an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Suppose two tribes who have some reason to cooperate but whose members do not like each other very much ratify a constitution that grants the northern half of their territory to Tribe A and the southern part to Tribe B. Each party is rather happy with the bargain. Each believes that, in the next hundred years, climate changes are likely to enhance the value of their land and make the other tribe’s land nearly uninhabitable. As a result of this constitutional bargain, members of both tribes are able to form an army that provides for the common defense and make mutually beneficial trade agreements with other nations.
After 100 years of no apparent changes, evidence conclusively indicates that Tribe A has won the constitutional bet. The soil on the northern half of the continent is becoming increasingly fertile, while the soil of the southern half of the continent (for natural reasons) is slowly killing the members of Tribe B. Conventional constitutional theory is likely to tell us little more than that members of Tribe B have no constitutional right to move south and, having lost their constitutional bet, they have a constitutional obligation to remain in the constitutional union. This seems to be to be a rather cribbed view of constitutional theory. Leaving behind questions of constitutional interpretation for a second, any sound constitutional analysis would begin by recognizing that the present generation of Tribe B is not likely to continue cooperating with the present generation of Tribe A under these circumstances. Rather, a fundamental principle of an empirically realistic constitutional theory ought to be that constitutional bargains survive only when interpreted, however creatively, in ways that create opportunities for mutually beneficial cooperation between members of the two tribes. Of course, members of Tribe A will have the luxury of knowing, as civil war wracks their country, that Tribe B was the party responsible for abandoning the constitution. Thus, however, is unlikely to reduce their casualities. One crucial constitutional point is that constitutional bets made by one generation are unlikely to be peacefully enforceable against the next. A second constitutional point may be that constitutional bets made by one generation should not be enforceable against the next when the result is a sharp imbalance in the benefits of constitutional cooperation, that constitutions are best interpreted in ways that enable all parties, by their subjective lights, to believe that they are better off continuing to cooperate than going at matters alone (or engaging in civil war).
I think Brad DeLong’s Semi-Daily Journal misses this point when, in a criticism of an argument made in my Dred Scott book, he declares:
But there is an alternative, a more conventional story: that at the original Constitutional Moment slaveholders were betting that their power would increase over time (hence the Constitution was worth ratifying even though it did not include unneeded long-run explicit protections of slavery) and those who wanted to preserve the possibility of future abolition were betting that slaveholders' power would diminish over time hence the Constitution was worth ratifying as long as it did include dangerous long-run explicit protections of slavery). According to this more conventional story, the abolitionists won their bet and the slaveholders lost theirs.
According to this more conventional story, there was nothing in the Constitution that said that slaveholders got a "do over" if they lost their bet.
A number of good friends have made similar points, that slaveholders made a bet about the American future and hence, had no cause for constitutional complaint when Abraham Lincoln was elected consistent with the rules agreed upon in 1787. I confess to be unconvinced. For reasons noted in the book, I think DeLong is mistaken when he insists that northerners ratified on the basis of their belief that slavery would diminish over time (while most hoped so, the best evidence indicates that concerns with slavery were not central for most northern proponents of ratification). But even conceding the point for argument’s sake, the more vital constitutional consideration is that as a political matter people are not going to pay off constitutional bets made by their ancestors when the payment requires a sacrifice of crucial interests with inadequate present payoffs. A good case can be made that decent persons would not have accommodated slavery in 1787 and that decent persons should not have accommodated slavery in 1857. Nevertheless, even if bets were made in 1787, the constitutional bargain was likely to continue only if the winner, in this case the free states, did not collect. The Constitution of the United States, a constitutional theory that extended beyond narrow constitutional interpretation would note, could survive only when all crucial parties believed that cooperative served their interests, as they presently defined their interests. To the extent constitutional theory demands that all constitutional bets be paid off in full, constitutional theory is likely to promote civil war. Perhaps a civil war was worth fighting in 1861 to free slaves. The best justification of military action, however, was that slavery is evil and not that the slave states welched on a bet made 70 years previously.
I don't see how you can separate the Constitutional bargain from the issue which brings the crisis to a head. If the issue were trivial, the principle of majority rule would surely prevail over it. If the principle were more important than majority rule -- and the South acted on that basis -- then surely a bargain which favors the morally correct side is doubly worth enforcing.
What does this post say about originalism with respect to slavery? Original intent, original meaning, original understanding? Slavery is not specifically mentioned in the Constitution or Bill of Rights. But it was the elephant in the room with the founders/framers/ratifiers. So there was a compromise, one that was more economic and political than moral. European countries that did not have democratic foundations like the US abandoned slavery well before the Civil War (perhaps as much for economic reasons as for the immorality of slavery). So perhaps the Civil War was necessary to "correct" this compromise.
With the Civil War Amendments, we have an adjustment point for originalism, at least with respect to slavery. But didn't slavery taint the originalism of the founders/framers/ratifiers with respect to the entire Constitution? Today's originalists cannot ignore that taint.
I'm not sure if a morally debatable choice, and given the times it was debatable, makes "originalism" per se a problem.
The Constitution was written in such a way -- Dred Scott notwithstanding -- that slavery could have (within the contours of the original Constitution, and this was one reason why the Civil War came) died out and blacks given rights of citizenship, surely federal citizenship.
As to the post overall. First, it was sound to go to war for union. The union was set up for various purposes and eventually became a great power, largely because it was "one united states" ... not a bunch of sections, which could separate if an election doesn't go their way. Or, yes, if the socio-economic balance changed some degree.
Second, a "bargain" of sorts was created. Don Fehrenbacher in "The Slaveholding Republic" underlined how antebellum national policy favored slavery. This made a Republican administration realistically painful for the South, but it underlined as well the value to the slaveholding states of the union thus far. I think, yes, there was a sort of quid pro quo there.
No rebellion, leaving a rump Union that was liable to be invaded by foreign powers and/or put in a weaken state for various reasons. This was rightly deemed "treason." There was no long line of abuses and appeals ala George III. It was a dangerous "preventive war." Somewhat logical, yes, but dangerous.
Sure, slavery had something to do with it. The original Constitution was written by many who thought eventually slavery would die out. Including those from the South. The rebellion threatened the republican government that hopefully promised to do this.
Finally, back to the "abuses" angle. To add insult, union still was useful for the South. It would be part of a great land and (as times shown) still have large power over its domestic population. The risk of rebellion was war, which would threaten slavery. And small localized gov't, I might add. One might say an extended death was better than a quick and painful one in that department as well.
Many people in the South agreed. Many opposed the war or even secession. And, once fought out, they accepted defeat. Clear change of social equality was not accepted or direct national government ala the 20th Century. But, the end of slavery, yes. This underlined the "bargain" was worthwhile to them.
Let me just add some points to my comment from last night.
Regardless of the merits of secession, it was a peculiar "remedy" for the South's complaints. Southerners argued that the North failed to live up to the "agreement" in two ways: failure to enforce the Fugitive Slave Act, and opposition to slavery in the Territories.* Secession not only would not solve either of these "problems", it would make it impossible to solve the Territories issue and would almost certainly make the fugitive situation worse.
Secession also violated material parts of the Constitutional bargain benefiting the North. Specifically, it deprived the national government of property rightly belonging to it (like Fort Sumter). It also implicitly deprived the North of access to the Mississippi. I don't know the economic value of these deprivations, but it wouldn't shock me if they equalled the 1860 economic value of all the slaves in the Union.
It's not as if the separation was itself cost-free, though your post seems to imply that.
*Note that the national government had, at the time of secession, done nothing whatsoever to deprive the South of access to the Territories. In fact, existing law (Dred Scott) prohibited any such action.
By the 1850's, slavery had reached its natural limits, geographically and democraphically. Geographically, there was very little land left in the US fit for plantation agriculture. Demographically the North had the larger population that was growing faster (due to immigration) and most people moving into the new territory did not want slavery.
Dred Scott and Bleeding Kansas were both desparate attempts to legislate away geographic and demographic fact. The South was destined to become a minority section, and nothing could stop that fact. If Southerners had been wise, instead of spending the 1850's trying to legislate away reality, they would have accepted their status as minority region and worked to engineer a split between the Northeast and the West to insure prevent an anti-Southern majority region from forming and insure, instead, that all regions were minority regions.
Taney's decision asserts that the Constitution "expressly" recognizes a right of property in slaves. That's just plain false. The Constitution does no such thing, and Lincoln and the Republicans said so. That was the nub of the issue.
Mark Field's additional comments add to my general sentiment as well. The 'remedy' was counterproductive and inequitable to the other side in various ways.
Overall, emotionally appealing, perhaps, but hard to defend even on some sort of neutral ground. A pragmatic approach would be supporting Douglas and/or trying to retain a balance of power role in Congress.
But, looking at things purely rationally would be ahistorical, probably.
Taney claimed in his decision that the Constitution "expressly" recognized a right of property in slaves. That's false, and Lincoln and the Republicans were right to say so. Whether there was or was not such a thing as a right of property in man was the nub of the issue. If there was such a right, then no northern state legislature had the right to abolish slavery. But there was no such right expressly affirmed in the Constitution. Taney was not merely wrong: his decision simply declared the southern Democratic Party platform to be the law of the land.