Reviewed by Helen J. Knowles, Department of Political Science, Grinnell College. Email: h.j.knowles [at] gmail.com.
Are you a legal scholar who is also a natural law skeptic? Do you believe that natural law is inevitably supportive of slavery? If you have answered yes to either of these two questions, then the political scientist Justin Buckley Dyer wants you to read Natural Law and the Antislavery Constitutional Tradition. He suggests that a series of case studies from the nineteenth century will cause you to revisit (and maybe even rethink) your hostility to that political philosophy. It is not a case of imagining a world in which natural law is employed and embraced by the opponents of human bondage for, as Dyer demonstrates, in the early American republic such a world actually existed. It was a world inhabited by a great many men and women, some of whom were prominent jurists and politicians. I am not convinced that Dyer’s book will convert any of the aforementioned skeptics. And it is also likely to be of limited appeal to legal historians and scholars of American abolitionism. However, we would all do well to remember that, ultimately, this work – like Mark Graber’s excellent treatment of the concept of “constitutional evil” – addresses the most profound moral problem that confronted this republic in the nineteenth century, the legacy of which haunts us to this day (Graber 2006). If that is not worth the attention of all of us (natural law skeptics and devotees alike), then I do not know what is.
As George Van Cleve observes, “at least where slavery was concerned, the evidence suggests that early Americans were sharply divided on the proper relationship between natural law and positive law” (Van Cleve 2011, p.125). Natural Law and the Antislavery Constitutional Tradition examines the ways in which this division played out in the antislavery arguments of several prominent politicians (Dyer calls them “statesmen”) and judges – such as Joseph Story, John Quincy Adams, and Abraham Lincoln (p.13). These men would have concurred with the sentiment of W. Stickney who, in 1852, in a letter to the editor (William Lloyd Garrison) of the Liberator newspaper, asked the following rhetorical question: “How can I become infidel to that Higher Law, written before and above all Constitutions, that natural law of justice, irrepealed and eternal, that declares it blasphemy to hold property in man?” (Stickney 1852) Dyer’s book demonstrates that members of the American antislavery community frequently confronted this inquiry. This is because their idealistic, liberal belief that, in theory, the U.S. Constitution was underpinned by antislavery principles of natural law stood in fundamental tension with the harsh reality of enslaved men and women. [*18]
On one level Dyer’s book contributes to the literature showing that the historical development of American constitutionalism has been anything but smooth, and is best described as a series of “discontinuities” (Kersch 2004). Ironically, however, on another level it shows that the nation’s antislavery constitutionalism also possessed a strong element of continuity – there was always a “felt tension between ideals and practice” (p.17).
Together chapters two through five represent the intellectual heart of this book. Each addresses the arguments that comprised the antislavery constitutionalism dialogue regarding specific court cases.
Chapters two and three examine the relationship between the seminal British court decision in Somerset v. Stewart (in which Lord Chief Justice Mansfield declared that slavery could only be supported with the force of positive law) and a series of slave trade cases from the 1820s and 1830s. Dyer concludes that Somerset had a “formative but limited impact … on Anglo-American constitutional development during the first quarter of the nineteenth century” (p.42). This is consistent with the findings of other scholars who rightly caution against overemphasizing the real world import of Mansfield’s antislavery rhetoric (Wiecek 1977, 38-9; Van Cleve 2011, 130-31; Cover 1975).
Chapters two and three also discuss the way in which the theory-reality tension manifested itself in the writings of three jurists. In chapter two Dyer examines Justice Joseph Story’s circuit opinion in La Jeune Eugenie, the U.S. Supreme Court’s decision (from the pen of Chief Justice John Marshall) in The Antelope, and Lord Stowell’s decision, for the British High Court of Admiralty, in The Slave, Grace. Chapter three is entitled “Constitutional Disharmony in The Antelope and La Amistad,” but is as much about the corpus of post-presidential antislavery work by John Quincy Adams as it is about these two decisions (a corpus that includes Adams’s argument in the Amistad case). The chapter’s title is nevertheless significant. It points to the fact that the concept of constitutional disharmony (explored recently by Gary Jacobsohn) is the animating theme of all the antislavery arguments documented in the book (Jacobsohn 2010).
While chapters two and three are compelling reads, in chapters four and five Dyer sets himself an immense task, and I am not convinced that his argument is strong enough for us to conclude that his endeavor here has been successful. Dyer tackles the familiar territory of the decisions in Dred Scott v. Sandford and Prigg v. Pennsylvania. What else is left to say? This is the initial question that must be answered by anyone who takes on these landmark cases. Dyer suggests in chapter four that scholars have underappreciated the role that antislavery natural law reasoning played in some sections of some of the opinions in those cases. He spends considerable time discussing Justice McLean’s dissent in Dred Scott. His evaluation of that opinion is summarized in the following passage: “The reason McLean supported fidelity to the Constitution, even when the law was unambiguous in its accommodation of what was unjust, such as in the fugitive-slave clause, was because of his conviction that the Constitution was [*19] essentially antislavery” (p.133). Whether Dyer is right, however, that the key to understanding McLean’s dissent is natural law reasoning, is a separate and distinct issue, and one that he never fully addresses in a convincing manner. This is a lingering concern in chapter five in which Dyer continues his discussion of Dred Scott by focusing upon Abraham Lincoln’s response to that decision. As in chapter four, here the author failed to convince this reader that he has made an important contribution to the already voluminous literature about his subject.
The nature of the shortcomings of these chapters inevitably prompts the question: who will read this book? One can imagine members of the law and courts community engaging their students in valuable discussions about the big picture issues of law and morality that Dyer addresses. However, there is a noticeable disconnect between the chapters outlined above and the sections that serve as the bookends of the work. When one combines this disconnect with the fact that much of the material in the substantive chapters of the book has already appeared in several prominent journal articles, it is difficult to conclude that students would be better served by reading the book rather than those articles (which are all useful in their own right) (Dyer 2010; 2010a; 2009; 2009a).
The organizational disconnect is evident at both the beginning and end of the book. The prologue and introduction suggest that Dyer’s ultimate goal is to use the case studies as a way to engage his twenty-first century audience in a more meaningful debate about the “meaning and place of natural law in the American constitutional regime” (p.14). He laments the paucity of attention that modern day constitutional scholars pay to these principles, and seeks to reverse this trend (which he traces – albeit very briefly – back to Oliver Wendell Holmes, Jr.’s 1918 Harvard Law Review article) (p.25). Were we once again to take natural law seriously, Dyer suggests, our conversations about American constitutionalism would be that much richer and meaningful. Ultimately, however, the subsequent chapters do not read as efforts to achieve this goal. Indeed, they offer compelling reasons why natural law is likely to continue to be viewed as of only limited use for understanding the nation’s constitutional tradition. After all, as Dyer shows, when confronted by the most compelling moral problem of this republic’s existence, the antislavery community realized that its prayers for a Constitutional end to slavery would not be answered by an appeal to natural law principles.
The five pages of chapter seven (in which Dyer engages in an extremely brief discussion of the role played by the antislavery constitutional tradition during Reconstruction) serve as the actual end of the book. However, substantively the work concludes in chapter six. This is unfortunate because this section of the book is as disconnected from the chapters focusing on court cases as are the prologue and introduction. It is not clear why Dyer felt compelled to engage in a sharp critique of the Rawlsian notion of public reason in this chapter. The book would have been that much stronger without this section.
In a 2012 historiographical review James Brewer Stewart observed that during the early American republic “conflicts over [*20] slavery were frequent, serious, many faceted, [and] usually from ‘the bottom up’” (Stewart 2012, p.494). To be fair, Dyer’s focus lies elsewhere, with statesmen and judges – the legal and political elites of society. However, it is for precisely this reason that his work will also be of limited appeal for legal and political historians – especially those who are familiar with antislavery constitutionalism and current historiographical trends. In recent years historians have become increasingly aware of, and sensitive, to the importance of incorporating into their antislavery narratives the vibrant and diverse voices of the abolitionist movement’s foot soldiers and intellectual leaders (as distinct from political elites). The essays in Contesting Slavery – edited by John Craig Hammond and Matthew Mason – demonstrate the importance of this trend (Hammond and Mason, 2011).
Scholars familiar with the role of these lesser-known individuals in the development of antislavery constitutionalism will find Dyer’s focus particularly frustrating, in part because at one point he offers a description of the different “camps” of antislavery constitutionalism that not only ignores one set of those actors but implies that they did not exist. “The question that split radical abolitionists and proslavery constitutionalists,” he argues, “was not whether the Constitution was antislavery – they agreed that it was not” (p.24). To be sure, as W. Caleb McDaniel has demonstrated, “‘[w]hat counts as radical abolitionism’ is a question without a clear or consistent answer” (McDaniel 2009, p.1). However, while Dyer does not define the term, his use of it strongly suggests that the abolitionists who contended (principally in the 1840s) that slavery was unconstitutional were indeed “radical.” And those men certainly did not agree that the Constitution was proslavery. In a movement that was itself small (Julie Roy Jeffrey estimates that by 1860 abolitionists represented only one percent of the U.S. population), the men who made these arguments were few in number (Jeffrey 1998, p.3). But they did exist (as, ironically, Dyer appears to realize in one paragraph at the end of the book; see p.179), and they did make important contributions to abolitionist dialogues about the “special relationship” between slavery and the Constitution (Knowles 2007; forthcoming 2013).
This is not to say, however, that we cannot learn important lessons from the case studies contained in Natural Law and the Antislavery Constitutional Tradition, the aforementioned shortcomings of the book notwithstanding. After all, any discussion of the relationship between the U.S. Constitution – which far too often commands our uncritical adulation – and slavery is a discussion worth having. For eminently understandable reasons many members of the abolitionist community saw no hope for that document; it was to them – as William Lloyd Garrison famously proclaimed – a “covenant with death, and an agreement with hell.” However, we should not be too quick to embrace that condemnation of the Constitution (even though it comported with reality). There are equally understandable reasons why we might want to condemn as naïve and hopelessly idealistic the views of those who chose instead to see natural law principles and antislavery hope in the nation’s supreme (positive) [*21] law. What Dyer’s book suggests is that when we adopt this rejectionist attitude we fail to take seriously the arguments that the men and women who actually lived in pre-Thirteenth Amendment America took very seriously indeed.
Cover, Robert M. 1975. Justice Accused: Antislavery And The Judicial Process. New Haven, CT: Yale University Press.
Dyer, Justin Buckley. 2010. “Revisiting Dred Scott: Prudence, Providence, and the Limits of Constitutional Statesmanship.” Perspectives on Political Science 39: 166-74.
----------. 2010a. “Slavery and the Magna Carta in the Development of Anglo-American Constitutionalism.” PS: Political Science and Politics 43: 479-82.
----------. 2009. “After the Revolution: Somerset and the Antislavery Tradition in Anglo-American Constitutional Development.” Journal of Politics 71: 1422-34.
----------. 2009a. “Lincolnian Natural Right, Dred Scott, and the Jurisprudence of John McLean.” Polity 4: 63-85.
Graber, Mark A. 2006. Dred Scott and the Problem of Constitutional Evil. Cambridge: Cambridge University Press.
Holmes, Oliver Wendell, Jr. 1918. “Natural Law.” Harvard Law Review 32: 40-4.
Hammond, John Craig, and Matthew Mason, eds. 2011. Contesting Slavery: The Politics of Bondage and Freedom in the New American Nation. Charlottesville, VA: University of Virginia Press.
Jacobsohn, Gary Jeffrey. 2010. Constitutional Identity. Cambridge, MA: Harvard University Press.
Jeffrey, Julie Roy. 1998. The Great Silent Army of Abolitionism: Ordinary Women in the Antislavery Movement. Chapel Hill, NC: University of North Carolina Press.
Kersch, Ken I. 2004. Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law. New York: Cambridge University Press.
Knowles, Helen J. (forthcoming 2013). “Seeing the light: Lysander Spooner’s increasingly popular constitutionalism.” Law and History Review.
----------. (2007). “The Constitution and Slavery: A Special Relationship.” Slavery and Abolition 28: 309-28.
McDaniel, W. Caleb. 2009. “What Counts as Radical Abolitionism? A Reconsideration of Recent Scholarship.” Paper presented at the annual meeting of the Organization of American Historians, Seattle, WA, March 27.
Stewart, James Brewer. 2012. “Review Essay: Rethinking the Politics of Slavery, 1776-1836.” Journal of the Early Republic 32: 493-8. [*22]
Stickney, W. 1852. “Compromising with Slavery.” Liberator, June 25.
Van Cleve, George William. 2011. “Founding a Slaveholders’ Union, 1770-1797.” In Contesting Slavery: The Politics of Bondage and Freedom in the New American Nation, edited by John Craig Hammond and Matthew Mason, 117-37. Charlottesville, VA: University of Virginia Press.
Wiecek, William M. 1977. The Sources of Antislavery Constitutionalism in America, 1760-1848. Ithaca, NY: Cornell University Press.
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
La Jeune Eugenie, 26 F. Cas. 832 (1822).
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842).
Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772).
The Antelope, 23 U.S. (10 Wheat.) 66 (1825).
The Slave, Grace, 2 Hag. Adm. 94, 166 Eng. Rep. 179 (1827).
United States v. The Amistad, 40 U.S. (15 Pet.) 518 (1841).
© Copyright 2013 by the author, Helen J. Knowles