The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law

three John Brown, Abraham Lincoln, Dred Scott, and the Problem of Constitutional Evil

฀49 t h r e e p John Brown, Abraham Lincoln, Dred Scott, and the Problem of Constitutional Evil Mark Graber KENNETH STAMPP concluded the preface to his And the War Came by asking readers, “How many more generations of black men should have been forced to endure life in bondage in order to avoid its costly and violent end?”1 Almost forty years later, Evan Carton concluded his Patriotic Treason by raising the same concerns. “There were opportunities to avert the war and opportunities to end it quickly that were not seized,” he states, “but four million other Americans—along with millions more of their descendants for perhaps many years to come—would also have remained enslaved.”2 Their similar language masked fundamentally different purposes . Stampp was justifying Abraham Lincoln’s decision in the spring of 1861 to go to war.3 Carton was justifying John Brown’s decision in 1859 to raid Harpers Ferry,4 a decision repeatedly and vigorously condemned by both Lincoln and the Republican Party.5 From John Brown’s perspective, Abraham Lincoln resembled the many Northern politicians who found more or less comfortable means for accommodating human bondage. Lincoln’s consistent support for fugitive 50 p Mark Graber slave laws led Wendell Phillips to dub him “the Slave-Hound of Illinois.”6 The first Republican president’s speeches before assuming that office offered little relief to those antebellum Americans most concerned with the plight of enslaved persons of color. Lincoln’s constitutional attacks on the proslavery policies associated with Dred Scott v. Sandford 7 were consistently balanced with constitutional defenses of other proslavery policies.8 The Republican platform of 1860, he admitted, would have almost no impact on the lives of those in bondage before the Civil War. The man who became known as the “Great Emancipator” “did not suppose that” after a congressional ban on slavery in all territories was implemented “ultimate extinction would occur in less than a hundred years at the least.”9 Some prominent abolitionists, uninspired by repeated Republican assertions about “the right of each state to order and control its own domestic institutions according to its own judgment exclusively,”10 concluded that Lincoln and his political supporters offered little more of value than such Jacksonians as Stephen Douglas and Roger Taney to the vast majority of the enslaved. A Republican victory in 1860, Lydia Maria Child believed, would yield only “a miserable mush of concession, leaving the country in a worse state than it found it.”11 This essay explores whether Abraham Lincoln from 1854 until 1861 successfully fashioned a viable middle ground between Dred Scott’s proslavery constitutionalism, as interpreted by Stephen Douglas, and John Brown’s antislavery violence. The first section presents evidence that Lincoln and Brown were largely engaged in an argument over tactics. Both found violence and lawless conduct necessary to emancipate slaves, but Lincoln did so in ways that gained support from crucial border states. The second section presents evidence that Lincoln and Douglas were largely haggling over the price of union. Both assured Southerners that their policies would leave untouched the lives of most slaves for the foreseeable future, but Lincoln thought slaveholders not willing to move to the western territories would be willing to accept grudgingly a prohibition on slavery in those regions. The concluding paragraph briefly raises questions about whether any alternative existed to arguing tactics with Brown or haggling over price with Douglas. Lincoln allegedly teaches lessons about “the politics of the possible ,”12 but the precise nature of those lessons and possibilities are obscured by scholarly failures to acknowledge the proslavery compromises necessary Brown, Lincoln, Dred Scott, and the Problem of Constitutional Evil p฀51 in 1861 to preserve the Union peacefully or the justification of the violence actually responsible for the abolition of slavery. Roger Taney/Stephen Douglas and John Brown may provide more realistic constitutional alternatives than Abraham Lincoln. The central question Americans faced during the late 1850s was how much slavery they were willing to accept to maintain national union. Taney and Douglas insisted that the price for Northerners was high, that a good deal of accommodation was necessary to preserve the Constitution of 1789. John Brown forthrightly insisted that all mainstream politicians proposed too dear a bargain for national union, that violence was the only means by which substantial numbers of slaves would be freed in the foreseeable future . By pretending that Lincoln...