Wouldnt've

At Another History Blog, David Parker has a post about a local paper using the phrase "one of them's," as in "Men threatened with gun while working on one of them's car."

Which reminds me of the following.

I have a good friend who's a fifth grade teacher. From time to time, he will (intentionally) include made-up or mangled words in instructions or questions on tests that are unrelated to English, grammar or the like. Consider, for example, the word "wouldnt've" (or "wouldn't've") The goal: how many perplexed looks and upraised arms can he get?

He sometimes uses a simpler alternative: just substitute the word "of" for the word "have" in the phrase "would have" or "should have." "The Athenians should not of invaded Sicily. Discuss."

Another Anti-Mason

In my last post, I identified William Seward as probably the most famous politician who launched his career as an Anti-Mason. It's worth noting that another famous politician re-launched his career as an Anti-Mason.

In 1830, former president John Quincy Adams ran for and was elected to a seat in Congress from Massachusetts "at the urging of his fellow National Republicans and with the support of a burgeoning Anti-Mason movement."

Thereafter, propelled in part by political calculation, in part by his liberal piety, and in part by his dislike of Henry Clay -- whom he now regarded as imperious and untrustworthy -- Adams became, in his own words, a "zealous Antimason."

Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: W.W. Norton & Co. 2005) at 470.

Wilentz also does a good job giving a feel as to why antimasonry, so strange to us, swept New England and upstate New York in the late 1820s:

[N]ew forms of privilege and exclusiveness now seemed to threaten the land. Insidiously, the threat had wormed its way into the very heart of the commercializing countryside, proclaiming its ethical and intellectual superiority, all the while plotting secret power grabs and protecting kidnappers and murderers. Masonry may once have included such great men as Washington and Franklin, but that legacy had been corrupted by a new class of power-hungry, virtueless men -- a brotherhood of sharpsters sworn to aid each other, in business and in politics, to the exclusion of the democratic majority. The fate of the republic hung in the balance, emboldening Anti-Masons to fight for what they called "a Second Independence," to "hand down to posterity unimpaired the republic we inherited from our forefathers."

Id. at 279.

Millard Fillmore at NRO!

I can't resist noting that, over at NRO's The Corner, John Derbyshire has a post actually referring to Millard Fillmore! Unfortunately, John's post suggests that he knows little about president Fillmore and nothing of his highly admirable qualities.

I have previously posted on why Fillmore is one of our most underrated and underappreciated presidents. John, take a look here, here and here.

Since John's post mentions antimasonry, it's worth noting that a number of well-known figures began their public careers as Antimasons, the most notable probably being William Seward.

"How to Win in Iraq"

If you read only one article today, read this one: historian Arthur Herman's "How to Win in Iraq, And how to lose."

Thanks to Hugh Hewitt for pointing out the article.

One Oil Refinery

Did you know that Iran has one, and only one, oil refinery that produces gasoline? I didn't, until I read a portion of the transcript of Hugh Hewitt's recent radio interview with Newt Gingrich:

HH: Now let’s get to the first major issue of the day, which is Iran. Mr. Speaker, if the United Kingdom feels obliged to use force, if diplomacy fails to get their people back, will you applaud?

NG: I think there are two very simple steps that should be taken. The first is to use a covert operation, or a special forces operation to knock out the only gasoline producing refinery in Iran. There’s only one. And the second is to simply intercede by Naval force, and block any tankers from bringing gasoline to Iran.

HH: Would you do, would you urge them.

NG: And say to the Iranians, you know, you can keep the sailors as long as you want, but in about 30 days, everybody in your country will be walking.

What stuns me is that I have heard this nowhere else. I had assumed that in the current hostage crisis we had no military options other than to pulverize Iran. I expect that virtually everyone else in this country and in Britain continues to assume that to be the case. Why isn't every politician in both countries trumpeting the fact that there is a powerful, low-violence alternative? Why aren't the media talking heads and "experts" doing so?

Smith v. Smith II: "We might consider the law as settled . . ."

The trial judge of the Parish Court, for the Parish and City of New Orleans, clearly disliked the state of slave freedom law in Louisiana. In particular, he was unhappy with the Supreme Court of Louisiana's ruling in Marie Louise v. Marot (1836), in which the court had held that "there is no slavery permitted in France; that, as soon as a slave lands on French soild, he is free by the mere fact." (I have previously posted on Marie Louise v. Marot. To read those post, click on the label at the right.)

In effect, the Parish Court judge sought to persuade the Supreme Court to change its mind:

The judge of the Parish Court has admitted, that if the decision of this court, in the case of Marie Louise, be correct, it affords a legitimate rule by which the present case is to be determined; but he contends that a single decision of this court does not prevent the reexamination of the principle recognized when it comes up a second time, and is presented to the consideration of the court.

The Supreme Court archly noted that Marie Louise was "not the first [case] in which" it had "been called upon to revise the judgment of an inferior court" on the issue of slave freedom. To begin with, "[a]bout fifteen years ago, the court of the third judicial district [had] recognize[d] the right to freedom of a slave, carried from Kentucky into the state of Ohio by her former owner," and the Louisiana Supreme Court affirmed. Even in that case "[t]he question was not res nova in the jurisprudence of these states; the plaintiff [slave] relied on a decision of the Court of Appeals of the state of Kentucky, which fully supported her claim."

Ten years later, the Supreme Court of Louisiana reaffirmed its decision. Thus, Marie Louise was the third, not the first pronouncement by the Supreme Court on the issue. Even so, the Supreme Court said, it was willing to consider the issue once more. Read the following passage aloud, using a fake French accent and dripping with sarcasm a la Monty Python in "The Holy Grail:"

We agree with our learned brother in the Parish Court, that "more than one decision of the supreme judicial tribunal is required to settle the jurisprudence on any given point or question of law;" and accordingly, as there has been three decisions of this court on the question on which he differs from us, we might consider the law as settled by these repeated decisions, in which all the members of the court concurred, and which were in accordance with three judgments of the District Courts; nevertheless, we have attended to the new considerations which have been submitted to us.

In the next post, I'll review the "new considerations" that were "submitted to" the Supreme Court of Louisiana, and that court's responses.

Was Braxton Bragg Really that Bad? Part IV

Braxton Bragg was a mediocre general, to be sure. For example, he went into the Perryville campaign without a clear purpose. Bragg should not have allowed himself to get dragged into Kirby Smith’s harebrained and half-baked scheme, at least without (a) thinking through and setting up clear goals and purposes, and (b) clearing up the chain-of-command issue. Likewise, in the campaign itself Bragg probably made a major mistake in failing to go straight for Louisville after Munfordville, rather than diddling around in Eastern Kentucky. Perhaps if Bragg and Kirby Smith had taken Louisville, some of the pro-Confederate Kentuckians might have enlisted and put to use all those extra rifles that the Confederates dragged up with him.

In terms of his conduct during battles, Bragg seems to have gotten worn down and lacked the ability to improvise. At Stones River, when the first day plan came so near to success but fell short, he didn’t know what to do next. At Chickamauga, Bragg seems to have begun the battle dispirited because D.H. Hill, Hindman and Polk had, contrary to orders, missed some of the best tactical opportunities of the War to inflict significant damage on isolated Federal corps on September 10, 11 and 13. Then, particularly when Polk failed to have his men in position to attack the Federal left on the morning of the second day of Chickamauga, Bragg basically threw up his hands in disgust and wrote off the whole mess. Psychologically understandable, but you just can’t do that as commander.

But for all his faults, was Bragg any worse than Joe Johnston? Consider the following:

- Each won one battle (if you give Joe credit for First Bull Run and Bragg credit for Chickamauga);

- Each was responsible for a major debacle (Joe for the loss of Atlanta, Bragg for Chattanooga);

- Each was capable of coming up with good battle plans (Joe at Seven Pines and Cassville, GA [aborted by Hood], Bragg at Stones River and repeatedly on September 10, 11 and 13 before Chickamauga);

- Each executed a masterpiece of transportation logistics (Joe’s transfer of his army to Bull Run, Bragg’s transfer of his army from Northern Mississippi to Chattanooga);

- Each seemed to lose control of battles (Joe at Seven Pines, Bragg as stated above);

- Each had fatal personality flaws (Joe’s almost pathological sense of pride and perfectionism, Bragg’s lack of “people skills”).

Yet even Joe’s detractors usually are willing to admit that there were positives mixed in with the negatives. I find it curious that discussions of Bragg do not involve similar careful weighing and analysis.

I also wonder whether the pummeling that Bragg routinely receives is not connected to the Lost Cause mythology. That mythology consists of a number of discordant trains of thought that can be in tension with one another. On the one hand, the South was ground down by the remorseless weight of Northern men, materiel and technology. On the other, proponents are loath to admit that the South entered a war that it was bound to lose. Maybe, just maybe (so the thinking goes), if the Confederacy had had a decent general in the West, it could have prevailed.

Bragg was the perfect fall guy. He succeeded the (supposedly) brilliant Albert Sidney Johnston, who fell at Shiloh. In contrast to the divine and chivalric Lee, Bragg with his unibrow looks like the villain in a vaudeville melodrama. He was the faithful lapdog of Jefferson Davis. And, of course, he presided over that most humiliating of defeats at Chattanooga.

Such factors, I suspect, account for the fact that such scorn has been heaped upon Bragg, while others such as Joe Johnston, Pierre Beauregard (who basically deserted the Army of Tennessee after Shiloh) and James Longstreet (who was grossly insubordinate and incompetent at Chattanooga) have come in for less criticism.

The Fourteenth Amendment and Incorporation XIII: It's About Time

Back in February, I pointed out a new article by Brian Wildenthal on the Fourteenth Amendment and Incorporation. Turns out I beat the Volokh Conspiracy by over a month! What's the deal with these law profs, anyway?

The Economics of Slavery

Gavin Wright argues that slavery died out in North and intensified in the South primarily for economic reasons. Slavery thrived where it was economically advantageous for it to do so. "North American colonies had to buy African slaves on a world market at prices which reflected the high profitability of slavery in the sugar colonies of the West Indies. For this reason . . . slavery expanded only in areas where profitable export staples were available."

In the colonies and, later, in the United States, the only such staples that justified the cost were rice, tobacco, indigo and, later, cotton:

There was no inherent incompatibility between slavery and Northern climes and crops; it was strictly a matter of relative returns. The geographic distribution of the free population was determined by a host of social, cultural, legal, and psychological, as well as economic considerations, but as a general rule, slave labor followed the market. This market-determined difference of the eighteenth century became a legal and political distinction in the nineteenth century, as the Northern states all moved toward full abolition of slavery by the 1790s.

Gavin Wright, The Political Economy of the Cotton South: Households, Markets, and Wealth in the Nineteenth Century (New York: W.W. Norton & Co. 1978), at 11-12.

Climate Change

At National Review Online, Jim Manzi reviews and explains, for lay dummies like me, the tremendous scientific uncertainties underlying the global warming debate. Even I can understand the following:

When evaluating model reliability, the second test—can it predict accurately?—is the acid test. We can debate all day about whether a model is complete enough, but if it has correctly predicted major climate changes over and over again, that is pretty good evidence that its predictions should be taken seriously. There are plenty of studies that show what is called “hindcasting,” in which a model is built on the data for, say, 1900-1950, and is then used to “predict” the climate for 1950-1980. Unfortunately, it is notoriously common for simulation models in many fields to fit such holdout samples in historical data well, but then fail to predict the future accurately. So the crucial test is actual prediction, in which a model is run today to forecast the climate for some future time-period, and then is subsequently validated or falsified. No global climate model has ever demonstrated that it can reliably predict the climate over multiple years or decades—never.

At the Right Coast, Mike Rappaport comments, "My understanding of the debate is that all of this is uncontroversial. Why there should be a consensus in favor of the stronger predictions, not to mention the extremism of Al Gore, would seem to be a mystery."

Apologizing for Slavery

This seems about right:

Although the impulse to condemn the degradation of slavery is surely a good one, the moral vacuousness of this appeal blinds its advocates to the lessons of abolition — and the urgency to combat contemporary forms of slavery and other human rights abuses.

Politicized “apologies” may serve partisan purposes, but they make no moral sense. Each generation is responsible for its own transgressions; as the Scripture says, children are not liable for the sins of their fathers.

Joseph Loconte & Benedict Rogers, Backward Thinking: Abolition, then and now.".

Virgil's Georgics

The latest edition of the Claremont Review of Books contains a review of two new translations of Virgil's Georgics. Reading the article brought back wistful memories. I was a Classics major in college and came very close to going to graduate school.

I generally preferred Greek, but among the Roman poets Virgil's Georgics was a favorite, although I enjoyed the Eclogues even more. It's hard for me to recapture, after all these years, much less explain, the atmosphere these poems convey.

The Wealth in Slaves

These observations and statistics aren't new, but Robin Einhorn sums them up nicely:

For whites, meanwhile, the cotton kingdom produced booming prosperity. We often think of northern businessmen as the richest Americans of this [antebellum] era, but economic historians have shown that the title belonged to the cotton-belt planters -- because the people they owned were expensive. "A man who owned two slaves and nothing else," Gavin Wright explains, "was as rich as the average man in the North." In the South as a whole in 1860, 25 percent of the white households owned slaves. In the cotton kingdom, half of them did. Holdings were concentrated: 60 percent of all slaveholders owned five or fewer, while the 8,000 owners of 50 or more owned 1 million of the 4 million slaves in the United States. James L. Huston illustrates the magnitude of these holdings by showing that more wealth was owned in the form of enslaved African Americans in 1860 ($3 billion) than in railroad and manufacturing assets combined ($2.2 billion). Even counting land, as well as livestock, railroads, factories, and bank capital, slaves comprised 20 percent of all American wealth.

American Taxation, American Slavery at 213-14.

Dishwater Media

Dean Barnett has it exactly right:

[T]he fetishization of unbiased reporting is a historic anomaly. Ernie Pyle wasn’t unbiased. Neither was the New York Times for most of its existence. Unlike today. Giggle. Writing that unapologetically takes a stand has always been a lot more bracing than the day-old dishwater that currently drenches a modern daily. (Metaphors getting better!)

During the early republic and antebellum eras, virtually all newspapers were rabidly partisan. The reader knew exactly what he was getting. Was the newspaper pro or anti Jefferson? Did the editor support Andy Jackson or Henry Clay's Whigs? If the paper's name didn't tell you, the headline did.

That model seems far preferable to the current one, in which media outlets publish slanted but insipid articles while loudly proclaiming their objectivity. Give me a well-argued piece of advocacy anytime. Meanwhile, we can all watch the New York Times go belly up.

Was Braxton Bragg Really that Bad? Part III

Braxton Bragg is typically excoriated for the campaign that resulted in Perryville. Here’s my take.

So far as I can tell, the basic problems with the Perryville campaign were two-fold:

First, the major premise of the campaign was that Kentuckians, given the opportunity, would rise up in great numbers and flock to the Confederate Army. If that didn't happen, the entire campaign served no purpose and was doomed to fail, unless it was transformed into a giant raid. But the Confederates weren't prepared to "raid" what they considered their home turf. Bragg may be faulted for this delusion, but then again so should all of the Confederate leadership, from Jefferson Davis and Breckenridge on down.

Second, the command structure was never resolved. Kirby Smith informally agreed to place himself under Bragg, but in practice he never did. Bragg may be faulted for failing to get a directive from Jefferson Davis sorting out the situation before he engaged in such a far-flung campaign. Then again, neophyte generals repeatedly had this sort of problem, naively believing in and relying on non-binding protestations of cooperation. Even Robert E. Lee allowed Jefferson Davis to send him to western Virginia early in the War without clear authority, resulting in a mess.

After Munfordville, Bragg was due north of Buell and could likely have marched straight into Louisville. In retrospect (since what he actually did didn't work), he clearly should have done so. Maybe, just maybe, more Kentuckians would have turned out. In Bragg's defense, it appears that he turned northeast, toward the Frankfort area, for two reasons. First was intensely practical. He wanted to hook up with Kirby Smith, and the only way to do so was for Bragg to go to Smith, since Smith wouldn’t come to him (see the second point above). Second, the hope was that installation of a Confederate governor at the state capital would either produce recruits or at least allow the Confederates to make a colorable argument that the Confederate conscription laws were in force and effect in Kentucky as a Confederate state. That obviously didn't work, but Bragg couldn't have known that at the time.

It’s also worth remembering that Don Carlos Buell wound up moving out from Louisville more quickly and more cleverly than one would have reasonably expected in light of his past performance. As usual, Leonidas Polk performed poorly, providing Bragg with intelligence that was outright misleading.

After the battle of Perryville, I can't blame Bragg for retreating. The previously-made mistakes, identified above, had already borne fruit. There were insufficient recruits: the thousands of muskets that Bragg had brought with him to distribute to Kentuckians remained loaded in the wagons, unused. The supply line was already long and tenuous – if it existed at all. Bragg either had to (a) risk his army in a showdown battle in what was proving to be a distant and unfriendly location, (b) keep moving, raiding and devastating Kentucky as he went, or (c) retreat to Tennessee. So long as the Confederacy was not prepared to execute option (b) (just as Lee was not willing to devastate Maryland in September 1862), it seems to me that option (c) was preferable to option (a), which entailed huge risks.

In all of this, Bragg is by no means blameless. I just don't see, however, that the campaign transforms Bragg from a mediocre general into the absolute pits. I must say that in many respects Bragg's Kentucky campaign resembled Lee's Maryland (Antietam) campaign. Both went into border states under mistaken assumptions and with unformed strategic purposes. Both discovered that it is far more difficult to maintain and fight with an army over attenuated supply lines away from one's native soil. Both fought inconclusive battles. Both concluded that under the circumstances retreat was the best option.

Has Anyone at the American Prospect Ever Read Donald Kagan?

I have little -- make that nothing -- to add, but I just can't help pointing out a recent post at Daniel Drezner's blog concerning Thucydides: "Has Anyone at the American Prospect Ever Read Thucydides?"

Well, perhaps I'll add one thing. One Thomas Geoghegan is quoted as stating, "Donald Kagan, the father of Robert and Fred, has written four or five volumes on The Peloponnesian Wars, all to illustrate how the neocons should see the world."

It turns out that Mr. Geoghegan has not read Donald Kagan either. I've read Professor Kagan's four volumes on the Peloponnesian Wars (the link is to the first volume), several times. They are not political tracts. They belong to genre called "history," and they are superb.

Did Thomas Jefferson Count Himself into the Presidency?

This is great: In an article entitled "Did Jefferson Abuse His Authority to Count Himself into the Presidency?", Bruce Ackerman argues over at HNN that Thomas Jefferson counted Georgia's electoral votes in his own column in the election of 1800 even though Georgia's vote did not comply with the Constitution:

The problem involved Georgia’s electoral vote. The original document in the National Archives violates the express terms of the Constitution. Nevertheless, Jefferson ignored these blatant constitutional defects, and counted all four of Georgia’s electoral votes into his own column. If he had excluded the ballot, he might have lost the presidency to John Adams. It’s also quite possible that Adams’s running-mate, Charles Coatesworth Pinckney, might have become the third President of the United States!

Apparently this revelation is not new. Ackerman cites a 2004 law review article that he and another published several years ago, Bruce Ackerman & David Fontana, "Thomas Jefferson Counts Himself Into the Presidency," University of Virginia Law Review, vol. 90, pp. 551-643 (2004). What Ackerman doesn't tell you is that you can download the entire law review article from the University of Virginia Law Review website for free.

Thanks to American Presidents Blog for the tip.

The Real Joker in the Apportionment Rule

At the Virginia Convention that met to decide whether to ratify the proposed Constitution, Patrick Henry argued that the Constitution would permit the federal government to abolish slavery by placing a prohibitive “direct” tax on slaves:

Virginia’s leading Antifederalist, Patrick Henry, was especially concerned about the Constitution’s grant of the tax power. Virginia’s tax base may have been its “soul,” but Henry was also worried about a prohibitive slave tax that could “compel the Southern States to liberate their negroes.” It was “a picture so horrid, so wretched, so dreadful, that I need no longer dwell upon it,” but dwell on it he did. At one point, Henry apparently summarized the threat with an appalling clarity. He roared at the convention: “They’ll free your niggers!”

Robin Einhorn, American Taxation, American Slavery at 178-79.

What Henry did not understand was that the existence of the apportionment rule (the rule that direct taxes be apportioned among the states in accordance with their population, modified by the three-fifths rule) meant that direct taxes could not be used to destroy slavery. Take a simplistic example. Assume Congress seeks to wipe out slavery by enacting a punitive direct tax on slaves, designed to raise a total of $1MM. The apportioned shares of a northern state with 5,000 slaves, and a southern State with 200,000 slaves, are both $100,000. The tax on each slave in the northern State would be $20. The tax on each slave in the southern State would be $0.50.

Henry and others “had missed the real joker in the apportionment rule: higher rates where there were fewer of the taxed things (or people).” Id. at 182.

Direct Taxes and the Three-Fifths Clause II

The Three-Fifths Clause cleverly tied that formula to both "direct" taxation and representation, creating the impression that the northern States were getting something as well as giving something. Although the slave owning States would receive increased representation, at least they would also be paying a similarly increased portion of the national taxes, reducing the taxes to be paid by northern States with no or few slaves.

In American Taxation, American Slavery, Robin Einhorn reviews the evidence that powerfully and, I think, conclusively, demonstrates that this impression was, and was calculated to be, a sham. Everyone at the Constitutional Convention knew perfectly well that all or virtually all federal revenue would be raised via the impost or tariff (as in fact it was). They cared about "direct" taxes so little that they did not even know what they were.

I have mentioned in an earlier post Gouverneur Morris' reference to direct taxes as a bridge to span "a certain Gulph." Professor Einhorn also cites an unsuccessful mid-September effort

by John Dickinson (Delaware) and James Wilson to remove the apportionment of direct taxes from the three-fifths clause. The words "and direct taxes," they argued, were "improperly placed in a clause relating merely to the Constitution of the House of Representatives." Morris, who had suggested this change earlier ("having passed the gulph the bridge may be removed"), now defended the inclusion of direct taxes with the same argument Wilson made initially. The point was to divert attention. Direct taxes should remain in the clause "in order to exclude the appearance of counting the Negroes in the Representation -- The including of them may now be referred to the object of direct taxes, and incidentally only to that of Representation."

American Taxation, American Slavery at 168-69.

I should emphasize that the argument that everyone knew that the impost or tariff would fund the federal government is not based solely on a few snippets from the Constitutional Convention. The experience of the founders-to-be from 1776 on had demonstrated that other forms of funding were wildly impractical and contentious (e.g., land valuation) or promptly provoked nasty arguments about slavery (e.g., poll taxes).

That experience ultimately led to the realization that the impost was the perfect federal tax. It was easily administered and collected, requiring no cumbersome and intrusive machinery to value property and equalize those values. Because it simply increased the price of imported goods, it was largely invisible to ordinary citizens, and the argument could always be made that payment of the tax was voluntary -- if you don't want to pay it, don't buy imported goods. And for similar reasons, it was impossible to know who exactly was bearing the tax or whether the citizens of particular States were bearing an undue portion, eliminating State claims of unfairness.

Speaking of Braxton Bragg . . .

Now here's a coincidence: from the "Weird but True" column in yesterday's New York Post, which immediately brought to mind that old story about Braxton Bragg arguing with himself:

Some folks in New Zealand have declared that their local government council has "gone totally insane" after they decided to sue themselves.

Town fathers in Waitakere were informed they may have ordered some home[s] removed from a flood plain without proper purpose.

Their response was to sue themselves in court.

And they were ordered by a judge to pay themselves a $4,800 fine.

Was Braxton Bragg Really that Bad? Part II

One of Bragg’s worst problems was the fact that he was saddled with General Leonidas Polk, undoubtedly the most insolent idiot in high command.Polk was repeatedly insubordinate and worked to undermine Bragg’s plans and convert other generals to his anti-Bragg position: he was openly insubordinate during the Perryville campaign; during the Tullahoma campaign he undermined Bragg’s plan to turn Rosecrans’s right; during the Chickamauga campaign he refused Bragg’s orders to attack Crittenden’s corps on September 13; and on the night after the first day of Chickamauga, he took no steps to comply with Bragg’s orders to prepare for a dawn assault on the Federal left (which was crucial to Bragg’s plan to cut the Federals off from, rather than drive them back toward, Chattanooga).

Unfortunately, although Polk was a terrible general, he was a charmer. After a year of badmouthing and conspiring against Bragg, he had won over many of the other commanders. For differing reasons, when D.H. Hill and Longstreet joined the army they were only too happy to join the anti-Bragg cabal. Hill refused to attack an isolated portion of George Thomas’s corps at McLemore’s Cove on September 10, 1863, claiming that Cleburne was sick and unavailable when that was not the case. Longstreet was responsible for the sector that included Brown’s Ferry and ignored orders and suggestions to guard against Federal movements in that area, leading to the opening of the “cracker line.”

Ironically, for all Bragg’s reputation as a nasty curmudgeon, the argument can be made that his biggest fault was that he tried to be too reasonable and accommodating. Knowing the relationship between Jefferson Davis and Polk, and not realizing the extent to which Polk was poisoning the other commanders, Bragg did not take firm steps against Polk after the Perryville campaign, but instead turned the other cheek. Arguably, he should have brought charges against Polk immediately after that campaign; if Jefferson Davis objected (as he certainly would have), Bragg should have been prepared to say, “Him or me.”

Federal Power to Tax

As I read Robin Einhorn's American Taxation, American Slavery, I realize I have only the dimmest understanding of what taxes and duties the Constitution originally authorized the federal government to lay, other than a uniform import duty. This post is simply my attempt to lay out, for my own use, the relevant provisions, what they seem to say and suggest, and issues about which I need to think about and on which I need to focus on (see my post from earlier today, "The world in which we live in").

Article I, Section 8 of the Constitution provides:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises . . .; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article I, Section 9 originally provided in relevant part:

No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

The phrase "unless in Proportion to the Census or Enumeration herein before directed to be taken" was a reference to Article I, Section 2, which provided in relevant part:

. . . [D]irect Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Putting these provision together:

A. The federal govenment had the power to lay and collect "Duties," "Imposts" and "Excises," provided they were "Uniform throughout the United States."

Questions:

1. Presumably, the "Uniformity" requirment was another way of expressing the limitation contained in Article I, Section 9, to the effect that "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."

2. Did the "Uniformity" requirement impose any other limitations? If so, what?

B. The federal government had the power to lay and collect "Taxes." If those "Taxes" were "direct Taxes" (and a "capitation Tax" was a species of "direct Tax"), then those taxes had to be apportioned among the States based on population (as modified by the Three-Fifths Clause).

Questions

1. What is a "direct Tax"?

2. What is a "capitation Tax"? Is it the same as a poll tax, that is, a flat tax per person?

3. Are "direct Taxes" subject to other limitations?

C. Because the federal government had the power to lay and collect "Taxes," presumably it had the power to lay and collect "Taxes" that were not "direct Taxes."

Questions

1. Is this correct?

2. Could the federal government lay any "Tax," whatever its form? (I recognize that there were a handful of specifically-mentioned taxes that the federal government was forbidden to lay, such as taxes on exports, and taxes on imported slaves over $10 per slave.)

3. Does this mean that if a "Tax" was not a "direct Tax," then it was not subject to the limitation of uniformity (because it was not a "duty," "impost" or "excise"), and it was also not subject to the limitation of "apportionment among the several States" (because it was not a "direct Tax")?

4. Does this mean that if a "Tax" was not a "direct Tax," then it was not subject to any limitations at all (provided it was laid for a proper purpose)?

Some hints, all per Einhorn, at 160-61:

Hylton v. United States (1796) involved a federal tax on pleasure carriages. "The Court ruled that the carriage tax was not a direct tax because an apportionment would produce absurd results." Assume, for example, that an apportionment indicated that $55,000 of the tax should come from Delaware and $71,000 from Georgia. Resident of Delaware, with 15 carriages per 1,000 population, would owe $0.73 per carriage. Residents of Georgia, with 2 carriages per 1,000 population, would owe $5.69 per carriage.

Thus, the Court ruled that the carriage tax could not possibly be a "direct tax" under the Constitution: "As all direct taxes must be apportioned, it is evident that the Constitution contemplated none as direct but such as could be apportioned." The justices added that only a land tax or a poll tax definitely would count as a direct tax under the Constitution.

In Pollock v. Farmers' Loan and Trust Co. (1895), the Court held that

[i]ncome taxes were "direct taxes" and therefore had to be apportioned by population. The Court was not proposing that income taxes be evied in accordance with [Einhorn's] table 1 [at 159]. It was saying that because the income tax was a direct tax that could not be apportioned, the Constitution prohibited Congress from levying it.

I'm not sure I get it. The income tax could be apportioned; the problem is that the apportionment would have produced an absurd result.

Mohammed Image of the Day

Arab illustration showing Mohammed (on the right) preaching to the earliest converts. From a manuscript in the collection of the Bibliotheque Nationale, Paris (Manuscrits Arabe 1489 fol. 5v).

Guess you'll have to behead me now.

Thanks to Zombietime.

Was Braxton Bragg Really that Bad? Part I

Along with everyone else, I've read a bunch of books that take it for granted that Braxton Bragg was a disaster -- the ridiculous Kentucky campaign resulting in Perryville; Stones River; the "empty victory" at Chickamauga; the disaster at Chattanooga.

The verdict on the web has been the same. Several years ago, North and South Magazine convened a symposium of Civil War historians and experts; all but one (Steven Woodworth -- more about his views later) included poor General Bragg on their "Ten Worst Civil War Generals" lists. More recently, Civil War Interactive conducted a poll, and Braxton was named the absolute worst Civil War General on either side. (Thanks to Blogs 4 History for pointing out the poll, which I had missed.)

I dissent. No one is going to claim that Bragg was a great general. I won't even claim he was a good general. But I do doubt that he was any worse than mediocre -- a C or C-, but not an F, as it were. I'll try to explain why in the post and several to follow.

My doubts about the justice of Bragg's reputation were initially stirred when I read Steven Woodworth's fine book, Jefferson Davis and His Generals: The Failure of Confederate Command in the West, several year ago. In it, Woodworth argued that Bragg, while certainly not a great general, was not terrible. He suggested, among other things,

* that the failure of the campaign that led to Perryville was in large part due to (a) the bad and confusing intelligence that Kirby Smith and Leonidas Polk provided, (b) Polk's insubordination, and (c) the mistaken assumption that Kentuckians would rally to and enlist with the Army, an assumption shared by Jefferson Davis and virtually every other leader in the Confederacy.

* that Bragg's plan at Stones River to assault the Federal right was quite good and almost succeeded, and indeed almost certainly would have succeeded had Davis not stripped the Army of troops.

* that through insubordination Bragg's commanders squandered several opportunities developed by Bragg to defeat the Union army in detail in the days before Chickamauga.

* that the dissention in the Army that was the core reason for the disaster at Chattanooga was caused principally by Leonidas Polk, who was an insubordinate malcontent who conducted a lengthy campaign to undermine Bragg and over time infected the entire army (and then found a kindred spirit in Longstreet). More generally, Woodworth suggested that Bragg, while certainly prickly, responded for some time with (for him) reasonable moderation to blatant provocations by Polk, et al., until he could take it, and almost open insubordination, no more.

As Woodworth summed up his view of Bragg in North and South Magazine's on-line Ten Worst Generals article: He was "an excellent strategist, organizer, administrator, and disciplinarian, and an average tactician. His lack of political skills was a serious flaw, reducing an otherwise good general to the level of mediocrity. Others, including Jefferson Davis, Leonidas Polk, William S. Rosecrans, and Ulysses S. Grant, were far more responsible for the defeats of the Army of Tennessee than was Bragg. He definitely does not belong in the bottom ten."

As I noted above, Woodworth apparently did not convince his fellow "Ten Worst" panelists at the North and South Magazine colloquium, for every one other than Woodworth listed Bragg. However, because of the format they did not directly address Woodworth's arguments. In posts to follow, I will amplify upon them.

"The world in which we live in"

For years, I tried to convince myself that Paul McCartney was really singing, "The world in which we're livin'." He couldn't possibly be so stupid as to have written the line, "The world in which we live in," could he?

But of course, the answer is, "Yes." The theory that he was singing "The world in which we're livin'" didn't withstand even moderately close aural analysis (which is all I could bear anyway), and reference to those lyrics sites on the internet confirms the fact that Paul is simply a moron -- as if anyone who reads about Heather Mills in one of those magazines you read on the supermarket checkout lines needs confirmation of that fact. For $100MM, or whatever it's going to cost him for three years or so of marriage, he could have rented one hell of a better prostitute, even on a per diem (or is it per noctem?) basis.

But then I realized the deeper truth. Paul was really a genius: he'd invented the double preposition! I now slip this learned construction into conversations in which I'm engaged in all the time, to the point that some friends now do so as well.

Try it yourself! You can brighten almost any conversation, e.g., "About what are you talking about?" "For whom [make sure to use the correct case!] am I making this drink for?" You get the idea.

Smith v. Smith I: "More than one decision is required . . ."

The Supreme Court of Louisiana decided Marie Louise v. Marot, the slave freedom case I discussed a few posts ago, in 1836. Three years later, the court confronted another, similar situation in Smith v. Smith, 13 La. 441, 1839 WL 1076 (1839).

Priscilla Smith was the slave for life of a Mrs. Smith (the opinion does not mention the latter’s first name). In the spring of 1835, Mrs. Smith “went to France, taking Priscilla with her as her servant.” Priscilla was supposed to “stay[] there with her mistress.” Perhaps Priscilla had left children or other family back in Louisiana, for she apparently made an “entreaty” to be returned there, and her mistress acceded to her wish. “After residing in Paris some months, Priscilla was sent back by her mistress to Louisiana, in the ship Garonne, and arrived in New Orleans in November, 1835.” Back in Louisiana, Priscilla was hired out, or hired herself out “in New-Orleans on wages, for account of her mistress.”

Priscilla filed “a suit for freedom” in the Parish Court for the Parish and City of New Orleans. She alleged “that, by going to France with the consent of her mistress, she became free, because slavery is not permitted there, and that the moment she landed in that country she became free.”

At trial, Priscilla established the facts described above. She also presented a lawyer familiar with French law as an expert. One “E. Caillard, Esq., being called on the part of the plaintiff, sa[id] he studied law in France; that there is no slavery permitted there. As soon as a slave lands on the French soil, he is free by the mere fact.”

The trial judge apparently heard the case without a jury. He ruled that Priscilla, “being domiciled in Louisiana, must be governed and controlled by the laws of this state, in her claim for freedom; that the mere fact of going to France, and returning to Louisiana, could not take the case out of the general rule.” He therefore rendered judgment in favor of Mrs. Smith and against Priscilla.

In reaching this decision, the Parish Judge apparently recognized that the Supreme Court of Louisiana had ruled to the contrary. As we shall see, he apparently defended his ruling by arguing, among other things, that “more than one decision of the supreme judicial tribunal is required to settle the jurisprudence on any given point or question of law.”

The judge's argument immediately reminds me of the arguments of Lincoln and the Republicans that the Supreme Court decision in Dred Scott settled only the rights of the parties in that case, and that a single decision could not definitively settle the issue as to Congress’s power to bar slavery in the territories.

Priscilla appealed to the Supreme Court of Louisiana.

Was Slavery on the Way Out? Prof. Freehling Says No!

I've previously posted on whether slavery was on the way out in 1860. In my view, it clearly was not. Indeed, it's hard to imagine when slavery would have been abolished in the United States but for the Civil War.

I'm proud to report that Professor Freehling apparently agrees. At the end of his talk the other evening, he said that he guessed that it would have taken 100 years to abolish slavery but for the war.

The Irony of the Tariff

This may annoy some people no end:

Before the Civil War, federal taxation was almost completely synonymous with the tariff. . . . [T]he historical origin of the tariff lay in a separate issue. In addition to its administrative and economic characteristics, a tax on imports offered a political advantage over other forms of taxation. Congress could design a tax on imports without talking about slavery. The irony here is extraordinary. The tax that southerners would resent and resist so famously – because it forced them to subsidize northern industry – originated in a political accommodation to slavery during the Revolution.

Robin L. Einhorn, American Taxation, American Slavery (University of Chicago Press 2006), at 117.

Are There Two Sets of Constitutional Amendments?

Here's something I don't get. Can the same constitutional amendment mean one thing when applied to the federal government and another when applied to the states?

I use the Second Amendment only because it makes for a vivid and easily-understood example. Assume that the original understanding of the Second Amendment was that it did not create an individual right to bear arms (for convenience, I'll refer to the opposite of an individual rights model, a "militia model"). Assume further -- and I think that the legislative history clearly shows this to be the case -- that, in passing the Fourteenth Amendment, the 39th Congress believed that the Second Amendment did create an individual right to bear arms, and intended that the States should be barred from from infringing that individual right.

Logically, you would then have, in effect, two Second Amendments, or at least two versions of the Second Amendment. The first, applicable directly to the federal government, would convey no individual right to bear arms. The second, applicable to the States via the Privileges or Immunities Clause of the Fourteenth Amendment, would convey an individual right. In other words, the federal government would be free to restrict an individual's right to bear arms, but the States would not be free to do so.

Many constitutional scholars, however, seem to contend that the "revised" meaning of the original understanding would somehow also be applied back against the federal government. I don't have the book at hand, but I distinctly recall Akhil Amar making such an argument in his book on the Bill of Rights (or perhaps it was America's Constitution). I distinctly recall it because I remember repeatedly rereading the passage in which he made the argument -- it was utterly incomprehensible. He might have used a phrase such as "reverse incorporation" (although perhaps I saw that phrase elsewhere). (When I get ahold of the book, I'll post the quote.)

There's probably a vast body of legal literature on the topic. I just don't know it.

Marie Louise v. Marot: "Being free for one moment"

Having examined a number of Missouri slave freedom cases, let's turn to another State. Hmmm. Let's try . . . Louisiana.

In Marie Louise v. Marot, 9 La. 473, 1836 WL 864 (1836), the plaintiff sought freedom for her daughter, Josephine. She asserted that the defendants had taken Josephine, a slave, to France, "a country in which slavery is not tolerated, and that she thereby became free." Upon their return to Louisiana, the defendants "maliciously imprisoned" Josephine.

The case was tried in Louisiana state district court in June 1835. At trial, the evidence established the facts as alleged. Among other things, Josephine and her mother somehow prevailed upon two presumably white "witnesses of unimpeached credibility" to testify that, under French law, "slavery or involuntary servitude is not tolerated" and operated "so as to produce an immediate emancipation."

The trial judge delivered to the jury a set of instructions that indicated that Josephine was entitled to her freedom if she had resided in France, however briefly:

"That if the plaintiff's daughter, Josephine, was taken by the person claiming her services as a slave to a foreign country, where slavery does not exist, and is not tolerated, and by the laws of which such slave would be entitled to her liberty, for the purpose of residence, even temporarily, that is, for any other purpose than mere passage through such country, and perhaps even then, the person so taken to such country would become free, and that freedom once impressed upon an individual was indelible; and the status, or condition in society of such party could not be changed . . ..

"It is for the jury to decide the fact, whether the plaintiff's daughter, Josephine, was taken to France on a mere passage through the country, or for the purpose of temporary residence. That in the opinion of the court, it makes no difference, that the donee or owner of the slave, as the defendant, was a minor at the time of the voyage to France, and could give no legal consent; because the condition of freedom was de facto impressed on the person held to service, so carried to a foreign country, without having ran away or escaped . . .; but the right to personal freedom by such residence, in such foreign country, was acquired by, and stamped upon the person so previously held to such service, and such a person is entitled to freedom."

The jury returned a verdict "that Josephine is entitled to her freedom," although it denied her money damages. The defendants appealed.

The Supreme Court of Louisiana heard the appeal in May 1836. After reciting the factual and procedural background, Justice George Mathews, Jr., writing for a unanimous court, affirmed the judgment below in a single paragraph. After describing "the benign and liberal effect of the laws and customs of" France, as described above, Justice Mathews held that Josephine was free and could not be re-enslaved:

This fact [concerning the nature of French law] was submitted to the consideration of the last jury, who tried the cause under a charge of the judge, which we consider to be correct, and was found in favor of the party whose liberty is claimed. Being free for one moment in France, it was not in the power of her former owner to reduce her again to slavery.

New Kurt Lash and Randy Barnett Articles

On balance, I think Kurt Lash has gotten the better of Randy Barnett in their ongoing debate over the meaning of the Ninth Amendment. I see that Professor Lash has posted his latest effort on that amendment, A Textual-Historical Theory of the Ninth Amendment (forthcoming in the Stanford Law Review), on SSRN:

Despite the lavish attention paid to the Ninth as a possible source of unenumerated rights, surprisingly little attention has been paid to actual text. Although often raised in opposition to reading the Due Process Clause as incorporating only textual rights, the text of the Ninth has nothing to do with interpretation of enumerated rights such as those contained in the Fourteenth Amendment. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. In fact, the standard theory of the Ninth places the text in considerable tension with that of the Tenth. Although both the Ninth and Tenth Amendments close with the same reference to “the people,” most contemporary scholars and courts treat the same term in the two amendments as having opposite meanings, with the Ninth referring to a single national people and Tenth referring to the people in the several states. Finally, recent historical evidence reveals that for more than one hundred years after its enactment, courts applied the Ninth Amendment in a manner that preserved the autonomous rights of the states. This seems out of sync with a text that speaks only of the retained rights of the people, not the states.

This article addresses these and other textual mysteries of the Ninth Amendment. The over-all effort is to construct a text-based theory of the Ninth that both explains its historical application and reconciles the Amendment with other texts in the Constitution such as the Tenth and Fourteenth Amendments. Particular attention is paid to the meaning of “deny or disparage,” the distinction between “rights retained” and “rights assigned,” and the relationship between rights retained by the people under the Ninth Amendment, and powers reserved to the people under the Tenth. The article closes by sketching a textual-historical approach to judicial enforcement of the Ninth Amendment in a manner that reconciles the text with the Fourteenth Amendment.

That said, I enjoy reading Professor Barnett's pieces. Coming at issues with a distinct perspective, he often illuminates them from unexpected angles.

I see that Professor Barnett also has a new article up on SSRN: The People or the State? Chisholm v. Georgia and Popular Sovereignty, the abstract of which is as follows:

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this essay, I offer several reasons: Constitutional law is taught by doctrine rather than chronologically; law professors have reason to privilege the Marshall Court; and the Court's individualist view of popular sovereignty is thought to have been repudiated by the adoption of the Eleventh Amendment. I explain why the Eleventh Amendment did not repudiate the view of sovereignty expressed in Chisholm by comparing the wording of the Eleventh with that of the Ninth Amendment, and conclude by suggesting another reason why Chisholm is not in the canon: Law professors follow the lead of the Supreme Court and, like the Ninth Amendment, the Supreme Court has deemed its first great decision too radical in its implications.

William W. Freehling Talk: Part III

The question that Professor Freehling did not address was, Why did the lower south react so differently to -- whatever: Lincoln's election, the Star of the West Crisis or the mistaken belief that Buchanan was reinforcing all southern forts. Whatever they were reacting to, all of the southern States were reacting to the same events and phenomena; yet they reacted utterly differently.

Professor Freehling made an offhand comment about the blackness of the black belts in the cotton States, but I did not take that as definitive. I have sensed that Professor Freehing may be sympathetic to Michael Holt's argument that the difference lay, in whole or in part, in the fact that the cotton States lacked a history of competitive two-party systems, while the other southern States had at least fairly competitive Whig/American/Union party opposition traditions.

Hopefully, we we will find out when the book is published.

William W. Freehling Talk: Part II

South Carolina’s decision to secede, a military crisis and a misunderstanding dramatically changed the decision facing the other southern States. Professor Freehling stated that James Buchanan was one of the most misunderstood presidents. He was not a wimp. After South Carolina seceded, Buchanan decided to reinforce Robert Anderson, who had moved his men to Fort Sumter. As we know, The Star of West was shelled when it approached the fort and turned back. If it had not, the war would have started then. That was the military crisis.

The misunderstanding was that of the southern commissioners then meeting in Washington. They assumed that Buchanan’s reinforcement of Fort Sumter meant that he was reinforcing every federal fort and installation throughout the south. They sent out telegrams to this effect. The lower southern states responded by seizing every federal fort in their territories. Having done so, they no longer faced the simply the question, “Shall we support South Carolina?” Instead, they faced the question, Shall we support our troops, our boys, who were already in the field, as it were. The seizure of the forts “utterly changed the equation” in the lower south. Throughout the lower south, military engagements had, in effect, already taken place before votes for secession took place.

Even so, the mid- and upper-southern States did not secede. They still wanted to try to work things out. All this changed when Lincoln asked for 75,000 troops. This would have, for example, forced Virginia boys to fight against South Carolina boys. “All hell broke loose.” Just days earlier, the Virginia Convention was 2-1 against secession. All that changed. Immediately after, Henry Wise, an ex-governor with no authority, ordered troops to seize federal installations in Virginia, including Harper’s Ferry.

And even after that, the border south states did not secede. They thought secession was a terrible mistake. Where would the war be fought? On their soil. Whose slaves were most at risk? Theirs. They hated those South Carolina “hot heads.” In the end, States containing one-third of the southern white population did not secede.

Professor Freehling believes that the war was won in the West. The failure of the border States to secede was tremendously important. Think of Kentucky. Think of the Baltimore and Ohio Railroad.

Returning to why the lower southern States, other than South Carolina, seceded, Professor Freehling stated that he did not believe that they did not do so simply to protect and preserve the institution of black slavery. They were also motivated by the desire not to be coerced. Their mistaken understanding that Buchanan was reinforcing all federal forts meant coercion, and coercion meant slavery. If white men did not resist, they would not be free; and if they were not free, they were slaves. This was probably the most important factor.

(I would add that, with the significant twist of the forts issue, Professor Freehling’s brief discussion of white perceptions of freedom and slavery as bearing on secession seemed to reflect agreement with the arguments of H. Mills Thornton in Politics and Power in a Slave Society: Alabama 1800-1850. You can read my post about that book here.)

William W. Freehling Talk: Part I

This evening I attended a talk given by William W. Freehling to the Civil War Roundtable of New York. As you may expect, Professor Freehling based his talk on his forthcoming book, The Road to Disunion, Volume II: Secessionists Triumphant, 1854-1861 (Oxford University Press 2007). At the outset, it’s worth noting that the Professor seems to be a delightful person and a really nice guy. Before the talk, he circulated around the room, introducing himself to people. I heard some conversation that makes me think he’s an opera fan, although I didn’t get to ask who his favorite composer was.

It was also fun to see how genuinely excited he is about the Antebellum period and the Civil War. At several points, he got so wound up about his subject that he had to pause and take a drink of water to compose himself.

The Professor began by emphasizing “how difficult secession was.” “If there is one thing you should take away, it’s that secession was very hard.” First, white southerners loved the government. They had formed the Union and been in control of it since 1835 – witness the Gag Rule, the Fugitive Slave Act, Kansas-Nebraska and Dred Scott.

Second, Lincoln was no menace to slavery or the south. The Republicans did not have a majority in Congress or on the Supreme Court; they did not even control a majority of northern governorships. In his First Inaugural, Lincoln went out of his way to endorse the then-proposed Thirteenth Amendment, which would have created an unamendable Constitutional provision preventing the federal government from ever interfering with slavery in the States.

Third, southern Unionists had very cogent arguments. Among other things, they pointed out that secession would lead to civil war, and civil war posed a far greater threat to slavery than Lincoln did.

In short, in the south as a whole, a large majority said “WAIT.” If he had to guess, Professor Freehling thinks that 75% of white southerners wanted to wait and see what was going to happen. In this context, the Professor noted several times that the middle and upper south contained two-thirds of the white southern population. This did not mean that this majority was not prepared to secede if Lincoln took affirmative action against the south, but they did not want to secede merely because Lincoln was elected.

The idea of a southern convention had been the brainchild of secessionists, going back to John Calhoun. As recently as 1959, secessionists had sought a southern convention after John Brown’s raid. Ironically, however, the election of Lincoln caused a role reversal: southern Unionists urged a southern convention; secessionists sought to force a decision before a southern convention could be held. They needed a State to secede quickly – and the obvious candidate was South Carolina.

South Carolina was “scared to death” to secede by itself. It therefore started a “secret conspiracy” to try to get support. It secretly wrote to the governors of other southern states asking, “Will you help us” by agreeing to secede if South Carolina did. The southern governors uniformly responded that they would not. Georgia was particular adamant that it would not help.

South Carolina radicals, led by Robert Barnwell Rhett, were nonetheless desperate to secede. Professor Freehling believes that chance and coincidence play a large part in history – and here is a prime example. On November 9, 1860, the South Carolina Senate voted 44 –1 against convening a state secession convention. On November 10, 1860, the South Carolina legislature voted unanimously to convene the convention on December 17. The Professor said – and his body language confirmed – that his discovery of what had happened to cause this dramatic reversal was the most exciting event of his career.

It so happened that a railroad had just been completed between Charleston and Savannah. On November 3, a celebratory dinner was held in Savanna. At that dinner, Francis Bartow, Georgia’s foremost Unionist, gave a speech at which he urged that South Carolina not secede. Secession, Bartow said, was stupid – Lincoln was no menace, and secession put slavery at risk. But, Bartow said, if you do secede, we Georgians will have no choice but to follow you. It would be entirely unworkable for the South Carolina-Georgia border to be a border between two different countries. At the end of the evening, the South Carolinians invited the Georgians to a reciprocal celebratory dinner in Charleston – on the evening of November 9.

Meanwhile, the South Carolina Senate in Columbia voted 44–1 against a secession convention on November 9. That evening, Bartow gave the same speech at the dinner in Charleston. Telegrams immediately went out from Charleston to Columbia: “Georgia is with us!” Georgia’s leading Unionist had said that Georgia would secede if South Carolina did. A trainload of Charlestonians left for Columbia with the same message, arriving in the early afternoon on November 10.

At 4:30 p.m. on November 10, the South Carolina Senate voted unanimously to schedule a secssion convention. At 6:00 p.m., the South Carolina House did the same.

In analyzing why South Carolina seceded, Professor Freehing found that the overwhelming concern was that Republican patronage would give birth to a southern Republican party. That, in turn, would create agitation to abolish slavery. Slaves would hear that talk. That was intolerable – you can’t have discussion about slavery – because it created a risk that slaves would rise up and murder their masters in their beds.

Honor was also a factor. South Carolina had previously threatened to secede both in 1832-33 and in 1850. On both occasions, it had backed down. If South Carolinians backed down again, they would regard themselves as degraded.

Professor Freehling discounted other factors. “I looked hard for any mention of the tariff. There was none. I looked hard for any mention of States’ Rights. There was none.”

Scott v. Emerson IX: "Principles Do Not Change"

In his dissent, Justice Hamilton Rowan Gamble then turned to the principle that lawyers now call stare decisis -- that is, the doctrine that courts should ordinarily adhere to earlier decisions. Justice Gamble "regard[ed] the question as conclusively settled, by repeated adjudications of this court." Even if he doubted the propriety of those decisions, which he did not, "I would not feel myself any more at liberty to overturn them than I would any other series of decision, by which the law upon any other question was settled."

Justice Gamble saw stare decisis as a bulwark against "the temporary public excitements which are gathered around" the subject of slavery. He then described a process by which slaveholders, unfairly criticized, had understandably become angry at their attackers:

[I]t is, undoubtedly, a matter to be deeply regretted, that men who have no concern with the institution of slavery, should have claimed the right to interfere with the domestic relations of their neighbors, and have insisted that their ideas of philanthropy and morality should be adopted by people who are certainly capable of deciding upon their own duties and obligations. That the present owners of slaves, when denounced, in terms that would be appropriate, if they had actually kidnapped the slaves from the coast of Africa, or had inherited the fortunes accumulated by such iniquitous traffic, should feel exasperated by such wanton and unfounded attacks, is but natural.

But it was precisely in this heated atmosphere that calm resort to stare decisis was necessary:

That alienation of feeling and, finally, settled hostility will be produced by this course of conduct, is greatly to be apprehended. But, in the midst of all such excitement, it is proper that the judicial mind, calm and self-balanced, should adhere to principles established when there was no feeling to disturb the view of the legal question upon which the rights of parties depend.

Justice Gamble then reviewed the many cases in which the Supreme Court of Missouri had "recognized, from the beginning of the government, as a correct position in law, that a master who takes his slave to reside in a State or territory where slavery is prohibited, thereby emancipates the slave." His review included many of the cases discussed in previous entries here, including Winny v. Whitesides, Julia v. McKinney, Nat v. Ruddle and Rachael v. Walker. (For discussion of these cases, click on the tags to the right.)

Nor was the Supreme Court of Missouri alone in reaching this conclusion. The courts of other slave States, "including those in which it may be supposed there was the least disposition to favor emancipation," were in agreement. Justice Gamble then discussed decisions by the Supreme Court of Louisiana, the Supreme Court of Mississippi, the Court of Appeals of Virginia and the Court of Appeals of Kentucky. All of the decisions, Justice Gamble asserted, stood for the proposition

that where a right to freedom has been acquired, under the law of another State or community, it may be enforced by action, in the courts of a slaveholding State; for, in every one of these cases, the party claiming fredom had not procured any adjudication upon his right in the country where it accrued.

These decisions of other States, and the earlier decisions of the Supreme Court of Missouri, were entitled to particular deference precisely because they were issued before the topic of slavery had become superheated:

The cases here referred to, are cases decided when the public mind was tranquil, and when the tribunals maintained in their decisions the principles which had always received the approbation of an enlightened public opinion. Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my judgment, there can be no safe basis for judicial decisions, but in those principles, which are immutable.

Visited States

create your own personalized map of the USA

Pretty mediocre, I'd say.

Another Stupid 10 Worst Presidents List

At American Presidents Blog, "M" points out an article in U.S. News and World Report listing and discussing "The 10 Worst Presidents," created by "averag[ing] the results of five major and relatively recent [scholarly] presidential polls."

How stupid are historians? Let me count the ways. In no particular order, here are six examples of idiocy I can come up with without breaking a sweat:

1. I have blogged before about Millard Fillmore (No. 5), here and here. I will not repeat myself, except to say that he was a fine man and a good president. Placing him five slots from the bottom is ludicrous.

2. The historians compound the felony by listing both President Fillmore -- apparently because he endorsed the Compromise of 1850 -- and Zachary Taylor (No. 10) -- apparently because he didn't. Fillmore may have "averted a national crisis and postponed the outbreak of the Civil War," but he did so "at an unconscionable price." As for Taylor, "[s]ome think his opposition to what became the Compromise of 1850 -- which began to undo the Missouri Compromise -- might have precipitated the outbreak of the Civil War." Stupid. Pick one or the other, guys, not both -- and you would still be wrong.

3. Only an idiot would include William Henry Harrison (No. 8) on a Worst Presidents List. He died after only a month in office. Duh!

4. Any Worst Presidents List that omits Jimmy Carter is not worthy of the name.

5. The article's own description of the administration of Ulysses S. Grant (No. 7) constitutes an admission that he doesn't belong on the list:

[Grant] now receives plaudits for his aggressive prosecution of the radical reform agenda in the South. His attempts to quash the Ku Klux Klan (suspending habeas corpus in South Carolina and ordering mass arrests) and his support for the Civil Rights Act of 1875 may have produced only short-lived gains for African Americans, but Grant's intentions were laudable. He also worked for the good of American Indians, instituting the reservation system as an imperfect, last-ditch effort to protect them from extinction. Grant's reputation may continue to rise as a result of sympathetic studies and because of a renewed appreciation of his own memoir, considered to be the best ever produced by a former president.

In other words, in many ways Grant was one of the best, not one of the worst, presidents of his era -- but we'll put him on the list anyway. Moronic.

6. As usual, Herbert Hoover (No. 9) gets included because he didn't cure the Depression. Historians, it seems, resolutely refuse to talk to economists. It is pretty well recognized these days that it was FDR who transformed the Depression into the Great Depression by employing counterproductive remedies that caused a second "depression within a depression." See, for example, Gene Smiley's book, Rethinking the Great Depression. Hoover winds up on the list because of FDR's incompetence.

Was the Constitution Pro-Slavery?

On the 150th anniversary of the United States Supreme Court's decision in Dred Scott v. Sandford, it seems appropriate to take a whack at the question, Was the Constitution Pro-Slavery?

I tend to think of this not as one question that has a definitive answer, but rather as a series of issues that can be examined from different standpoints, collectively yielding a richer understanding of the relationship between slavery and the Constitution.

The two authors I've read who have seriously considered the relationship between the Constitution and slavery are Don Fehrenbacher, in The Dred Scott Case: Its Significance in American Law and Politics, and Akhil Amar, in America's Constitution: A Biography. Fehrenbacher, a historian, sees the Constitution as more slavery-neutral. He emphasizes, for example, the fact that the Constitution went out of its way not to endorse the concept of slaves as property. Rather, the Constitution uniformly refered to slaves as "Persons." Similarly, Fehrenbacher would emphasize that nothing in the Constitution required the States to maintain slavery (or required the Federal government to establish or permit slavery in the Territories), nor did the Constitution preclude blacks from being citizens, or even enjoying civil rights.

Amar, on the other hand, a law professor, sees the Constitution as a more pro-slavery document. He argues, for example, that the effect of the three-fifths clause was pervasive and that its effect was malignant because, structurally, it infected all three branches of the Federal government and gave the slave states a disproportionate advantage in all three branches: the Legislative Branch because the rule directly affected and increased the representation of the slave states in the House; the Executive Branch via the Electoral College (Article II, Section 1, Clause 2: "the Number of Electors [is] equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress"); and the Judicial Branch via the Executive Branch (which nominates judges).

The interesting thing is that Fehrenbacher and Amar do not necessarily disagree on particulars. It is, rather, that they approach the issue from different angles and focus on and emphasize different aspects. In a real sense, they may well both be correct; there is no one correct answer. Their differing views also suggest that there may be many other ways to approach the central question that will be illuminating.

Because Amar makes the more technical argument, let's take a closer look at some of his points.

The House

Although the effect of the Three-Fifths Clause is obvious, Professor Amar points to other provisions that further skewed the House in favor of pro-slavery interests.

Article I, Section 2 addressed how to apportion House seats among the States (interstate allocation). However, it said nothing about allocation of House seats within each State (intrastate allocation). That is, except to the extent that the Republican Form of Government Clause might be relevant, nothing forbade the States from drawing Congressional Districts in grossly disproportionate ways.

In fact, the southern States repeatedly used this freedom to skew their Congressional representation in favor of slaveholding areas and interests:

Unconstrained by any explicit intrastate equality norm in Article I, and emboldened by the federal [3/5] ratio, many slave states in the antebellum era skewed their congressional-district maps in favor of slaveholding regions within the state. Thus the House not only leaned south, but also within coastal slave states bent east, toward tidewater plantations that grabbed more than their fair share of seats. After the 1820 census, Virginia carved itself into twenty-two House districts, one of which encompassed Richmond in the plantation belt and another of which surrounded Wheeling on the state’s northwestern rim. Although the Richmond district had less than half the Wheeling district’s free population – 16,000 compared to 42,000 – each sent one member to the House. In effect, Richmond’s master class got full (five-fifths) credit for their 25,000 slaves, as compared to 2,000 slaves in the Wheeling region. Overall, the fifteen Virginia districts with the highest percentage of slaves averaged only 25,000 free folk compared to an average 37,000 in the other districts, all in the west. Meanwhile, North Carolina opted for a pair of high-slaveholding districts averaging only 24,000 free persons, five moderate-slaveholding districts averaging 33,000 free persons, and six low-slaveholding western districts averaging 38,000 free persons. South Carolina’s numbers looked even worse. Other large differentials distorted the House maps in other states and in other decades. The very foundation of the Constitution’s first branch was tilted and rotten.

Akhil Amar, America’s Constitution at 97 (footnote omitted).

The Senate

Although on their face provisions of the Constitution relating to slavery are slavery-neutral, Professor Amar identified an "as-applied" bias.

Article I, Section 3, Clause 1 provided that Senators would be chosen by the State legislatures. Here, too, structural pro-slavery bias appeared, because southern legislatures tended to be dominated by pro-slavery interests. Indeed, there is evidence that southern States used the three-fifths clause to legitimate the dominance of those interests:

Even state legislatures began to mimic the Article I model. In 1798, Georgia decided to use three-fifths as the apportionment ratio for its own state house, thereby giving plantation belts extra credit within the state. Thus one inapt borrowing begot another. In the years following the Missouri Compromise, Virginia reformers’ plans for reapportionment based on white population were defeated by opponents who argued that such plans would undermine the case for three-fifths at the federal level. Then came new apportionment rules in Louisiana, Florida, Maryland, and North Carolina, all of which started to count slaves at three-fifths or more in one or both houses of their legislatures, even though no slave state had done so prior to 1787. In turn, these slavery-skewed state legislatures chose the men who would represent these states in the U.S. Senate. By the 1840s, the corrosive effects of the three-fifths clause had seeped into every branch of the federal government.

Id. at 98 (footnotes omitted).

This may help explain why it was the Senate, rather than the House, that tended to block anti-slavery initiatives. So long as the division of Senators between free and slave states was anywhere near to close, it was recognized that senators elected by skewed southern legislatures were, and would continue to be, solidly pro-slavery. Northern senators were not similarly chosen by state legislatures apportioned to maximize anti-slavery interests. Northern senators with national ambitions, in particular (and how many Senators don't have national ambitions?), knew that they would have to give way on slavery-related issued. Thus, southern Senators would generally be able to control the slavery agenda.

The Jeffersonian Republican Party Caucus

It is not clear that the Constitution itelf should be blamed because proslavery interests were able to manipulate provisions that were neutral on their face. This seems even more clearly the case in discussing the pro-slavery bias of party caucus and convention rules. These rules may have interacted with the Constitution, but I am hard-pressed to identify the Constitution as the villain, particular where the Founders expected, or at least hoped, that parties would not exist, and certainly had no way of foreseeing the particular caucus and convention schemes that ultimately evolved.

As of 1787, “factions” and “parties” were dirty words. Although Madison, following David Hume, thought factions were probably inevitable, he hoped that multiple, local interests would cancel each other out and thus fail to coalesce into national factions that would disrupt the federal government. Even he did not foresee that within five years two national parties would begin to form, much less that party politics would quickly come to dominate the national political landscape. Nonetheless, the rise of the party that Madison and Jefferson formed, the Jeffersonian Republicans, and the methods that it used to select presidential candidates, interacted with the Constitution to magnify the power of the slave states in the selection of presidential nominees and thus presidents (since after 1800 the Federalists were an annoyance at best).

The method that the Republicans used to select their presidential candidates was the Republican Congressional Caucus. The Caucus consisted of members of the party sitting in both houses of Congress – both the House and the Senate.

The inherent structure of the caucus interacted with the Three-Fifths Rule and intra-state allocation to give the slave states additional power. Although the North was the majority section in the House as well as in the nation, that was not the case in the Caucus. From the Republican Party’s birth in the 1790s through 1816, the slave states always elected more Republicans than the free states.

Free states first obtained a slim, four-vote majority in the Caucus in 1817. (Without the effect of the Three-Fifths Rule, the northern majority would have been 19 or 20 votes.) However, in 1820 the party was running an incumbent (James Monroe of Virginia), and the Caucus system died as a method for presidential nominations after 1824.

In 1824, the Caucus nominated Georgian William Crawford, even though he had been disabled by a severe stroke earlier in the year. Many refused to accept the result, and a confused multi-candidate election ensued. No candidate obtained a majority of votes in the Electoral College. Selecting among the top three finishers, the House eventually elected John Quincy Adams president over Andrew Jackson and Crawford. Adams was the first northerner to hold the position since his father had been elected in 1796, twenty-eight years earlier. "King Caucus" was almost universally condemned as an antidemocratic, aristocratic cabal and was abandoned as a method for nominating presidential candidates.

The new Jacksonian Democratic party, however, thereafter replaced the Caucus with another device that buttressed the strength of the slave states in presidential elections.

The Democratic Party Convention Two-Thirds Rule

In 1828, the Jacksonian Democrats swept into office. Andrew Jackson won 92% of the electoral vote in the slave states, 49% of that vote in the north. The Democrats, who had denounced the Caucus, replaced it with the party convention, in which all states were represented by party delegates in proportion to each state’s number of votes in the Electoral College (which itself gave the slave states undue influence). Beginning with the vice presidential nomination in 1832 (Andrew Jackson’s renomination that year never being in question), the Democrats adopted a rule providing that candidates would receive the nomination only if they received the votes of two-thirds, rather than one-half, of the convention delegates. The rule proved extremely durable. The Democrats did not abandon it until 1936.

The Two-Thirds Rule gave the slave states in the Democratic Party a veto over all presidential and vice presidential nominations, and they knew it. Most notably,in 1844 Martin Van Buren of New York entered the convention with a majority of the delegates. Van Buren, however, had failed to endorse the proposed annexation of Texas. Pro-Texas men blocked Van Buren’s nomination, which eventually went to expansionist James K. Polk of Tennessee, who won the election over Whig Henry Clay.

The lesson was not lost. Northern politicians recognized that the way to the presidency lay through the south. While northern Democrats could win the nomination, they had to be doughfaces whose views were acceptable to the south: Lewis Cass of Michigan (the inventor of “popular sovereignty”, nominated 1848, lost to Zachary Taylor), Franklin Pierce of New Hampshire (elected 1852) and James Buchanan of Pennsylvania (elected 1856). In 1860, of course, Stephen Douglas of Illinois proved unacceptable to the southern delegates and the party ruptured. As I recall, some other guy won the election that year.

Dred Scott v. Sandford

In deciding whether you think the Constitution is pro-slavery or not, you may consider many things. But please, do NOT hold against the Constitution the conclusions that Justice Taney reached in Dred Scott v. Sanford.

There seems to be a widespread misperception that Justice Taney was dragged against his will to the conclusions he reached by the text and history of the Constitution. Proponents of a "living Constitution" sometimes seem to suggest that the result in the case is proof that textualism and original understanding are morally bankrupt. In fact, exactly the opposite is true: Justice Taney reached the conclusions he did only by ignoring and distorting both the plain meaning of the text of the Constitution and the relevant history.

This post is long enough without a long diatribe about Dred Scott. I will content myself at this point with the verdict of Professor David P. Currie of the University of Chicago Law School:

From a lawyer's viewpoint Scott was a disreputable performance. The variety of feeble, poorly developed, and unnecessary constitutional arguments suggests, if nothing else, a determination to reach a predetermined conclusion at any price.

David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888 (Univ. of Chicago Press 1985, 1992) at 272.

If you are interested in Dred Scott, I have been posting a number of entries about pre-Dred Scott slave freedom cases decided by the Supreme Court of Missouri beginning in the 1820s. In the Links List at the right, click on Winny v. Whitesides, Merry v. Tiffin, Julia v. McKinney , Rachael v. Walker, or Scott v. Emerson (the caption of the decision involving Dred Scott issued by the Supreme Court of Missouri in 1852, which made the 1857 United States Supreme Court decision possible).

In an effort to avoid publishing the same stale pictures that everyone else posts when discussing the case, I have instead included a picture of Montgomery Blair, one of Dred Scott's attorneys before the United States Supreme Court.