• Lawyers like to pretend that the law is a single unified and consistent whole. But in fact there are always countervoices within the tradition.

• A countervoice is an expression of law that was once dominant but is no longer so or a legal principle that seeks to establish itself but is not yet fully recognized.

  • The civil law tradition, based on codification and the dominant doctrine, may appear to suppress countervoices. Yet these countervoices do survive in the scholarly literature of the civilian tradition.

• The U.S. Supreme Court can rule one way, but the state supreme courts can rule another way under their state constitutions (and these decisions are not subject to appeal).

• The countervoices are also found in the academic literature and in the “nonjusticiable” decisions of the executive and legislative branches.

• The Constitution was but the third in a series of basic documents establishing the United States:

  • The Declaration of Independence (1776),

  • The Articles of Confederation (signed 1777; final ratification, 1781),

  • The Constitution, drafted in 1787.

• It is generally agreed that the Constitution replaced the Articles of Confederation, but neither the 1777 nor the 1787 charters nullified, in any way, the Declaration of Independence.

• No one celebrates and few know the date the Constitution was ratified or entered into force, but every American recognizes July 4, 1776, as beginning the American experience of self-government.

• The Declaration was only adopted by the Continental Congress on July 4, 1776, and was not signed by the delegates until August 2, 1776.

Dred Scott v. Sandford

• The notorious case of Dred Scott v. Sandford (60 U.S. 393 (1857)), in which the Supreme Court held the Missouri Compromise of 1820 unconstitutional because it interfered with the right to own property—namely, slaves in the northern territories.

  • The Court also held that black slaves could never become citizens of the United States.

• The Dred Scott decision is widely regarded as one of the worst ever rendered by the U.S. Supreme Court. Abraham Lincoln lost so much respect for the chief justice that he later asserted his rejection of this opinion when he refused to obey a writ of habeas corpus to release prisoners held in Baltimore.

  • This was a rare moment in history when an American president refused to obey an order issued by the Supreme Court or a justice of the court.

• After the Dred Scott decision and Lincoln’s election in November 1860, civil war was inevitable.

  • The bloodiest war in American history was under way. More than 620,000 men died, on both sides.

  • More Americans died in the Civil War than in all other wars fought by the United States put together.

• Lincoln and Congress sought to assure the Southern states that they preferred the “Union” to the abolition of slavery.

• At dawn on April 12, 1861, the military force of South Carolina started shelling a federal fortress in the middle of Charleston harbor.

• The original question motivating the fighting and dying was whether the United States would remain one Union or split into two.

• The Confederacy of eleven states claimed the right to secede from the Union, precisely as the thirteen colonies had seceded from Great Britain in 1776.

• In his famous Second Inaugural Address in 1865, Lincoln wisely commented that both sides in the Civil War “read the same Bible and prayed to the same God.” They also both claimed authority for their actions in the Declaration of Independence.

• It was clear that when the guns fell silent in April 1865 a new constitutional order would have to be created. The new order is found in the Reconstruction amendments, adopted respectively in 1865, 1868, and 1870: Thirteenth Amendment—prohibition of slavery, Fourteenth Amendment—U.S. Citizenship to every person born or naturalized, Fifteenth Amendment—Right of Citizens to vote (excludes women).

• The Confederate generals surrendered honorably, but the spirit of the South was hardly defeated. Slavery was gone, but the idea of states’ rights and autonomy survived.

• The fight between those who believe in a single nation governed by Washington and those who believe in the autonomy of the states continues to this day.