Conservatives and constitutionalism

Conservatives love to say we have to get back to the Constitution and all our problems will be solved. The Constitution is instead the cause of most of our problems.

Consider, if you will, the Dred Scott decision. The North didn't want slavery there or expanded to the West but didn't really care that it continued in the South. The problem with slaves is that they are a naturally increasing asset- being living creatures they produce offspring, which is a great way of increasing your wealth, but the resulting persons must be put to work somehow, somewhere- you can establish new plantations and have them work there, or you can sell them to an entrepreneurial planter who will establish a new plantation and put them to work.

The land devoted to cultivation under slavery must increase with the slave population. A slave you can't work still must be fed and will quickly destroy your profits.

The South then wanted to open Western lands to slave cultivation. The Northerners wanted to expand their own economic system and culture into this area, based on owner family farming.

The long, ugly, and angry story of all this eventually came to a legal and constitutional end. With the Civil War, you say? No, not at all. The Dred Scott decision made it a final decision, of the unappealable law of the land, that slavery would be established in the Western territories.

Slavery is, you see, "constitutional." The concept of the Supreme Court as the final and unquestionable authority on the law of the land had been established for over 50 years, by of course John Marshall in Marbury vs. Madison.

I looked up John Marshall and was a bit surprised, although I should not have been, to find he was very much the product of English feudalism. His father, and he after him, were clients of Lord Fairfax, who functioned as an English lord in the Virginia colony. John Marshall is a great hero of liberals; he and his enthronement of judicial review are one of the great stories of liberalism taught in American schools.

The North was then placed in a very difficult position. It was widely expected- not unreasonably- that Roger Taney would soon declare slavery to be constitutional in every state. Even its expansion in the West would destroy the dream of New England, the Midwest, and the old Northwest- a nation of freeholders. Such a nation didn't exist anywhere at that time.

Stephen Douglas and the northern Democrats tried to downplay this- they said slavery couldn't be successfully established against the will of the people if the people refused to establish or enforce laws for its maintenance. The alternative was of course worse, and what was going on in Kansas- Southern vigilantes coming in to force slavery on the population.

The Civil War was, then, as the Southerners of the time correctly perceived, a revolt against and for purposes of overthrowing the Constitution. The love affair that liberals have with the Constitution, judicial review and an activist federal judiciary only dates to about the 40's, by which time they had taken over the academic culture and thus the judicial culture.

The bottom line is the Constitution means, and says, whatever the people who run things want it to mean and say. The idea that we don't currently live under a Constitutional regime and if judges would only apply the Constitution we would be free is outdated. Was it true at some time in the past? Not really. Roger Taney was no socialist- he was one of the worst human beings ever to live, and certainly the worst who was not a communist, but he was a very respected legal scholar and a traditional man of property. John Marshall might be thought of as a Roman patrician- a man who believed in the law, as long as it kept the people in power in power.