David Wong, Roger Taney, and Donald Trump

Samuel A. Cartwright

Samuel A. Cartwright

Sorry for the late post, Gentle Readers. I felt quite unwell during my normal writing time.

Ever since Donald Trump became the nominee-presumptive of the Republican Party, the media have treated us to a stream of pieces on how we must understand his supporters. They may have picked a narcissist and clown straight out of interwar Italian politics, but we need to look on them with empathy. In principle, I agree wholeheartedly. I deal regularly with people who have done worse still, though they do have the good decency to have put themselves out of our misery. Future historians will probably feel much the same about the Trump movement.

You can’t get around it. To actually understand what drives people, especially people with politics you loath, you need to treat them as rational and sensible as anybody else. Calling them dupes or fools as much removes their agency and reduces them to a stereotype one may loathe with ease but comprehend not at all. You end up like Samuel Cartwright, explaining slave resistance as a form of mental illness. What holds true for slaves also holds true for slaveholders, though historians have traditionally had far less trouble emphasizing with them than their victims. Aside from a few black historians and radicals, the academy didn’t get on board with understanding black Americans as thinking beings capable of understanding, holding values, and acting accordingly until better than halfway through the twentieth century.

My obvious political inclinations aside, I ought to be the target audience for pieces on understanding Trump Country. I have largely avoided them, except one shared with me by a friend. There are multiple reasons for that, including my general contempt for media industry multi-millionaires who tell us they understand “real America,” the compulsory ignorance of the subject one finds in reporters parachuted in without context to pretend-report on something for thirty seconds, and skimming headlines and opening paragraphs to show how devotedly they live up to my expectations. But I did read the one. Let’s pick it apart.

A few things going in, Gentle Readers. As the numerous ads and whatever lives in the sidebar when you load up the page will show, Cracked doesn’t aim for serious journalism. (Its history pieces don’t withstand casual scrutiny either.) But now and then someone writes a piece meant for serious consideration, as David Wong has. I intend to take it as such, humor site pedigree aside.

We must begin with the title. Wong suggests that half of America lost its mind. It grabs the reader’s attention, but Wong frames his article just the opposite. He does not portray Trump supporters as insane or demented. They have real grievances, which he reduces down to a rural vs. urban divide. To prove it, he hauls out one of those red vs. blue county maps. It turns out the diverse cities, shockingly, tend to support candidates who less devoted to white supremacy. The much whiter rural counties vote the other way.

I could stop right here, but Wong digs himself deeper. He paints a picture of neglect and negative stereotyping. Urban America doesn’t care about rural America. All the television and movies have to do with cities. When disaster strikes, you’d best have a major media operation nearby or don’t expect to make CNN. We all know the stereotypes of rural life, that bonanza of inbred hicks who only take their hands off the cross they’re using to beat a LGBT person to death in order to light it on fire. I don’t know about the inbreeding -none of my business- but that sounds like my neighbors. They do not like the idea of living with people of different color, sexuality, or non-Christian religion. Wong puts those up as stereotypes, but he admits to their truth:

But what I can say, from personal experience, is that the racism of my youth was always one step removed. I never saw a family member, friend, or classmate be mean to the actual black people we had in town. We worked with them, played video games with them, waved to them when they passed. What I did hear was several million comments about how if you ever ventured into the city, winding up in the “wrong neighborhood” meant you’d get dragged from your car, raped, and burned alive. Looking back, I think the idea was that the local minorities were fine … as long as they acted exactly like us.

Wong had a more charmed childhood than I did. Casual dismissal of non-whites happened every day. I can’t count the times I’ve heard family members start a sentence, stop and visibly struggle, then finally blurt out “coloreds!” with extra emphasis just so you know what they really mean. Fairness demands that I recognize the ecumenical nature of their hatreds; they had nothing nicer to say about other people who dared come in the wrong colors or religions. But of course you’d be polite to someone’s face. Small communities can’t afford a full-on white power operation, aside local government, so we content ourselves with more petty species of viciousness. Say nothing in front of your victim, but be sure it gets out behind their backs. Plain, honest folk in real America don’t need that explained to them.

Maybe that racism seemed one step removed to Wong -who is white like me; he writes under a pseudonym- but you can’t honestly put it at arm’s length. We both learned to associate minorities with dangerous, criminal behavior and took those who didn’t rape and murder people every day for fun as deviations from the norm. I can’t imagine the victims agree.

It goes on in this vein. The white racial resentment or, to use a word more familiar to its practitioners, entitlement, just boils off the screen. Wong knows as much and acknowledges it. He doesn’t pretend that rural America has somehow, double-secret, turned into a bastion of tolerance. His quest to highlight Trump Country agency has brought him that far. But he thinks it wrong and dehumanizing to ascribe white voters’ motives to either the driving force of American history, white supremacy, or to the central institution of their communities, which he considers to be conservative Christianity. What they say doesn’t actually matter. They just hurt and lash out.

I shall not sit here and tell you that white people never suffer or rural poverty doesn’t matter. But Wong refutes himself twice over by focusing on poverty as the driving force explanation. Firstly, rural America hasn’t done well, economically, in decades. Nor has it had much cultural focus in the same period of time. If neglect drives rural voters, then we would have seen a Trump-style candidacy decades back. Indeed, we did. Richard Nixon and Ronald Reagan both ran white grievance campaigns. On the other side, so did Bill Clinton. Whether we look at structural factors all the way back to the Constitution or individual campaigns, nobody gets more attention. Even in the most conservative interpretation, white America has at least the whole of one political party devoted to preserving its prerogatives over the rest of the nation. These people do not lack a voice. Their politics do not constitute a wild divergence from the American norm; they are the norm. The past few decades have simply seen a shift from nigh-absolute control to a more qualified but still nearly overwhelming dominance.

Since Trump came out of normal politics, his voters don’t require a unique explanation. The same things drive them that drove the American right in 1968, 1980, 1996, or 1860. They see the United States as a white man’s country, period. Any diminution of their power counts as the most agonizing species of persecution.

But let’s turn that back around. Wong would have us believe that poverty made Trump. He admits that Trump runs on racism, which he also considers a decidedly negative personality trait. He must think the same of poverty as he casts the rural poor as a people lashing out. They can’t have acted in their actual interests, but rather poverty has driven them to it. Poverty, in other words, makes you immoral and destructive. This loops us right back to the stereotypes that Wong and I grew up believing about black people: they earned their poverty through sloth, through dependence, through crime. White people got poor for reasons beyond their control. Trust us; we have the white skin to know. For Wong to argue this, hasn’t he dehumanized the poor just as he complains that others have?

Roger Taney, Chief Justice of the Supreme Court

Roger Taney

Bringing this back to history, I consider taking what people say and granting them their agency bottom-line stuff. If you can’t do that, then you fundamentally do not believe your subjects full human beings. They must occupy some inferior order, to which one silently applies Taney’s corollary:

altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect

I cannot think of a more thorough way to dehumanize someone than to ignore both their words and deeds in favor of inventing some deterministic explanation that excuses them from both. To do this, you reduce them to unthinking automatons, for all the protests to the contrary. You declare that they do not know what’s best for themselves, that they cannot know. Wong’s rural poor, intended or not, are infantilized subjects. He wants us to not blame them for what they do, for the powerful hatreds they bear, because they just can’t help themselves. You don’t blame a baby for soiling a diaper, so you should not blame Trump voters for Trump.

Wong’s piece has a larger problem, though. “Poor” doesn’t begin to describe Trump’s supporters:

As compared with most Americans, Trump’s voters are better off. The median household income of a Trump voter so far in the primaries is about $72,000, based on estimates derived from exit polls and Census Bureau data. That’s lower than the $91,000 median for Kasich voters. But it’s well above the national median household income of about $56,000. It’s also higher than the median income for Hillary Clinton and Bernie Sanders supporters, which is around $61,000 for both.

If those statistics reflect poverty, then I imagine plenty of us would like to sign up for some. Wong says that poor people from his home town support Trump; I believe him. But his poor voters resemble the general constituency no more than the neighbors that media personalities talk to at wealthy resort communities represent ordinary Americans.

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South Carolina’s First Nullification

Calhoun

John C. Calhoun

One simply can’t run a country according to the plan that the nullifiers and states rights men advocated. If a state can overrule federal law on its own say-so, then federal law loses its force. With federal law impotent, the federal government becomes irrelevant and soon dissolves. Some vestiges might remain, but as a practical matter one reduces the Union to a collection of smaller, quarreling nations. Given many states had neither the population nor the economy to manage easily on their own, they would then likely consolidate into somewhat like-minded blocs. These groups would probably not repeat the same mistakes as the previous consolidation. Some nullification proposals foresaw essentially that, most notably the idea that the United States should try having two presidents with veto power over one another. One would come from the North, the other from the South. The Southern president would thus keep the Union forever safe for slavery.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney, Chief Justice of the Supreme Court

The criticism holds true for matters large and small, in principle. We could leave things there, but doing so would require us to ignore the realities of the past. Certainly one could not expect a nation to endure large-scale acts of nullification. If a state or seven rejected losing the presidency or the program of a victorious party in national elections, that more obviously strains the Union and puts nineteenth century democracy in doubt than if it nullifies on a smaller scale. As a practical matter, many Northern states nullified the Fugitive Slave Act. Wisconsin took the extra step of doing it outright, leading to the Taney Court ruling that states had no power to nullify federal laws in Abeleman vs. Booth. Therein, the Court made much the same argument in contemplating the assertion that a state court could interfere with and prevent the operation of federal law:

It would seem to be hardly necessary to do more than state the result to which these decisions of the State courts must inevitably lead. It is, of itself, a sufficient and conclusive answer, for no one will suppose that a Government which has now lasted nearly seventy years, enforcing its laws by its own tribunals and preserving the union of the States, could have lasted a single year, or fulfilled the high trusts committed to it, if offences against its laws could not have been punished without the consent of the State in which the culprit was found.

The rebelling states, of course, would without a trace of irony cite the practical nullification of the Fugitive Slave Act by the North as one of the injustices which drove them to rebellion. They correctly understood the tradition of states rights rhetoric: the issue, however contested, did not go our way and therefore we claim the right to declare ourselves winners. Obviously no nation could let such a thing stand and call itself democratic even by nineteenth century terms. Yet the United States did eventually let it stand. The nation did not spend vast sums and tie up the military to do as it had done to Anthony Burns a second time. Before that, it accepted nullification of a kind from South Carolina. I draw this account from Freehling’s Prelude to the Civil War: The Nullification Controversy in South Carolina 1816-1836.

Anthony Burns

Anthony Burns

South Carolina’s cotton flowed out of the nation through Charleston and a few other lowcountry ports. Those ports thus naturally had ships in and out regularly, if nothing on the volume that New York, Baltimore, Boston, or New Orleans did. Like any functioning port, Charleston saw ships from diverse places. Many of its regular visitors hailed from the North and abroad. These ships had the usual complements, including some black seamen. Those seamen could roam freely about Charleston. To Charleston’s whites, that meant that northern blacks tainted by abolitionism could speak to their slaves. Worse still, Haitian seamen could walk free and tell anybody who asked about their country’s successful slave revolt. All of this in a region of the state where enslaved blacks vastly outnumbered whites. To further complicate matters, many enslavers from Haiti had passed through Charleston when fleeing the revolution. In the 1820s, they had had direct, personal knowledge of what a real slave uprising looked like. If they missed the significance, than the fact that Denmark Vesey used Haiti as an example of what his conspiracy could achieve would have highlighted it to even the dullest wits.

Charleston hung Denmark Vesey on July 2, 1822. Before he died, he brought the black seaman “problem” further into the limelight. With the lowcountry’s enslavers anxious about revolts, feeling embattled by the recent debates over the fate of slavery in Missouri, and a fresh uprising narrowly averted, they felt they had to do something. To answer the dire menace to their lives and their property in lives, South Carolina’s enslavers passed a law that required every black sailor locked away in the town jail for the duration of his ship’s sojourn in Charleston. Thus Charleston imprisoned the free to secure the enslaved at the end of the year.

All of that worked out just fine for Charleston’s fretting whites and just terribly for its free black visitors, precisely as intended. However, it put South Carolina on the wrong side of the United States and the United Kingdom. The two nations had a treaty granting their sailors free access to one another’s ports. This treaty, declared the Constitution

shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

South Carolina passed a state law to the contrary. The UK protested to the Secretary of State, John Quincy Adams. Freehling says that Adams might have gotten Charleston to ignore the law for a time. By the middle of the next year, Haitian and other black seamen moved about Charleston freely once more. This did not suit Charleston’s still-anxious citizens. They arranged a mass meeting in late July, forming the South Carolina Association to supervise enforcement of all South Carolina’s laws controlling black lives. The association named standing committees to do that work, which they soon commenced.

That enforcement led in short order to a court case. Charleston’s sheriff seized a free Jamaican black named Harry Elkinson and locked him up. Elkinson protested and sought habeas corpus proceedings, which he got. Supreme Court Justice William Johnson found the seaman law in violation of treaty and therefore invalid. However, Johnson held that he couldn’t order Elkinson’s release as his power extended only to federal prisoners. The South Carolina Association, for its part, declared the state sovereign and insisted that it had not surrendered its power to suppress revolts. Any act designed toward that end rightfully fell within its power, not the capacity of the United States. The state had not yet articulated a full-blown theory of nullification as Calhoun would later invent, but in pleading its case Benjamin F. Hunt and Isaac E. Holmes laid out an important precursor. Johnson didn’t buy it and laid out a strong refutation in his opinion:

Where is this to land us? Is it not asserting the right in each state to throw off the federal Constitution at its will and pleasure?

John Quincy Adams

John Quincy Adams

Johnson’s opinion provoked a firestorm in South Carolina. If the state could not pass laws to govern its slaves and keep them in slavery, then how could it retain slavery at all? All Haiti’s alleged woes came back to a distant government meddling with slavery. Now they received the same at the imperious hands of a Supreme Court justice. The state ignored the decision and continued jailing sailors. John Quincy Adams kept getting protests from the United Kingdom. He reached out to the Attorney General, William Wirt, for an opinion on the law. Wirt came down firmly against it. In July of 1823, Adams forwarded Wirt’s argument and the protests to South Carolina, asking the legislature to fix the problem.

Though South Carolina’s legislature could not settle on what tone to take, they agreed on the substance. The Senate held that “self preservation”

will never by this state, be renounced, compromised, controlled, or participated with any power whatever.

The House affirmed

The measures directed towards colored persons brought within the territory of this state, are simply part of the general system of domestic police, defensible as such, and absolutely necessary to ensure the safety of the citizens.

In other words, John Quincy Adams could best repose Wirt’s opinion and the British protests in some area perhaps well-suited to the cultivation of mushrooms but otherwise ill-disposed to agriculture. The state acted accordingly, continuing to imprison sailors. Washington and London could protest all they like, but South Carolina did as it willed. London could not perhaps force the issue short of a war. Washington chose not to and let the nullification stand.

Here, for the first time, the state grappled with the issues of the later Nullification Crisis. South Carolina cited the same reserved power of the states to nullify a treaty in the name of internal security that it would later call upon to nullify a federal law. In both cases, its constitutional thinkers discovered this power to save slavery. Victory in the first instance spurred South Carolina onward. If nullification worked once, it could work again.

Stealing the Leavenworth County Seat, Part Five

Wilson Shannon

Wilson Shannon

Parts 12, 3, 4

Seizing the county seat from Leavenworth turned its proslavery men, at least temporarily, against the custom of Missourians coming over to decide Kansas’ elections. H. Miles Moore went all the way over to the free state movement, where he would win high office. Lucien Eastin, editor of the Leavenworth Herald did not go quite so far, but did rouse himself to damn now the very method by which he had gained his seat in the legislature. Kansans, it transpired, ought to govern Kansas after all. Having so declared, Eastin defended himself by reference to his career as a proslavery man. I doubt this pleased the editor of the Kickapoo Pioneer, which reminded him how he had come up.

The other proslavery town, all of forty or so people, took its loss as poorly as Leavenworth did. Delaware wanted the development that a county seat would bring as much as Kickapoo or Leavenworth, perhaps more as it had less to start from. Its industrious citizens kept a steamer running on the Missouri to bring voters from anywhere in its reach to the little town. The boat ran and the polls remained open for three days, learning Kickapoo’s totals and running the election long enough to beat them. A band, free food, and free alcohol entertained those who came. If Andrew Reeder had such amenities at Pawnee, he might have done better. William Phillips opined that Delaware could muster maybe fifty legal votes, but its returns included nigh unto nine hundred.

This, and a more plausible candidate in Kickapoo, led Wilson Shannon to pull an Andrew Reeder and set aside one obviously fraudulent election. This delighted the partisans for Delaware about as well as one would expect. They had stolen the election fair and square, and at some expense, after all. Their cooked count had a hundred more votes than Kickapoo could boast. What had Kansas come to if one could no longer steal an election by managing the bigger fraud? Delaware sued.

Phillips reports that

Even Kickapoo had to bite the dust before the sovereign will of “majority.” The election was referred to a court, which decided in favor of Delaware. This was, at least, consistent; for, as all the pro-slavery courts, which means all the courts in the territory, had decided in favor of bogus authority, it was not going to do to establish so dangerous a precedent as setting an election aside on account of any irregularity.

The Alton mob attacking Elijah Lovejoy's warehouse.

The Alton mob attacking Elijah Lovejoy’s warehouse.

In cracking a joke, Phillips made a broader point. For almost as long as the great controversy over slavery in the territories had raged, people proposed referring the matter to the courts. Roger Taney would have his say, but Phillips didn’t know that in 1856. He did know that the Kansas courts sided consistently with the proslavery party, all the way back to when they declared that the legislature could abandon Pawnee for the Shawnee Manual Labor School and remain a functioning legislature.

Digging a bit deeper, the principle that the proslavery minority must prevail ultimately constituted the chief tenet of white Southern political thought. They would take a majority if they could have it, but if they didn’t then so much the worse for the majority. Even the most aristocratic radicals often spoke softly about their dreams of rolling back the nineteenth century, but in practice the defense of slavery involved a great deal of trampling white republicanism. Kansas told that story to the nation writ large, but so did driving antislavery southerners from the South, the demands that northern states silence abolitionists, the Gag Rule in Congress, and the lynchings of dissenting whites.

 

What did the founders think of secession?

James Madison

James Madison

The conventional story goes something like this: The founders donned their powdered wigs, put their knee breeches on, and cheered as George Washington applied the requisite amount of boot leather to the necessary number of British posteriors. Thirteen colonies turned into thirteen free and independent states. They did not constitute, in any meaningful sense, a nation. The founders shared with the people of the several nations an abiding suspicion of central authority. Only the Revolution had united them and with it done they could all go back to those nations and have nothing more to do with one another. They never intended to create a consolidated republic and always imagined association between their states as strictly voluntary and subject to unilateral termination, secession in a word, at any time. To the degree the former colonies associated, they associated like you might associate with someone you met once at a party. Having a good time together did not make them married. This vision persisted through the Antebellum until the Tyrant Abraham I, the Hammer of Dixie, enslaved us all. Thus they said “the United States are” before the war and “the United States is” after, or even if they didn’t then they held sentiments largely along those lines. Shelby Foote said so.

I cannot improve on Andy Hall’s demolition of the argument from phrasing. Americans did not primarily or exclusively say “the United States are” until the Civil War and take up the singular verb after. The transition happened decades earlier. But that still leaves the meat of the story. Did antebellum Americans, most especially the founders whom the secessionists claimed as their own, consistently understand the Union as inherently voluntary, with states free to depart at will or, failing that, when they felt things sufficiently dire to justify an extreme step? In short: no.

By that I don’t mean to say that secession never crossed the minds of anybody prior to the late antebellum, nor that talk of disunion only arose late in the age. Threats of it go back to the Constitutional Convention. But those threats did not necessarily indicate general approval of the concept. Rather the convention, twelve of thirteen states strong, came together to curb state sovereignty. The Articles of Confederation had proved insufficient to the task of governing the nation because the states had much greater power than the national government, even if that government constituted a permanent union. One needn’t interpret the text to drive that conclusion, incidentally, the Articles call themselves perpetual:

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

A perpetual union hardly incorporates in itself any right to secession. Finding the power of the central state insufficient, must we think that the founders got together in Philadelphia to remedy that and then undermined their own work so comprehensively as to nullify it at the whim of any given state? The requirement that all states agree on legislation proved a critical weakness in the Articles, so would they really write it back into the Constitution? People in the past can do things that seem to us perverse and understand themselves instead as consistent with sound principles, but that suggestion would not have made any sense at the time.

The Philadelphia debates bear this out. Just a few days ago I noticed that Robert Middlekauf’s The Glorious Cause the Oxford History of the United States volume on the revolutionary era, sold by Amazon as an ebook for all of three dollars. I have not taken much interest in revolutionary history due to all the patriotic myth making. I know that historians do good work there, but the flag waving enthusiasm put me off long ago. All the same, I wanted to check something I’d heard in Mike Duncan’s wonderful Revolutions podcast. So I winced at the title and got my file. I have only read the chapters on the Constitutional Convention and ratification, but they proved a gold mine of information about what the founders thought on the issue. As much of the Philadelphia deliberations concerned representation in the Congress, they naturally dwell upon what states deserve in the way of power. It also made for a really good read. I intend to go back and finish the rest at some point.

I already knew that James Madison came to Philadelphia with a plan to grant the national government a sweeping veto over any state legislation, but the account I got back in high school painted the advocates for equality of the states in the Congress and those who argued for apportionment by population as roughly equal. In fact, only New Jersey and New York favored the former’s equal representation plan when it came down to voting. If a broad consensus existed in Independence Hall, it did not view the states in themselves as the principal components of the new nation. Otherwise one would expect much stronger votes in favor of state equality. What does this have to do with secession? A weak government could hardly prevent it. A strong one could coerce recalcitrant states and wake them from any dreams they had of disunion and nullification alike.

The advocates for state equality touched on the connection themselves. As Middlekauf has it:

Ellsworth, Sherman, and Johnson, all from Connecticut, made the heart of the case for equality of representation with minor, though longwinded, aid from Luther Martin. The essential weakness in the argument for proportional representation, they insisted, was that it rested on a misunderstanding of the Confederacy. The states in reality were joined together by an agreement much like a treaty; they were free and sovereign. Now they were asked to give up their equal voices in the Union, in effect to be consolidated out of existence

James Wilson

James Wilson

Ellsworth further insisted that every confederacy in history had equality among its members, a point of history more convenient than correct. Madison and his fellow Virginian James Wilson would have none of this. Middlekauf continues:

Both rejected the small-state contention that a treaty bound the Confederation together. Far from a union of equals, the Confederation possessed some-but not enough-authority over the states. […] Wilson agreed and rejected the Connecticut proposal for a compromise -the lower house to be apportioned according to population, the upper according to state equality-and cited statistics which purported to show that such an arrangement would permit the minority to control the majority. Seven states, Wilson noted, might control six; seven with one-third of the country’s population would control six with two-thirds of the population. “Can we forget,” he asked, “for whom we are forming a Government? Is it for men, or for the imaginary beings called States?”

That argument sounds downright twentieth century. Earl Warren’s Supreme Court rejected malapportionment of state legislatures in the 1960s on the grounds that “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” I have heard that decision, which articulated the “one person, one vote” standard, damned as a grievous offense against state sovereignty. This sovereignty forms a necessary prerequisite for unilateral secession as practiced by the Confederates and admired by their various descendant movements today. Madison, back when the states had a far better claim to sovereignty in matters save for secession,

denied flatly the states were sovereign-“in fact they are only political societies. There is a graduation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty. These were always vested in Congress.” The states, Madison argued, “are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general consideration. The states ought to be placed under the control of the general government-at least as much as they formerly were under the King and British Parliament.” And from these propositions about the character of the states-devoid of sovereignty, mere corporations, properly under the thumb of the national government-it followed that since America was a republic, representation must be based on the people.

A state which does not have final sovereignty, which constitutes a mere corporation and with laws that hold only as by-laws of its particular interests rather than paramount legislation, could hardly secede on its own initiative alone.

Madison further opined, implicitly, on the nature of state governments in The Federalist, Number 10:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

A state government must, by definition, constitute a smaller society than the general government. A local government would constitute one still smaller. Madison considered the smaller a far greater risk to the rights of others, a position often born out in twentieth century Supreme Court cases. One could also reach further back and look at the sort of oppression and outright persecution that the slave states indulged in to protect slavery. If one counts up state-level emancipations and exempts states built out of territories which had nationally imposed bans on slavery in their bounds prior to statehood, we have to stop counting states that ended slavery on their own and without war forcing matters at the Mason-Dixon Line and Pennsylvania-Ohio border. This gives us only Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania.

From these nine we could subtract Maine as it had a Massachusetts-imposed slavery ban before it became a state, and Vermont, where slavery had never been practiced and so eliminating it took little exertion. This leaves us with seven states to live up to the laboratory of democracy reputation. Against them, we could count both the fifteen slave states of 1860 and the two slave territories of Utah and New Mexico. I would not say that states necessarily and always take the low road, and some have gotten out in front of the national government often enough, but the overall example does not give much encouragement when concerns go beyond simple things like traffic laws and into questions of minority rights.

Alexander Hamilton

Alexander Hamilton

We know how the dispute worked out in Madison’s day, just as we know how it did in the case of Lee v. Grant. Adherents to other theories of national composition certainly existed. They had enough strength, when the advocates of state equality made it into a make-or-break issue, to force compromises. But the notion that the founders acted with one mind, however always borderline absurd, and that this mind fixed on the sovereignty of states simply doesn’t have a leg to stand on. National supremacy flowed not from Lincoln in Washington, but from the convention Washington chaired in Philadelphia.

But, the conventional story then goes, whatever happened at Philadelphia ratification came contingent upon various undertakings. Most famously, the states only ratified with the promise that the Congress would pass a Bill of Rights and with some kind of tacit understanding that if this did not work out, the states could quit the union and resume their independent sovereignties.

This point came lately to my attention via a video Al Mackey posted over at Student of the Civil War. It begins with Akhil Reed Amar, a constitutional law scholar who teaches at Yale, discussing the legality of secession. The secession discussion only consumes the first portion of the run time, but in it Amar makes some important points.

Madison did not get his global veto of state enactments for the Congress, but he did get the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney

By definition, sovereignty rests with whoever has the final say. The Constitution did not grant that power to the states, nor hazily delegate it to them by not granting it to the nation. It instead strips them of any such power to make laws, even state constitutions, contrary to the laws of the United States. Note that the provision does not limit itself to the national Constitution or treaties, but reaches to any federal legislation whatsoever. Even if the states had sovereignty before ratification, they ceded it then. This leaves no room for nullification either of one law or, in its ultimate form, the nullification of all federal laws by secession. A state could pass a law nullifying the tariff or the Fugitive Slave Act, as respectively South Carolina and Wisconsin did, but such laws existed only on paper and until a federal court declared them void at the latest. Roger Taney’s Supreme Court agreed on the second point when it tossed Wisconsin’s act of nullification, to the thunderous silence of most of the usual states rights enthusiasts. What part of this did South Carolina miss? Presumably the part where its nullification must meet with general approval as such a nullification would strengthen and preserve slavery whereas Wisconsin’s would not.

Amar further argues that if the founders intended the Constitution to come with a free trial period and sovereignty-back guarantee, then they did not act it. During the ratification debates in New York, with the vote very close and Alexander Hamilton not sure he had the votes, the anti-federalists suggested that they would give way for the promise of a Bill of Rights. Failing delivery on that front, New York would secede. Hamilton asked Madison for his opinion of such a deal. Even at this critical juncture when New York’s refusal would bisect the Union, possibly fatally, Madison declined to endorse compromise:

I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification.

[…]

This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection

If Madison would have broken principle in the name of pragmatism, one must imagine he would have done it then. The Constitution already had the nine states it needed to go into effect, plus an extra, but the loss of New York would have meant a great blow. Unlike Delaware, South Carolina, or other states which desperately needed a union to sustain themselves, New York with its great port and generous hinterland might have been able to go it alone. Its bad example would weaken the new union from the start, hence his, Hamilton’s, and Jay’s writing of The Federalist to begin with.

John C. Calhoun

John C. Calhoun

Lest one think Madison and Wilson alone, or necessarily extreme, in looking into the future and cursing the names of John C. Calhoun and his unruly brood of nullifiers and disunionists, despite the votes at the convention and final Constitution arguing very much otherwise, Hamilton himself got into the act in The Federalist, Number 11:

Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!

Strict and indissoluble, not loose and easily broken.

The framers did not envision anything like what Lincoln called the dreams of the Confederates:

In their view, the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free-love arrangement,—[laughter,]—to be maintained on what that sect calls passionate attraction. [Continued laughter.]

I don’t know how the founders chose to organize their private time save for the evidence given by their progeny, acknowledged and otherwise. In their political acts they present a clear record favoring not states, with the national government as a kind of necessary evil, but rather saw it as a necessary and positive good and, moreover, as a clear way to suppress contrary movements in the states. That doesn’t mean we would necessarily find all their motives for doing so appealing or in line with those who favor a stronger national state today, but they did what they did and wrote what they wrote.

This myth, like the myth of the antislavery Lee, will endure this and many other blog posts. It will survive the scorn of historians. The supposed advocates of original intent will read it, as they do all other inconvenient facts, as irrelevant rather than persuasive. They and their more radical compatriots, latter-day secessionists who ask us to believe that just this once the rhetoric they employ lacks the white supremacy which has so consistently informed it in the past, must wrap themselves in a pretend history of original intent. The real one doesn’t have much to offer them.

The framers envisioned the possibility of unilateral secession, as attempted in 1860-1, and nullification as attempted by South Carolina and Wisconsin alike, and foreclosed each in Philadelphia and at ratification. Antebellum Americans knew as much and needn’t live in the cold heart of Yankeedom or on the Illinois prairie to notice it. The Confederates at the time understood their movement as revolutionary, only deciding that they really did have a clear legal right after losing the war. Why should we pretend otherwise, unless we aspire to rehabilitate the some of the same politics that they did? Secession for what? States rights for what? If one can get a straight answer from the Confederacy’s latter-day partisans, in itself a major achievement, and they have cleverness enough to not simply say “slavery” with one of the usual codes, then I usually hear preserving the founders’ vision of the Union. It didn’t take a deep look into the founding era to find out what that vision entailed. One can and should note that it included slavery for at least the foreseeable future. But it did not include secession or nullification at all.

“Negro-Slavery, No Evil.” Part Seven

Benjamin Franklin Stringfellow

Benjamin Franklin Stringfellow

Full text. Parts 12345, 6

The Platte County Self-Defense Association, committed to preserving slavery in Missouri, naturally had a low opinion of antislavery settlers. The group existed to keep them out of Missouri and run them out of Kansas. They worried about a racial revolution, the loss of their valuable human property, and of course the profits they reaped through the theft of lives and labor to grow their hemp. To that end, abolitionists of any stripe looked much like terrorists would to us.

But an abolitionist, to the minds of people of the time, looked like a rich man from New England. Such people would not rush to start new lives on the wild frontier. They had their money and their success. Poor people and people of middling success would take that chance. They might, however, take it with some of the funds that Eli Thayer’s and other Emigrant Aid Societies would offer. The slaveholders on the Missouri frontier knew that very well. It thus bears looking a bit more closely at how Stringfellow and his compatriots viewed the people they expected to actually chase from Kansas.

But to that other class, hired slaves of corrupt masters, who are sent for the purpose of driving our brothers from Kansas, of stealing our property, driving us from our homes, we offer no argument, but that of the strong hand.

The Platte County men would not restrict themselves to sternly worded letters and Stringfellow’s pamphleteering.

We have not, it is true, done that, which natural right would have justified us in doing. There is no law to bind them to keep the peace — there can be none, until it is enacted by the Legislature of that Territory; they are to us as would be a band of Blackfeet or Camanches, who should encamp upon our borders, for the avowed purpose of stealing our cattle and horse, of plundering our farms and villages. We would be justified in marching to their camp, and driving them back to their dens, without waiting for their attack. We are not bound to wait, until they have “stolen our negroes,” “burned our slaveholding towns.” But we have been so “law abiding and orderly,” that we have not done this: we have simply said, “we will when called upon,” go to the aid of our friends, and assist in expelling those who proclaim their purpose to be the expulsion of our friends. Robbers and murderers have no right to call on the law for protection.

In other words, they should have already gone off and purged Kansas antislavery settlers. No law governed it and those people represented the worst of two sorts of human being to nineteenth century whites: slaves and Indians. They deserved driving out for the crime of their mere existence. Yet in their forbearance, the Platte County Self-Defense Association stayed their hand. They, to use the infamous words of Roger Taney constituted

beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.

Free soil settlers in Kansas might, by accident of birth, end up as white men but Stringfellow laid it out in plain language. No law protected or should protect any such person. If they came, then they meant war. If they threw a war, the Missouri slaveholders would come.

A Partial Refutation of Henry Wise

Henry Wise

Henry Wise

When running for governor of Virginia in 1855, Henry Wise tarred his Know-Nothing opponent and the party behind him as covert abolitionists. He had a point when it came to Know-Nothings in the North, if not those Virginians he actually accused. To some degree, the natural impulses of ex-Whigs, anti-Nebraska men, and nativists ran together. All feared subversive conspiracies to seize control of the nation and dispossess them of what they saw as their birthright. All had a kind of moral panic over scandals, real and imagined, at home and abroad. Rome and slavery both turned the places where they prevailed into giant brothels, as lurid pamphlets and novels told an audience eager for scandal. If that writing also provided a socially acceptable outlet for more prurient interests, few publishers and readers would complain. To many nineteenth century Americans, nativism and antislavery thus seemed logical, congenial bedfellows.

But other northerners very much disagreed. They looked on less than 700,000 of the nation’s 14,235,000 church members and asked why the Catholics prompted such fears. So small a number hardly represented a serious threat of turning the majority-Protestant United States into a majority-Catholic papal fiefdom. They counted 2,234,602 foreign-born against 19,429,185 native-born and wondered at the panic. Nativist demographic challenges did not hold just in the South. If the Catholics intended to work ruin on the nation, they had Chief Justice Roger Taney on their side. He went to their churches, listened to their sermons, and supposedly took his orders from their Pope. Yet what calamity, they asked before Dred Scott, befell from his influence? Or from Lafayette’s decades before?

Roger Taney, Chief Justice of the Supreme Court

Roger Taney, Chief Justice of the Supreme Court

Viewed the right way, anti-immigrant and anti-Catholic paranoia could look very much like anti-aboltionist paranoia. Mobs attacked convents, but mobs had also attacked abolitionist meetings. One had murdered Elijah P. Lovejoy for the crime of abolitionism. Smart antislavery men took care where they traveled to avoid following his example. Respectable venues once refused antislavery patronage, just as the nativists would have the country refuse immigrants and Catholics. For that matter, the goals of the nativists sounded suspiciously similar to a slave system: one race, and nineteenth century Americans very much saw the Irish and, often, Catholics also, as a racial group subordinated permanently to the other via a form of despotism that would require extension over free, white Protestants to sustain itself. If that happened, the nation would have the anti-democratic impulses of slavery replicated and suffer still more for it. They had more of that than they ever wanted just from sustaining slavery.

Possibly the man who put it best had essentially quit politics some years before, after an uninspiring single term in the House of Representatives. The Kansas-Nebraska Act drew him back in. Looking on the ruins of his chosen party, Lincoln wrote to his slaveholding friend, Joshua Speed:

I am a whig; but others say there are no whigs, and that I am an abolitionist. When I was at Washington I voted for the Wilmot Proviso as good as forty times, and I never heard of any one attempting to unwhig me for that. I now do no more than oppose the extension of slavery.

Lincoln

Lincoln

Still an antislavery Whig in 1855, he knew the Know-Nothings wanted the votes of men like him. He would not have it:

I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that “all men are created equal.” We now practically read it “all men are created equal, except negroes.” When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and catholics.” When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy.

Virginia’s new governor would have trouble finding a man eager to throw in with the Know-Nothings in all of that, even if he could find others who would.

The Facts of the Cases

Yesterday I talked about Lemmon vs. New York as the next Dred Scott case. Today I want to drill down and look at the facts in each to show just how similar they are.

Born a slave in Southampton county, Virginia, Dred Scott went with his owners to Alabama where they failed at farming and came eventually to St. Louis. There they sold him to army surgeon John Emerson. Scott accompanied Emerson to his postings in the free state of Illinois and then to modern Minnesota, free soil under the Missouri Compromise. There he married another slave and she gave birth to his daughter. The same Missouri Compromise made that daughter free at birth.

After two years, the army transferred Emerson to St. Louis and then Louisiana. The Scotts followed. Emerson married Irene Sanford and returned to Missouri with the Scotts in 1842. Emerson died the next year, making the Scotts Sanford’s property. She instructed Scott to hire out to another army officer. We don’t know exactly why Dred Scott only now sought his freedom. He might not have known his rights based on his stays in free Minnesota (then Wisconsin Territory) or Illinois. He might have feared retaliation against himself and his family. Whatever his reasons, Scott tried to buy his family from Sanford. She refused. With the help of abolitionist friends, Scott sued.

The Missouri courts had often given freedom to slaves in similar situations. Scott lost his first suit on a technicality but won it on retrial, the court finding that Emerson illegally held Scott on free soil. I am not a lawyer, but my understanding of Scott’s case is this:

  • State and federal law excluded slavery from territory where the Scotts once lived. They thus became free when taken there.
  • Missouri free the Scotts from a combination of the supremacy of federal law in the Northwest Ordinance, repeated in the Wisconsin Enabling Act, and the Missouri Compromise in addition to its Constitutional obligations to acknowledge Illinois’ freeing of the Scotts via the Full Faith and Credit Clause.

The Missouri supreme court took up the case and  overturned twenty-eight years of precedent in finding that Missouri law prevailed and the Scotts remained slaves. The opinion of the court referenced the the proslavery climate of 1852 making such freedom suits unwelcome and informed Scott he ought to have sued in a free state.

Under Missouri law, control of Emerson’s estate passed to Irene’s brother, John Sanford. The latter Sanford lived in New York, which gave Scott a federal case. With some new lawyers he sued again. In 1854, the circuit court upheld the Missouri supreme court’s verdict. Scott appealed to the Supreme Court, delighting proslavery opinion thanks to that court’s southern majority. Roger Taney’s court ruled as described yesterday, overturning a law as unconstitutional for only the second time in the court’s history.

Roger Taney, Chief Justice of the Supreme Court

In 1852, the same year Dred Scott’s suit before the Missouri supreme court failed, Jonathan and Juliet Lemmon of Virginia sailed from Norfolk to New York, aiming to catch a steamer to Texas. They brought with them eight slaves (ages 2-23), and put them in a boarding house while they waited for their ship. The slaves came in contact with a free black, who petitioned the New York courts on their behalf under New York’s antislavery laws, which gave freedom to every slave brought into the state for any reason. Like the Scotts, the Lemmon’s slaves came to a free state and sued under its laws for their freedom. Unlike the Scotts, they were still in that state.

Jonathan Lemmon appealed to the New York Supreme Court, then its Court of Appeals (the highest court in the state). Both courts ruled against him. Seeing the potential of the case, Virginia determined to pursue the matter with Roger Taney’s Supreme Court. Having already put slavery beyond the power of territorial or federal law, only state law remained and the Lemmon case directly challenged it.

The Swelling South

Dred Scott (Wikimedia Commons)

Yesterday I described how the South came to feel besieged and how the antislavery forces arrayed against it had never been stronger. The South shrank. Paradoxically, the same could be said of those same forces. In the late 1850s, the antislavery coalition made many electoral gains but the story of the decade held only political reverses. The South swelled:

  • The Fugitive Slave Act of 1850 effectively legalizing kidnapping, requiring federal marshals to arrest and hold any black person that a slaveholder cared to claim was a runaway. These alleged fugitives had no right to contest their seizure, repudiating free state laws that gave them just that. That the law also gave a bounty to those capturing runaways and offered only the narrowest fig leaf of due process: a simple hearing where the alleged fugitive could not defend himself and the judge would be paid $10 (approximately $266 in 2011 dollars) for ruling for the slaveowner but only $5 if ruling against.
  • Filibusters seeking to redress the sectional imbalance in the Senate conspired to seize Cuba (and one group briefly did seize Nicaragua) in the way that their forefathers had separated Texas from Mexico and bring it in as a slave state. They enjoyed support from Southern luminaries and the Pierce administration itself, before the latter backed off in favor of offering to buy the island after expending its political capital on the following concern
  • The Kansas-Nebraska Act of 1854 repealed the Missouri Compromise that formerly excluded slavery from nearly all the territories, opening the West to slavery.
  • As a result of the former, filibusters from Missouri (including senator David Atchison) and Arkansas flooded into Kansas to ensure it became a slave state. Antislavery forces responded in kind and guerrilla war erupted while pro-slavery and anti-slavery forces submitted duelling constitutions to Congress.
  • Then the Dred Scott decisionof 1857 that:
    • No black person could ever be a citizen and thus entitled to the protection of the laws of the United States, including the privilege of freedom granted to slaves who came to free states.
    • Neither Congress nor the the territorial legislatures could constitutionally exclude slavery, ensuring that the Kansas method for making new slave states would remain legal.

What remained, then? The whole antebellum edifice of limited slavery, save the prohibition on the Atlantic slave trade alone, had passed into history. Slaveholders could move their slaves through free states at will. They could bring slaves and with them slavery to any territory. Neither territorial legislature nor Congress could exclude slavery from any part of the United States and slaveholders could flood into any new territory before statehood to be sure it adopted slavery on admission to the Union.

Tomorrow, I’ll talk about how the antislavery movement understood all of this.