Crooked Timber recently had a post asking what would have happened had the northern framers refused to go along with a Constitution that protected slavery. To posit a counterfactual at a later date, occasional Balkinization contributor Mark Graber has a quite brilliant new book about the implications of the framers making that decision. All constitutions, Graber argue, sanction evil practices to allow people with disparate moral views to live together. So the fundamental question of the Civil War is, when does constitutional injustice become intolerable enough to destroy constitutional peace?
The first two parts of the book are counterintuitive and, I think, pretty much unassailable arguments that are relevant to constitutional debates today. I have a TAP article about them coming shortly, so I won’t say much. The second section argues that the Constitutional protections of slavery went far beyond the more formal ones listed by Mandle–essentially, slavery permeated all the institutional arrangements of the Constitution, but the Constitution still failed to prevent the civil war because of errors in the Constitution (especially the electoral college), blunders by politicians (such as Buchanan trying to admit Kansas as a slave state) and unforeseen changes (the unanticipated northwestern population shift, slavery actually becoming more rather than less normatively entrenched in the South.) The first part of the book argues that blaming Dred Scott for the Civil War, or using it as a club to bash rival theories of Constitutional interpretation, is a non-starter: Dred Scott reflected mainstream Jacksonian theories of the Constitution, was popular with the majority of the public, and far from creating the Civil War was the only outcome that could have held the Democratic coalition together (although with the hapless Buchanan in the White House the Jacksonian Democratic Party was doomed anyway.)
To blame the Supreme Court for the Civil War, then, is to evade the real problem: the antebellum constitutional order was inherently compromised with the evils of slavery and white supremacy, and no Constitutional interpretation could wish the problem away as long as there was serious conflict about the underlying questions. So what to do in 1860? In a concluding chapter that, I think, isn’t right on the direct constitutional question but provokes illuminating questions nonetheless, Graber casts a retroactive vote for John Bell in 1860. To oversimplify a more subtle argument, the logic runs something like this:
- Douglas’s consociationalist understanding of the constitutional order was more empirically accurate than Lincoln’s, and moreover Lincoln’s majoritarian understanding of the Constitution is problematic because, in fact, there was no anti-slavery majority in 1860: Lincoln’s victory was a fluke artifact of the idiosyncratic American system of selecting Presidents. This was what made secession inevitable upon Lincoln’s victory.
- Retroactively voting for an optimal candidate, like Frederick Douglass, is just to wish the problem of constitutional evil away, and as such is a pointless evasion. A country in which Douglass could have been elected President is a country that wouldn’t have needed a Civil War to get rid of slavery, but if you’re wishing for that you might as well get ponies for everyone too.
- Voting for Stephen Douglas, however, cannot be a satisfactory option. Not only was he more racist than Lincoln, he was a classic Manifest Destiny Jacksonian who almost certainly would have gone to war with Mexico or tried to buy Cuba. Obviously, if the choice is between going to war to expand slavery or to eliminate slavery, you’re going to go with the latter. Similarly, between an anti-slavery sectional candidate and a pro-slavery sectional candidate (Breckenridge), there’s no reason not to select the former. Hence, Bell–the moderate Southern Whig who opposed both national dissolution and expansionism–was the only one who was advocating a political solution.
- Having said that, knowing how the war would turn out, one would clearly vote for Lincoln. But in 1860 this outcome was not inevitable. The war could have gone badly enough that Lincoln lost the election in 1864, and then you would have had enormous slaughter leading to slavery actually being more entrenched than it was before. (Graber doesn’t mention this, but another possibility is that rather than McClellan’s Waiting for Godot routine the North could have won the war quickly, which would have maintained Union without emancipation or the Civil War amendments. In a sense, for the war to work out it had to go well but not too well.) The possibility the result of Lincoln’s election could have been neither constitutional peace nor constitutional justice must be considered.
It’s a serious argument, but while it makes an important point about constitutionalism in general, I’m not buying in this specific case:
- Graber is right that, ingenious as Lincoln’s constitutional arguments were, as a description of antebellum constitutionalism Douglas’s were more accurate. The question, however, is what weight that should carry. Lincoln does persuade me that between Kansas-Nebraska, Buchanan’s attempt to ratify the fraudulent Lecompton constitution, and the Southern suppression of free speech the South had already violated its part of the bargain. 1860, one way or the other, was the start of a new Constitutional order. I agree with Lincoln that there was good reason to use the effective vacuum to eradicate this particularly appalling evil.
- Moreover, the antebellum consensus was not only normatively odious, but politically dead. The problems that lead to the collapse of the Democratic coalition weren’t going away, and the increasing political domination of the free states was only going to increase. The Dred Scott solution of taking the matter out of the hands of Congress was always a temporary reprieve at best; the increasing strength of the free states was going to produce a crisis sooner or later, and while delaying it for an election cycle or three may have enabled a peaceful solution, I sure don’t see it. It is true that this crisis was in large measure a product of structural deficiencies in the constitutional order, but that’s neither here nor there; wishing for the framers to have made better choices is no less evasive than wishing for a Frederick Douglass presidency in 1860.
- I don’t know enough to be certain here–this is Rob’s department–but it also seems to be that a Northern victory, while not inevitable, was overwhelmingly likely, enough to be worth the risk (especially since abjuring war in 1860 was more likely to be a deferral rather than a permanent peace.)
In essence, I’m inclined to use the insights of the first two parts of the book against Graber. The failure of Dred Scott to forestall the collapse of the Democratic coalition, I think, indicates that no political compromise was possible by 1860. And just as to wish for a normatively correct outcome in Dred Scott is really to wish for a different constitutional order than the one that actually existed at the time, to wish for a moderate solution in 1860 is to pine for a constitutional order that had vanished. By 1860, sectional politics was the only game in town, and to vote for Lincoln in 1860 is to vote for the section that was right. This came with a horrible price. The decision made in 1787 to tolerate slavery to advance security was not unreasonable; slavery could have withered away in the South in the next century as it had withered away in many northern states in the previous century. But it didn’t work, abetted by some other blunders and bad luck. Most social orders are, tragically, formed in violence. By 1860, I think it was the least bad option.
But–and this is, as I read it, the real point of Graber’s argument–it is true that liberal constitutionalism in a sense requires Lincolns to be anomalous. The Civil War is, I think, a justified exception, but normally constitutionalism requires us to be John Bells, tolerating evil practices so that we can live together in peace.