Dred Scott and the Problem of Constitutional Evil

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Cambridge University Press, 2006 M07 3 - 264 pages
Dred Scott and the Problem of Constitutional Evil , first published in 2006, concerns what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of the good society. In order to form a 'more perfect union' with slaveholders, late-eighteenth-century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.

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Mark Graber begins his book with the observation that legal scholars almost universally proclaim that the Dred Scott decision was wrong. To the contrary, Graber argues that "the result in Dred Scott v ... Read full review

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Contents

Introduction
1
The Problem of Constitutional Evil
8
Slavery as a Constitutional Evil
12
THE LESSONS OF DRED SCOTT
15
The Dred Scott Decision
18
Critiques of Dred Scott
20
The Institutional Critique
23
The Historical Critique
24
18201860
126
The Constitution and the Civil War
167
Law and Politics
168
COMPROMISING WITH EVIL
173
Mojoritarianism and Constitutional Evil
179
Problems with Democratic Majoritarianism
186
Contract Consent and Constitutional Evil
198
Lincoln on Constitutional Contracts and Constitutional Evil
200

The Aspirational Critique
26
Critiquing the Critiques
28
The Institutional Critique
30
The Historical Critique
46
The Aspirational Critique
76
Injustice and Constitutional Law
83
From Constitutional Law to Constitutional Politics
85
THE CONSTITUTIONAL POLITICS OF SLAVERY
91
The Slavery Comprises Revisited
93
The Original Constitutional Politics of Slavery
96
Accommodating Evil in 1787
106
Cracks in the Constitutional Consensus
109
Toward the Future
114
The Compromises and Constitutional Development
115
The Contractual Conception of Constitutional Evil
205
The Constitution as a Contract
207
Cracks in the Constitutional Contract
210
Frustration of Constitution
217
Constitutional Relationships and Constitutional Evil
219
The Constitution as a Relational Contract
220
The Constitutional Case for Abandoning the Constitution of 1787
226
Voting for John Bell
237
Lincoln versus Bell
241
The Constitution of Todays Lincoln Voters
243
The Constitution of Todays Bell Voters
247
Constitutional Justice or Constitutional Peace
252
Index
255
Copyright

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Popular passages

Page 82 - ... so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.
Page 204 - It was with the deepest regret that the Executive found the duty of employing the war power. In defense of the Government forced upon him, he could but perform this duty or surrender the existence of the Government. No compromise by public servants could in this case be a cure, not that compromises are not often proper, but that no popular government can long survive a marked precedent, that those who carry an election can only save the Government from immediate destruction by giving up the main...
Page 244 - By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community.
Page 233 - If there be any among us who would wish to dissolve this union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.
Page 181 - At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Page 47 - ... speaks not only in the same words but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this Court and make it the mere reflex of the popular opinion or passion of the day.
Page 98 - The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
Page 224 - Providence has been pleased to give this one connected country to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs...

About the author (2006)

Mark A. Graber is a Professor of Government at the University of Maryland College Park and a Professor of Law at the University of Maryland School of Law. He previously taught law and political science at the University of Texas. He is the author of Transforming Free Speech (1991), Rethinking Abortion (1996), and numerous articles on American constitutional development, law and politics. His many awards include the Edward Corwin Prize (best dissertation), the Hughes Goessart Prize (best article in the Journal of the History of the Supreme Court), and the Congressional Quarterly Prize (best published article on public law). He is a member of the American Political Science Association and the American Association of Law Schools. During the 20056 academic year, he was head of the Law and Courts section of the American Political Science Association.

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