I have a piece at TAPPED on Mark Graber’s new book up (it’s sort of a prequel to this post, which I will have a follow-up on later.) The biggest point I wanted to make was to address a common criticism when I’ve presented my work about countermobilization, both informally and in academic settings. Understandably, many people assumed that this is an argument cooked up in order to defend a decision I like. My first response is to say that while I do have an a priori commitment to abortion rights, I certainly don’t have any commitment to abortion rights litigation. If I didn’t think that legal rights-claiming was an effective method of achieving the goals I seek, I would have no reason to say so. But more importantly, I think that my theory holds for decisions I deplore as much ones I support. Jeffrey Rosen is equally wrong to predict a unique backlash to Bush v. Gore as he is with Roe. Dred Scott is sort of the ultimate example. In addition, the fact that antebellum slavery policy is used to attack the ineptitude of the court and romanticize the ability of legislatures to reach stable compromises demonstrates the extent to which these claims rest on feeble tautologies. Congress quite conspicuously failed to reach a stable compromise on the slavery issue, and the structure of the elections to Congress–which then, as now, tended to emphasize ideologies rather than centrists among members, especially in the House–had made reaching a compromise in 1857 impossible. It’s frankly perverse to hold up Congress under the Buchanan administration to make arguments about the superior ability of legislatures to produce effective political compromises.
My other point is about the inability of grand theory to resolve actively contested normative disputes. Big Tent Democrat at TalkLeft generously replies to my argument, and allows me to clarify a few points. I continue to disagree entirely with his or her contention that Dred Scott was clearly wrong in terms of existing law (as opposed to morally.) To take the key points as they come up:
- BTD says that he disagrees with “Lemieux’s acceptance of the division on Dred Scott as being one of originalists and proponents of a “living Constitution.”" To be clear, I’m definitely not claiming this. As Graber says, “the issue in Dred Scott seems to be whether Taney was, as aspirationalists claim, a bad historicist, or, as historicists claim, a bad aspirationalist. In fact, he was at times both and at other times neither.” What we’re arguing is that both the majority and dissenting opinions contained elements of various grand theories, and that plausible claims can be mounted on both sides of the question using any grand theory.
- “I reject the idea that proponents of a Living Constitution are not originalists, in the sense that the idea of a Living Constitution is to promote original Constitutional purpose to current circumstances.” I agree with this, in least in the sense that I don’t see aspirationalism as somehow divorced from the text of the Constitution. But it is analytically distinct from any robust form of originalism in the sense that originalists focus on meanings at the time of ratification while aspirationalist apply broad principles in a forward-looking manner. (It is certainly true that originalists, especially when trying to reconcile their theories with politically popular outcomes, will sometimes define principles at such a high level of abstraction as to completely unmoor them from any concrete historical meanings, and at this point originalism loses any distinct character as a theory, and is just a truism.)
- At any rate, I’m not trying to sell or discredit any particular grand theory; what I’m saying is that grand theories simply cannot produce determinate outcomes on questions the framers deliberately left ambiguous. The simple fact is that the Constitution is silent on the question of Congress’ ability to regulate slavery in the territories, and this is not an accident but a consequence of the fact that a clear resolution of the question would have likely split the states during the ratification process.
- BTD then articulates a structuralist theory of Constitutional interpretation, identified with John Marshall, and locates a similar theory in Lincoln’s famous Cooper Union speech. Now, I am something of a structuralist myself, and I agree that Lincoln constructs a perfectly plausible reading that I of course find infinitely more attractive than Taney’s arguments for moral reasons. But this isn’t enough; the question is not whether there are plausible arguments against Taney, but whether Lincoln provides the only plausible reading of the Constitution in 1857. And the answer to this is clearly that he doesn’t (see pp. 57-76 of the Graber book.)
- The short version is that the argument that there was a Constitutional right, embedded in the due process clause of the 5th Amendment, to bring property in the territories was a widely held view. BTD asks: “prohibiting slavery in certain territories. Was there a Constitutional right to carry your slaves to territories? That is a property right? Based on what? The right to travel? The full faith and credit clause?” What BTD doesn’t mention is that not only McLean–who argued that “[i]t is said the Territories are common property of the States, and that every man has a right to go there with his property. This is not controverted“–but Lincoln himself accepted the validity of these property rights, which was the mainstream Republican position of the time. Were they lawless hacks ignoring the clear text of the Constitution? Lincoln and McLean disagreed about whether slaves remained property once taken to a jurisdiction that didn’t have slavery, but to argue that this was a universally accepted proposition in 1857 would be farcical (as is the claim that Article IV can only be read to say that slaves cease to become property when taken into states–if this was true, the Constitution wouldn’t have been signed by the slave states.)
- With respect to whether individuals lost constitutional rights when going to the territories, even in 1803 many rejected this proposition, and by 1857 the position that citizens retained constitutional rights in the territories was strongly entrenched, and Republican jurists continued to treat this part of Dred Scott as good law even after the Civil War.
Again, the question is not whether the dissents in Dred Scott were plausible–they clearly were. The question is whether they are the only possible reading of the Constitution in 1857, and it simply isn’t true that they were. You simply cannot use interpretive theory to produce determinate answers to questions that the framers avoided asking to facilitate a political compromise.