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Condi, Taney, and the GOP’s Constitutional Problem.

Earlier this month, during an otherwise laudable speech given before a gathering of black journalists, Condoleezza Rice endorsed the constitutional theory behind the infamous Dred Scott decision.

Her offending comment was brief. It came within a noble defense of our efforts in Iraq, in which she challenged the fashionable theories denying the ability (and desire) of non-Western peoples to live in liberal peace and toleration.

Still, Rice’s claim that “when the Founding Fathers said ‘We the People,’ they did not mean the people in this room,” was surprising stuff coming from a Republican. In adopting Chief Justice Taney’s appropriately discredited vision of the Constitution, Rice joined everyone from abolitionists, to secessionists, to the academy — and even Thurgood Marshall. The one person she did not follow was Abraham Lincoln, who rose to the presidency attacking Taney’s theory.

For Lincoln (and the mature Frederick Douglass), the institutional means established in the Constitution were sufficient to achieve the ends articulated in the Declaration of Independence — that is to say, the cause of human rights and racial equality could be achieved by the Constitution. Unlike John Brown and other lawless insurgents, Lincoln understood that the nation’s supreme law was sufficient to secure the rights of all persons.

What Taney and the abolitionists share with today’s liberal jurists and scholars is a belief that the Constitution stands fundamentally in the way of justice. Rice’s historical misstep is symptomatic of a deeper problem within the GOP — it suggests a general inability to explain how the Constitution operates to secure justice. And it is this failure, more than anything else, that stands in the way of arguments and policies that could forge a long-term Republican majority.

In Dred Scott, Chief Justice Taney argued that the Founders had not considered blacks as potential members of the political community. The Constitution precluded their membership as United States citizens. In his opinion, “the language used in the Declaration of Independence show[s], that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as part of the people, nor intended to be included in the general words used in that memorable instrument.”

Taney’s constitutional theory was immediately recognized as nonsense. In dissent, Justice Curtis wrote that to argue that the Constitution “was made exclusively for the white race” was “not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the United States, for themselves and their posterity.”

Justice Curtis was right: Taney’s opinion was a sham. And Lincoln built his political career attacking the constitutional logic and simple injustice of it.

For Lincoln, the “standard maxim” of the Declaration of Independence — that no person could by right rule over another without his consent — was to be secured via the political institutions constructed by the Founders. Both of these insights were bungled by Taney, who concluded erroneously that the Founders did not believe blacks to possess rights, and therefore did not include blacks among the “people” represented by the Constitution. Lincoln eviscerated Taney on both points. He agreed with Frederick Douglass that though the Constitution contained unfortunate, if not tragic, concessions to slavery, the Declaration of Independence understood even slaves to be in possession of rights — and the Constitutional scheme was capable of securing their freedom. The radical abolitionist claim, with which the south agreed — that the Founding was racist, and the Constitution a “covenant with death and an agreement with Hell” — utterly failed to capture the nature of the Union, the character of the Constitution, or the powers of the national government. Douglass, breaking with the Garrisonian abolitionists, explained that he “had arrived at the firm conviction that the Constitution, construed in the light of well established rules of legal interpretation, might be made consistent in its details with the noble purposes avowed in its preamble.”

The wrong-headedness of Taney’s constitutional theory is on display whenever people attempt to turn to the three-fifths clause as evidence for it. Rice told the gathered journalists that “our ancestors were three-fifths of a man.” In doing so, she echoed the constitutional theory of Al Gore, who argued when running against her boss: “[W]hen my opponent, Gov. Bush, says he’ll appoint strict constructionists to the Supreme Court, I often think of the strictly constructionist meaning that was applied when the Constitution was written — how some people were considered three-fifths of a human being.”

This contention is doubly problematic. First, it is simply misleading. The apportionment scheme that made slaves (not blacks in general) three-fifths of a person was actually more likely to secure policies favorable to freedom, since it would diminish the power of the slave states in the House of Representatives. (White southern slaveholders would have been more than happy for slaves to be considered full persons by the Constitution.) Second, and more crucially for Republicans, is the suggestion that the original Constitution was patently immoral.

Rice’s speech was inspiring, linking the administration’s promotion of liberal institutions abroad with the civil-rights struggles of the 1960s. Her charge that the belief that certain peoples are incapable of self-government “was wrong in 1963 in Birmingham, and [remains] wrong in 2003 in Baghdad and in the rest of the Middle East,” was stirring. Her language about the moral capacity, and human hope, for self-government long predates “neoconservative” foreign policy. It is the language of Lincoln and Douglass.

But it is precisely this philosophic congruence with Lincoln that makes Rice’s constitutional argument so jarring. For, whether knowingly or not, she also implicitly denies the capacity of the original Constitution to secure justice.

If the GOP is serious about becoming a majority party, it would do well to consider Lincoln its patron saint — our own FDR or JFK. It is particularly troubling, then, to have his central political protagonist endorsed by a high-profile member of a Republican administration. Such an endorsement either ignores, or flatly denies, the real significance and appeal of Lincoln’s constitutional thought.

Brendan Dunn is currently writing his doctoral dissertation in constitutional law at the University of Notre Dame.


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