Hoisted from the Archives: More Dred Scott v. Sanford Blogging for 2007's Martin Luther King Jr. Holiday Weekend! http://www.bradford-delong.com/2007/01/more_dred_scott.html: 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:
[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 [between the parties].... 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....
Constitutional 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).... 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.... 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....
Prudence, empathy, et cetera may lead 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.... The breach-and-renegotiate option between say, Target and a supplier of electric toothbrushes, entails an acknowledgement of breach followed by negotiations with a mediator under judicial threat. It doesn't entail the guy 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. 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 response to his ruling in Dred Scott.
Go back to how Mark Graber opened his post this Martin Luther King holiday weekend: with an analogy... he regards as... capturing the key aspects relevant to Dred Scott of the evolution of the United States over 1787-1860:
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?
In Graeber's vision, there is no Tribe C—the slaves. They are invisible. It is "fertile soil", not "the extra economic value of holding slaves in bondage because the Industrial Revolution has boosted the importance of cotton in making money".
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: "what touches all must be approved by all". And the slaves of the United States America were certainly included in the omnes, the direct object of the verb tangit, as far as contemplated revisions of the 1787 constitutional order were concerned even though they were not High Contracting Parties to the Constitution.
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 1860, 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 about changing circumstances apply to them too? Does it not carry with it a much stronger argument about relations between slavemasters and slaves? Does it not 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.
So we do not 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...
UPDATE: Damned if I know to this day why people wanted to praise Mark Graeber's Dred Scott and the Problem of Constitutional Evil https://amzn.to/2v9drCS...