Opponents of slavery never had much success in the courts. In the
early years of the Republic a few state decisions held that slavery vio-
lated libertarian guaranties of state constitutions. As time went on,
however, the judiciary paid less and less attention to the claims of
liberty and more and more attention to the needs of slaveholders.
Robert Cover, in his original and thoughtful study of the antislavery
cause and the judicial process, argued that even antislavery judges
followed a positivist approach to constitutional law. According to Cover,
they rendered decisions against fugitive slaves because of their con-
ception of the proper role of a judge. The judge followed positive
law (whether it was morally right or wrong). He was bound by the
intention of the framers, in the case of a constitution, or of the
legislature, in the case of a statute. He operated on neutral principles
-the values he pursued were those of others, not his own. Cover
found that the judicial response to antislavery was formal and
mechanical. He concluded that "given a particular juristic competence,
there will be very specific consequences to and limits on the perfor-
mance of judges caught in the moral-formal dilemma. If a man makes
a good priest, we may be quite sure he will not be a great prophet:,2
Judges who conscientiously follow the law do find their discretion
limited by the legal process. Judges operate within a tradition that
requires them to honor rules set by others, to follow the text of consti-
tution and statutes, and to make decisions within an historical tradition.
But the area of discretion is far wider than is typically recognized.
In some cases the text, history, and the intent of the framers provide
fairly clear answers. By the prevailing jurisprudence of the nineteenth
century, at least, in such cases the judge was required to follow the law,
even if it produced morally unacceptable results. The question of the
legality of slavery in the original southern states was one where text (if
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