Dred Scott and the Problem of Constitutional Evil.

• Author: Kersch, Ken I.
• Position: Book review

DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL. By Mark A. Graber. (1) Cambridge: Cambridge University Press, 2006. Pp. xiii + 264. $40.00.

1. INTRODUCTION

   Mark Graber's Dred Scott and the Problem of Constitutional Evil will strike many as one of the more Mephistophelian sallies of constitutional thought published in quite some time. In its dense, tightly argued pages, Graber stumps for the infamous majority opinion of Chief Justice Roger Brooke Taney in Scott v. Sanford (1857), and assaults what (these days, at least) is an unwonted bete noire: the constitutional thought of Abraham Lincoln. Although this book is good history, drawing extensively on primary source research, Graber's interest in Dred Scott is instrumental and theoretical. He uses the case as a vehicle for questioning the legal academy's conventional wisdom concerning what constitutions are, what they do, how we (and judges) should interpret them. At the top of Graber's target list are constitutional theorists, be they liberal "perfectionists" or conservative originalists. As Graber sees it, while these two camps disagree over both method and results, they are united in their commitment to theorizing the single best way to interpret the constitutional text, and to fixing the right meaning of particular constitutional provisions.

   Ever the pugalist in fighting form, Graber attacks the perfectionists not at the weakest but at their strongest point. He alights upon the Dred Scott case, not for its intrinsic interest, but precisely because the rejection of the "best" possible interpretation of a constitutional provision here has the worst possible consequences: pure and unadulterated evil. (3) If the "best" interpretation is off-limits in countering human bondage, he asks implicitly, when would it ever be in limits?

   Perfectionist constitutional theorists like James Fleming, Christopher Eisgruber, and Ronald Dworkin (and, perhaps, constitutional theorists more generally) (p. 18), Graber complains, engage in "[o]bsessive searches for 'correct' answers to past and present contested questions of constitutional law [that] are politically futile, even when possible jurisprudentially" (p. 3). (4) His criticism of these theorists is that, mired as they are in philosophical abstractions, they misunderstand fundamentally the worldly politics of the genesis and nature of constitutional governments.

   "Powerful social groups," Graber, the social scientific empiricist, instructs:

   are unlikely to accept any constitutional arrangement, clear or ambiguous, that they believe undermines their vital interests and fundamental values. Constitutions settle political conflicts successfully in the short run by providing pre-existing answers to contested political questions. They successfully settle political conflicts in the long run by creating a constitutional politics that consistently resolves contested questions of constitutional law in ways that most crucial political actors find acceptable (p. 3). Such territory is, thus, by its very nature, inhospitable to perfectionism.

   There is much to this critique. But one of the most interesting consequences of taking this empirical, social scientific critique to its logical conclusion is that (in Graber's hands, at least), this New York Yankee arrives at the most vigorous defense of Calhounian and Confederate constitutional thought published in nearly half a century. As such, a book that started out canvassing the limitations and blindspots of contemporary constitutional theory ends up unwittingly shedding considerable light on the limitations and blindspots of contemporary empirical political science. Potentially then--and in ways that the author doesn't always grapple with--this is a very deep book.

2. GRABER AS POLITICAL SCIENTIST

   Readers of Dred Scott and the Problem of Constitutional Evil should not be fooled by the absence of graphs, charts, and statistical regressions: Graber may be a law professor and lawyer, but here he preens his bona tides as a card-carrying political scientist. The presuppositions of the book--and the base from which Graber sets out to attack the conventional wisdom of the legal academy, including constitutional theory's various interpretative schools--are in (value free) social science. The argument Graber advances in Dred Scott and the Problem of Constitutional Evil depends upon a resolutely social scientific understanding of a Constitution as a bargain struck amongst self-seeking groups and individuals with diverse assumptions, goals, and interests. Each comes to that bargain, and signs on to it, with the understanding and expectation that over the long term, those goals and interests will be advanced through a life lived within the framework of that agreement. (5)

   Such an approach, of course, is not premised on the notion that people are without values and moral convictions. Rather, in the distinctively modern spirit that underwrites contemporary social science, it brackets them. It takes the existence of diverse, divergent, and often deeply felt convictions about issues that matter to people a great deal as givens. More than that, it takes their existence as rendering political society necessitous in the first place. Only by entering into such an arrangement can such potentially warring individuals live together in peace. As such, to the modern sensibility, the bracketing of moral questions--including, as here, matters of good and evil--is not shallowness or evasion: it is the point.

   The spirit of two social science moderns, the seminal Thomas Hobbes, and the contemporary Arend Lijphart, loom over this book, though the first is not mentioned, and the latter only in passing (pp. 188-91). Hobbes was the first to argue rigorously and systematically that the primary purpose of founding a state--the Leviathan--was to exit a state of war and enter a condition of peace. (6) It is perhaps less appreciated that, in fashioning this argument concerning the origins and purpose of government, Hobbes became the progenitor of modern political science. For ancient political thinkers, like Plato and Aristotle, the study of politics began with (inherently philosophical) questions of the nature of justice, virtue, and the good. Hobbes, instead, was animated by a single empirical, "value free" question: he wanted to know, given actual, real-world conditions, what worked. (7)

   The contemporary political science comparativist, Arend Lijphart, is a Hobbesian in the sense that all empirically-oriented political scientists are Hobbesians: he brackets questions of justice, virtue, and the nature of the good, and asks what works. Lijphart is a student of constitutional arrangements, with a particular interest in what sort of constitutional arrangements "work" successfully in divided or "plural" societies where there is pronounced "segmental" disagreement, whatever its source, be it divergent pecuniary interests, or deep moral antagonisms. As for Hobbes, the desideratum for Lijphart is peace: successful constitutional arrangements in plural societies are evident when the polity remains politically stable, unified, and functional.

   Graber's litmus test for the U.S. Constitution is Lijphart's litmus test for the world's many constitutions. Graber's analysis is premised on his understanding of antebellum American political society as what Lijphart called a plural society. His understanding of the American Founding conceives of it as what Lijphart called a "consociational" bargain. What many will take as Graber's provocative sympathy for the constitutional arguments advanced by Roger Taney, Stephen Douglas, and the Constitutional Union Party's 1860 presidential candidate John Bell, is premised on Lijphart's contention that plural polities stay together by bracketing deep moral disagreement, and by agreeing (as the American Founders did) to give significant minority interests the power to veto initiatives that effect their vital interests--all features of consociationalism.

   In Graber's hands, then, the story of the Dred Scott case thus becomes a story about how, as conditions changed--the invention of the cotton gin, the rise of abolitionism, and westward expansion--majoritarian understandings of the nature of the original constitutional bargain began to overpower the original consociational constitutional understandings, and a majoritarian political order threatened to eclipse a consociational one. In a consociational constitutional order, when a segmental interest (like the South) begins to lose--or perceives it is losing--its veto power over matters trenching upon its vital interests, it is pointless to blame it for either the substance of its interests (inquiries into that are bracketed; if they consider it important, constitutionally speaking, it is), or for its decision to exit the political order altogether (which, so far as consociationalism is concerned, is a "right" in the value-free sense that it can be done). The measure of the success of the consociational order is whether it fell apart or not. This one did: therefore, what the Union side did must have violated the (consociational) spirit of the original Constitution. Lincoln's constitutional understandings took insufficient cognizance of the consociational nature of the original constitutional bargain, something that Douglas and Bell understood better than Lincoln did. It is this that wins them Graber's high praise, and merits the devaluation of Lincoln as a constitutional thinker.

3. THE CONSOCIATIONAL CONSTITUTIONAL VISION

   With a few exceptions, scholars of domestic American constitutionalism have not considered our constitutional arrangements from the perspective of comparative political scientists who study the failures and successes of constitutions around the world. (8) And the possibility that our original constitutional understandings might best be understood as consociational has figured hardly at all. A brief introduction to...