Grasping Reality on TypePad, by Brad DeLong

I'm not sure whether I have problems with Mark Graber or he has problems with reality--this is, remember, a twenty-first century American legal academic who managed to wedge himself into a position to the right of John C. Calhoun. Graber writes:

Balkinization: H. Robert Baker's, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War is a great choice for persons interested in serious summer reading. The book is a nice summer read because the author writes well and tells a good story. The result is a nice page turner about Wisconsin anti-slavery politics and the Supreme Court’s... denying that state courts could issue writs of habeas corpus to persons in federal custody.... The book is a serious read because Professor Baker raises important questions about popular constitutionalism.... A central theme of both the actual rescue of Joshua Glover, an alleged fugitive slave, and The Rescue of Joshua Glover is... [w]as Sherman Booth’s effort to prevent Glover’s rendition an act of popular constitutionalism... to protect [the rights of] the citizens of Wisconsin, including persons of color? Or was that rescue an act of constitutional usurpation, no more legitimate than the effort of southern states during the 1950s to insist that states could nullify Brown v. Board of Education.... I am not entirely convinced by [Baker's] assertion that there is a sharp distinction between the Wisconsin citizenry of 1856 and the white citizens councils of a later era...

That word "legitimate." It means lawful or according to accepted standards. It also means just or proper or right or appropriate. There is a certain tension here. Mark Graber pretends that this tension doesn't exist--that a phrase like "an illegitimate yet not illegal use of lawful procedures" has no meaning. But it does.

You can place the actions of Sherman Booth and of Orville Faubus on the same plane as equally illegitimate--which Graber does--only if you win three consecutive tricks:

• The linguistic trick of denying that "legitimate" means both "lawful" and "just," and insisting that it means "lawful" only.
• The legal trick of denying that the Preamble of the Constitution has emanations that color the rest of the document: the Preamble says that the purpose of the Constitution is to "establish justice" rather than to "enforce lawful order"; Earl Warren, at least, would insist that this does make a difference.
• The political trick of denying status to the Declaration of Independence. A country that holds it self-evident that people have rights to life, liberty, and the pursuit of happiness, and that government is legitimate only to the extent that it acts to secure these rights, will interpret its constitution differently than a country that does not hold these self-evident truths.

You have to win all three of these tricks before you place those trying to keep Joshua Glover from being sent south into slavery on the same plane as those throwing rocks at African-American children trying to go to school. I don't find any of them attractive, or especially defensible.