I may have mentioned that I am a faculty advisor to the local high school’s “We The People” Citizen and the Constitution class. My particular Unit deals with amendments to the Constitution, and of course we get into issues of the Civil War and the following Amendments. The question I ask them to wrestle with in consultation with Unit 2 (the Constitutional Convention) is whether the Civil War was inevitable as a result of the compromises reached in Philadelphia. Through this annually conducted inquiry I have come to the conclusion that the Civil War was not definitely inevitable as an outcome of the Constitutional Convention, but likely. One man, though, made it inevitable.
He was Eli Whitney.
So yes, I agree with you. By 1857, there was no ruling in Dred Scott v. Sanford that could have simultaneously avoided the Civil War and not violate henkster’s Law. My point in regard to those assailing the concept of Judicial Review is that so far, that power possessed by the Courts is what has kept us from more than one Civil War and an Executive dictatorship. I concede there is a legitimate question whether it continues that function. But I can argue that historically the process of Judicial Review has served that purpose.
As for Dred Scott, that decision revealed the inevitability of the Civil War, as it was the one chance to avert it through the Judicial process. It failed, although things had progressed so far by then Chief Justice Taney had no chance of succeeding.
Had those compromises not been made at the Constitutional Convention, the Southern states would not have agreed. We might have bumped along under the Articles of Confederation for a few more years, but ultimately at least two countries probably would have emerged and some states may have just gone their own way. Compromise is a messy business, but it kept the country together for the time being.
My sense is slavery would have gradually ended, what with the European countries with American colonies ending the practice. But the stupendous wealth of the cotton trade corrupted minds that might have been more open to ending the practice eventually. Thank you, Eli.
In my opinion, the practice of judicial review is not the problem, but how some courts have used it. I am definitely pleased to see an originalist like Judge Gorsuch nominated.