Trump and Republicans' revolutionary (?) means

A report about vandalizing a statue fits in well with an issue I've been thinking about, which is how Trump and the Republicans are willing to use "revolutionary" means to achieve their ends, while the Democratic Party tends to be phobic about the word "revolution," except when they are pushing for regime change in a foreign country whose government has fallen out of favor with them.

This is the vandalism I mean: Katy Bergen, Historic John Brown statue in KCK vandalized with racial slurs and a swastika Kansas City Star 03/18/2018; updated 03/18/2018. More on this below.

I'm more reserved than ever about easy generalizations on typical ways democracy in other countries is eroded. That's because so much of it is proposed in service of some regime-change agenda. And the international reporting in the mainstream US media is often so spotty or just plain bad, I try to be careful about jumping to conclusions.

Having said that, it's generally understood that some kind of independence of the judiciary and law-enforcement agencies is necessary for the rule of law to function. And at some point, attempts to influence the justice system for political reasons does become an overriding of the rule of law.

You can tell this isn't a straight polemic, because I'm putting so many qualifications out there. But the lines can be confusing. I have serious doubts about lifetime appointment of federal judges, for instance. But electing judges is also a bad idea because that inevitably politicizes the justice system to so extent. But every system of selecting judges depends for its effectiveness on the participants taking their responsibilities seriously. The Dred Scott decision was clearly a political decision with massive consequences. It was an instance where the judicial system tossed its responsibilities and the rule of law overboard for a political cause: slavery, a cause of the worst kind.

Another famous situation where these issues were raised was Franklin Roosevelt's fight against the Nine Old Men of the 1930s Supreme Court. (William Leuchtenburg, When Franklin Roosevelt Clashed with the Supreme Court – and Lost Smithsonian Magazine May 2005) A reactionary Supreme Court was knocking down law after law passed by Congress that were aimed at improving economic conditions after the devastating Great Depression. Leuchtenburg gives a measured judgment on the practical lessons that historians and politicians have drawn from that fight:

The 168-day contest also has bequeathed some salutary lessons. It instructs presidents to think twice before tampering with the Supreme Court. FDR’s scheme, said the Senate Judiciary Committee, was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And it never has been. At the same time, it teaches the justices that if they unreasonably impede the functioning of the democratic branches, they may precipitate a crisis with unpredictable consequences. In his dissent in the AAA case in 1936, Justice Stone reminded his brethren, “Courts are not the only agency of government that must be assumed to have capacity to govern.” These are lessons— for the president and for the court — as salient today as they were in 1937.

The conventional wisdom is that FDR overstepped and tried to improperly interfere with the Court by his proposal to appoint additional Justices, remembered mainly by the pejorative label of Roosevelt's "court-packing scheme." But the CW also holds that FDR's public fight against the Court jolted them into a (genuinely) more judicially reasonable position on New Deal legislation.

Roosevelt's proposals in that situation were a very different thing from what's going on now in Pennsylvania, where the Radical Republicans are trying to impeach the state supreme court justices who struck down an extreme, partisan gerrymandering scheme the Republicans put in place. (Sam Levine, Pennsylvania GOP Moves To Impeach Supreme Court Democrats For Gerrymandering Ruling Huffpost 03/20/2018)

The Republicans are willing to use impeachment for the most crass partisan purposes. But the Democrats never bothered to even hold Congressional hearings on strong indications of what looked an awful lot like improprieties by Supreme Court Justices Clalrence Thomas and Antonin Scalia. The symbolism of this is sadly ironic: "When Justice Scalia died two weeks ago, he was staying, again for free, at a West Texas hunting lodge owned by a businessman whose company had recently had a matter before the Supreme Court." (Eric Lipton, Scalia Took Dozens of Trips Funded by Private Sponsors New York Times 02/26/2016) See also: Ujala Sehgal, A Brief History of Clarence Thomas' Ethical Entanglements The Atlantic 06/19/2011.

Currently, we have a Republican Party that is committed to appointing highly activist judges and is willing to toss normal procedural and normative practices out the window in order to get rightwing ideologues entrenched throughout the federal judiciary. (See Garland, Merrick) In 2016, the Republicans in Congress effectively nullified the Constitutional procedure for selecting Supreme Court Justices. But when Trump nominated Neil Gorsuch to the Court, there was no resistance on the Democratic side remotely comparable. The net result is that the Republicans have dominance of the selection of federal judges entirely out of proportion to the number of American voters who support their party.

As bad as that is, I wouldn't call that a "revolutionary" method. Trump's blatant threatening and bullying of the FBI and the Justice Department over the Mueller investigation is. From his public statements and the firings of James Comey and Andrew McCabe, Trump has made it very clear that he wants the Justice Department to act on his behalf in much the same way his political mentor and longtime attorney, mob lawyer Roy Cohn, did for years (Ron Elving, President Trump Called For Roy Cohn, But Roy Cohn Was Gone NPR 01/08/2018):

This much is clear: Cohn was Trump's model in the handling of public relationships and media warfare.

Cohn's code was built on self-interest and loyalty; his style was all about intensity. If he was your lawyer, he was prepared to do anything for you; if he was your adversary, no holds were barred.

The title of the NPR article refers to a Trump quote reported by Michael Schmidt in the New York Times, “Where’s my Roy Cohn?” (Obstruction Inquiry Shows Trump’s Struggle to Keep Grip on Russia Investigation 01/04/2018)

As Schmidt reminds us, Cohn "had been Senator Joseph R. McCarthy’s top aide during the investigations into communist activity in the 1950s and died in 1986." So Joe McCarthy's authoritarian heritage that was willing to ignore democratic and Constitutional rights and norms has now come to the White House is a potent form via Roy Cohn's political protege Donald Trump. (For more on Cohn, see also: Jonathan Mahler and Matt Flegenheimer, What Donald Trump Learned From Joseph McCarthy’s Right-Hand Man New York Times 06/20/2016; Marie Brenner, How Donald Trum and roy Cohn's Ruthless Symbiosis Changed America Vanity Fair Aug 2017; Robert O'Harrow Jr. and Shawn Boburg; The man who showed Donald Trump how to exploit power and instill fear Washington Post 06/17/2016)

Seve Bannon has rotated out of Trumpian favor for the moment. But his declaration that his goal in February 2017 when he was still a White House strategist that his goal is the "deconstruction of the administrative state" echoes the advocates of the Conservative Revolution in the 1920s, from which he draws some of his ideas and perspective. Francis Wilkerson reported last year (Bannon's Requiem for the Administrative State Business Insider 03/27/2017):

It's unclear so far what Bannon's phrase "administrative state" means, or what "deconstructing" it would entail. Deregulation is surely a key element of it. But Obamacare seems about as clear an example of the administrative state as you can get. It's a vast and highly complex regulatory regime that administers intrusive and often restrictive rules while transferring payments and benefits from some Americans to others via federal and state governments.

In effect, Obamacare is the leading edge of what National Review writer David French called a "vast and bloated executive branch -- existing through its alphabet soup of agencies such as the EPA, IRS, DOE, ATF, and the like."

The "administrative state," in other words, is all the structures and functions of government that conservatives dislike, an alien force that, as French said, "intrudes into virtually every aspect of American life." [my emphasis]

This certainly is a goal that has a "revolutionary" edge to it, though in the sense of "conservative revolution," i.e, overthrowing the existing legal order by extralegal means to establish an authoritarian order.

There is a rich and contentious history of debate and polemics over what how revolution should be defined which I'm not addressing here. But the Republicans have invoked revolutionary rhetoric for decades. The Reagan Administration and its policies were referred to by Republicans as the Reagan Revolution, a term the mainstream press didn't find alarmingly inappropriate. The official White House website still contains this: "At the end of his two terms in office, Ronald Reagan viewed with satisfaction the achievements of his innovative program known as the Reagan Revolution, which aimed to reinvigorate the American people and reduce their reliance upon Government." (my emphsis) 40: Ronald Reagan (n/d; accessed 03/20/2018; sourced to “The Presidents of the United States of America,” by Frank Freidel and Hugh Sidey; 2006)

Later there was the "Gingrich Revolution" of 1994, also called the "Republican Revolution," in which the Republicans under Newt Gingrich's leadership won control of the House of Representative. (Andrea Stone, Republican Revolution fades USA Today 01/19/2003; updated 01/22/2003) Steven Gillon in 2016 characterized the Gingrich Revolution by its highly abrasive, transgressive style of politics that failed " to appreciate the distinction between means and ends." (The Gingrich Revolution and the Roots of Republican Dysfunction Huffpost 10/12/2016) He writes:

The person most responsible for injecting [the current] virulent strain of partisanship into the Republican party was another dethroned House Speaker — Newt Gingrich. The firebrand conservative leaders today are Gingrich’s children. Gingrich rose to power in the 1980s as the pied piper of a new assertive conservatism that merged the moralistic rhetoric of the New Right, and the mystical conservative faith in tax cuts, into a powerful ideological message. It was Gingrich who manufactured the hyper-partisanship that defines modern politics.

And when Republican donors like the Koch Brothers decided in 2009 they needed an Astroturf movement to publicly protest Obama, it quickly became branded as the Tea Party, i.e., a familiar patriotic symbol of the American Revoluiton.

The there was the Neoconservative Revolution, which was heavily influenced by Trotskyism, which became the defining outlook of the Cheney-Bush Administration's foreign policy, including the Iraq War. John Judis wrote about this aspect of the neocons' outlook in the very Establishment journal Foreign Policy in 1995 ("Trotskyism to Anachronism - The Neoconservative Revolution" July/Aug 1995). Noting that the hawkish foreign policy adviser Paul Nitze, who drafted the famous 1950 NSC-68 memorandum during the Truman Administration, was a major influence on the neocons, he also writes:

The other important influence on neoconservatives was the legacy of Trotksyism - a point that other historians and journalists have made about neoconservatism .... Many of the founders of neoconservatism, including The Public Interest founder Irving Kristol and coeditor Nathan Glazer, Sidney Hook, and Albert Wohistetter, were either members of or close to the Trotskyist left in the late 193os and early 194os. Younger neoconservatives, including Penn Kemble, Joshua Muravchik, and Carl Gershman, came through the Socialist Party at a time when former Trotskyist Max Schachtman was still a commanding figure.

What both the older and younger neoconservatives absorbed from their socialist past was an idealistic concept of internationalism. Trotskyists believed that Stalin, in trying to build socialism in one country rather than through world revolution, had created a degenerate workers' state instead of a genuine dictatorship of the proletariat. In the framework of international communism, the Trotskyists were rabid internationalists rather than realists and nationalists. ...

The neoconservatives who went through the Trotskyist and socialist movements came to see foreign policy as a
crusade, the goal of which was first global socialism, then social democracy, and finally democratic capitalism. They never saw foreign policy in terms of national interest or balance of power. Neoconservatism was a kind of inverted Trotskyism, which sought to "export democracy," in Muravchik's words, in the same way that Trotsky originally envisaged exporting socialism. It saw its adversaries on the left as members or representatives of a public sector-based new class. [my emphasis]

The distinction between conventional war and revolutionary war was a familiar one in the 19th century. Conventional war involved fighting to defeat an enemy army, possibly taking over the opposing country or part of it, without seeking to change the basic structure of social relationships in the enemy country. Revolutionary war includes the latter. A model case would be the wars immediately after the French Revolution and then the Napoleonic Wars, in which not just conquest but the implanting of republican governments and the dislocation of feudal social relationships were a part of the goal and practice. When Abraham Lincoln issued the Emancipation Proclamation during the Civil War, that was understood as a shift from conventional war, aimed at removing the rebel governments, to revolutionary war, that intended to undo the slave system that was the foundation of the Southern plantation economy.

The main official justification for the Iraq War was Saddam Hussein's nonexistent "weapons of mass destruction." And Dick Cheney didn't give a flying flip about democracy or freedom or basic human rights in Iraq. But that Administration's policy in the Middle East was also justified as installing democratic governments on the inverted-Trotskyist model.

So the Republican Party has been comfortable with the rhetoric of "revolution," though overthrowing corporate capitalism is certainly no part of their agenda. And the highly partisan approach of Trump and his party toward justice right now is a (conservative) "revolutionary" approach to policy. Joe Conason describes the recent majority report of the House Intelligence Committee on Russiagate as a "surrender of Congressional authority to the White House" of a kind which bears "a sad resemblance to the behavior of bogus legislatures under authoritarian regimes."

The Democrats on the other hand, have become allergic to the whole idea of "revolution," unless it comes in the form of a "color revolution" against a government friendly to Russia or hostile to the United States (and to Israel, in the Middle East.) We see it in the way the Democrats shrink from any favorable invocation of the party's two main founders, Thomas Jefferson and Andrew Jackson. Both of whom fought in the American Revolution and both of whom were key leaders in establishing and expanding democracy. So they leave behind any patriotic imagery or symbols associated with the American Revolution and shrug when the Republicans appropriate the symbolism of the Tea Party or Andrew Jackson.

Yes, in real history there are elements in every period of American history that deserve critical summary, not the least of them slavery and Indian policy. But it's one more element of partisan imbalance when the Democrats are unwilling to claim any of the patriotic heritage of the country prior to 1860 while the Republicans effectively appropriate all of it they want to for their own purposes. The Democrats don't even contest it, for the most part, which is one of the ways they allow the Republicans to define themselves as the party of Real Americans.

In the 2016 Presidential contest, Bernie Sanders straightforwardly talked about his program as a revolution. Which he defined clearly as getting more people to participate in the political process including voting, reducing the massive corporate corruption in American politics which is plain to everyone,establishing a solid social-democratic infrastructure including single-payer healthcare, and a more peace-oriented foreign policy with a smaller military budget. Whether that qualifies as dramatic a change as kicking Britain out of the US in the American Revolution or overthrowing the Slave Power in the Civil War is open to discussion. But it certainly is more deserving of that name than the Reagan Revolution or the Gingrich Revolution.

But the Clinton campaign tried to use the "revolution" label against Sanders. Politics is politics, so of course they were going to do that. So we heard campaign-promoted comments like: revolutions get people killed; we don't want to have a revolution, we want to elect a President; Sanders talking about "revolution" and "socialism" makes Hillary the Electable One for the general election.

This kind of fearful/contemptuous attitude toward the left has been a chronic problem for Democrats since 1972. The 2016 Hillary campaign version of it just reinforced the conservative tone in which the Democrats all too often frame themselves.

It doesn't have to be that way. It wasn't that long ago that Democrats could speak with approval of the Roosevelt Revolution that brought the New Deal. The Dems still will speak sometimes of the "civil rights revolution," though it's typically framed as a series of events in the 1950s and 1960s rather than anything ongoing. And even as non-revolutionary a Democrat as Lyndon Johnson could invoke the song that for the civil rights movement was a hymn invoking militancy and radical change: "And we shall overcome."

And even now, the Democrats as a group are trapped by a toxic centrism with a conservative cast that recently led them to oppose Trump's militant populist rhetoric, which included actual incitements to violence at his rallies, with a bland slogan like Stronger Together. Which goes well with the obsession with Bipartisanship that the Democrats can seem to shake off.

Which brings us to John Brown's statue. If there was any white man in the United States prior to the Civil War who was devoted to democracy, despised slavery and actively tried to end it, considered blacks equal to white and women equal to men - in other words, characteristics that liberals now condemn pretty much every citizen of the US prior to 1860 - it was John Brown.

But will Democratic Party liberals be jumping up and down in outrage over seeing his statue defaced? This is the Democratic Party we're talking about, so the answer is: not many. The reason is illustrated by the opening paragraph of an article on Brown from 2005 by historian Sean Wilentz, who wrote a good short biography of Andrew Jackson that takes a nuanced view of him without falling into anachronisms ("Homegrown Terrorist" New Republic The New Republic 10/24/2005):

John Brown was a violent charismatic anti-slavery terrorist and traitor, capable of cruelty to his family as well as to his foes. Every one of his murderous ventures failed to achieve its larger goals. His most famous exploit, the attack on Harpers Ferry in October 1859, actually backfired. That backfiring, and not Brown’s assault or his later apotheosis by certain abolitionists and Transcendentalists, contributed something, ironically, to the hastening of southern secession and the Civil War. In a topsy-turvy way, Brown may have advanced the anti-slavery cause. Otherwise, he actually damaged the mainstream campaign against slavery, which by the late 1850s was a serious mass political movement contending for national power, and not, as Brown and some of his radical friends saw it, a fraud even more dangerous to the cause of liberty than the slaveholders.

While it's a serious point, Wilentz' argument here bears an uncomfortable resemblance to the notorious "moderate" argument during the 1960s: if blacks actively protest against segregation, it will make whites more resistant and damage their own cause.

John Brown fought in the guerrilla war between the pro- and anti-slavery forces in Kansas Territory. And the operation during which he was captured at Harper's Ferry was one he designed to set up resistance bases in the Appalachian Mountains to encourage and facilitate the flight of slaves from their masters' plantations. But America's center-left party, the Democrats, don't really want to invoke that heritage, either. It might get in the way of Bipartisan cooperation.

I'm not suggesting that the Democratic Party set up guerrilla bases in the mountains. In fact, I can't really envision such a thing in my imagination.

But the Democrats mostly let the Republican have John Brown, too! Antiabortionists invoke John Brown to justify extralegal violence against abortion providers. The racism and anti-woman attitudes so common in that movement would be completely repugnant to Brown.

And the Democrats should be able to recognize that in the face of a Republican Party in power employing revolutionary means to wreck liberal democratic institutions, something more militant than Stronger Together bipartisan bromides is needed. As long as they are allergic to even talking about "revolution" in the sense of getting more people out to vote, they will have a hard time getting there. And unless they can do more than "bipartisan" surrender to Trump and the Republicans on issue after issue, it will be hard to convince voters than the Resistance talk is serious on their part.

On the other hand, for the Democrats to try to imitate the loose talk from the right about "Second Amendment solutions" sounds kind of bizarre. (Ed Kilgore, Democratic Congressman Hints at Armed Rebellion Against Trump New York 03/19/2018) A party that can't organize its Congressional representation to block an ill-conceived bank deregulation law isn't going to be organizing its own popular militia.

The problem for the Democrats is that so many of its leaders and office-holders are stuck in the we-aren't-lefties attitude that establishment Democrats in the 1968-72 period used, even Democrats who were born well after that time. This way too often leads them to frequently adopt conservative framing and conservative arguments for their more liberal/progressive positions. They really need to stop doing that, as George Lakoff has been urgently recommending for years now.

Also, despite their enthusiasm for "color revolutions" today, Democrats have often blundered and sometimes caused great harm in no small part due to their inability to take a practical, nuanced view of homegrown revolutions in other countries, from Woodrow Wilson and the Russian Revolution, to Lyndon Johnson and Vietnam, to Barack Obama and Hillary Clinton on Libya and, to some extent, Syria.

Confederate "Heritage" Union, April 30: Roger Taney and antislavery

Roger Taney (1777-1864) is infamous as the Supreme Court Justice who wrote the Dred Scott decision of 1857 that made the Civil War inevitable. (Taney's last name was pronounced like "Toney.")

Chief Justice Roger Taney (1777-1864)

Taney's decision not only allowed slaveowners to bring their human property into a free state and retain possession of it. He also declared that the Constitution adopted the following view of Americans of African descent, both slave and free:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and 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. .. This opinion was at that time fixed and universal in the civilized portion of the white race. [my emphasis]

As Timothy Heubner notes in the article cited below, "More significant in the context of the debate over the extension of slavery, Taney held that Congress had no power to prohibit slavery in federal territories, thus putting the Court squarely on the side of slaveholders."

Taney was a successful attorney who became active in Maryland politics, becoming state attorney general in 1827. He aligned himself with the Jacksonian Democrats. President Andrew Jackson brought him into his Cabinet in 1831 as national Attorney General, where Taney became a leading figure in Jackson's successful fight against the Bank of the United States, which the Jacksonians with good reasons regarded as a major facilitator of concentration of wealth. Jackson appointed him Secretary of the Treasury in 1834, but he became the first Presidential Cabinet nominee Congress from whom Congress withheld its approval. Conservatives like Daniel Webster considered him too radical a foe of the Money Power to take that post. But Jackson appointed him as Chief Justice of the Supreme Court and the Senate approved him; he began his long service as Chief Justice in 1836.

Timothy Huebner takes a look at a far less familiar aspect of Taney's career in "Roger B. Taney and the Slavery Issue: Looking beyond — and before — Dred Scott" The Journal of American History (June 2010).

Huebner explains that post-Civil War defenders of Justice Taney used statements from his antislavery period to argue that he had always been opposed to slavery. And that his infamous opinion in Dred Scott "represented a strictly legal decision that went against his own beliefs." Huebner shows in his article how "Taney's beliefs about slavery changed substantially over the decades [and] that he changed from a moderately antislavery lawyer into a zealous proslavery judge."

Taney's reputation as a critic of slavery rested especially on a 1819 case that Huebner describes this way:

While establishing his career as a lawyer and serving as a Federalist political leader, Taney had defended Rev. Jacob Gruber, who had been indicted for preaching a sermon that allegedly disturbed the peace and promoted rebellion. During that 1819 trial, Taney made impassioned statements against the peculiar institution that stand in stark contrast to those penned by the “angry southern gentleman” in the Dred Scott decision. In a speech to the jury, Taney described slavery as "a blot on our national character" and insisted that "every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away."

But this was not an isolated incident, an attorney merely making a zealous case for his client. Taney married Anne Phoebe Charlton Key, the sister of Francis Scott Key, in 1806 and they were active for years in "a circle of young, reform-minded Marylanders who sought to protect free blacks from kidnapping and alleviate the harshness of slavery." Huebner writes, "Although slave cases never constituted a significant portion of his practice and the fragmentary nature of the evidence reveals little about his motives, it is clear that Taney occasionally worked to secure for African Americans the limited benefits that Maryland law afforded them."

I've discussed the colonization movement and its contradictory nature in two posts this year. Huebner writes, "Taney also actively supported the colonization of African Americans, a cause that he viewed as a step toward emancipation." (my emphasis) He and Francis Scott Key organized a Maryland chapter of the American Colonization Society. Taney also took antislavery positions in his political career, including antislavery votes in his time as a Maryland state senator - a minority position within the state legislature. While his fondness for colonization wasn't inconsistent with hostility toward blacks and even support, his other positions on slavery in that period show that Taney's public view was antislavery.

But even as early as 1821, he also began arguing cases on behalf of slaveowners arguing against the freedom of their human property. And Huebner relates:

... as Maryland attorney general he defended a notorious slave trader before the U.S. Supreme Court in 1827. As U.S. attorney general under President Andrew Jackson, Taney provided glimpses of the stance he would take in the Dred Scott decision, particularly regarding the question of whether African Americans had been included in the political community at the writing of the Constitution. In 1832, he authored an official opinion on the constitutionality of a South Carolina statute that provided that black seamen who arrived in Charleston were subject to arrest and confinement while their ship remained in port. Written for the secretary of state, Taney’s opinion referred to African Americans as members of a "degraded class." Whatever limited rights African Americans possessed, Taney argued, came from the states, who legitimately conferred or withdrew those privileges based on “the sufferance of the white population." Maintaining white control over black liberties also helped prevent "the evils of insurrection and rebellion."

But Huebner also notes:

Notably, Taney continued his personal activities on behalf of African Americans at this time and retained a reputation as a friend to enslaved blacks seeking to buy their freedom. As late as 1839, the abolitionist James G. Birney relayed to one of his colleagues what had been told to him by a slave whom Taney had assisted in this manner: Taney "was considered by the colored people of Baltimore as one of their steadiest and surest friends—and that his temper toward them never failed to manifest itself on all proper occasions where money was to be raised for their assistance or improvement."

In the end, Huebner winds up explaining Taney's shift from a seemingly dedicated antislavery position in young adulthood to a hardline, reactionary defender of slavery in the later years of his life as a matter of intellectual history:

Roger Taney's odyssey from antislavery lawyer to proslavery justice mirrored larger currents in American political and constitutional development. Having come of age during the founding era, Taney possessed an early nineteenth-century brand of antislavery that began to evaporate during the 1830s. The rise of the immediatist abolitionist movement, with its emphasis on moral purity and revolutionary change, significantly altered the nature of the political debate over slavery. During the early nineteenth century, an amalgam of antislavery societies existed throughout the upper South and border states, and national political leaders vigorously and openly discussed ways to restrict the growth of the peculiar institution. Abolitionists' uncompromising rhetoric forced antislavery opinion from the mainstream to the margins, as more moderate antislavery advocates — particularly in slaveholding states — felt forced to defend themselves against charges of extremism. This development silenced some of slavery’s opponents and nudged others toward a more proslavery stance, thus circumscribing the national political debate on the subject.

But his description of the process doesn't clearly lead to such a conclusion.

Ronald Reagan like to pitch himself to Democratic voters by using some version of the line, "I didn't leave the Democratic Party, the Democratic Party left me." In fact, Reagan's political positions just became more conservative over his lifetime, not entirely coincidentally with his acquisition of wealth via his relationships with the owners and executives of the Hollywood film industry. But that line was a recognition that there were not only people who had voted for the Democratic Party out of habit whose views had changed along the lines of his own evolution. It also recognized that Southern segregationists to whom he and the Republican Party were actively courting had developed a long-standing affiliation to the Democratic Party, which in the Deep South was for decades a segregationist party.

Huebner's conclusion just quoted could be summarized as, Taney didn't leave the antislavery movement, the antislavery movement left him.

The Jacksonian Democratic Party of the 19th century underwent a major evolution on race- and slavery-related issues. One trend, the Jacksonian trend with which this blog identifies, developed the democratic and egalitarian side of the Jacksonian political heritage, including antislavery. The other side of the Democratic Party that was the favored party of slaveholders developed in the direction of John Calhoun, the Democratic nullifier and seditionist who Jackson himself regarded from the time of the Nullification Controversy to his death as a traitor to America and an enemy of democratic government. That latter trend, which emphasized the defense of slavery at all costs, was the one with which Taney came to identify.

And Huebner's explanation of Taney's choices in that process earlier in the article seems to describe it better than his actual conclusion:

At this time [1828], Taney embraced the party of Andrew Jackson, a slave-owning Tennessean who built a southern-dominated political party that focused on the rights of slaveholders and the prerogative of states. Over the next several years the Democratic party supported slavery and white supremacy in a variety of ways — from its Indian removal policy to its eventual stance in favor of the annexation of Texas. As an official of the Jackson administration, Taney ceased to think of slavery solely from the perspective of a small-town Maryland lawyer and instead began to reason and act as a representative of the president and his party. Nat Turner’s rebellion in 1831 gave Taney further cause to reconsider his views on slavery and black rights. The revolt prompted a nearly universal response of fear and dread on the part of white southerners, who became more mindful of the threat of uprising and increasingly vigilant about maintaining racial control.

In the process, Taney decided that defending slavery was more important to him than defending democracy. This is the opposite of what Jackson himself decided when confronted with the Nullification Crisis. He decided to defend American democracy and national unity against the South Carolina slaveholders, when his personal and class interest at the moment would have pressured him to pander to the pro-slavery position that was fundamental to South Carolina's defiance. Taney made a different series of choices. It worth noting here what Arthur Schlesinger, Jr. wrote in his 1945 classic, The Age of Jackson. Taney was Jackson's Attorney General at the time of the Nullification Controversy in 1832-3. Jackson's December, 1832 Proclamation to the People of South Carolina defended the supremacy of the federal governnment against South Carolina's and John Calhoun's "states rights" claims. It also defended the notion of American patriotism as allegiance to the country and to democracy. Schlesinger writes, "Many years later, after guns had boomed over Sumter, Taney declared that he had not seem the proclamation until it was in print and that he disapproved some of its principles." Yes, even before 1861 Taney had clearly come to disapprove of the principle in Jackson's Proclamation that American patriots could never put the defense of slavery above the Constitution and national unity.

Starting with the 1940s, Huebner writes, "No record of personal activities by Taney on behalf of slaves exists for this period, and the legal evidence indicates a purely proslavery position." In his Supreme Court decisions leading up to Dred Scott, "Taney went beyond his colleagues in compiling a solidly proslavery record. In each instance Taney preserved slaveholders' rights by ensuring that states maintained control of slavery." Huebner quotes from an 1857 letter Taney wrote to illustrate that by that time, the Chief Justice had embraced "full-blown extremism" on slavery and race. Taney wrote in that letter, "In the greater number of cases that have come under my observation, freedom has been a serious misfortune to the manumitted slave; and he has most commonly brought upon himself privations and sufferings which he would not have been called on to endure in a state of slavery." He had abandoned his belief that a person of African descent had any right to freedom at all.

That's why I find it surprising that, after citing all this evidence, Huebner concludes, "Taney’s changing views show that he was both a product and a proponent of this shifting discourse about slavery." That formulation is vague enough to be plausible by not saying much. The more straighforward interpretation would seem to be that Taney decided to start defending the interests of slaveowners and actively opposing the interests of slaves and even of democracy as it existed among American whites.

Note: I also discussed this article in two posts in the 2012 series for April 27 and April 28.

Tags: confederate heritage month 2013, dred scott decision, roger taney, slavery

Confederate "Heritage" Month, April 20: More on the Dred Scott decision

There have been a number of posts recently at Jack Balkin's Balkinization blog related to the Dred Scott decision. The posters there are law professors and they don't always explain the cases they mention for us lay people. But there is a lot of interesting informtion there. Here are some of the posts:

Andrew Jackson and the Constitution by Mark Graber 04/09/07:

The University of Kansas Press has just published Gerard Magliocca’s, Andrew Jackson and the Constitution, a wonderful study of the constitutional politics of Jacksonian America. ... Jackson was our first imperial president and fashioned precedents that still structure separation of powers struggles in the United States. Persons seeking to understand President Bush must understand Andrew Jackson, and this book is the place to start.

Any suggestion of kinship between Andrew Jackson's Presidency and Dear Leader Bush's regime make me want to retch. But we'll leave that aside for now, even though my keyboard may need to be cleaned now.

... Magliocca details how the antislavery turn to immediacy was inspired by the treatment of the Cherokees during the 1830s and that one central purpose of the 14th Amendment was to prevent a repeat of the Trail of Tears. He further explains how Marshall’s understanding of national sovereignty and the rights of tribal members were core commitments of the National Republic[an] regime and would become core commitments of the Reconstruction Republican regime as well. There may be a bit of a romance here, but John Bingham’s repeated references to both Worcester and the fate of the Cherokees during his 1860 speeches make clear that the revival of Worcester was (almost) as central to the Republican constitutional universe as the repudiation of Dred Scott. The latter, Magliocca points out, was (almost) as much an expression of Jacksonian constitutional commitments as an expression of proslavery constitutionalism.(my emphasis)

Taney as Imperialist (and Racist) by Mark Graber 03/26/07:

Jacksonians before the Civil War justified expansion by asserting the virtues an extended white republic. White persons who moved into the territories were fully protected by the Bill of Rights, in this view, partly because the whole point of expansion was to increase the land available for free white settlement and partly because Jacksonians had other doctrinal means for fencing out non-whites. Put differently, Taney's claim that the constitution follows the flag in Dred Scott was connected to American expansionism as well as American racism and American slavery, but American expansionism was closely connected to American racism and slavery. Putting African-Americans aside, Taney and others had few qualms about the number of native-Americans killed to expand the scope of white liberty.

Should The Civil Rights Cases be cited? And can Roger Taney get an honest hearing from Justice Breyer? by Sandy Levinson 03/26/07

Apologizing for Slavery by Mark Graber 03/20/07:

More broadly, the contemporary historian consistently finds that you smell slavery’s influence no matter where you scratch in antebellum America. To take an example from the Dred Scott text, the House of Representatives, Presidency, and federal court system were structured in ways thought to magnify the influence of slaveholders. Similar studies have been done of South Carolina and Virginia.

Is Dred Scott uncitable? by Jack Balkin 03/26/07

Why Would An Inferior Court Judge Ever Cite Dred Scott? by Jack Balkin 03/27/07

Those previous two Balkin posts have to do with this article: A deplorable citation by Gregory Wallance The National Law Journal 03/26/07. Wallance writes:

A few weeks ago, in Parker v. District of Columbia, a federal court of appeals struck down as unconstitutional a gun control law prohibiting possession of "functional firearms" in the owner's home. In its opinion, the majority cited the U.S. Supreme Court's disastrous Dred Scott case of 1857. Whatever the merits of its opinion on gun control, the majority's undoubtedly well-intentioned citation resurrects a shameful ruling.

Not surprisingly, the Parker v. District of Columbia ruling broke new ground, as explained in this statement from the Bradey Center to Prevent Gun Violence: Parker v. District of Columbia, 311 F.Supp.2d 103 (D.D.C. 2004); statement undated but was apparently released in March 2007. The statement observes:

The ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. While acknowledging that "reasonable restrictions" to promote "the government's interest in public safety" are permitted by the Second Amendment, the two-judge majority substituted its policy preferences for those of the elected representatives of the District of Columbia.

Wallance also summarizes Dred Scott and its effects at the time:

In a country that was a tinderbox, the Supreme Court had struck a match. Dred Scott hurled the nation down the path to the Civil War. The Dred Scott case was reversed only by the deaths of 600,000 American soldiers. ...

In fact, there is no aspect of Taney's opinion that deserves respect, let alone a citation by a court regarded in importance as second only to the Supreme Court. By 1857, according to Don E. Fehrenbacher, in The Dred Scott Case: Its Significance in American Law and Politics, Taney, a former slaveholder from Maryland, was a "bitter sectionalist, seething with anger at Northern insult and Northern aggression." Although the case should have been resolved on narrow, technical grounds, Taney went out of his way to write a sweeping opinion that resolved every issue affecting slavery in favor of the South. In doing so, he mischaracterized outright provisions of the Constitution that addressed slavery.

A cascade of Northern anger descended on Taney after the first newspaper accounts of the ruling as read out loud by Taney in the Supreme Court. Taney instructed the clerk of the Supreme Court not to release the written opinion to anyone, even the dissenting justices. He then rewrote the opinion to respond to his infuriated critics, expanding its length by nearly a third. We will never know if the passage cited by the Parker majority was written when a bitter, resentful chief justice found himself besieged in a political firestorm. One Northern newspaper editorialized that Taney's opinion deserves no more respect than "what might be obtained in a Washington City barroom." That observation is still true. (my emphasis)

Tags: civil war, dred scott decision, jack balkin, mark graber, sandy levinson, us civil war

Confederate "Heritage" Month, April 19: The Slave Power

One of the more informative histories I've come across on pre-Civil War politics is Leonard Richards' The Slave Power: The Free North and Southern Domination, 1780-1860 (2000).

Richards gives a political history of the strength of the slaveowning states, including a lot of attention to the effect of the Constitution's "three-fifths" clause on boosting Southern clout. The three-fifths clause is in Article 1, Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. (my emphasis)

The phrase "other Persons" referred to slaves. The slaves, of course, could not vote. But the white voters in the slave states got additional Congressmen based on the three-fifths rule and therefore gained a voting advantage in Congress. As disputes over slavery became more frequent over the decades, the three-fifths advantage came to be resented more and more by people in nonslaveholding states.

Richards analyzes various key decisions around slavery, including the Missouri Compromise of 1820. The gist of that agreement is that Congress, under the crucial leadership of House Speaker Henry Clay of Kentucky, admitted Missouri to the Union as a slave state with Main admitted as a free state at the same time, while permanently prohibiting slavery in all of the Lousisian Purchase area north of the 36-30' line, except for Missouri itself.

Richards argues that without the three-fifths advantage in Congressional representation, the South could not have won Missouri's admission as a slave state. He refers to the extra representation as "slave seats":

[W]ithout the South's seventeen slave seats, the liklihood of Clay putting together a three-vote Majority would have been slim at best. Historians later forgot this fact; the restrictionists who fought the battle never did. It thus became one of the crucial ingredients in the development of the Slave Power thesis.

Richards looks at a number of different controversies to measure the South's political strength in Congress, including in addition to the Missouri Compromise: Indian removal in 1830; the "Pinckney gag" of 1836; the 1840 gag rule; Texas in 1845; the Wilmot Proviso in 1847, which was connected to the "Three Million Bill"; the Fugitive Slave Act of 1850; the Kansas-Nebraska Act of 1854; and, the Montgomery-Crittenden Amendment of 1858.

Although it didn't involve a Congressional vote, Richards also emphasizes the significance of the Dred Scott decision in early 1847, which the Court delivered two days after James Buchanan's inaguration as President.

The Indian removal act of 1830 is something the Lost Cause advocates prefer to ignore altogether, even though there was a very clear sectional alignment with Souterners voting one way and Northerners another, more so than with the Nullification Controversy that also occurred during Andrew Jackson's Presidency. It also wasn't about slavery, a case with the Lost Causers try to make with the Nullification Controversy. The main reason, I'm sure, is that in the case of Indian removal, the Southerners were aligned in favor of using national power to override any consideration of states' rights, which the Lost Cause mythology holds up as the cause of the Civil War. In their version, the South seceeded to protect states rights, not slavery. But during the Congressional debate over the Indian removal bill, the Northern Whigs mocked the Democrats for overriding states rights, which they defended on other issues.

In his discussion of the Dred Scott decision, which ruled that Congress had no authority to ban slavery from territories, it was widely believed that the Court was willing to allow slaveowners to bring slaves into free states. The suit of Dred Scott and his wife for freedom was based on their temporary residence in free states, but the ruling didn't apply to that argument, because it held that Scott had no legal standing to bring the suit. The Buchanan administration's official paper (i.e., a privately held paper that reflected the administration's viewpoint), the Washington Union, editorialized on 11/17/1857 that it was unconstitutional for Northern states to ban slavery even within their own borders!

The Lemmon Slave Case by John Gordan III (in the Bulletin of The Historical Society of the
Courts of the State of New York; Issue #4)gives an account of this little-known case. Gordan quotes the 03/09/1857 edition of the Albany Evening Journal just after Justice Roger Taney delivered the Supreme Court's most infamous verdict in its history with the Dred Scott decision:

The Lemmon Case is on its way to this corrupt fountain of law. Arrived there, a new shackle for the North will be handed to the servile Supreme Court, to rivet upon us. A decision of that case is expected which shall complete the disgraceful labors of the Federal Judiciary in behalf of Slavery - a decision that slaves can lawfully be held in free States, and Slavery be fully maintained here in New York through the sanctions of "property" contained in the Constitution. That decision will be rendered. The Slave breeders will celebrate it as the crowning success of a complete conquest.

Gordan also quotes this joint resolution of the New York State Senate and Assembly asserting the right of their state to ban slavery against a possible decision by the Taney Supreme Court to override "states rights" to prevent states from banning slavery:

Resolved, That this State will not allow Slavery within her borders, in any form, or under any pretence, or for any time.

Resolved, That the Supreme Court of the United States, by reason of a majority of the Judges thereof, having identified it with a sectional and aggressive party, has impaired the confidence and respect of the people of this State.

Resolved, That the Governor of this State be, and he hereby is, respectfully requested to transmit a copy of this report, the law above mentioned, and these resolutions, to the respective Governors of the States of this Union.

The New York Court of Appeals decided in favor of New York's right to ban slavery in March of 1860. The owner appealed to the US Supreme Court. But, as Gordan quotes William Wiecek:

The owner appealed the decision to the United States Supreme Court, and
antislavery propagandists panicked, fearing that a reversal of the New York
judgment would establish slavery in the free states. The onset of war aborted this
possibility, and Lemmon today is forgotten ...

Well, not entirely forgotten. Readers of Old Hickory Weblog know about it!

Wiecek's article, for the really curious, is, "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World," University of Chicago Law Review, 42 (1974), 86-146. Wiecek there notes that Abraham Lincoln warned of the danger in the Taney Court deciding on the Lemmon case in his now-legendary debates with Stephen Douglass in 1858. He quotes Lincoln at Springfield:

Put this and that together, and we have another nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a State to exclude slavery from its limits.

And at Galesburg, he continued to warn of a proslavery line of thinking that went like this:

Nothing in the Constitution or laws of any State can destroy a right distinctly and expressly affirmed in the Constitution of the United States. The right of property in a slave is distinctly and expressly affirmed in the Constitution of the United States. Therefore, nothing in the Constitution or laws of any State can destroy the right of property in a slave.

And, as Wiecek comments:

The appeal of the Lemmon case to the United States Supreme Court seemed to abolitionists just the vehicle that Lincoln and others had predicted would be used to force slavery into the free states. Though the case was never decided, Lincoln and the abolitionists were not in the grip of hysteria when they voiced their warning. Taney and his pro-slavery colleagues might well have resolved the conflicts debate engendered by Somerset by annihilating the entire antislavery position.

Somerset was an older British court decision that greatly influenced American legal thinking on slavery. Or, as Wiecek puts it, it "became a basic text of antislavery constitutionalism."

Leonard Richards' methodology in his book focuses on quantifying the Congressional votes and analyzing which groups in the Democratic Party in particular were voting with the slaveowners.

His book is informative and well-written. He marshals his evidence carefully, though I'm not familiar enough with the details of the Congressional votes to critically evaluate the specifics of a lot of his arguments. He does a good job of comgining his careful quantitative analysis with interesting sketches of some of the personalities involved. It was also very interesting to me that California's first two Senators were pro-Southern "doughfaces", even though California came into the Union as a free state.

A review of Richards' book is also available at: Reviewed by William L Barney H-SHEAR (October, 2001).

Tags: civil war, dred scott decision, leonard richards, lemmon slave case, somerset, us civil war

Confederate "Heritage" Month, April 12: the Dred Scott decision

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There is a new paper available from two of the bloggers/law professors at the Balkinization blog that gives us 13 Ways of Looking at Dred Scott (blog post); the full paper of the same name is also available online: Balkin, Jack M. and Levinson, Sanford V., "13 Ways of Looking at Dred Scott" . Chicago-Kent Law Review, Vol. 74, No. 800, p. 101, 1999 Available at SSRN: http://ssrn.com/abstract=968975 (page down to "Download the document from: Social Science Research Network, etc. )

The paper's abstract says:

Dred Scott v. Sanford is a classic case that is relevant to almost every important question of contemporary constitutional theory.

Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who American belongs to still roil our national debates.

Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally held lands overseas. And it asks whether, as Chief Justice Taney famously said of blacks, there are indeed some people who have no rights we Americans are bound to respect.

Dred Scott remains the most salient example in debates over the legitimacy of substantive due process. It subverts our intuitions about the relative merits of originalism and living constitutionalism. It symbolizes the problem of constitutional evil and the question whether responsibility for great injustices lies in the Constitution itself or in the judges who apply it.

Finally, Dred Scott encapsulates the central problems of judicial review in a constitutional democracy. One the one hand, Dred Scott raises perennial questions about the judicial role in cases of profound moral and political disagreement, and about judicial responsibility for the backlash and political upheaval that may result from judicial review. On the other hand, the political context of the Dred Scott decision suggests that the Supreme Court rarely strays far from the wishes of the dominant national political coalition. It raises the unsettling possibility that, given larger social and political forces, what courts do in highly contested cases is far less important than we imagine. (my emphasis)

Dred Scott is a favorite citation of the anti-abortionists as an example of a Supreme Court decision that was bad law and produced bad results. They viewed the Roe v. Wade decision that legalized abortion in the US in the same way.

The authors draw on Chief Justice Taney's infamous decision itself to describe the basic facts of the case, whose full name was Dred Scott v. Sandford:

Roger Taney’s opinion in Dred Scott ... begins with a relatively lengthy “agreed statement of facts," from which we can glean a fair amount about the actual people at the heart of the case. We learn that

Dred Scott himself, as of 1834, “was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States.” Dr. Emerson traveled from Missouri to a military post across the Mississippi River in Rock Island, Illinois, and took Scott with him, “[holding] him there as a slave until the month of April or May, 1836.” Dr. Emerson then went back across the Mississippi, traveling north to a military post at Fort Snelling (near present day Minneapolis). Again, he took Scott with him and “held the plaintiff in slavery at said Fort Snelling” until 1838.

The case had to do with whether Scott's presence in free states had made him free and also with whether he as a slave had legal standing to bring the case before the courts. The decision went much beyond the straightforward question of Scott's claim to freedom, which was rejected. As Balkin and Levinson write:

Indeed, chief among the reasons why Dred Scott is the most reviled opinion in the history of the United States Reports is its abject racism and devotion to white supremacy.

Dred Scott connected four ideas: race, status, citizenship, and community. It connected race to status by arguing that blacks were necessarily and properly of lower status — and that whites should enjoy higher status — because of their respective races; indeed, it assumed that blacks could be enslaved because of their race. It connected race to citizenship by arguing that by virtue of their race blacks could never be citizens. It connected race to community by associating the people of the United States with its citizens, so that those who could not be citizens were forever outside the political community. According to Dred Scott, the members of one race “owned” the United States; it was “their” community and “their” country, and all other races were permitted to remain only on its terms.

Their "13 ways" of looking at the case include the following, each of them explained at some length in the paper:

1. The facts of Dred Scott

2. Dred Scott, race, and citizenship

3. Are there people with no rights that "we" are bound to respect?

4. Dred Scott and whether the Constitution is a "suicide pact"

5. Dred Scott, originalism, and the living Constitution

6. Dred Scott and "substantive due process"

7. Dred Scott and Constitutional evil: does the fault like in the judges or in the Constitution itself?

8. Dred Scott and the "internal" and "external" perspectives on Supreme Court decision making

9. Is there anything good about Dred Scott?

10. Dred Scott and the counter-majoritarian difficulty

11. Dred Scott as an example of "partisan entrenchment"

12. Dred Scott and responsibility for the Civil War

13. Dred Scott and the importance of courts

Their article is in a legal journal, intended for use by legal scholar, attorneys and judges. So it's not written in a "popular" style, and it deals with various issues of law and legal philosophy that don't appear in the headlines every day. But it is certainly an informative look at the case and its continuing significance, both in history and in law.

Balkin and Levinson in their work give particular attention to the broader political and social context of court decisions. And one of their points in this essay is that American historical and legal scholarship may tend to elevate the importance of courts and court decisions in historical events to a level of significance that may be exaggerated.

But they aren't claiming that Dred Scott was insignificant. I found their thoughts about the consequences and potential alternative scenarios especially interesting:

The problem with Dred Scott may have been not merely that it made the law more unjust - a judgment that people in 1857 would clearly disagree about, but that it made it more difficult for many people to believe that the law could get more just from their particular perspective. Dred Scott made it far more difficult to reach legislative compromise, because it simultaneously outlawed the Republican Party platform and split the governing Democratic Party coalition, which helped elect Abraham Lincoln. Lincoln’s election, in turn, pushed the South toward secession. If Dred Scott was a bad example of judicial statesmanship, it was not because the Court reached out to decide an issue unnecessarily, but because it reached out to decide an issue in a way that made peaceful politics impossible. Under this line of criticism, Dred Scott was a bad decision if one thinks that war is generally a bad thing, even if it sometimes leads to good things like the abolition of slavery, and if one thinks that keeping the peace - even with slavery intact - is usually more desirable than justice.

The argument that peace is better than justice is, we think, a more plausible version of the familiar criticism leveled at Dred Scott. But it too faces considerable difficulties. Even if Dred Scott had been decided differently, it is not clear that it would have forestalled the Civil War. A decision refusing to give the South constitutional protection from the Republican Party - and, even more to the point, a decision actually freeing Scott - might have led to civil war more quickly and on terms far less favorable to the North. In 1857 the White House was inhabited by the feckless James Buchanan, who, although he believed secession illegal, read the Constitution to prohibit the national government from actually doing anything about it. With Buchanan at the helm in the early years of the Civil War, the South might well have succeeded in breaking away with slavery intact. So if Dred Scott did lead to war by causing Lincoln’s election, that is presumably all to the good if one supports the maintenance of the Union and the emancipation of the slaves. To criticize Dred Scott on consequentialist grounds, therefore, one has to be certain that the consequences of an alternative decision would, in fact, have been better. (my emphasis)

Tags: civil war, dred scott decision, us civil war

Confederate "Heritage" Month, April 4: Slavery and antebellum American politics

Mark Graber raises an interesting historical point in The Election of 1800 Balkinization blog 03/14/07. He refers to the historical tradition that sees hositility to the repressive Alien and Sedition Acts under the John Adams administration as the main reason for the victory of Jefferson's Republican Party in 1800. (Don't get confused; Jefferson's party was called the Democratic-Republican Party but was commonly referred to as the Republican Party. It was during Andrew Jackson leadership that it became known as the Democratic Party.)

Graber writes:

The influence of the Alien and Sedition Acts on the election of 1800 has become academic folk wisdom, passed down from one law professor to another without much review of the original evidence. Perhaps the voting data provide support for this claim, although I am skeptical. More to the point, I am reasonably certain that contemporary scholars who make this claim are not very familiar with the actual data. It's just a good story that portrays the ratification generation in the best possible light. The only problem is that slavery and race cast a broad shadow on that generation and by not being aware of just how pervasive slavery was in early American politics, we may fundamentally misconstrue the nature of that political regime and our own. Perhaps instead of blithely apologizing for slavery, states and universities ought to look more deeply at the myriad ways in which white supremacy and human bondage structured American political developments that, at first sight, seem to have little to do with the peculiar institution.

The "peculiar institution" was slavery, still a commonly used reference.

Graber is the author of Dred Scott and the Problem of Constitutional Evil (2006).

Graber also posted last week on Justice Roger Taney, who headed the Court at the time of the notorious Dred Scott decision of 1857, which is often called the most disastrous Court decision in American history, though Bush v. Gore (that decided the 2000 Presidential election) may wind up being considered even more damaging in its long-term effects: Taney as Imperialist (and Racist) 03/26/07. This one is particularly interesting to me because it talks about the variety of Jacksonian political thought that Taney followed. Taney (pronounced like "Toney") had served as Old Hickory's Attorney General and then as his Secretary of the Treasury, where he was the administration's point man in the fight against the Bank of the United States, and was considered a democratic radical for that role. Jackson appointed him Chief Justice.

See my post of 04/09/04 from my first annual Confederate "Heritage" Month postings, for more on the Dred Scott decision.

Graber writes about the sometimes surprising and contradictory effects that Jacksonian democratic egalitarianism had in the context of a republic that held million of its people in chattel slavery:

Jacksonians before the Civil War justified expansion by asserting the virtues an extended white republic. White persons who moved into the territories were fully protected by the Bill of Rights, in this view, partly because the whole point of expansion was to increase the land available for free white settlement and partly because Jacksonians had other doctrinal means for fencing out non-whites. Put differently, Taney's claim that the constitution follows the flag in Dred Scott was connected to American expansionism as well as American racism and American slavery, but American expansionism was closely connected to American racism and slavery. Putting African-Americans aside, Taney and others had few qualms about the number of native-Americans killed to expand the scope of white liberty. Whig anti-expansionism was often as racist. Expansion was bad, many argued, because expansion increased the number of nonwhites in the United States (and Whigs were not quite [emphasis on "not quite"] as comfortable as Jacksonians with the doctrinal moves necessary to fence persons of color out of citizenship rights).

While Taney’s thought was not all of on[e] piece (whose thought is), his premises were not utterly disconnected. Taney was not simply a racist pro-slavery advocate, he was a Jacksonian racist pro-slavery advocate. How he understood race and slavery was in part structured byJacksonian commitments (Austin Allen's new book is very good on this). (my emphasis)

Also at the Balkinization blog, which features legal scholars focuses on legal issues, the blog's namesake Jack Balkin has made a couple of recent posts on the Dred Scott decision, which was just recently cited by the D.C. Circuit Court as a precedent in a decision: Is Dred Scott uncitable? 03/26/07 and Why Would An Inferior Court Judge Ever Cite Dred Scott? 03/27/07. The recent case involved a federal gun control law. Balkin also talks about the way anti-abortionists use the Dred Scott decision in their argument against the validity of the Supreme Court's Roe v. Wade ruling. I cited its appearance as anti-abortion code in Second Bush/Kerry debate (1) 10/08/04.

Tags: civil war, dred scott decision, jack balkin, mark graber, us civil war