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The Daily Howler (textbook edition

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Against my better judgment, I used Kernell and Jacobsohn’s The Logic of American Politics for my course on American political history. I wasn’t crazy about it in my perusal, but it’s recommended by scholars I respect who teach a similar type of course, so I thought I’d try it. My intention to try something else next semester has been turned into a certainty by this paragraph about the Dred Scott case:

With every justice writing a separate opinion, a narrow 5-4 majority of the Court concurred that the federal government could not prevent slavery in the territories. The Herculean effort to legislate mutually acceptable policy over the previous half-century was undone in a single decision by nine unelected justices.

You may be able to spot the two egregious howlers yourself:

  • Dred Scott was, of course, 7-2, not 5-4.
  • In terms of national political compromises, Dred Scott undid nothing. The Missouri Compromise was already dead by 1857. While the Court reached to retroactively rule it unconstitutional, the argument that it upset an ongoing compromise is just absurd. The Court intervened precisely because Congress was paralyzed.

It is remarkable that a very popular textbook–in its second edition!–could make such an transparent error about such a famous case. But the talk about “nine unelected justices” represents a more fundamental bit of historical revisionism that is widespread even among people who know that there were only two dissenters. The idea that the Supreme Court, in and of itself, upset a viable political compromise and instigated the civil war is just arrant nonsense. The breakup of the existing order was all but inevitable by 1857, and repeated attempts to reach a legislative compromise had failed. Now, to the extent that this blame shifting is unfair to the Taney Court, it’s difficult to care; obviously, Dred Scott was a grossly immoral decision, and Taney deserved whatever criticism he gets. The more important effect is that blaming the Court acts as apologism for the compromises with evil and the stubborn persistence of white supremacy in American constitutionalism and American political culture. The worst part of Dred Scott–its claim that blacks had “no rights which a white man was bound to respect,” was also the least controversial at the time, and would almost certainly have been supported by a majority of northerners. White supremacy was not imposed on the rest of the country by the court; it was the majority position, even in states that opposed slavery. There’s nothing Taney said in Dred Scott that he didn’t believe when he was Jackson’s attorney general. While the decision was appalling, it also happens to be an accurate distillation of Jacksonian ideology. To claim that it was the Supreme Court that imposed this on an unwilling legislature and upset an ongoing compromise is just revisionism that sweeps unpleasant truths under the rug. Supreme Court justices, after all, are appointed by Presidents and approved by Senators. If an argument hinges on Supreme Court law being alien to the overriding political culture, it is overwhelmingly likely to be wrong. And certainly is in this case.

 

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