The Slavery Analogy
MGRABER at gvpt.umd.edu
Tue Jun 20 12:03:58 PDT 2006
I confess to thinking about 99.46% of slavery analogies are unhelpful.
Consider two related problems with saying the Roberts Court will do for
X what the Taney Court did for slavery.
1. How is slavery particularly helpful. How is the claim "the Roberts
Court will do for X what the Taney Court did for slavery" different that
the Roberts Court will do for X for the Burger Court did for commercial
speech, what the Warren Court did for persons of color, what the Fuller
Court did for American expansionism, etc.
2. How much did the Taney Court really do for slavery. They sustained
the Fugitive Slave Act and declared that Congress could not ban slavery
in American territories. In theory, big decisions. But notice a) that
while application of the fugitive slave act caused great public
excitement, for reasons of expense and resistance, the vast majority of
slaves who made it to free states were not going back to slavery and b)
very few slaveowners in 1857 had any desire to move to northern
territories where slavery had been banned. I have no doubt that Paul
Finkelman will point out the numerous ways in which this paragraph
understates the impact of Prigg and Dred Scott. And, and this is very
important, I have no doubt that he will be right (though I reserve some
disagreement). The point on which we might agree is precisely how much
the Taney Court really did for slavery is subject to some debate.
More information about the Conlawprof