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Copyright (c) 2007 Northern Kentucky University
Northern Kentucky Law Review

2007 CIVIL RIGHTS ISSUE: ARTICLE: "No Better Than They Deserve:" Dred Scott and Constitutional Democracy


34 N. Ky. L. Rev. 589


Mark Graber*


Prominent constitutional designers and theorists reject George Bernard Shaw's aphorism that "democracy is a system insuring that the people are governed no better than they deserve." 1 Constitutional democracy, champions from James Madison 2 to James Fleming 3 insist, does promise government better than the people deserve or at least better than the people would obtain in a simple majoritarian democracy. 4 Devotees point to two central characteristics of constitutional government that they maintain improve democratic performance. First, well designed constitutional institutions foster the election of particularly qualified representatives and promote serious deliberation on the public good. 5 "The aim of every political constitution," Madison wrote, "is . . . first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society . . . ." 6 Second, well crafted constitutional declarations of fundamental values and constitutional limitations on government power foster the societal commitments to human dignity necessary for privileging decisions based on these communal aspirations for justice. 7 Christopher Eisgruber and Fleming insist that both constitutions and theories of constitutional interpretation be subject to a "no gain, no claim" test. 8 "[I]f the Constitution does not help us secure the political goals we would pursue in the Constitution's absence," Eisgruber writes, "then the Constitution's claim to authority fails." 9

Dred Scott v. Sandford 10 challenges this romantic 11 view of constitutional democracy. The Taney Court 12 in 1857 apparently missed an unparalleled opportunity to improve antebellum 13 American ...
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