unforeseen channels. Let me list four:

1. Many more people than expected voted with their feet for the institutions of the free-soil North than of the slave-soil South.
2. The coming of the cotton gin and the British industrial revolution greatly raised the value of American slaves and thus greatly increased the attachment of slaveholders to their Peculiar Institution: Thomas Jefferson wanted to emancipate his slaves; Jefferson Davis did not.
3. The existence of a written Constitution and the structure of the Supreme Court, coupled with the difficulties of formal amendment, created a situation in which by far the easiest way to amend the Constitution is to choose five justices who then have a Constitutional Moment.
4. Even after the abolition of the international slave trade in 1808, the slave population of the United States continued to increase as births to slave women outnumbered deaths, manumissions, and runaways--something few if any expected beforehand, as history teaches that slave populations do not maintain themselves.

Each of these caused American constitutional history to flow in different channels than the framers of 1787 had expected, and presumably called for some adjustment to bring the Constitution back to its intended order and purposes. So what are the principles to guide that adjustment? Which of these hopes were the bedrock principles that determine the Constitution's intended order and purposes? There is only one paragraph that tells us:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

I read this paragraph and see "secure the blessings of liberty to ourselves and our posterity" as having pride of place. Abe Lincoln thought so too. Mark Graber and Roger B. Taney have a different view. I'm happy where I am.