Originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices' values from driving the process.
What if William Lloyd Garrison, the fiery abolitionist editor and activist, had gotten a Ph.D. and become an academic? He would be Paul Finkelman, the itinerant law professor now president of Gratz College in Philadelphia. Finkelman has spent this career making the argument that the Constitution was a pro-slavery document, regularly pounding the Founding for its racism. Indeed, he used Garrison’s famous description of the Constitution as a “covenant with death” as the subtitle of an essay on the Constitutional Convention.
Historian Don E. Fehrenbacher, on the other hand, has more convincingly shown that the Constitution was an anti-slavery document that was interpreted and administered in a pro-slavery way, creating what he called, in his 2001 book, The Slaveholding Republic. (This was the view of anti-slavery constitutionalists like Frederick Douglass and Abraham Lincoln.)
In Supreme Injustice: Slavery in the Nation’s Highest Court, Finkelman now extends his analysis to the antebellum Court and claims that it “invariably voted against liberty and in favor of slavery.” While not without merit, the new book displays the rhetorical overkill that characterizes Finkelman’s earlier work.
Its title is somewhat misleading. Supreme Injustice (given as the Nathan I. Huggins lecture series at Harvard) is really about three justices: John Marshall, Joseph Story, and Roger B. Taney. The bombshell revelation here is that John Marshall owned hundreds of slaves, and actively bought and sold them throughout his life. His biographers have all either ignored or denied this fact—Jean Smith, for example, wrote that Marshall owned a few slaves for domestic work, and G. Edward White said that Marshall was “not a slave owner.” But Finkelman tries to turn this discovery into the dominant theme of Marshall’s life and career. His chapter is entitled “John Marshall: Slave Owner and Jurist.” That would be like a prohibitionist covering America’s first President with a chapter entitled, “George Washington: Whiskey Distiller and Statesman.”
Finkelman claims that Marshall’s “universally admiring” biographers have ignored his slavery jurisprudence. This may be so, but there have been many scholarly articles, some quite recent, that treat the subject. Finkelman appears not to have consulted them, and they tell a much more complicated tale. Last year, for example, historian William F. Hardin wrote of Marshall’s persuading his colleagues on a Virginia court to free more than 400 slaves in the case of a contested will, the largest judicial manumission in American history. Finkelman missed this story.
Most antebellum slave cases involved international law and illegal Atlantic slave-trading. Justice Story’s holding in Le Jeune Eugenie (1822), that slave-trading was piracy and violated the law of nations, would be directly contradicted by Chief Justice Marshall’s holding three years later, in The Antelope (1825), that it was not. (These cases took the names of the ships that were alleged to be engaged in the slave trade.) The technical point was that Marshall would not allow the U.S. Congress’ definition of piracy to apply to Spain or to other nations that did not define slave-trading as piracy. Finkelman takes this as confirmation that Marshall was a pro-slavery justice who would seduce Story, his initially anti-slavery acolyte, toward his position.
More balanced treatments show that the cases involved complex technical questions and had the potential to lead to conflict or even war with the governments of France and Spain. Historian Donald Roper in 1969 concluded that the Court’s “carefully objective and sometimes explicitly reluctant participation in the legal system’s accommodation of the institution of slavery was far from an expression of approval.”
In one of these cases, The Josefa Segunda (1825), which Finkelman discusses, the Court declared that in enforcing the laws prohibiting slave-trading, “no vigilance can be excessive.” Finkleman does not bring this admonition to the reader’s attention. Roper observed that it “went pretty much unheeded” by the executive branch in charge of enforcement—a political fact of much greater weight than the position of the Supreme Court in the matter.
The most common explanation for the Marshall Court’s accommodation of slavery is that the chief justice’s nationalist desire to strengthen the Union overrode his anti-slavery principles. Finkelman dismisses this, saying that there was no dangerous anti-slavery movement until the 1830s, near the end of Marshall’s tenure as chief justice. In fact, it is pretty clear that national slavery controversies of an earlier decade produced quite prominent public concern. Think of the clash over the admission of Missouri in 1819. Finkelman seems not to have heard Thomas Jefferson’s “fire bell in the night.” There was also a major panic in the South over the slave rebellion plotted by Denmark Vesey in 1822 and a rebellion in British Guyana the year after. A recent note in the Harvard Law Review takes into account the “radicalization of the proslavery movement” about this time—exploited by ambitious politicians like William Crawford of Georgia.
The bottom line for Finkelman is that Marshall valued property rights more than liberty. “Marshall wanted to preserve and protect slavery without appearing to do so,” he says, “much like the Founders who wrote a proslavery Constitution in 1787.” As a slaveholder himself, Marshall was supposedly particularly interested in protecting this kind of property. “Justices come to the Court with political, social, economic, and personal views and interests,” Finkelman avers, extending the sort of determinist analysis of the Founding that Charles Beard presented in his Economic Interpretation of the Constitution (1913).
Finkelman even assigns an economic motive to the Catholic faith of Justice Taney. The Marylander was indeed the pro-slavery jurist that Finkelman describes, but he goes further, alleging that the Taney family converted to Catholicism in the 17th century “to be close to some of the leading families in the colony—especially the Carrolls.” He fails to produce any evidence in support of this claim.
How could a personal economic interest in slavery explain the behavior of other members of the Marshall Court? Finkelman mentions in passing, for example, that Justice Gabriel Duvall dissented in two Marshall Court decisions regarding which set of rules to use in suits mounted by slaves seeking their freedom. Yet Duvall himself was a slave-owner. What may have been the most forceful judicial antislavery blow was struck by Justice William Johnson, vacating South Carolina’s “Negro Seamen Law,” which required the imprisonment of free black sailors while in port. Johnson was a South Carolinian slave-owner.
That decision illustrates another reason Marshall had, besides concerns about holding the Union together, for soft-pedaling the slavery issue. Johnson’s opinion striking down the South Carolina law was simply ignored by the state, which continued to enforce it (though for diplomatic reasons it was not applied to free black English subjects). Throughout his career, Marshall had to be attentive to potential attacks on the judiciary by the political branches. His political opponents had eliminated courts, impeached one justice, delayed the convening of the Supreme Court, and threatened to do more. Marshall believed that the Union depended on an independent judiciary that could preserve the federal system. Defending judicial independence against the political branches may well be more important than any of his other contributions to our constitutional system—including his opinion in Marbury v. Madison (1803).
In essence, Finkelman seems to be a “Crit”—a scholar influenced by the “Critical Legal Studies” movement that has hovered over the American legal academy since the 1960s. This is a latter-day version of progressive-era “legal realism,” which sees law as simply a tool of oppression wielded by dominant classes, races, sexes, or sexual orientations. Crits teach future lawyers that law is not an effort to achieve justice—or only in the sense that it should be used to avenge wrongs done to the oppressed. As Justice Thurgood Marshall put it in defense of affirmative action quotas, “You guys have been practicing discrimination for years. Now it’s our turn.”
Similarly, history for realists and Crits is just another weapon in the arsenal of political vengeance. Historical writing does not aim at truth any more than the practice of law aims at justice. Rather, history is the story told by dominant groups to legitimize their power. Defenders of those who have been victimized make an alternative history to advance the interests of their clients. Supreme Injustice is what is often called “law-office history.”
Justice Story, in this light, presents a bit of a problem. He has always been regarded as an ardent opponent of slavery. The author does concede that he was, in his early years. “In 1819-20 he was truly a just judge,” writes Finkelman sanctimoniously. He offers no explanation as to why Story became more accommodating to slavery later; but again, the 1819-20 period looks pivotal. More to the point is the question of whether Story really did alter his views.
The key case here is Prigg v. Pennsylvania (1842). Story upheld the constitutionality of the Fugitive Slave Act of 1793 and struck down the “personal liberty laws” of free states, which might have obstructed that Act in an effort to protect their free black citizens. On the other hand, Story held that states could not be compelled to cooperate in the enforcement of the Fugitive Slave Act. Most commentators have seen Prigg as a compromise, with the no-commandeering provision bolstering abolitionist forces. As the leading textbook in U.S. constitutional history puts it, Prigg appeared to be “a major victory for the slave interest . . . yet Story’s opinion also contained a discordant note that proved to have antislavery potential.” Finkelman admitted as much in an earlier article in Civil War History whose subtitle was, “Anti-Slavery Use of a Pro-Slavery Decision.”
Story’s son said that his father regarded Prigg as “a triumph of freedom,” but Finkelman says that there is no direct evidence for this. Moreover, Story wrote to North Carolina Senator John Berrien with a recommendation for a way to close the no-commandeering loophole, through the appointment of federal commissioners to enforce the act. This would be the method adopted five years after Story’s death in the Fugitive Slave Act of 1850. Finkelman notes that Story fils omitted this part of the Berrien letter in his edition of his father’s works.
Here again it appears that nationalism trumped liberty, this time with Justice Story. But this hardly makes Story a friend of slavery. Daniel Webster was similarly vilified by the Garrisonians for his support of the Fugitive Slave Act. Abraham Lincoln, too, accepted the fact of the Constitution’s fugitive slave clause and recognized the rights of slaveholders under it. But Lincoln also pointed out that the Constitution must protect the rights of free blacks. “In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man may not in any case be surrendered as a slave?” he said in his First Inaugural address. Lincoln called for legislation to protect the privileges and immunities of all American citizens. It is likely that these would also have been part of Story’s position on the fugitive slave question.
Lincoln understood that the Founders, and the Constitution they wrote, conceded to slavery only what was necessary to secure the Union. It is a fair question to ask whether they conceded more than they needed to. This is the question of their statesmanship—in a word, of their prudence, the application of theoretical knowledge (slavery is contrary to the law of nature) to particular, contingent circumstances (what can we do about it—what are our practical options?). Princeton University President Christopher Eisgruber analyzed Prigg along these lines 30 years ago.
Finkelman, in contrast, is tone deaf to prudence. For him, as for Garrison, it was a simple matter of “Let justice be done though the heavens fall,” never considering that the slaves—and the free—might have been worse off had these constitutional compromises not been made and kept. As political scientist Justin Buckley Dyer recently observed, “Historically situated actors [are] seldom faced with simple, unidimensional choices between, for example, freedom and slavery or egalitarianism and ascriptive hierarachism.”
So the reasonable question to ask here is whether the antebellum Supreme Court conceded more to slavery than was necessary. Finkelman provides enough evidence to conclude that it probably did, and to that degree his tarnishing of John Marshall’s luster is justified. But the crude title of this book isn’t. Its last chapter tries to depict Chief Justice Taney and Dred Scott (1857) as the natural culmination of the earlier jurisprudence of Marshall and Story. If that had been so, why was the decision so politically explosive, and why did Lincoln call it “an astonisher in legal history”? Taney and his Court may well deserve to be “hooted down the page of history,” as Senator Charles Sumner put it, but it is unfair to take his predecessors with him.
Finkelman admits that if the decisions in these cases had gone the other (pro-freedom) way, they would not have made much difference politically. The fact is that the Supreme Court did not matter that much in the antebellum slavery controversy. The Constitution was much more shaped by the political branches. The complete disaster of Taney’s attempt to provide a judicial fix in Dred Scott demonstrates this. Lincoln’s response to Dred Scott and its judicial-supremacist aspirations is still worth heeding. But Finkelman analyzes the antebellum Supreme Court from the perspective of late 20th century judicial supremacism. He assesses Marshall as if he had Earl Warren’s view of judicial power. In the end, Finkelman’s presentism, anachronism, and Inspector Javert monomania lead him to make a mountain out of a molehill.
 William F. Hardin, “ ‘This Unpleasant Business’: Slavery, Law and the Pleasants Family in Post-Revolution Virginia,” Virginia Magazine of History and Biography 125 (2017), 210-45.
 “International Norms and Politics in the Marshall Court’s Slave Trading Cases,” Harvard Law Review 128 (2015), 1184-1204.
 Paul Finkelman, “Prigg v. Pennsylvania and Northern State Courts: Anti-Slavery Use of a Pro-Slavery Decision,” Civil War History 25 (1979), 5-35.