by Earl M. Maltz. Lawrence KS: University Press of Kansas, 2007. 184pp. Cloth. $29.95. ISBN: 9780700615025. Paper. $15.95. ISBN: 9780700615032.
Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.
Earl Maltz’s book succeeds on two levels. First, it is a useful primer. Like other titles in the University Press of Kansas Landmark Law Cases & American Society Series (a few of which I have taught beneficially in my constitutional law classes), DRED SCOTT AND THE POLITICS OF SLAVERY gives readers an instructive look into a crucial period of American history via a Supreme Court decision. Maltz’s inquiry accomplishes most that one expects of a case study. It is tidy, informative, and sophisticated. Realizing that “[g]iving a sense of surrounding circumstances . . . is the essence of historical explanation” (Wood 2007), Maltz contextualizes DRED SCOTT v. SANDFORD. He analyzes the case as a revealing aspect of more fundamental antebellum debates over slavery and the increasingly incendiary sectional divisions fueling them. “It was against this background,” Maltz writes, “that Dred Scott v. Sandford came to the Supreme Court in 1856” (p.2). He continues: “Far from resolving the sectional conflict, the Dred Scott decision further exacerbated the tensions between North and South” (p.2). “Ultimately, then,” Maltz concludes, “this book is the story of a colossal judicial failure . . . a story of judicial hubris” (pp.3, 156; cf. Maltz 1998). His book is accessibly written, manageable in length, and reasonably priced. All in all, it is a serviceable supplementary undergraduate text.
At another level, DRED SCOTT AND THE POLITICS OF SLAVERY can be employed as much more than a monograph. It provides entrée – can be understood as a portal, if you will – into profoundly significant, enduringly controversial questions of American law and politics. As a focal point, say, in a graduate course addressing slavery and American political development Maltz’s book could be a fruitful point of departure.
For instance, reading Maltz’s book brought miracles to mind. By “miracles” I am not referring to metaphysical events of divine origin. Quite the contrary, the sort of miracles Maltz’s analysis suggests to me are thoroughly human. Human made miracles? An oxymoron? Hardly. What I have in mind are the miracles about which Hannah Arendt wrote compellingly. In her unique way, Arendt derived human miracles from her conception of human freedom. Arendt, in “What is Freedom?” contrasted freedom with the “automatism . . . inherent in all processes . . . [which] can only spell ruin to human life” (Arendt 1968). Even when human historical processes have become automatic, she argued, “[w]hat usually remains intact in [such] epochs of petrification and [*670] foreordained doom is the faculty of freedom itself, the sheer capacity to begin, which animates and inspires all human activities and is the hidden source of production of all great and beautiful things” (Arendt 1968). Arendt continues: “Every act, seen from the perspective not of the agent but of the process in whose framework it occurs and whose automatism it interrupts, is a “miracle”—that is, something which could not be expected” (Arendt 1968). One might say that the Philadelphia Constitution was a miracle; a “great and beautiful thing.” (Arendt herself saw the American Revolutionary Era, if not the Constitution, in these terms. She criticized the Framers for not institutionalizing in the Constitution the era’s revolutionary “treasure.” See Arendt 1965; cf. Waldron 2000, and Wellmer 2000).
Arendt’s interpretation and Maltz’s subtext are light years away from the standard
high school civics (and, for that matter, AP US Government and Politics) understanding of the “miracle at Philadelphia.” Typically, Catherine Drinker Bowen’s widely used account of the Constitutional Convention (Bowen 1966) is taught in terms redolent of Constantino Brumidi’s iconic “The Apotheosis of George Washington.” Fair play: Bowen herself lends credence to deifying the Framers and dehumanizing their work product, writing in her Preface, “[e]very miracle has its provenance, every miracle has been prayed for. The wine was first water in Cana; there was a wedding and a need. If miracles are men’s wishes fulfilled, so with the miracle at Philadelphia” (Bowen 1966).
Nevertheless, Bowen herself quotes correspondence from Madison to Jefferson (December 9, 1787) and from Washington to Lafayette (February 7, 1788) in which both Convention participants use the word “miracle” in terms more amenable to Arendt.
Viewing Maltz’s account of the antebellum politics of slavery through Arendt’s lenses – as the narrative of freedom triumphant and freedom abandoned (exhausted?) – one can understand American political development in the first half of the eighteenth century as a series of “miracles” that prevented dissolution of the Union. “[T]he more heavily the scales are weighted in favor of disaster,” Arendt argues, “the more miraculous will the deed done in freedom appear; for it is disaster, not salvation, which always happens automatically and therefore always must appear to be irresistible” (Arendt 1968). From this vantage point civil war, always a cloud on our civic horizon from our national inception, was staved off by a miraculous dynamic between threatening controversies and timely compromises.
Maltz’s book can be treated as an analysis of this dynamic, as well as of its failure. He tells the story of how national political actors averted disaster for over half a century.
On the one hand, he writes that “[r]epresentatives from both sides [North and South] . . . realized that the decisions on slavery in the territories could have profound implications for the balance of [*671] power within institutions of the federal government” (p.2). How this realization shaped antebellum political miracles is illustrated by the way in which the two-year firestorm triggered by New York Rep. James Tallmadge, Jr.’s proposed amendment to the 1819 act enabling Missouri’s petition to form a state government eventually was resolved. With sectional differences running high, the Tallmadge Amendment would have prohibited introduction of any additional slaves into Missouri as well as gradually emancipating existing slaves there. Tempers flared – a miracle seemed “infinitely improbable” (Arendt 1968). Massachusetts Representative Timothy Fuller opined that “the governments in the slave states were not ‘republican’ in form, as required by the guaranty clause of Article IV, Section 4 of the Constitution” (p.11). Virginian John Tyler held “it was unreasonable to believe ‘that Southern bayonets would be plunged into Southern hearts’” (p.11). “Rep. Thomas W. Cobb of Virginia warned that the Tallmadge proposal had ‘kindled a fire which all the waters of the ocean cannot put out, which seas of blood can only extinguish’” (p.12). The Union was clearly at risk. “[M]iracles . . . always must be . . . wholly unexpected” (Arendt 1968). With the Missouri Compromise, dissolution was avoided because “both parties were dominated by actors who were committed, at least in general terms, to the maintenance of sectional peace” (p.18).
On the other hand, Maltz pinpoints how DRED SCOTT symptomized political dialectic collapsing into an effort to fashion a definitive final solution:
[T]he Southern Justices—a majority on the Court—boldly decided to use the [Dred Scott] case as a vehicle to constitutionalize the position of the slave states on the issue of slavery in the territories. By doing so, they hoped to finally settle the controversy in favor of the South and to devitalize the newly formed Republican Party (p.2).
Although, between 1825 and 1842, the impulse to compromise in the name of sectional peace prevailed at the Supreme Court as well as in Congress, that judicious inclination had evaporated by 1856. In a telling vignette of Associate Justice Peter Vivian Daniel, Maltz captures the combative mood of the Court to which Dred and Harriet Scott brought their case. Appointed to the Supreme Court by President Van Buren in 1841:
Daniel was deeply committed to the constitutional theories embodied in the work of John Taylor [of Caroline] and the Virginia and Kentucky Resolutions . . . [and he] viewed the defense of these principles . . . as an apocalyptic struggle between good and evil. . . . “[T]he Daniel who came to the Court in 1841 . . . was a man of controversy, ferocious, unyielding, and utterly humorless in dispute[;]” . . . a “brooding proslavery fanatic” whose mind was “completely closed on the slavery issue” (pp.80-81).
Toward the end of his life, it is well known that John Marshall despaired of the Union’s longevity. “At the height of the nullification crisis of 1832, the aging jurist confided that he was yielding ‘slowly and reluctantly to the conviction that our constitution cannot last.’ He foresaw the end of a union that had ‘been prolonged thus far by miracles’” [*672] (Hobson 1996). One can debate dates. Did the 1857 DRED SCOTT decision mark the end of Americans working miracles? Or was DRED SCOTT the beginning of the end; the end of the beginning? Maltz’s analysis supports the conclusion that DRED SCOTT was a catalyst, not a conversation-stopper:
[W]hen the Court attempts to resolve fundamental differences, particularly in situation where the battle lines are already clearly drawn . . . [t]hose whose positions are threatened by the Court’s action are unlikely to simply acquiesce and abandon their views. Instead, they will attack the decisions of the Court and continue the struggle in other venues (p.155).
Some of these venues were judicial. Judge Jack B. Weinstein discusses judicial resistance to DRED SCOTT in the course of exploring how federal judges might oppose unjust laws. Saying he is “not convinced that [Robert] Cover presented the whole picture” of a judge’s options in JUSTICE ACCUSED (acquiescence or resignation), Weinstein points out that “nullification [of DRED SCOTT] by Northern judges, in part through standard interpretive practices and the distinguishing of cases did occur” (Weinstein 2004). To illustrate his point, Weinstein quotes a judge concurring in an 1860 New York Court of Appeals case, LEMMON v. PEOPLE: “The exclusive right of the State of Missouri to determine and regulate the status of persons within her territory, was the only point in judgment in the Dred Scott case, and all beyond this was obiter” (Weinstein 2004).
If DRED SCOTT does not signal the end of freedom and the onset of “that automatism . . . where doom seems foreordained” (Arendt 1968), did Abraham Lincoln’s 1860 election extinguish miraculous politics? Mark Graber makes an argument strikingly close. In a manner vaguely reminiscent of Gary Trudeau’s famous portrayal of Attorney General John N. Mitchell as Guilty! Guilty! Guilty! Graber declares Lincoln Wrong! Wrong! Wrong! Lincoln “consistently misperceived the dynamics of antebellum constitutional politics . . . [m]ost significantly, Lincoln misconstrued the fundamental principles underlying the antebellum constitutional order” (Graber 2006).
Teamed with Maltz and Arendt, Graber’s book would make for an engaging graduate seminar. Graber likely would agree with Maltz that DRED SCOTT was a “colossal judicial failure (p.3) in the specific sense that the majority attempted to foreclose debate on the constitutional evil of slavery. (“By attempting to close off criticisms of slavery, Southern political actors were eliminating the main republican practice furthering emancipation: rational persuasion” [Graber 2006]). For Graber, Lincoln’s stance was even more risky. He embraced an armed quest for constitutional justice even though he could not know the prospects of achieving it. (“No guarantee existed in 1861 that war would free the slaves” [Graber 2006]).
History does not lend itself to bright lines or single causes. Still, it seems clear that, by April 12, 1861, Americans had run out of miracles. National [*673] conversations about slavery disintegrated into civil war. Americans stopped talking, and began killing one another. The politics of slavery – Maltz’s subtitle and topic – was replaced by a war (in significant measure) over slavery. Civil wars, as Arendt said of war in the twentieth century, “are monstrous catastrophes” (Arendt 2005). That the American catastrophe was not avoided obscures the possibility that, had hubris not prevailed, war might have been averted. Hubris is a key element in tragedy. Heroes sometimes may forestall tragedy. In a 1995 article, Maltz characterizes Justice Benjamin Curtis as “The Unlikely Hero of Dred Scott” (Maltz 1995). Curtis’ heroism consisted of being a compromiser. He was open to consent reached by mutual concession:
Curtis declined to hold that the Constitution embodied either the proslavery or antislavery view of slavery in the territories. Further, just as he had earlier urged the governments of the free states to respect the rights of slave states to define the relationship between their inhabitants, in Dred Scott he recognized that antislavery governments had similar rights over their domiciliaries and native-born inhabitants (Maltz 1995).
“By 1861, however, compromise had become impossible. The sectional divisions had become too deep to be healed by those who, like Curtis, sought the middle ground of accommodation and compromise on the slavery issue. Thus, the dispute could only be resolved by one side or the other achieving total victory – a victory won by military force” (Maltz 1995). Sadly, although humans “can cheat” (Arendt 1969) the seemingly inevitable – by acting freely, miraculously, and heroically – having the ability to cheat does not mean we will do so.
Arendt, Hannah. 1965. ON REVOLUTION. New York, NY: The Viking Press.
Arendt, Hannah. 1968. BETWEEN PAST AND FUTURE. New York, NY: The Viking Press.
Arendt, Hannah. 1969. ON VIOLENCE. New York, NY: Harcourt, Brace & World.
Arendt, Hannah. 2005. THE PROMISE OF POLITICS. Jerome Kohn (ed). New York, NY: Schocken.
Bowen, Catherine Drinker. 1966. MIRACLE AT PHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787. Boston, MA: Little, Brown.
Cover, Robert M. 1984. JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS. New haven, CT: Yale University Press.
Graber, Mark A. 2006. DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL. Cambridge, England: Cambridge University Press.
Hobson, Charles F. 1996. THE GREAT CHIEF JUSTICE: JOHN MARSHALL AND THE RULE OF LAW. Lawrence, KS: University Press of Kansas. [*674]
Maltz, Earl M. 1995. “Bondage, Freedom & the Constitution: The New Slavery Scholarship and Its Impact on Law and Legal Historiography: Slavery and The Constitution: The Unlikely Hero of Dred Scott: Benjamin Robbins Curtis and the Constitutional Law of Slavery.” 17 CARDOZO LAW REVIEW 1995.
Maltz, Earl M. 1998. “Brown v. Board of Education.” In William N. Eskridge, Jr. and Sanford Levinson (eds). CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES. New York, NY: New York University Press.
Waldron, Jeremy. 2000. “Arendt’s Constitutional Politics.” THE CAMBRIDGE COMPANION TO HANNAH ARENDT. Dana Villa (ed). Cambridge, England: Cambridge University Press.
Weinstein, Jack B. 2004. “Fifty Years of Reflection: BROWN V. BOARD OF EDUCATION And Its Universal Implications: Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice.” 32 FORDHAM URBAN LAW JOURNAL 131.
Wellmer, Albrecht. 2000. “Arendt on Revolution.” THE CAMBRIDGE COMPANION TO HANNAH ARENDT. Dana Villa (ed). Cambridge, England: Cambridge University Press.
Wood, Gordon S. 2007. “Reading the Founders’ Minds.” 54 THE NEW YORK
REVIEW OF BOOKS 63.
DRED SCOTT v. SANDFORD, 19 Howard 393 (1857).
LEMMON v. PEOPLE, 20 N.Y. 562 (1860).
© Copyright 2007 by the author, James C. Foster.