Balkinization: Baker, THE RESCUE OF JOSHUA GLOVER

Baker, THE RESCUE OF JOSHUA GLOVER

Mark Graber

H. Robert Baker's, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War is a great choice for persons interested in serious summer reading. The book is a nice summer read because the author writes well and tells a good story. The result is a nice page turner about Wisconsin anti-slavery politics and the Supreme Court’s famous decision in Ableman v. Booth, denying that state courts could issue writs of habeas corpus to persons in federal custody. Professor Baker brings the major participants to life and provides fascinating details about northwestern state politics on the eve of the Civil War. The book is a serious read because Professor Baker raises important questions about popular constitutionalism, a hot topic in contemporary legal discourse. A central theme of both the actual rescue of Joshua Glover, an alleged fugitive slave, and The Rescue of Joshua Glover is the locus of constitutional authority. Was Sherman Booth’s effort to prevent Glover’s rendition an act of popular constitutionalism defending the right of citizens of Wisconsin to exercise their sovereign constitutional authority to protect the citizens of Wisconsin, including persons of color? Or was that rescue an act of constitutional usurpation, no more legitimate than the effort of southern states during the 1950s to insist that states could nullify Brown v. Board of Education. Many commentators during the 1950s suggested that Wisconsin and Mississippi rose and fell together. Professor Baker disagrees. I am not entirely convinced by his assertion that there is a sharp distinction between the Wisconsin citizenry of 1856 and the white citizens councils of a later era, based in part on the changing status of state sovereignty after the Civil War. Still, The Rescue of Joshua Glover provides readers with the information they will need to make informed choices on their own, and highlights once again that what courts do frequently plays a smaller role than commonly thought in American constitutional development. This is an important work by a young scholar that should be of interest to persons who have an interest in the Civil War, good history, and better constitutionalism.

Professor Baker’s discussion of the relationship between the abolitionist and temperance movements is also of particular interest to contemporary politics. He details how the Republican Party almost lost control of Wisconsin politics by combining anti-slavery appeals with attacks on saloons. Many German-Americans immigrants seemed to have hated slavery, but liked their beer more. Republicans were able to keep control of the state courts and state legislature during the later 1850s, only when they abandoned principled calls for temperance and make clear that local brewers and their clients would be welcomed participants in the crusade against slavery. The obvious contemporary analogue is the effort to use the Democratic party as a vehicle to both develop more intelligent policies in the war against terrorism and more decent policies towards gays and lesbians, as well as a hundred other good causes. The possibility exists, of course, that the policies may complement each other, that persons committed to gay marriage may join the crusade against torture for political rather than principled reasons. Still, the Wisconsin experience during the 1850s, duplicated in many other states at that time, suggests that frequently all just causes cannot be fought at once, that priorities need to be established. The Rescue of Joshua Glover will not help contemporary liberals or conservatives resolve these matters, but Professor Baker’s work serves as another welcomed reminder that constitutional politics is a form of politics and, as such, is the art of the constitutionally possible.

Posted 9:26 PM by Mark Graber [link]