Dred Scott Revisited

By Jaffa, Harry V. | Harvard Journal of Law & Public Policy, Winter 2008 | Go to article overview

Dred Scott Revisited


Jaffa, Harry V., Harvard Journal of Law & Public Policy


I.

It has been many years since I first wrote that the American Revolution was, at once, an event in time and an idea out of time. (1) Lincoln meant no less when he wrote that Jefferson enshrined in the Declaration of Independence "an abstract truth, applicable to all men and all times." (2) It was a commonplace among the Founders (and Lincoln) that the American experiment in self-government was not for Americans alone, but for all mankind. (3) This was not merely an expression of national pride. It was a sober judgment. It was almost as impossible then, as it is now, to imagine circumstances more favorable to the success of this experiment than those that existed at the Founding. It was, and is, hard to imagine this experiment succeeding elsewhere if it failed here. The Civil War clearly was a test, as Lincoln said at Gettysburg, of whether any nation "conceived in Liberty, and dedicated to the proposition that all men are created equal" could long endure. (4) The test came when eleven states "seceded" following the election of Abraham Lincoln in 1860. The Republican platform in that year contained a pledge to end any further extension of slavery into the new territories from which new states might be formed. (5) The seceding states found it intolerable that all new states would be free states, so that eventually three-fourths of the states might be able to abolish slavery by constitutional amendment, without the consent of the slave states. As Lincoln put it in his first inaugural, "One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended. This is the only substantial dispute." (6)

Lincoln believed that the Constitution established a regime within which such disputes might be resolved peacefully. The states, in ratifying the Constitution, bound themselves to accept the results of elections held according to the rules of the Constitution. To set aside the results of an election because of dissatisfaction with those results, as the secessionists proposed, would make a mockery of the very idea of government by elections. It would leave tyranny or anarchy as the only alternatives. Lincoln set out this argument--ballots or bullets--with mathematical simplicity and clarity. He conceded, however, that if any constitutional rights or privileges had been denied to the discontented states in the elections, or if there was any future threat by the Republicans to such rights or privileges, the states' withdrawal from the Union might be justified. (7) Lincoln took the greatest pains to deny that any such rights or privileges had been denied or threatened. He could not, however, deny their differences concerning slavery. Nor did he deny that a difference on this subject could turn friends into enemies and make a common citizenship impossible. (8)

In all his speeches, from Peoria in 1854, (9) to Cooper Union in 1860, (10) and finally to Gettysburg in 1863, (11) Lincoln insisted that the central idea of the Founding, from which all its minor thoughts radiated, was the proposition that all men are created equal. The slavery that existed in the Founding generation was an inherited evil that could not be eradicated instantly, but it was, in accordance with the principles of the Declaration, to be "put in course of ultimate extinction." (12) All the legal rights of white men depended finally upon the recognition of a common human nature. The Declaration itself was addressed to a "candid world," (13) which included all races and nations. There could be no such thing as equal rights of slavery and freedom. Property in human beings could not be compared indifferently to property in non-human chattels. To make chattels of other human beings was a violation of the laws of nature, and this nation was founded upon "the Laws of Nature and of Nature's God." (14)

To justify their claim to the same rights in the territories as in the free states, leading Southerners transformed the assertion of equality of the rights of individual human beings into a claim of equality of rights of the states. …

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