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Touro Law Review

Abstract

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the law in light of the antislavery values of many northern constituencies or instead defer to laws that reflected the moral values of politicians eager to compromise on slavery to preserve a bisectional consensus. The moral-formal dilemma the justices of Cover’s own time faced when adjudicating cases arising out of the Civil Rights Movement and Vietnam War was whether they should interpret the law in light of the liberal moral values of their class, The moral-formal dilemma many contemporary Americans in institutions far remote from courts are facing is whether to follow the letter of the law and retain the basic structure of constitutional law in the United States when doing so threatens to warp the constitutional fabric, undermine the political regime, and risk an environmental catastrophe that could easily leave humans near extinction.

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