Thursday, February 26, 2015

Terry Gross, Eric Foner... and Justice Scalia?

So midway through the Fresh Air interview, Terry Gross starts asking Eric Foner about the dangers faced by blacks living in antebellum New York City. Of course runaway slaves could be captured and forced back into slavery, but legally free blacks also had to fear being seized and sold into slavery by kidnapping rings. Last year, the film 12 Years a Slave drew international attention to the plight of Solomon Northup and others like him who faced such a fate.

Terry Gross then brings up the Fugitive Slave Act of 1850, which is--by my lights anyway--one of the most compelling and disturbing things in all of American history. Foner notes that the Act built on the so-called "runaway slave clause" in the Constitution. But he also points out that the runaway slave clause--and all the laws passed in the six decades following the Constitution's ratification--proved rather ambiguous and difficult to enforce. The difficulties became even greater as northern states passed "personal liberty laws" that all but nullified the runaway slave clause.

The Fugitive Slave Act ended all that ambiguity in shocking fashion. It overruled state laws, made local law enforcement officers party to slave-hunting, and even required--with the threat of fines or imprisonment--private citizens to assist federal officials in hunting runaway slaves. More on the F.S.A. shortly.

Gross and Foner move to a new topic for a few minutes--Gross asks Foner if there are certain myths about the Underground Railroad he wants to debunk, which he gladly does. Then Gross suddenly shifts back to the Constitution and asks a very bad question. A dumb question. Perhaps even disingenuous. Or maybe I'm exaggerating things (me?never!), and it was merely a silly question. Well, anyway, here it is:

GROSS: Let's get back to the Constitution. 
As you've pointed out, the Constitution upheld slavery. I mean, in Article IV, Section 2, it says, (reading) "no person held to service or labor in one state, under the laws thereof, escaping into another, shall, on consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service may be due." 
So without mentioning the word slave, it basically says if you're a slave and you leave, you got to be taken back to the guy who owns you.  
FONER: Right. 
GROSS: So I just guess I'm just wondering what you make of the judicial philosophy of originalism, which is espoused by Justice Scalia, for one. And it says that, you know, the philosophy basically says you should read the Constitution as closely as you can to the intent of the original founders and also to take it as literally as possible. What do the originalists make of how the Constitution upheld slavery? Because if we're going to take that at face value, well, we're a really different country.
I encourage you to listen to the whole interview primarily because--that one question aside--it is a great and highly informative listen, but also because it gives you a sense for just how bizarre this question sounded in context. Almost but not quite out of nowhere, Gross jumps at the chance to take a (disingenuous? dumb? silly?) shot at an ideological opponent.

"You mentioned the Constitution. That reminds me: aren't conservatives just the worst?!"

Along with being rather irrelevant in context, her question reveals a rather obvious misunderstanding of "originalism," as espoused by Justice Scalia and others. Perhaps most significantly, though, her question is premised on a dim view of jurisprudence, the law, and the role of a judge.

But before getting into all that, I want first to reiterate the interview's excellence. This was actually about a month ago--on Martin Luther King Jr. Day. I had just finished some work on my Reconstruction and Jim Crow Era unit, and written a short post on W.E.B. DuBois' essay "Of Mr. Booker T. Washington and Others," so I was especially interested in this interview.

Eric Foner is a giant in Civil-War-Era history. He's won basically every major prize for historical scholarship out there. Most significantly, perhaps, he put the authoritative nail in the coffin of the so-called "Dunning School" interpretation of Reconstruction.* Foner was promoting his new book on the "Underground Railroad," and he provided a nuanced and fascinating take on the Underground Railroad's much-fabled and, more recently, much-"debunked" story. As I say, the interview merits your time and attention. Listen to it.

But in the month since, I keep occasionally remembering that question with annoyance. So I'm hoping that this gotta-scratch-that-itch post will solve the problem.

As I said before, there are two major problems with the "Don't originalists support slavery??" question. Mostly obviously, the question entirely fails to account for that whole Amendment-to-the-Constitution thing. Of course the Amendments themselves were not "originally" part of the Constitution, but the whole system of amending the Constitution was. In other words, the framers of the Constitution anticipated the need to change the Constitution and provided the means to do so. Once an Amendment is ratified, the Constitution is changed. This means that the United States Constitution--the thing our Supreme Court justices interpret--is not actually a document that was created back in May 1787. It is the current Constitution, as altered and supplemented by the twenty-seven Amendments--and even, to a certain extent, as interpreted by previous judges and justices.

Foner's response to the question starts there:
FONER: Well, I am a critic of Justice Scalia's mode of interpreting the Constitution. However, I do not believe that he wants to reinstitute slavery. Let us put it that way. I'm sure that Justice Scalia would say, well, look. The 13th, 14th and 15th Amendments to the Constitution after the Civil War pretty much abrogated the Fugitive Slave Clause, abrogated the three-fifths clause. . . .
In other words--and it's kind of remarkable that this needs saying--originalists aren't trying to discard the Amendments and get back to the real Constitution of 1787. Originalists simply think that changes ought to be made through the amendment process provided for by the Constitution.

So, okay, Gross probably needs a refresher on how the Constitution actually functions. But, as I indicated before, there's a more significant premise operating within her question. In it, she presupposes that Supreme Court justices are essentially activists whose theories of jurisprudence are mere cover to justify whatever their particular goals happen to be. She's assuming that Scalia is an originalist because he must want to return America to the 18th century--not because he believes that authorial intent should be a definitive determinant in Constitutional law.

Now, I recognize that theories of government and jurisprudence so very often do serve as nothing more than post facto justification for one's preexisting ideological or political goals. One reason I am fascinated with the afore-mentioned Fugitive Slave Act of 1850 is because it, probably more than any other law up to that point, extended and enlarged federal power at the expense of states' rights. And yet the Fugitive Slave Act was designed to enlist the support of Southern states for the Compromise of 1850--many of which would secede from the Union a decade later supposedly because of their firm support for states' rights. States' rights, then, functioned as a tool to support the real motivation for secession--the perpetuation and extension of a slave-based cultural and economic system.

Go a generation further back, and you'll find John C. Calhoun--he of the "slavery as a positive good" nonsense--shifting from a staunch nationalist to the preeminent advocate for states' rights just as, interestingly enough, southern dominance of federal government fell away.** And today we have the spectacle of conservatives who somehow manage to expound the glories of small government--while fighting tooth-and-nail to increase the budget of history's most expensive military apparatus.

All that to say: yes, I recognize that many self-proclaimed "originalists" are less invested in jurisprudential theories than they are in the veneration of Our Founding Fathers who (surely) art in heaven--even the deists!

For such folks, the rest of Foner's response is apt and necessary:
FONER: . . . I think your point, though, in a larger sense is very important, which is that our Constitution was flawed from the beginning, that this is just a representation of the fact that slavery was deeply embedded in our nation. 
You know, when the Constitution was written, the slaves represented about 20 percent of the total American population. That's the highest black percentage in our entire history. They were a major part of the population of the United States. And yet, they had no rights whatsoever recognized in the Constitution, and they were not considered part of the "we the people." . . . So without going into the nuances of constitutional interpretation, I think people who do think about the history of our country need to really come to terms with how slavery was so deeply embedded and shaped the development of the United States for many, many years.
Even so, isn't it possible that some originalists--the much-maligned Scalia, for instance--might actually see their job as interpreting the supreme law of the land as it was written, to the best of their abilities? Might it be possible that they see themselves as bound to the Constitution, regardless of their inclinations or feelings? Isn't it possible that legal theories and political systems are not always and inevitably mere smokescreens to hide personal or class interests?

I am deeply skeptical of the illusions of objectivity. I know that each of us is limited to one perspective, one horizon. But I'm also not a fatalist or determinist. We are capable of recognizing and combatting bias--capable of empathy and understanding of others, even if we cannot fully enter into the perspective of another person. We can even change our own perspectives, "expand our horizons," as it were.

I believe it is theoretically possible to be an originalist even while despising the framers of the Constitution--just as it was possible for John Adams to oppose the Quartering Act of 1765 and yet defend in court the British soldiers of the Boston Massacre; just as it was possible for Abraham Lincoln in 1861 to be vehemently opposed to slavery and yet believe himself constitutionally prohibited from interfering with it in the states where it already existed; just as it is possible today for public defenders to despise the criminal behavior of many of their clients while nevertheless defending those same clients zealously, as our justice system requires.

I hope so, anyway. I hope judges remain who are capable of seeing the law as more than an instrument for the realization of personal beliefs and political agendas. I hope our Supreme Court justices can and do act on the basis of the law rather than simply following the dictates of their own narrow beliefs and prejudices.

But Terry Gross--like many of my students, incidentally--seems incapable of imagining such a thing, seems incapable of distinguishing between one's duties or responsibilities and one's personal opinions and desires. I do think there's a place for that kind of single-minded simplicity, that uncompromising and unmixed dedication to an agenda.

I'm just not sure that place is the bench of the Supreme Court.

[*This is probably an overstatement, as the Dunning School interpretation continues to be taught in some schools and retains a kind of cultural cache here in the South. You may not be familiar with the Dunning School, but I'm sure you've absorbed their version of Reconstruction at some point. It's basically the Gone With the Wind story: vindictive Radical Republican politicians destroyed what was left of an impoverished but still dignified South, sending down corrupt northern carpetbaggers protected by brutal and bloodthirsty soldiers, aided and abetted by worthless, low-life scalawags. In this telling, Reconstruction was a dismal failure in every respect--a horribly chaotic and corrupt period that should have never happened. There are elements of truth to the Dunning interpretation, but taken as a whole it's complete garbage. Yet the Dunning School dominated Reconstruction scholarship for most of the twentieth century and continues to hold more sway in the popular imagination--at least in the South--than it ever ought to have had.]

[**It's probably worth noting here that Calhoun opposed the Compromise of 1850 on the basis of states' rights--he didn't think the federal government should be involved in passing laws on slavery within states at all. But he was too far past his prime to rally fellow Southerners against the Compromise--he was dying when it was debated and dead when it passed.]