The Slavery Analogy
curtism at bellsouth.net
Wed Jun 21 06:02:30 PDT 2006
I think Mark's point needs qualification. Lots of slaveowners and their
allies did want to go to Kansas and did and a civil war erupted in the
state. The Taney Court made it clear that that right was constitutional,
not just statutory, and as long as an area remain a territory, irreversible.
I don't think there was any inherent reason that slavery would not be
suitable for Oregon or other places. Furthermore as James Wilson shows in
his book on the American Empire there was a strong desire in the some
strongly pro slavery South, to expand the empire of slavery anywhere--south,
to Cuba, Mexico, South America. Of course, if Congress could ban slavery in
territories, then acquiring Cuba, etc. would not do the trick. One of the
most important services performed by Dred Scott was to make the central
plank of the Republican Party platform--no slavery in any of the
territories--unconstitutional and something that could not be implemented
without a change in the Court.
This was quite significant I think, though mooted by the Civil War.
Of course, the Roberts' Court will be activist in the sense of making a
number of questions constitutional questions on which the Court will have
the final word. The direction of the activism will be different from that
of the Warren Court. It will uphold government power in a number of areas
where the Warren Court would not--the no knock case is one example. While
the Warren Court insisted that protecting a broad, participatory view of
democracy was a core constittuional value, the current court, even before
the Roberts court, seems less supportive of that model. An example is
holding that political gerrymanders that eliminate contested elections is
not a matter of concern for the court. Of course, Baker left the
gerrymander route possible. While the Warren court was strongly deferential
to congress--especially in economic matters, the current court is not and is
likely to become less so.
I know the claim--the current activists are following the one true method of
constitutional interpretation--good activism in contrast to the bad
activism of the Warren Court. But I have difficulty finding any strict
constuction or history as the only guide method that explains all the
results. As a descriptive matter, the Levinson-Balkin thesis on
constitutional revolutions seems (alas) fairly accurate. I wonder if the
equal protection voting cases (Vieth et al as well as Bush v. Gore) support
their claim that partisan entrenchment is getting lots of judicial
assistance. As a very preliminary matter, I find it a bit hard to square
the most recent Georgia case with Vieth--but those who wanted to attack the
political gerrymander were joined by some of the Vieth pluarlity to produce
the Georgia result.
----- Original Message -----
From: "Mark Graber" <MGRABER at gvpt.umd.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Tuesday, June 20, 2006 3:03 PM
Subject: The Slavery Analogy
>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.
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