Varina Davis on Senator Thomas Hart Benton

For reasons unknown, I was leafing (virtually) the other day through Varina Davis's memoir of her late husband, Jefferson Davis, entitled (as you might expect) Jefferson Davis: Ex-President of the Confederate States of America (1890).  Mrs. Davis, it turns out, is an engaging writer with a knack for sketching lively portraits of many of the famous figures she encountered.

Here, for example, is an endearing story about Senator Thomas Hart Benton, which casts a softer light on the craggy and somewhat forbidding public persona of the pugnacious "Old Bullion" Benton:

[T]here was an hour in the day that came to be recognized as one that Mr. Benton would have.  About midday, or perhaps three o'clock, he always rose and left the [Senate] chamber to take his paralyzed wife out for an airing.  Generally he brought her, with infinite tenderness, to the Capitol grounds, seated her on a bench in a pleasant shade, and no young lover could try more sedulously than he to amuse and comfort her.  She seemed to be most happy when with him, and it was a familiar sight to see him picking flowers for her as they first peeped up in the early Spring.  He introduced me to a lady once - "Mrs. C., a friend of my wife's, madam; need I say more?

Millard Pro and Con

I have discussed previously the ingenious history class in which Williams College students were asked to produce presidential campaign video ads for and/or against candidates in pre-Civil War races.

As you may expect, I awaited with particular interest any videos focusing on my main man, Millard Fillmore.  It was not a sure thing, since he didn't even get the Whig nomination in 1852, and his most serious run was as a third-party candidate of the American Party in 1856.

But, I'm delighted to report, students managed to produce two Fillmore videos, one pro, the other con, both of which are quite good.  The pro-Millard video is at the top.  The anti is below:

You can find all the videos from the class on YouTube here.

Jeff. Sees the Elephant

I ran across a reference to this illustration, entitled Jeff. Sees the Elephant in a catalog of William Reese Company, a high end New Haven, CT dealer of used books and printed materials.  I hadn't seen it before, and it looks particularly interesting because it seems to prefigure Thomas Nast's later use of the elephant as a symbol of the Republican Party.

According to the catalog, the original was an 11 by 15 inch colored lithograph created by E.B. Kellogg and E.C. Kellogg in Hartford, CT circa 1861-1862.  The description continues:

A . . . humorous political cartoon satirizing the Confederacy, and quite likely the first instance in which an elephant and a donkey were used to symbolize competing political entities in the United States.  The Union is symbolized by a power elephant, who wears a blue coat and shoes and stockings decorated in the manner of the American flag.  He carries the Constitution in his pocket and holds a sword in his right hand and eight cannons in his left.  Behind him are more cannons, a pile of cannonballs, the flag, and the U.S. Capitol.  The elephant stares at a donkey in the left side of the image.  The donkey, dressed as a dandy and symbolizing Jefferson Davis, raises a monocle to peer at the elephant.  He holds a plumed helmet decorated with a skull and crossbones.  Behind the donkey stands an army of donkeys, carrying rakes, pitchforks, brooms, and scythes.  A gallows in the background between the elephant and the donkey portends a bleak future for the Confederacy,  The phrase "seeing the elephant" gained popularity during the Gold Rush and meant "seeing it all."  In this instance, Jefferson Davis and the Confederacy see the fully array of Union might.

I don't vouch for it, but this site asserts that the elephant was first used as a symbol of the Republican party during the 1864 presidential campaign:

Despite a common assertion that the elephant first appeared representing the Republican Party in 1860, the first political cartoon using the elephant for the Republican Party was in 1864. The 1860 cartoon was actually just a shoe advertisement that happened to be on the back of a political magazine. During Abraham Lincoln's 1864 presidential campaign, a pro-Lincoln newspaper used the 1860 advertisement image to announce the news of a U.S. military victory over the Confederacy. Later that same year, the image was used to predict Lincoln's re-election based on the Republican Party's success in state elections.

Thomas Nast later popularized the connection beginning with his November 7, 1874 cartoon The Third-Term Panic:

So if all this is true, did "Jeff. Sees the Elephant" serve as the inspiration for the identification of the elephant with the Republicans?

James Madison and the Federal Veto: Pinckney's Motion Defeated

 Charles Pinckney's June 8, 1787 motion to expand the federal veto to encompass "all laws which they [the Federal Legislature] shd. judge to be improper", discussed in my last post on the subject, immediately drew fire.  Hugh Williamson was first, declaring that he "was agst. giving a power that might restrain the States from regulating their internal police."  And at the end of the day Pierce Butler of South Carolina was "vehement agst." the suggestion.

Elbridge Gerry of Massachusetts articulated a more nuanced opposition.  In part, he seemed to relate his objection to the idea that the federal government was one of limited powers, and that there could be certain specified powers denied to the states.  A federal veto was acceptable, but only if it was limited to those specific areas, such as the emission of paper money, which should be "amg. the exclusive powers of Congress":

Mr. GERRY cd. not see the extent of such a power, and was agst. every power that was not necessary. He thought a remonstrance agst. unreasonable acts of the States wd. [restrain] them If it shd. not force might be resorted to. He had no objection to authorize a negative to paper money and similar measures. When the confederation was depending before Congress, Massachussetts was then for inserting the power of emitting paper money amg. the exclusive powers of Congress.

And Roger Sherman of Connecticut seemed to pick up Gerry's suggestion.  He "thought the cases in which the negative ought to be exercised, might be defined" and suggested that the delegates defer the issue "till a trial at least shd. be made for that purpose."

James Wilson of Pennsylvania disputed these assertions.  The principle of a federal veto was "right."  Unless the states conceded their sovereignty they would be living like savages in a state of nature with each other.  "A definition of the cases in which the Negative should be exercised, is impracticable."  Wilson went on to deliver a speech that came close to advocating elimination of the states altogether:

Among the first sentiments expressed in the first Congs. one was that Virga. is no more, that Masts. is no [more], that Pa. is no more &c. We are now one nation of brethren. We must bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Govts. formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?

John Dickinson of Delaware similarly saw a fundamental either/or choice.  One party or the other had to have controlling power, and he believed that the "Natl. Govt." should prevail:

Mr. DICKENSON deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. We must take our choice of two things. We must either subject the States to the danger of being injured by the power of the Natl. Govt. or the latter to the danger of being injured by that of the States. He thought the danger greater from the States. To leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible.

Unfortunately for proponents of the motion, Wilson's (and Dickinson's?) comments threatened to enmesh the veto issue in the large states vs. small states issue, drawing a stinging rebuke from Delaware delegate Gunning Bedford:

Mr. BEDFORD. In answer to his colleague's question where wd. be the danger to the States from this power, would refer him to the smallness of his own State which may be injured at pleasure without redress. It was meant he found to strip the small States of their equal right of suffrage. In this case Delaware would have about 1/90 for its share in the General Councils, whilst Pa. & Va. would posses 1/3 of the whole. Is there no difference of interests, no rivalship of commerce, of manufactures? Will not these large States crush the small ones whenever they stand in the way of their ambitious or interested views. This shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the principle of representation. And after all, if a State does not obey the law of the new System, must not force be resorted to as the only ultimate remedy, in this as in any other system. It seems as if Pa. & Va. by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. Besides, How can it be thought that the proposed negative can be exercised? are the laws of the States to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberations of a body who may be incapable of Judging of them? Is the National Legislature too to sit continually in order to revise the laws of the States?

James Madison saw that the tide was turning against the amendment.  Seeking to retrieve the situation, he reiterated that some sort of veto power was essential, while suggesting that the details might require further attention.  At the same time, he again explicitly raised and unwisely praised the British precedent:

Mr. MADISON observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the Natl. Govt. into each State so far as to give a temporary assent at least. This was the practice in Royal Colonies before the Revolution and would not have been inconvenient, if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly.

Seeking to counter the small-states concerns expressed by Bedford, Madison asked whether the small states would be better off with no central government at all:

[Madison] asked Mr.[Bedford] what would be the consequence to the small States of a dissolution of the Union wch. seemed likely to happen if no effectual substitute was made for the defective System existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? If the large States possessed the avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Genl. Govt. was withdrawn.

Madison's last-ditch effort failed to save the day.  Pinckney's amendment to expand the veto power was defeated.  Only three states, all of them large (Massachusetts, Pennsylvania and Virginia) voted in favor; seven states (Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina and Georgia) opposed; and one state (Delaware) was evenly divided.

"Fillmore was the real thing"

I have, on more than one occasion, discussed Millard Fillmore's childhood and young manhood, which bear a striking resemblance to those of his Whig successor, Abraham Lincoln.  Born and raised in abject poverty, young Millard, like young Abe, pulled himself up by his bootstraps to become a respected member of his community by virtue of native intelligence, hard work and a little luck.

I am pleased to see that in his newly-published work on the Compromise of 1850, America's Great Debate: Henry Clay, Stephen A. Douglas, and the Compromise That Preserved the Union, Fergus M. Bordewich recognizes this affinity and, indeed, concisely summarizes the hurdles that Millard navigated far more eloquently than I could:

In an era when many political careers . . . were based on exaggerated, if not faked, log cabin origins, Fillmore was the real thing.  Born in 1800 to a hard-luck sharecropper in western New York, he was bred from boyhood to backbreaking labor in a mostly losing struggled to keep his family's farm going.  He didn't learn to spell until the age of seven, and at nineteen still had never seen a map or an atlas.  Books, as they were for his equally disadvantaged contemporary Abraham Lincoln, were his escape hatch.  Once he became literate, Fillmore read with a frightening ferocity.  At the carding mill where he worked for a time, he propped a dictionary on his worktable, and looked up a word each time he passed by, and then fixed it in his memory while he changed rolls of wool.  When, a few years later, he talked a local judge into taking him on as a law clerk, he was so grateful he burst into tears.  Through superhuman perseverance, he eventually became one of the most sought after lawyers in Buffalo.

Resolution VI of The Virginia Plan

Lawprof Kurt T. Lash has written some great articles on the Ninth and Tenth Amendments, among other things. A new article is always a treat. I haven't read it yet, but I see via Lawrence Solum's Legal Theory Blog that the good professor has a new article up at SSRN: "Resolution VI": The Virginia Plan and Authority to Resolve "Collective Action Problems" Under Article I, Section 8. The abstract is as follows:

In the past few years, a number of influential constitutional scholars such as Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have called for doing away with the traditional principle of judicially limited enumerated power and replacing it with the principle declared in Resolution VI of the Virginia Plan originally introduced in the Philadelphia Constitutional Convention. According to Resolution VI, federal power should be construed to reach all matters involving the “general interests of the Union,” those “to which the “states separately are incompetent” and those affecting national “harmony.” Resolution VI advocates maintain that, under this principle, Congress has power to regulate all collective action problems of national importance. In support of their claim, Resolution VI advocates argue that the members of the Philadelphia Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that they accepted the text of Article I, Section 8 as the enactment of Resolution VI. These scholars also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers based Article I, Section 8 on the principle of Resolution VI.

A close reading of the historical sources, however, shows that the framers did not view Article I, Section 8 as having operationalized the general principle of Resolution VI and allowing federal action in all cases in which the “states separately are incompetent.” In fact, they expressly stated otherwise. Even more importantly, it turns out that there is no historical evidence that Resolution VI played any role whatsoever during the ratification debates. Claims to the contrary are based on an error of historical fact.

For those who are not familiar with it, the full text of Resolution VI, as reprinted in Farrand's Records, provided as follows:

6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in all which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duties under the articles thereof.

Prof. Solum awards the article his "Download of the Week" prize and opines, "Highly recommended. Download it while its hot!" I've already done so.

"The first defense of slavery as a positive good ever to be heard on the floor of Congress"

In The Old Republicans: Southern Conservatism in the Age of Jefferson, Norman K. Risjord identifies an argument by North Carolina Senator Nathaniel Macon, made on Thursday January 20, 1820, during the Missouri debates, as “the first defense of slavery as a positive good ever to be heard on the floor of Congress”:

It is a fact, that the people who move from the non-slaveholding to the slaveholding States, when they become slaveholders by purchase or marriage, expect more labor from them than those do who are brought up among them.

To the gentleman from Rhode Island (Mr. Burrill) I tender my hearty thanks, for his liberal and true statement of the treatment of slaves in the Southern States. His observations leave but little for me to add, which is this, that the slaves gained as much by independence as the free. The old ones are better taken care of than any poor in the world, and treated with decent respect by all their white acquaintances. I sincerely wish that he, and the gentleman from Pennsylvania, (Mr. Roberts,) would go home with me, or some other Southern member, and witness the meeting between the slaves and the owner, and see the glad faces and the hearty shaking of hands. . . .

The owner can make more free in conversation with his slave, and be more easy in his company, than the rich man, where there is no slave, with the white hireling who drives his carriage. He has no expectation that the slave will, for that free and easy conversation, expect to call him fellow-citizen, or act improperly.

Treat this Whip-Syllabub of a Post as a Perfect Nihility

In the course of reading Pauline Maier's excellent Ratification: The People Debate the Constitution, 1787-1788, I've run across some fun words I'm determined to work into conversations, as well as a nice little story.

Our first word is "nihility", which I particularly like as a former Classics major. The quotes are from a letter by none other than George Washington to John Jay, dated August 15, 1786, discussing the powerlessness of the Confederation Congress:

Requisitions [by the Confedration Congress for funds] were "a perfect nihility," he [Washington] wrote Jay in August 1786, and "if you tell the [state] Legislatures they have violated the treaty of peace [with Great Britain] and invaded the prerogatives of the confederacy they will laugh in your face. What then is to be done?"

Our second item is "whip-syllabub", as used by Rep. Aedanus Burke of South Carolina exactly three years later, on August 15, 1789, to describe the proposed amendments to the Constitution then being considered by the House of Representatives:

In the course of those extended debates [in the House during August 1789], critics insisted that the proposed amendments would never satisfy their constituents. Rather than "those solid and substantial amendments which the people expect," Aedanus Burke sad, the select committee's proposals were "whip-syllabub," an eighteenth-century dessert that was "frothy and full of wind, formed only to please the palate," not the stomach; or "like a tub thrown out to a whale" by sailors to divert it from attacking their ship.

And, finally, we have Amos Singletary, who provides not a word, but a witty repartee. Mr. Singletary, "a onetime gristmill owner" from Sutton, Massachusetts, served as a delegate to the January 1788 Massachusetts ratification convention, where he proved to be (in the phrase of a newspaper report) "as remarkable for his taciturnity, as his zeal for religion," hemming and wiping his brow before he explained his objections to "this here self same constitution."

But I digress. The story I meant to relate involving Mr. Singletary concerns "a story about him from a period long before 1788, when the town [of Sutton] was shaken by a religious revival."

A local manufacturer of hoes "being under concern of mind" caught sight of Singletary, who was a justice of the peace and an "earnest Christian," and called out to him: "O Squire! O Squire! What shall I do to be saved?" Singletary had scarcely brought his horse to a stop when he answered: "Put more steel in your hoes."

Amos Singletary "died in 1806, in his mid-eighties."

Brigadier General John Gregg, CSA

Mrs. Elektratig and I were in Longview, Texas over last weekend for a wedding. Longview, it turns out, is in Gregg County, named for John Gregg, a member of the Texas secession convention, a Confederate congressman, and a Confederate officer who fought in both the western and eastern theaters. He ultimately rose to the rank of Brigadier General and was killed in action outside Richmond in 1864. I noticed that there was a memorial to him in town, and we made a visit.

As a northerner who doesn't get south alot (they don't let me out much), I still find it weird that there are public memorials to secessionists and Confederates. I therefore thought I'd document our visit and the memorial with some pictures, which I've posted at Flickr. A few of them are also included in this post.

The memorial, which is outside the Gregg County court house, included two inscribed markers. The first, commemorating the Texas secession convention, read as follows:

Texas Secession Convention.

This meeting, which had John Gregg as a key member, was extra-legal governing body of delegates from over Texas. Held January – March 1861. Drew up secession ordinance – ratified by 3 to 1 popular vote. Selected delegates to convention of southern states in Montgomery, Ala. Declared office of anti-secessionist governor Sam Houston vacant, putting in Lt. Governor Edward Clark. Ratified C.S.A. Constitution. Raised troops to seize U.S. property, getting $3,000,000 worth by surrender. Placed troops at outposts to protect frontier.

The second memorialized Gen. Gregg:

General John Gregg 1828 – 1864.

Born Alabama. Came to Texas 1854. Judge, Confederate congressman. Organized 7th Texas infantry as Colonel 1861. Captured at Fort Donelson, Tenn. 1862. Promoted Brigadier General after exchange. Commanded brigade Vicksburg campaign 1863. Severely wounded Battle of Chickamauga Oct. 1863. Returning to action 1864 led Hood's Texas Brigade in heavy fighting in Virginia. Killed in action at Richmond, Oct. 7, 1864. A memorial to Texans who served the Confederacy erected by the State of Texas.

Barnum in the Pulpit

While his sister Harriet sunned herself in Florida after the War, brother and preacher Henry Ward Beecher remained in Brooklyn. But as David Goldfield explains in America Aflame: How the Civil War Created a Nation, Henry, too, "backed off from crusades after the war."

He had always interspersed his sermons with secular humor, and some critics complained he was Barnum in the pulpit. After the war, his sermons at Plymouth Church dwelt on topics such as civic duty, child rearing, and voting rights. It was nondenominational entertainment, punctuated by such aphorisms as "The mother's heart is the child's schoolroom" and "The difference between perseverance and obstinacy is that one often comes from a strong will, and the other from a strong won't." Fellow Brooklynite Walt Whitman stated flatly, "It was only fair to say to Beecher that he was not a minister." Showmanship and fortune-cookie advice overtook theology, and most northerners welcomed the transition.

About the illustration, entitled Celebrities of the great trial "Theodore Tilton vs. Henry Ward Beecher" (c. 1875):

Head-and-shoulders portrait of Chief Justice Joseph Neilson surrounded by head-and-shoulders portraits of 17 people, including S.D. Morris, Theodore Tilton, Francis D. Moulton, and Henry Ward Beecher.

Harriet Beecher Stowe in Disney World

David Goldfield's America Aflame: How The Civil War Created a Nation comes into its own when he arrives at the end of the Civil War. He does an excellent job painting the dizzying array of technical, business and cultural developments and distractions that led northerners, always thinly committed to anti-slavery, so quickly to turn away from the War, the south and the problems of the freedmen.

Goldfield employs Harriet Beecher Stowe as a symbol of the transformation:

She moved to Florida. Stowe came to teach former slaves to read and write and stayed to promote Florida real estate. She coauthored a book with her sister Catharine, The American Woman's Home (1869), which served as the middle-class bible for home design through World War I.

Harriet began the book even before the end of the War, correctly sensing correctly that the war-weary public would prefer to read about home decoration. "Her first essay on the subject, 'Ravages of a Carpet,' appeared in the Atlantic Monthly in January 1864."

Applauding William Lloyd Garrison's decision to withdraw from the American Anti-Slavery Society shortly after the War, Harriet concluded that the end of slavery was enough. Harriet was in Disney World:

Florida's exotic environment captivated Stowe. When she arrived on the banks of the St. Johns River in north Florida in February 1867, the orange blossoms were in bloom. She immediately "stripped off the woolen garments of my winter captivity, put on a thin dress white skirt . . . & sat down to enjoy the view of the river & the soft summer air." At this desk, Stowe wrote a breezy account of her early experiences in Florida, Palmetto Leaves (1873), describing her work with the freedmen, but mostly promoting Florida tourism and offering advice on growing citrus trees.

Yorktown

I was down on the Peninsula for a few days last week with Mrs. E. and her mother (who's from the Auld Sod, in case you can't tell). We saw the Shirley Plantation and Sherwood Forest, John Tyler's estate, but the highlight of the trip was definitely the Yorktown Battlefield. Because Yorktown was a siege, the battlefield is relatively confined and easily comprehended. We had a wonderful Ranger who did a superb job explaining the sequence of events, the art of siege warfare at the time, the weaponry, etc. Clearly ex-military, she explained why the allies had to storm and seize Redoubts 9 and 10 by placing our group in a line and discussing the potentially catastrophic effects of enfilading fire.

The movie, which we saw at the beginning, was informative. The driving tour CD was reasonably priced - about $5.00 - and took us out to the successive allied lines, the redoubts, the surrender field, and back to the allied line of approach and staging areas.

If you're in the area, don't miss the Yorktown Battlefield. Highly recommended.

The Poughkeepsie Convention: Irrelevant But Important

On balance, I think single-state secession is probably unconstitutional. And yet the thing continues to nag at me.

The Constitution nowhere says, in so many words, that once you're in, you're in forever. Yes, that conclusion can be teased from - implied from - various provisions. But, assuming the Constitution is forever, isn't that fact almost certainly the single most important reality of the document? Shouldn't readers and prospective voters have been placed on explicit notice, if that was the intent? It all feels a little, how should I put this, sleazy, sort of like the bait-and-switch tactics that might be employed by a used car salesman.

Likewise, you'd think that, if you were a delegate at one of the state ratification conventions in 1787-1788, the single most important question on your mind would be, Hey, is this thing forever? And if people understood that it was forever, don't you think that opponents, at least, would be shouting that fact from the rooftops? "Don't think that, if you ratify, you can ever get out! You and your children and your children's children will be bound unto the last generation!"

And yet the record is strangely silent. To the best of my knowledge, not a single Anti-Federalist intoned such warnings. And likewise, no Federalist, to the best of my knowledge, asserted that ratification was an unalterable act, with one exception, at the end of the New York Convention, after ten states had already ratified the Constitution - and when it was too late.

All of this leads me to infer that one of two conclusions must apply: either everyone understood that ratification was forever - it wasn't necessary for opponents to make the argument, everyone already knew it - or no one (or virtually no one, and virtually wasn't talking) did.

***

In one sense, the closing weeks of the convention called to decide whether New York would ratify the United States Constitution are irrelevant. On June 24 and July 2, 1788, news had arrived in Poughkeepsie, where the delegates were assembled, that New Hampshire and Virginia had ratified the document – the ninth and tenth states to do so.

Article VII provided that “[t]he Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” By its terms, the document, and the new government it created, would go into effect whether New York ratified it or not.

At the same time, both opponents and proponents of the Constitution at the Convention recognized that New York's decision was fundamentally important. Both pros and antis recognized that New York, as an emerging commercial powerhouse occupying a crucial swath of land that divided the New England states from their more southerly brethren, potentially held the key to whether the new government would, as a practical matter, succeed. In the words of Yale Lawprof Akhil Amar,

Then, New Hampshire and Virginia voted their approval – enough to put the document in operation, but only among the states that ratified it. At this point, all eyes turned to Poughkeepsie, where New York's ratifying convention was being held and where the Constitution's anti-Federalist opponents initially held a commanding lead. Without the acquiescence of New York – with its critical harbors, rivers and landmass – could the Philadelphia blueprint really work as planned?

The closing weeks of the Poughkeepsie Convention – roughly July 14, 1788 through July 26, 1788, when the Constitution was approved by a razor-thin margin – are also inherently dramatic. The positions taken and arguments advanced shed light, I think, on what both advocates and opponents understood the nature of the proposed new government to be.

I have been over some of this ground before. But having now laid my hands on Volume XXIII of The Documentary History of the Ratification of the Constitution, covering ratification by New York from July 14, 1788, I propose to take a new look at some of the key events in those closing weeks. In particular, I hope to examine what those events suggest about the most important constitutional issue of the nation's first seventy-five years: the propriety of single-state secession. In a nutshell, did the members of the Poughkeepsie Convention – and by implication the members of other conventions that had already approved the Constitution – understand that ratification was a permanent and un-recallable act (except, perhaps, through the amendment procedures of Article V)?

Learned commentators - including the aforesaid Prof. Amar - have argued that the debates in the Poughkeepsie Convention's closing days demonstrate that it was generally understood that the Constitution, once ratified, was (in the words of James Madison) "in toto and for ever." I, too, took this to be the case. But upon continued reflection I think the evidence is far more ambiguous. Indeed, I believe a powerful case can be made that, until the very end at least, no one - proponents or objectors - understood this to be so. And this suggests that those who had voted on the Constitution at earlier conventions - those of the ten states that had already ratified the document - didn't understand it either.

***

As of mid-July 1788, the pro and anti forces at the Poughkeepsie Convention were locked in a desperate struggle. The antis, headed by John Lansing and Melancton Smith, had arrived at the convention on June 17, 1788 with a large majority. The news from New Hampshire and Virginia had weakened their resolve somewhat, but they fought on and appeared to continue to hold the upper hand. On July 14, only the impassioned pleas of the leaders of the pro-Constitution forces, John Jay and Alexander Hamilton (“the american Cicero”, in the words of David S. Bogart, who witnessed Hamilton's performance that day), persuaded the convention, sitting in Committee of the Whole, to adjourn for the day before taking a key vote that Federalists knew would go against them.

The positions of the parties as of mid-July boiled down to whether ratification should be conditional or not. The antis no longer advocated outright rejection. Instead, they argued that the Constitution should be ratified, but only on condition that the document be amended in a number of respects. On July 11, and again on July 15, Melancton Smith had introduced the resolution that served as the focal point of the battle.

Smith's resolution was a complex and subtle piece of work, which I will examine in my next post on the subject.

"A significant portion of this nationalist movement may instead be the result of a biased amendment procedure"

Lawprof and blogger Michael B. Rappaport has an interesting new article out: Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them. Here's the abstract:

The amendment provisions of the United States Constitution have a serious defect. Although some commentators claim that the supermajority rules in these provisions are too strict, that is by no means clear. Rather, the clear defect in the amendment provisions is that the only effective way they provide of amending the Constitution requires Congress’s approval and therefore Congress enjoys a veto over all amendments. While the Constitution does formally allow the state legislatures to seek to amend the Constitution through a national convention, that amendment method is broken. Not only has the national convention method never been used to pass an amendment or even to call a convention, the state legislatures are unlikely to ever use this method, because of the state legislatures’ fear of a runaway convention that might seek to enact constitutional amendments that they strongly dislike.

This congressional veto over amendments has significant normative implications. It suggests that the Constitution cannot be amended in a way that will constrain congressional power. It also makes it unlikely that the Constitution can be amended to limit the federal government or to expand state authority, because Congress is unlikely to support these changes. While it has often been assumed that the increased nationalism of the Constitution and government over the course of American history reflects changes in technology and values, a significant portion of this nationalist movement may instead be the result of a biased amendment procedure.

In addition to exploring the normative implications of the broken amendment procedure, the article also proposes a new amendment method. Under this state drafting procedure, an amendment would be enacted when it was approved by two thirds of the state legislatures and was ratified by three quarters of the states through either state conventions or ballot measures. Finally, the article argues that this reform of the amendment procedure could actually be passed under the national convention method and proposes a strategy for enacting it.

Don't take my word for it. The article is Lawrence Solum's Download of the Week.

I was looking for an appropriate illustration and noticed that Wikipedia has this series of, I guess they're sort of flow charts, purporting to illustrate the various "plans" presented during the Philadelphia Convention. They look cool, although I don't have any idea what they mean. The one at the top illustrates the Virginia Plan.

Did Andrew Jackson Cause the Panic of 1837?

“Did Andrew Jackson's destruction of the Second Bank of the United States cause the financial crises of the 1830s?” With that intriguing question, economist Jenny B. Wahl begins her essay “He Broke the Bank, but Did Andrew Jackson also Father the Fed?”, to me the most interesting entry in a book-full of interesting essays, Congress and the Emergence of Sectionalism.

What, I wonder, is the economics analogue of historiography – oeconomography? After an introductory overview of pre-Civil War financial matters and a brief history of the Second Bank of the United States and the Panics of 1837 and 1839, Prof. Wahl reviews the changing views over time of Old Hickory's “responsibility for the events of the late 1830s.”

The first two stages of Prof. Wahl's oeconomography may be familiar: the “classic explanation”, which “place[d] blame squarely on Andrew Jackson's shoulders,” was succeeded by a revisionist view that events in Britain triggered the Panic; the U.S. simply “fell victim to international shifts in specie demand and supply.” The corollary was that Jackson “was not responsible for the inflation after the demise of the Second Bank.” “Nor was he to blame for the panics and crises that followed.”

The most recent studies by economic historians (or is that historical economists) were, however, news to me. These studies suggest that Jackson's actions cumulatively – the Bank War, the removal of the deposits to the pet banks, the Specie Circular – shook public confidence in banks and precipitated a drain of specie to the west:

If the [Second Bank] and its branches had remained in place, the conditions giving rise to the 1837 panic would not have existed. Absent Jackson's financial policies, moreover, read GDP per capita . . . might have continued its steady upward trend after 1834. In short, financial disorder yielded real consequences.

The essay is interesting on a second level, because it illustrates the connection between a sophisticated discussion of causation and counterfactual analysis. I have complained from time to time about historians' disdain for posing “what if” questions, maintaining that much analysis (and good old banter among history buffs) is really “what if” in disguise. “Lee was a better general than Grant” is really “What if Lee had been in Grant's shoes?”

At all events, as Prof. Wahl rather explicitly concedes, her analysis includes a lengthy discussion of how a hypothetically rechartered Second Bank might have reacted to the monetary and financial crises of the late 1830s – a gigantic What If.

My one complaint concerns Prof. Wahl's treatment of the second panic of 1839, a “crisis that lasted much longer and had more profound effects.” She indicates that “domestic forces clearly generated it” and that it was “rooted more in the intimacy among state treasuries, public works projects, and state banks.” But this dense reader, at least, did not understand her explanation as to why this intimacy gave rise to such a profound depression.

About the illustration, entitled Andrew resolute Uncle Sam's faithful teamster, taking the produce of the farms, to another storehouse; and giving Uncle Sam his, reasons for so doing (1834):

The artist supports Andrew Jackson's decision to withdraw federal funds from the Bank of the United States and distribute them among various state banks. Henry Clay and Bank president Nicholas Biddle's efforts to oppose Jackson's measures are lampooned. Several figures look on and comment as a horse-drawn, covered wagon pulls away from a warehouse and adjacent United States Hotel. In the center below stand Andrew Jackson (holding a coachman's whip) and Uncle Sam. Jackson: "Why Uncle Sam I consider that Store House not safe. as I observe, a number of Rat-holes. and also, they keep a nest of gamblers in the Hotel, so I thought it best to take your produce to another Store House." Uncle Sam: "Well Andrew, I think you do what is best for my interest. Farmer York speaks well of what you are doing. dont mind those barking fellows I will stand by you." Uncle Sam gestures toward two men on the left, Henry Clay and Jack Downing. Clay (gesticulating wildly): "I tell you what Uncle Sam, if you dont make that Fellow Andrew bring back your produce, to this Store, you'll have War. Pestilence, and Famine." Downing (restraining him): "A word in your ear Harry. keep cool. take Jack Downings advice, Uncle Sam does not believe a word you say. the Gineral and he, understand each other pretty well." Beyond them stands Bank president Nicholas Biddle, who urges on two dogs, saying: "Take hold, my well fed dogs, bark at them, they think to turn me out, but I will burn up the House first." His comment refers to his vengeful attempt to cause a bank crisis during the winter of 1833-34 by artificially tightening credit. At lower left two men look on and comment. The first says, "See Hance, how mad Nicholas the Hotel keeper is, because Andrew wont store the produce in his Store House, mid how he is seting [sic] on his dogs to scare the Horses. And Harry, how mad he is, because he cant drive the Team." The second, "Yaw. I sees him, that is he they calls schemeing Harry. he wonted to sell Uncle Sams wood lands, by a trick, the peoples calls his pripery-pill. He is a sly fellow, Uncle Sam dont like him I believe."

(The) Mississippi Burning

[I]t would have been happier for us if the the Mississippi [River] had been an eternal torrent of burning lava, impassable as the lake which separates the evil from the good, and the regions beyond it destined to be covered forever with brakes and jungles, and the impenetrable haunts of the wolf and the panther . . ..

Senator Harrison Gray Otis of Massachusetts, Speech to the Senate on Tuesday January 25, 1820.

The Clayton Compromise 7: The House Tables the Bill

As we have seen in earlier posts, an exhausted Senate passed the Clayton Compromise bill on the morning on Thursday July 27, 1848. The bill was then reported to the House of Representatives.

After all of the Senate's efforts, the action in the House was an anticlimactic. Immediately after the bill's introduction on Friday July 28 Alexander Stephens, Whig of Georgia, “moved to lay the bill on the table, and demanded the yeas and nays.”

At the time, Rep. Stephens made only a short statement in support of his motion, one which did not explain in any detail the basis for his disapproval of the bill. The bill, he maintained, merely postponed the question of slavery in the territories and would not give any peace to the country. The session had already been a long one; it was time to go home:

Mr. STEPHENS here said that he admitted, with the gentleman from Kentucky, [Mr. Boyd,] that this bill was connected with a question of the deepest interest; but he could not believe, as that gentleman seemed to do, that its passage would secure peace and quiet to the country; if he did, he should be willing to protract this session indefinitely till it was passed. But, as he read the bill, all it did was merely to postpone the question, not to settle it, or give any peace to the country. The session was already of unusual length; he thought it was time they should go home. He had no belief that the question could be settled during the present session; and, wishing to bring it to a test vote, he would move to lay the bill on the table.

Shortly thereafter, the yeas and nays were taken. By a vote of 112 to 97 “the bill was laid upon the table.” As in the Senate, Southern Democrats voted solidly against the motion (and therefore in favor of the bill), while Northern Whigs voted solidly in favor of the motion (and against the bill). Northern Democrats and southern Whigs were divided. The breakdown among parties and sections was as follows (bear in mind that a vote in favor of the motion was in effect a vote against the bill):

	Dems	Whigs	Total
North	31 - 21	73 - 0	104 - 21
South	0 - 49	8 - 27	8 - 76
Total	31 - 70	81 - 27	112 - 97

The votes of Stephens and his seven southern Whig colleagues were thus crucial. Had they voted against the motion it would have been defeated 104 – 105.

As Thomas E. Schott explains in Alexander H. Stephens of Georgia: A Biography, both Democrats and some Whigs in his native state blasted Stephens for his motion and vote:

Georgia Democrats yowled. “Oh Whiggery! manifold are they since! But this is the climax of its iniquities,” raged the Constitutionalist. “A Georgian . . . took the lead in this act, which stabs the very bosom of his country's peace.” The editor foamed like this for weeks. The Federal Union immediately established on its front page a black-bordered box headed “Who Killed the Compromise Bill?” followed by a list, entitled “The Immortal Eight,” with Stephens' name in block capitals at the top. . . .

Some Georgia Whigs were similarly outraged. The Augusta Republic hoped that the “calculating demagogue” who would hazard the country's safety would “be damned forever.”

To combat such criticism, on August 7, 1848 Stephens took the House floor to explain his position. It is to that speech, generally regarded as the most thoughtful and intelligent delivered concerning the Clayton Compromise, that we will turn in the next post.

The Clayton Compromise 6: Analysis of the Senate Vote

In an earlier post I broke out the Senate's 33 to 22 vote in favor of the Clayton Compromise bill by party and region. I'm happy to report that I think I've discovered how to make the breakdown more readable:

	Dems	Whigs	Total
Free States	7 - 10	1 - 8	8 - 18
New England	1 - 4	1 - 5	2 - 9
Mid-Atlantic	2 - 1	0 - 1	2 -2
West	4 - 5	0 - 2	4 - 7
Slave States	18 - 0	7 - 4	25 - 4
Border/Mid	6 - 0	5 - 4	11 - 4
Cotton	12 - 0	2 - 0	14 - 0
Total	25 - 10	8 - 12	33 - 22

Two things stand out. The first is the striking unanimity in favor of the bill among southern Democrats (18-0) and among both Democrats and Whigs hailing from the Cotton south states (14-0). Even John C. Calhoun voted in favor! Border and mid-south Whigs in contrast were almost evenly divided (5-4).

The second is the near unanimity against the bill among northern Whigs (1-8) and among New Englanders of both parties (2-9). Mid-Atlantic and western Democrats, however, were equally divided (6-6).

The northern vote is easier to explain. The nays appear to come almost exclusively from Conscience Whigs and Democrats who supported the Wilmot Proviso and would later become Free Soilers and Republicans (e.g., John P. Hale of New Hampshire and Hannibal Hamlin of Maine). They seem to have taken the position that they could not vote in favor because the bill left open the possibility, however slight, that the territories could wind up becoming slave territories.

Northern votes in favor of the bill came largely from Senators who were not wedded to the Proviso. A leading example is Daniel S. Dickinson of New York, who would later join the Hunker faction opposing the Barnburners, and later still a Hard-Shell, opposing readmission of the Barnburners back into good standing with the Democrats).

The southern vote is more difficult to comprehend. Since all deep south Senators voted in favor, one can only conclude that Senators such as John C. Calhoun believed that the bill gave the south everything to which it was reasonably entitled under the Constitution. The Constitution carried slavery with it of its own force and barred the federal government from legislating concerning slavery in the territories. This the bill studiously avoided doing.

Ironically, border and mid-south Whigs were divided (5-4), at least in part, because they were less doctrinaire on these constitutional questions. George E. Badger of North Carolina opined that the Constitution of itself did not establish slavery and that Congress did have the power to legislate concerning slavery in the territories. Joseph R. Underwood of Kentucky likewise expressed the view that Congress had the power to legislate concerning slavery in the territories.

"The Top 100 Influential Figures in American History"

Apart from poor Millard, whom I didn't expect to make the new Atlantic list, several others immediately spring to mind as worthy of consideration. In more or less chronological order:

Andrew Jackson may have been the figurehead, but it was Martin Van Buren who invented the Democratic Party and the Second Party System, then abandoned the party he had created to serve as the presidential candidate for the first non-trivial anti-slavery party, the precursor to the Republican Party.

Daniel Webster's stirring oratory focused and inspired among a generation of Americans unionist sentiment that they would rise to defend when the crisis came.

Abolitionists get all the press, but it was David Wilmot who rose in the House in 1846 to move the famous Proviso that set the country on the road to Civil War.

After crafting and pushing through Congress the Compromise legislation of 1850 that averted civil war for ten years, Stephen A. Douglas's decisions to introduce the Kansas-Nebraska Act and later oppose the Lecompton Constitution gave birth to the Republican Party and placed it on the road to victory in 1860, sparking the war he sought to avoid.

Ann Althouse's musings on the list are worth your time.

About the illustration, entitled Marriage of the Free Soil and Liberty Parties (1848):

A comic portrayal of the alliance between Free Soil Democrats and Whigs and the more extremist abolitionist Liberty party interests during the election campaign of 1848. The factions joined to form the Free Soil party and nominated a presidential candidate in a convention at Buffalo in August. That union is lampooned here as the wedding of Free Soil presidential candidate Martin Van Buren (center left) and a ragged black woman (center right). Van Buren ally Benjamin F. Butler presides over the "marriage." Van Buren, reluctant to embrace the aged bride, is shoved forward by antislavery editor Horace Greeley (left), who says, "Go, Matty, and kiss the bride That is an indispensable part of the ceremony." Van Buren's son John (far left, here called "John Van Barnburner") also urges him on, "Walk up, dad. You can hold your breath till the ceremony is over, and after that you can do what you please." Van Buren says, "I find that politics, as well as poverty, make one acquainted with strange bedfellows." In contrast, the woman beckons with open arms, "Come here, my flower. You is a great stranger, and I want to get acquainted wid you." A black man behind her says of Van Buren, "I nebber hab berry good pinion ob the gemman; but if he ax pardon for all he hab done and said agin us, I will shake hands wid de genman." A black woman (further right) remarks, "Mercy on me! How bashful he is!" Butler, with arms raised and book in one hand, intones, "Who giveth this man to be married to this woman?"

The Clayton Compromise 5: "Instantly Senators arose from sofas"

As I mentioned in the last post, the Senate passed the Clayton Compromise bill shortly before 8:00 a.m. on Thursday July 27, 1848. The session had begun at 11:00 a.m. the day before. I've read portions of the Senate debate on the bill and it is singularly unenlightening. Almost everyone seems to have been exhausted and befuddled. And yet a majority was so desperate to end the agony by producing a bill – almost any bill, it would seem – that they refused to adjourn until a vote was taken. This excerpt from the Congressional Globe is more instructive than the speech of any Senator:

Mr. [John M.] NILES addressed the Senate for some half hour. There being only one Senator present in his seat, he moved that the Senate adjourn.

It was then two a.m., but instantly Senators arose from sofas and various parts of the lobby, and the yeas and nays were demanded, and the motion was disagreed to [by a vote of 11-32].