Dred Scott and the Problem of Constitutional EvilCambridge 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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Contents
1 | |
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 |
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Common terms and phrases
16th Cong 1st Sess 28th Cong 2nd Sess 31st Cong Abraham Lincoln American American Law Institute Annals of Congress antebellum asserted ban slavery bisectionalism Carolina citizens citizenship claim clause coalition Collected Compromise of 1850 Congressional Globe consensus consensus democracy consent consti constitutional commitment constitutional controversies constitutional evil constitutional order constitutional relationships constitutionally contract Cooper Curtis debates decision declared Democracy dissenting Documentary History Dred Scott Eisgruber elected electoral emancipation Farrand Federalist Papers Fehrenbacher framers free blacks free-state Freehling human bondage institutions interpreted Jacksonian James Madison Jefferson John judicial justice Law Review Liberty and Slavery Lincoln maintained majoritarian McLean Missouri Compromise national government North original constitutional persons of color political problem of constitutional proslavery ratification Republican sectional Senate slave-state slavery South South Carolina Southern Stephen Douglas stitutional Supreme Court Taney Court Taney's territories theory tion tional tutional Union United University Press veto Virginia vote Whigs York
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...
References to this book
Profiles in Folly: History's Worst Decisions and why They Went Wrong Alan Axelrod Limited preview - 2008 |