Balkinization: Best books of 2006

Comments:

Why would anyone think you could escape problems with the Constitution by adopting a particular method of interpretation? The Constitution, like any real-world document, contains flaws. Any method of "interpretation" which didn't produce a flawed output would be untrue to it's input, and thus a method of substitution, not interpretation. And by being such, would lose us such advantages as derive from having a constitution, rather than just allowing the political class to make things up as they go along.

# posted by

Brett : 8:49 PM

Unfortunately, Graber’s book is sheer nonsense. Briefly stated, Dred Scott was decided wrongly, Graber notwithstanding. The dissenting Justices knew it at the time, and had the better arguments, and Lincoln demolished it at Cooper Union. Do not waste your time here, read Harold Holzer’s Lincoln at Cooper Union.

The case was not even close. A law professor could not even use it in an exam because it is too easy. The original states surrendered all their territories to the US. In return for the burdens of administration, the Constitution gave Congress the power to make all needful rules and regulations respecting the territory of the US. Stop now and read it in Article IV, Section 3. Apply contract principles of interpretation. Consideration supports both parties to the transactions. The States were relieved of burdens and conflicts with each other, and the Congress had the necessary authority to carry out its duties. The bargain was clear and the terms unambiguous. Congress contemporaneously outlawed slavery in the Northwest Territories because it had the power to do so and saw no inconsistency with the newly ratified due process clause. Ergo, Congress could and did ban slavery in its territories, QED.

Enter the racist slaveowning judicial thug named Taney. As they said in Dune, a thousand deaths are to good for Taney [Yueh]. He turns the language and history of the Constitution upside down in a pre-Orwellian orgy of Love is Hate and Peace is War. Text says all men are equal, but it means all white men. Text protects life, liberty, and property with due process, but only the property of the slaveowners and not the liberty of the slaves. Taney invented substantive due process as a means by which a judge indulges his own policy predilections in the name of the Constitution. A later Chief Justice did the same under a different clause in National League of Cities when he somehow reasoned that that a state in all its sovereign glory could pay a substandard wage to a janitor in the state capitol.

Now comes Graber. You can see the wheels turning is his head. Lets see, want to write a marketable book, but no one would buy another blast at Dred Scott, so take the contrarian view that the case was correctly decided. That’s the ticket. Second, the religious right, including W. Bush, has adopted Dred Scott as code in the drive to repeal Roe. Just as Dred Scott said that a slave had no rights a white man had to respect, so did Roe declare that a fetus had no right to life that a woman had to respect. Sell books on amazon/com and shoot down the right to life side.

Well, the book appears to be brilliant in the manner of an idiot savant. Everything follows from the premises, supported meticulously step-by-step. But a page of history is worth several thousand pages of law review articles.

Lincoln was right and Taney and Graber were wrong.

# posted by

Anonymous : 9:34 AM

mr. treacy, i have no problem with constructive criticism, and i'm sure that mark, if he had the inclination to do so, would be more than capable of defending himself. that being said, your analysis of the premise of the dred scott book is fine until you try to take a potshot at prof. graber, and get personal for reasons known only to yourself.

based upon your assertion that equates the conclusions of the book with the drive of the extreme right to outlaw abortion and the simple desire to sell books, you obviously do not know prof. graber or anything at all he believes in. based upon your statements, i would also tend to believe that you have not read this book.

disagree if you must. that is anyone's right. for all i know, lincoln was indeed right, and most americans, without having any constitutional law background (and even those who do) would probably agree with you. indeed, you can count me in that bunch that believes, prof. graber's book notwithstanding, that the dred scott decision is plain wrong. where you lose credibility is in ad hominem potshots that do nothing but highlight your own ignorance.

# posted by

phg : 11:10 AM

There is nothing personal or ad hominem here, just an effort to point out problems with his theories. I fully agree with you the the Dred Scott decision was wrong. Pr. Graber expressly asked people on this site to buy his book at amazon.com, so I drew the reasonable conclusion that he wanted to sell books. The paralles between Roe and Scott are apparent and should be discussed. Pr. Graber need take no offense at my remarks, and I need take none at any responses.

# posted by

Anonymous : 11:27 AM

It is so much more comforting to believe that decisions we don't like (such as Dred Scott) represent "judges on a rampage" than an honest attempt to construe what Garrison accurately called an "agreement with hell and a covenant with death." It is simply silly to say that a decision that had the support of the overwhelming majority of the Supreme Court of the United States was "clearly" mistaken unless we are simply harrumphing and indicating how much we disagree with the majority decision.

Mr. Treacy's "contract" argument illustrates the truth of Brian Tamahana's earlier posting about the absurdity of viewing the Constitution as a contract. And, by the way, there is no reason to believe that it was "needful" for Congress to bar slavery in the territories, unless, of course, one accepts John Marshall's evisceration of the word "necessary" in McCulloch. But that is a matter for another posting.

# posted by

Sandy Levinson : 12:04 AM

Mr. Treacy's "contract" argument illustrates the truth of Brian Tamahana's earlier posting about the absurdity of viewing the Constitution as a contract. And, by the way, there is no reason to believe that it was "needful" for Congress to bar slavery in the territories, unless, of course, one accepts John Marshall's evisceration of the word "necessary" in McCulloch. But that is a matter for another posting.

You make my case. Disputing the meaning of the word “needful” in the Constitution is similar to interpreting the same word as a term in a contract. Needful means necessary or required. It was necessary and required that someone actually decide one way or the other whether a specific territory allow or prohibit slavery. The wording of the territory clause seemed like a textual commitment of that decision to Congress. The continuation of the Northwest Ordinance seemed to be based on this assumption. It was certainly needful that the question of slavery in the territories be resolved one way or the other.

Taney astonishingly argued that the Territories Clause did not apply to territories acquired after 1789, despite long unbroken history of congressional exercise of full police powers over all territories under that clause. He simply read the clause out of the Constitution. He then found that the power to ban slavery in the territories was taken away from Congress by the Constitution and the due process clause of the Bill of Rights. Again he ignored consistent unbroken precedent and history by inventing a judge-made doctrine of substantive due process that plagued the nation for a nearly a century.

It sure looks like a straightforward contract problem. A lease may give a landlord the right to make all needful rules and regulations for tenant conduct. A collective bargaining agreement may give the employer the right to make all needful rules and regulations for the workplace. A rule may then be promulgated banning smoking, or permitting smoking, or making things half smoke and half free, or permitting popular choice room by room. In each case, an arbitrator or judge may be asked to interpret and apply the terms and conditions in the light of existing law, not to read clauses out of the contract itself, invent new rights or limitations or violate existing law. It is not an “absurdity” to ask the Supreme Court to interpret and apply similar contract techniques to the Territories and Due Process Clauses. It was absurd for Taney to ignore the plain language of the document he was sworn to support.

# posted by

Anonymous : 4:58 PM

It is so much more comforting to believe that decisions we don't like (such as Dred Scott) represent "judges on a rampage" than an honest attempt to construe what Garrison accurately called an "agreement with hell and a covenant with death."

The framers of the 1789 Constitution were no angels. They delayed the abolition of the slave trade for 20 years, authorized the fugitive slave law, counted a slave as three-fifths of a person for congressional apportionment, and denied the vote to residents of the Seat of Government to this day. There was evil in the Constitution. But it was Lincoln who took the best approach under Graber’s criteria. He wanted to quarantine the evil in the Old South, where the Constitution tied his hands, but to stop its spread to the territories. He stood between the abolitionists, on the one hand, and the slaveowners on the other, and suffered attacks from both. Lincoln was the moderate, Taney the radical ideologue. The Taney opinion was not reasonable, plausible, or faithful to the Constitution. It was an example of overreaching judicial legislation, a rewriting of the constitution to give the slaveowners far more than the evil in the original constitution by letting them spread their evil diseased practices to the rest of the nation. It was the embodiment of extremism, not an honest attempt to construe the Constitution.

# posted by

Anonymous : 5:58 PM

The Last Harrumph [apology to Edwin O’Connor]

It is simply silly to say that a decision that had the support of the overwhelming majority of the Supreme Court of the United States was "clearly" mistaken unless we are simply harrumphing and indicating how much we disagree with the majority decision.

That might be a good point if the decision in fact did have an opinion with overwhelming majority support. “In Scott, each of the nine justices, seven majority and two minority, wrote a separate opinion. In no two cases was the reasoning precisely alike; however, Chief Justice Taney’s opinion was thereafter most discussed and debated.” Kelly and Harbison, The American Constitution. By contrast, in Brown v. Board of Education, the opinion was the unanimous decision of the Court, joined in by all nine Justices with no dissents or concurences.

I thought I made it clear that my criticism was of Taney’s opinion, and I thought I gave some reasons. I was not aware of the rule at this site that barred me from criticizing any “decision that had the support of the overwhelming majority of the Supreme Court” at any time in the past or saying that it was clearly mistaken. As Steve Martin said, “Excuse me.” Accordingly, I will take my objections to Gore v. Bush and other cases having “the support of the overwhelming majority of the Supreme Court of the United States” elsewhere. Goodbye.

# posted by

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# posted by

Unknown : 2:50 AM