Saturday, December 13, 2008

Unintended Consequences

In his newly-released paper, The Misconceived Assumption about Constitutional Assumptions, Randy Barnett refers to an irony that I had not focused on:
[N]umerous slave-holding founders and others [assumed] that the population would expand in the temperate South at a greater rate than in the colder North. As a result, they assumed that the express textual protection of slavery would be unnecessary because it would be protected effectively enough by the various electoral mechanisms incorporated into the Constitution. The politics of slavery markedly changed, however, when population unexpectedly expanded disproportionately in the North, thereby increasing its representation in the House as well as in the Electoral College.

When this occurred, the balance of slave and free states in the equally apportioned Senate unexpectedly became the sole remaining political protection of slavery. Ironically, the Virginia Plan for the Constitution had called for proportional representation in both the House and Senate, and the Convention was thrown into turmoil when the smaller states obtained equal representation in the Senate. Later, some Virginians could be quite happy their plan was modified in this respect.

At 17-18 (footnotes omitted; emphasis added)

About the illustration:
Another attack on the 1856 Democratic platform as pro-South and proslavery. The Buchanan-Breckenridge ticket is reviled on the basis of recent developments occurring during the outgoing Pierce administration. In the center of the picture is a flagstaff bearing an American flag inscribed "Buchanan & Breckenridge. Modern Democracy." To its base are chained two slaves (right)--a man and a woman. The woman kneels before an overseer with a whip and pistol in his pocket, and asks, "Is this Democracy?" The overseer declares, "We will subdue you." In the background one of Cuba's coastal towns burns and is fired upon by a ship. The scene probably refers to expressed Democratic ambitions to annex Cuba for the expansion of American slave territory. The phrase "A due regard for our just rights in the Gulf of Mexico" appears above the burning town. A similar scene of conflagration, "Squatter sovereignty demonstrated," appears in the left background. Here a settlement in Kansas burns and its inhabitants are driven away by armed marauders. Reference is to atrocities committed in the wake of the Kansas-Nebraska Act of May 1854, which was endorsed by the Democratic platform. The act provided for dividing the Nebraska territory into two parts, each later to be admitted into the Union as either slave or free, as decided in each case by popular (or "squatter") sovereignty. The measure ushered in a bloody struggle between proslavery and antislavery settlers over control of Kansas. The antislavery town of Lawrence, Kansas, was invaded and sacked by a proslavery posse on May 21, 1856. In the left foreground is Preston S. Brooks's May 22 attack on Charles Sumner in Congress. (See "Arguments of the Chivalry," no. 1856-1.)

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