Comments Elsewhere

Sheldon,

Thanks for this series. I’m sorry that being out of town for a while has kept me from taking much note of it until now.

The conversation reminded me a lot of the controversy between the disunionist abolitionists and the Liberty Party faction in the mid-1840s, when folks such as James Birney, Salmon Chase, and Alvan Stewart were arguing that the Constitution already forbade slavery, if you read the right clauses in the right way. Here’s a paragraph from Henry Mayer’s excellent biography All on Fire: William Lloyd Garrison and the Abolition of Slavery, on the Liberator circle’s take on the controversy (boldface added):

‘Such readings Garrison dismissed as naive wordplay or deceptive political contrivance. He insisted that the courts and the public had so uniformly accepted the proslavery protections of the Constitution for half a century that individuals could not dextrously conjure them out of existence. Frederick Douglass made a keen summary of the argument: “They looked at slavery as a creature of law; we regarded it as a creature of public opinion.” Even if the document could be read as the Liberty men suggested, Garrison stressed, “such construction is not to be tolerated against the wishes of either party.” Certainly the South would never agree that the three-fifths clause had to defer to some vague emanations that the preamble embraced anti-slavery philosophy, and the Prigg and Latimer [fugitive slave] cases demonstrated that stern New England jurists would not substitute natural law for a strict construction of the fugitive slave clause. Political realism, he insisted, required people to recognize the Constitution as a corrupt “bargain and compromise” of which “no just or honest use … can be made, in opposition to the plain intention of its framers, except to declare the contract at an end, and to refuse to serve under it.”’ —Henry Mayer, All on Fire: William Lloyd Garrison and the Abolition of Slavery, p. 326.

Those who want to end a legalized injustice would be better off challenging the climate of acceptance that sustains it, not the textual or procedural mumbo-jumbo that formalizes it. And that is far better achieved by appealing to conscience and common morality than it is by pseudo-legalistic grandstanding in the futile attempt to out-lawyer the whole American judicial-regulatory apparatus and the authors of the United States tax code.