The Harm the Court Does

[Mark Graber]

Jacksonians did not believe that free blacks were citizens in the same sense that contemporary Republicans do not believe the constitution protects abortion rights.  Prominent exceptions exist, but there was a clear dominant tendency.  McLean can be described as a Jacksonian only in 1828.  He was an anti-Mason, Whig and Republican afterward.  Van Buren is more complicated.  Be curious what he thought before he bolted in 1848 (does anyone know his opinions from 1828 to 1840--all I know is Peter Daniel thought they were in perfect agreement, but on what, I don;t know).  Chase may be a better example of a person with strong Jacksonian tendencies on economic issues, but a strong commitment to racial equality.

The interesting question is what would have been the status of Dred Scott had the South not seceeded (which also means the votes are there in winter 1861 to replace Daniel with Jeremiah Black).  Stephen Douglas when campaigning and afterwards kept reminding the South that Democrats still controlled the Congress and Supreme Court, so Lincoln could do no harm.  But note that Douglas thinks the court can maintain Dred Scott only with the cooperation of Congress, so we are not talking about a judicial solo.

As far as intentionalism, there are obviously intentionalist passages in Taney's opinion.  There are also aspirational passages (more in Daniel's opinion).  And one can find intentionalist and aspirational passages in the dissent.  The real winner here is Phil Bobbitt, who correctly points out that most judicial opinions rely on a variety of constitutional logics.

Mark A. Graber
mgraber at gvpt.umd.edu

P.S.  Buchanan in private correspondence consistently declared that he favored extending the Missouri Compromise line to the ocean.  He vigorously endorsed Dred Scott primarily because he was more interested in a resolution that accommodated the south and kep the Democratic party together than in any particular resolution.



>>> paul-finkelman at UTULSA.EDU 07/25/00 05:37PM >>>
This is more exaggeration here, and some it quite wrong.  John McLean, whose dissent in Dred Scott was I think more powerful than that of Curtis, is also a Jacksonian; so too was Martin Van Buren (AJ's V.P.) who had run as the free soil candidate in 1848.  Thus, I think one can argue that some Jacksonians were not in league with Taney, Andy J. himself, and James Buchanan on the issue of black rights.  Moreover, a substantial number of northern Whigs (Seward for example) and some northern democrats (Chase, Hannibal Hamlin)
took a very different view of things.  With the benefit of hindsight it might be possible to asert that Dred Scott cause little harm because if was dead law after 1866 or 1868, and probably by 1864.   The case of Grant v. Lee (Appomattox Court House, April 1865) surely overruled Dred Scott.

But, this is hindsight.  Dred Scott certainly cuased great harm for African-Americans (then and perhaps now) as a statement about law and the U.S.  I suppose for intentionalists it remains problematic because it is one of the strongest intentionalist opinions ever written, and really hangs on intentionalism.  It may even be correct intentionalist jurisprudence, if one accepts the idea of a proslavery Constitution.  But that is not the only way one might interpret the Constitution.  In th long run it would have had a very
grave and damaging effect on northern states law, and on free blacks throughout the nation.

Prof. Paul Finkelman
Visiting at Northwestern School of Law of Lewis & Clark College
July 5-August 3, 2000
10015 SW Terwilliger Blvd.
Portland, OR  97219
(503) 768-6863
(503) 768-6671 (fax)
finkelma at lclark.edu
After August 3, University of Tulsa (918) 631-3706



Mark Graber wrote:

> Leslie Goldstein writes:
> "Do you think this because you believe what the Supreme Court says about
> the meaning of the Constitution shapes no one's view of it?  I.e., that
> the court does not in fact function as the "republican schoolmaster"?  If
> the Court does shape attitudes, even a little , then surely it must have
> done some harm to tell all Americans that whites had no civic  obligation
> to respect any rights of blacks.  Would this not have discouraged
> prtection fo the life , liberty and property of free blacks, not to
> mention their voting rights where they had them.  How can such a thing not
> have been harmful?"
>
> My claim that Dred Scott caused absolutely no harm is, of course, law review exaggeration.  But Rogers Smith and others (myself included) have documented that that Jacksonians in all branches of state and local government had been claiming for 25 years that no person of color could be an American citizen.  Lincoln even refused to debate the matter with Douglas.  Its hard to find people who were persuaded in this case by the republican schoolmaster (and the republican schoolmaster thesis has not done well when tested).
>
> Mark A. Graber
> mgraber at gvpt.umd.edu

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