Customer Reviews

Dred Scott and the Problem of Constitutional Evil (Cambridge Studies on the American Constitution)

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This is an interesting effort to revive the horrible historical reputation of the dreadful Dred Scott decision. Although well researched and written in a smooth style, I question the use of 20th and 21st Century contract law analysis to criticize Lincoln's view of slavery restriction in the territories. Also, Graber limits his view of Madison's thoughts on slavery in the territories to the period around the Missouri Compromise. Later in life, Madison did accept that the Constitution provided Congress with the legislative discretion to ban slavery there. Graber appears to argue throughout the book that the Constitution required compromise on the slavery issue. Congress had the right to ban slavery there and nothing in the Constitution limited citizenship to whites. Just because the people of the time were divided on both notions does not mean that such public opinion is controlling. Waiting for majorities to catch up on such issues dispels any need for judicial review, does it not? When the slavocracy leaders of the South fought tooth and nail to end the Missouri Compromise, many in the North felt there was no requirement to continue to give in to the South's wishes. Give them Nebraska, they wanted Cuba and Mexico. That's required in the Constitution? Reading this book was worthwhile. I was just disappointed in the penchant of the author to support his views with incomplete or undeveloped arguments. Nice research, subpar analysis.

Almost everyone trashes the Dred Scott decision. Graber argues that the decision was, in fact, quite true to the Constitution, whose point was to come up with a governmental structure that would keep the North and the South together in one nation by preventing either section from being able to control what happened in the other. E.g., the slavery question was at the heart of not only the three-fifths compromise and the fugitive slave clause, but also the structure of the U.S. Senate.

It is, however, very difficult to read if you come to it as a layperson new to the field. The whole first half of the book is a "critique of the critiques," i.e., his criticism of what other scholars have written about the decision. If you are not already fairly familiar with what those other people said, plowing through Graber's criticisms of them is tough going.