Blackstone and Madison on League vs. Union

William Blackstone, Commentaries on the Laws of England (1765-69), discussing the Act of Union of 1707, by which England and Scotland united to form Great Britain

UPON these articles, and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, but an infringment of those points which, when they were separate and independent nations, it was mutually stipulated should be “fundamental and “essential conditions of the union.”

It may justly be doubted, whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would consequentially dissolve the union: for the bare idea of a state, without a power somewhere vested to alter every part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a foederate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See Warburton's alliance. 195.) But the imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though not certainly destroy) the union.

Max Farrand, Records of the Federal Convention of 1787, at 2:93 (July 23, 1787):

[James Madison] considered the difference between the system founded on the Legislatures only, and one founded on the people to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1 . . .. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation.

Short Takes, Slavery Edition

Three recent SSRN articles touching on legal aspects of 18th and 19th Century slavery. Haven't read any of them yet, but a quick glance suggests the first is more likely to be of interest to general readers:

Paul Finkelman, Let Justice Be Done, Though the Heavens May Fall: The Law of Freedom:

In May 1772 Lord Mansfield, Chief Justice of the Court of King's Bench in England, heard preliminary arguments in the case of James Somerset, a Virginia slave who claimed his freedom under English common law. Charles Stewart, Somerset's master, wanted to send the slave to Jamaica to be sold. Somerset sought a writ of habeas corpus to escape this fate. This action brought the legality of slavery before the highest court in Great Britain.

This case would serve as the precedent for freeing slaves in a number of jurisdictions outside of Great Britain. Yet, Somerset did not bring immediate freedom to all slaves in England; as late as the 1830s at least some blacks were probably enslaved in Great Britain. And, Somerset surely had little immediate impact on most of the Empire, where slavery existed for another half century.

Lea S. Vandervelde, The Labor Vision of the Thirteenth Amendment:

The conventional understanding of the Thirteenth amendment is that it abolished the particular antebellum southern institution that subjugated black persons as slaves. Yet, the congressional debates reveal a much more expansive vision of labor reform. This theme has largely been lost in modern interpretation. Historical events rarely result from a single cause, and a single idea rarely drives legislative action. Nonetheless, beside the more religious abolitionist arguments, one finds numerous speakers who focused on labor conditions. Consequently, this Article aims to recapture the strong pro-labor theme that runs consistently through the debates.

As a whole, the Reconstruction debates reflect a desire to improve all workers' status by recognizing the dignity of labor, guaranteeing workers a wide range of opportunities for advancement, and raising the floor of legal rights accorded all working men. The pattern of discourse in the debates reveal a structure formed by three types of statements. The first addresses the historical need to rid employment relations of the master's patriarchal dominion over all laborers in his household and to accord the employee a realm of family and personal privacy free from employer control. The second describes the core concept of autonomy for laborers in their social and economic relations with employers. The final group targets certain specific labor practices as inconsistent with the spirit of labor autonomy. This three part configuration is useful in exploring the amendment's reach in restructuring baseline rights in the modem employment relation. The Reconstruction debates constitute an important resource because they record the original attempt to mandate constitutionally a minimum level of worker protection.

The debates follow an interesting dialectical pattern. In order to respond to the criticisms of slavery's advocates, the Radical Republicans had to create both a positive vision as well as the negative condemnation of slavery. The free labor ideal provided its affirmative side. The free labor ideal grew out of the Republican Party's origins in the Free Soil, Free Labor Movement as well as the self-interest of the northern white working class. Together, they present a powerful argument for constitutionally grounding the protection of working people from overreaching subjugation and abuses at the hands of employers.

The evidence suggests that the thirteenth amendment was animated by a conception of labor reform broader than the elimination of racial servitude which was its catalyst. From this perspective, race slavery was objectionable not only for its pernicious racism, but also as the most obvious and brutal violation of the free labor principle. Senator Henry Wilson’s remarks typify this perspective when he explained the party’s motivation as concern for the condition of the "worst off working man," rather than merely his formal legal reclassification.

This free labor vision has potentially far-reaching implications for constitutional interpretation of the thirteenth amendment and for many aspects of the modern employment relation.

Ariela J. Gross, Legal Transplants: Slavery and the Civil Law in Louisiana:

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction "transplanted" in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a "Black Code," first adopted in 1806, which owed a great deal to both French and Spanish law. Comparisons of Louisiana with other slave states tend to emphasize the uniqueness of New Orleans' three-tier caste system, with a significant population of gens de couleur libre (free people of color), and the ameliorative influence of Spanish law. This reflects more general assumptions about comparative race and slavery in the Americas, based on the work of Frank Tannenbaum and other historians of an earlier generation, who drew sharp contrasts between slavery in British and Spanish America. How does the comparison shift if we turn our attention away from slave codes, where Tannenbaum focused, to the "law in action"? At the local level, one can see the way slaves took advantage of the gap between rules and enforcement, and to fathom racial meanings at the level of day-to-day interactions rather than comparisions of formal rules. This essay surveys three areas of law involving slaves - manumission, racial identity, and "redhibition" (breach of warranty) - to compare Louisiana to other jurisdictions, and particularly to its common-law neighbors.

The May 15, 1776 Declaration of Independence

I missed a couple of related historical anniversaries recently.

On Friday May 10, 1776, the Continental Congress agreed to a resolution recommending that the colonies form new governments:

Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.

The Congress also appointed "a committee of three . . . to prepare a preamble to the foregoing resolution." John Adams, Edward Rutledge and Richard Henry Lee were selected as the members.

On Wednesday May 15, 1776, the Continental Congress ordered the publication of the resolution passed on May 10, together with the following preamble:

Whereas his Britannic Majesty, in conjunction with the lords and commons of Great Britain, has, by a late act of Parliament, excluded the inhabitants of these United Colonies from the protection of his crown; And whereas, no answer, whatever, to the humble petitions of the colonies for redress of grievances and reconciliation with Great Britain, has been or is likely to be given; but, the whole force of that kingdom, aided by foreign mercenaries, is to be exerted for the destruction of the good people of these colonies; And whereas, it appears absolutely irreconcileable to reason and good Conscience, for the people of these colonies now to take the oaths and affirmations necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of the government exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies; therefore, resolved, etc.

Poor John Adams believed, and would always believe, that the resolution, which he had presented with Richard Henry Lee on May 10, together with the May 15 preamble, which he had authored, constituted the document that marked the independence of the colonies. It was for this reason that he was happy to delegate to his young associate, Thomas Jefferson, the task of preparing a draft of the document that became known as the Declaration of Independence.

A Fantasy

If the members of the national press corp were not so busy acting as lap dogs for the administration, someone would pose the following question to the president at his next press conference:

Sir, during the campaign you characterized the administration's military commission system as a "legal black hole" and "dangerously flawed legal approach," which "undermines the very values we are fighting to defend." You similarly excoriated administration policies concerning indefinite detention of suspected terrorists and the release of photographs showing alleged prisoner abuse.

My question, sir, is this. Have you called President Bush and apologized to him? And if not, why not?

Ah, the fantasies we have!

And Now, For Some Aht!

Rick Klauber is one of my favorite contemporary artists. Here's one of Rick's shim paintings.

"I have come here to hear that voice"

Having just related one the well-known clashes between Henry Clay and John Randolph of Roanoke, I thought I’d pass on Robert Remini’s charming story of the reconciliation that took place between the two men in late February or the beginning of March 1833, less than three months before Randolph’s death. I have added a paragraph break for readability:

The reconciliation took place quite by accident. “There was no explanation, no intervention,” said Clay. Randolph had gone to the Senate one evening which the Kentuckian was speaking. “Help me up,” Randolph commanded, “I have come here to hear that voice.” Clay spotted him “looking as if he were not long for this world; and being myself engaged in a work of Peace [the conclusion of the Nullification Crisis],” he walked over to Randolph when he had concluded his speech and extended his hand. Randolph seized it, and their salutations were “cordial on both sides.”

Ever the consummate politician, Clay later left his card at Randolph’s lodgings, but the two men never met again. The Virginian died a few months later on May 24 [1833], after pronouncing Clay “a brave man, he is a consistent man . . . an independent man and an honest man.” Still, when he died, he wanted to be buried facing west so could keep an eye on Henry Clay. Just in case.

Henry Clay Outsmarts John Randolph of Roanoke

The House passed the legislation comprising the Missouri Compromise on March 2, 1820. The next day, March 3, John Randolph of Roanoke moved for reconsideration. Robert V. Remini tells the story as well as anyone:

Speaker [Henry] Clay turned to [Randolph] with a look of studied contempt. After a moment he announced that the hour was late, the members exhausted. The motion, he declared, would be postponed until the following day. At that time, it would be in order.

The following day Randolph rose to have the vote reconsidered. Clay ruled him out of order, until the routine business of the House had been concluded. Meanwhile, as Speaker he signed the Missouri bill and had the clerk deliver it to the Senate. When Randolph rose once more after the routine matters had been completed, Clay blithely announced that the bill had gone over to the Senate and could not be retrieved. The Missouri vote, already taken, was final.

Some States May Be More Equal Than Others?

I learned something yesterday that stunned me: the Constitutional Convention voted to give Congress the power to admit new states on different terms than those to be enjoyed by the original states.

On August 29, 1787, the Constitutional Convention addressed Article XVII, concerning the admission of new states, as presented by the Committee of Detail on August 6, 1787:

New States lawfully constituted or established within the limits of the United States may be admitted, by the Legislature, into this Government; but to such admission the consent of two thirds of the members present in each House shall be necessary. If a new State shall arise within the limits of any of the present States, the consent of the Legislatures of such States shall be also necessary to its admission. If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt which shall be then subsisting.

During the August 29 debate, Gouverneur Morris, representing Pennsylvania, specifically proposed to delete the language requiring the admission of “new States” “on the same terms with the original states”:

Art. XVII being taken up, Mr. Govr. MORRIS moved to strike out the two last sentences, to wit "If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt, which shall be then subsisting." – He did not wish to bind down the Legislature [i.e., Congress] to admit Western States on the terms here stated.

In the ensuing debate, the Convention approved Morris’s motion and deleted the language. Moreover, it is pretty clear that Convention did so because the participants wanted the federal government to retain the option to admit new states on unequal terms:

Mr. [James] MADISON [of Virginia] opposed the motion, insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with other States.

Col. [George] MASON [of Virginia]. If it were possible by just means to prevent emigrations to the Western Country, it might be good policy. But go the people will as they find it for their interest, and the best policy is to treat them with that equality which will make them friends not enemies.

Mr. Govr. MORRIS, did not mean to discourage the growth of the Western Country. He knew that to be impossible. He did not wish however to throw the power into their hands.

Mr. [Roger] SHERMAN [of Connecticut], was agst. the motion, & for fixing an equality of privileges by the Constitution.

Mr. [John] LANGDON [of New Hampshire] was in favor of the Motion, he did not know but circumstances might arise which would render it inconvenient to admit new States on terms of equality.

Mr. [Hugh] WILLIAMSON [of North Carolina] was for leaving the Legislature free. The existing small States enjoy an equality now, and for that reason are admitted to it in the Senate. This reason is not applicable to new Western States.

On Mr. Govr. Morris's motion for striking out.

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. no. Va. no. N. C. ay. S. C. ay. Geo. ay.

After a little more tinkering, the delegates arrived at the final version of the first sentence of Article IV, Section 3:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

The Missouri Compromise: Compromise, Armistice or Defeat?

I have discussed in several earlier posts David M. Potter’s conclusion that the Compromise of 1850 was not a compromise at all, but rather an armistice.

But what about the Missouri Compromise of 1820? I suspect that the general impression is that it was a compromise. After all, it sure looks like a compromise at first blush. The South gained a new slave state (Missouri) that extended north of where slavery had legally existed before, while the North gained a new free state (Maine) and the commitment that slavery would not be permitted in the rest of the Louisiana Purchase territory.

But an analysis of key votes held during the Missouri Crisis casts doubt upon this conclusion. Closer examination suggests that it was only a half a compromise, or more precisely, that only side compromised, while the other did not.

Glover Moore lays out and discusses the key votes in his dated but valuable The Missouri Controversy 1819-1821. In the Senate, the key vote that Moore discusses was held on February 17, 1820. The first “vote was taken on ordering the Maine-Missouri bill to be engrossed and read a third time. As the bill embraced all of the compromise measures, a vote for engrossment was a vote for the compromise.” The result, broken down sectionally, was as follows:

For Against
North 4 18
South 20 2
Totals 24 20

Moore observes that “[t]he vote leaves no doubt about which section of the country favored and which did not favor the compromise of 1820.”

Likewise in the House. The House never voted on the compromise as a whole, because that was precisely the test that Speaker Henry Clay was determined to avoid. To gauge sectional willingness to compromise, Moore therefore looks at two separate votes.

Taking the North first, Moore asserts that “the willingness of Northern representatives to compromise must be gauged by their vote against the second recommendation of the conference committee that the antislavery clause be eliminated from the Missouri bill.” Northern Representatives voted against striking the clause by a margin of 14 to 87. “Thus, by an overwhelming majority, Northern representatives rejected the only concession which the compromise of 1850 required of them.”

Looking at the South, Moore maintains that “[t]he willingness of Southern representatives to compromise can only be judged by the vote on the Thomas proviso [barring slavery from the remainder of the Louisiana Purchase], the concession which the compromise required of the South.” Southern representatives voted in favor of the proviso by margin of 39 to 37.

Moore comments:

By voting 39 to 37 in favor of the Thomas proviso, Southern representatives approved the compromise of 1820. The majority they gave it was a slender one, but even that was in marked contrast with the uncompromising vote of the Northern congressmen.

In short, it would appear that, from the southern perspective, the Compromise of 1820 was in fact a compromise. An overwhelming majority of southern senators and a slim majority of southern representatives voted in favor of the compromise or the key concession they were asked to make to achieve it.

To the North, however, the Compromise of 1820 was not a compromise. It was not even an armistice – it was a defeat. Of those northern legislators who voted, 82% of Senators and 86% of Representatives voted against compromise or against the key concession they were asked to make.

The Original Dough Faces -- Or Is That Doe Faces?

In an earlier post I discussed the origin of the term “dough face” and whether it was “dough face” or “doe face.”

Add Glover Moore to those who squarely straddle the fence:

Because of a misinterpretation of a remark made by John Randolph, the eighteen Northerners who made it possible to admit Missouri without restriction [on slavery] became known as “dough faces.” . . . Perhaps he regarded absentees and last minute converts as half-baked or easily molded, or they may have reminded him of children who daubed their faces with dough and became frightened by a glance at the mirror. It is also possible that the epithet should be spelled “doe faces” and was an allusion to the timidity of the female deer.

Moore notes that, whether or not Randolph had particular individuals in mind, eighteen northern members of the House of Representatives who either did not vote or voted in favor of removing the anti-slavery restriction on March 2, 1820 were forever tarred with the epithet. For the record, four northern Representatives were absent during the vote (“DR” stands for Democratic-Republican; “F” for Federalist; and “U” unclear):

Caleb Tompkins (DR, New York) (brother of Vice President Daniel D. Tompkins)
Walter Case (DR, New York)
Harmanus Peek (DR, New York)
Henry W. Edwards (DR, Connecticut)

Fourteen northern Representatives voted affirmatively to strike the anti-slavery proviso:

Mark L. Hill (DR, Massachusetts)
John Holmes (DR, Massachusetts) (no, not that John Holmes)
Jonathan Mason (F or U, Massachusetts)
Henry Shaw (DR, Massachusetts)
Samuel Eddy (DR, Rhode Island)
James Stevens (DR, Connecticut)
Samuel A. Foote (DR, Connecticut) (who later inadvertently precipitated the Webster-Hayne debate)
Henry Meigs (DR, New York)
Henry R. Storrs (F, New York)
Joseph Bloomfield (DR, New Jersey)
Charles Kinsey (DR, New Jersey)
Bernard Smith (DR, New Jersey)
Henry Baldwin (DR or U, Pennsylvania) (a future Justice of the Supreme Court)
David Fullerton (DR, Pennsylvania)

The final vote in the house was 90 for eliminating the anti-slavery provision, 87 for retaining it. No Representative from a slaveholding state voted for retention. The dough face votes and abstentions were thus critical.

"I am bound to make a speech for Buncombe"

I won’t vouch for this story, found in Glover Moore’s The Missouri Controversy, although a quick check reveals internet sites repeating the substance:

As the debate over Missouri continued indefinitely, many of the speeches predictably became repetitious and boring. . . . Finally, when Representative Felix Walker of North Carolina rose to speak on February 25, [1820,] the House refused to listen to him. Walker represented the Buncombe County district. According to tradition, he stated that his constituents expected him to say something about Missouri and that he was bound to “make a speech for Buncombe.” In this manner, it is said, the word “bunkum” or “bunk” entered the American vocabulary.

The Missouri Crisis: A Prequel

In The Missouri Controversy 1819-1821, Glover Moore points out a prequel to the dispute over slavery in Missouri of which I was unaware of.

On Monday November 23, 1818, a “resolution declaring the admission of the State of Illinois into the Union, on an equal footing with the original States, was read a third time.”

At that point, New York Representative James Tallmadge, Jr. – who three months later would ignite the Missouri controversy – rose and “assigned the reasons why, in his opinion, the resolution ought not to be adopted.” Rep. Tallmadge's principal objection related to the failure of the proposed Illinois constitution specifically to bar slavery. “The principle of slavery,” he maintained, “if not adopted in the constitution, was at least not sufficiently prohibited.”

Pointing first to Article 6 of the Northwest Ordinance, which barred slavery, Rep. Tallmadge first argued that it “was in the nature of a convention between the United States and the people of the States and Territories to be formed out of that territory.” Consequently, “[i]f the [proposed state] constitution was found to comport with that provision, it ought to be received by Congress; if not, it ought to be rejected. “Mr. T.” contended that the proposed Illinois constitution “contravened this stipulation, either in the letter or the spirit.”

Turning (as it were) to the merits of slavery, Rep. Tallmadge condemned it as “despotism” that contradicted the Declaration of Independence:

It had often been cast as a reproach on this nation, that we, who boast our freedom, and pride ourselves on our independence, yet hold our fellow-beings in service. Americans had been represented, indeed, with one hand exhibiting the declaration of independence, and with the other brandishing the lash of despotism.

Rep. Tallmadge softened the blow of his words by placing the blame for the “original sin” of slavery on the British. He recognized that the southern states were trying to “control and regulate the evil,” and had no desire to interfere with their efforts in states where slavery already existed. “But, Mr. T. said, if Congress should voluntarily recognise this feature in a constitution submitted for their decision, and in violation, too, of a compact forbidding it, they would take upon themselves the unjust imputation he had alluded to.”

Rep. George Poindexter of Mississippi then took the floor. He believed that the proposed Illinois constitution was not a bar to admission, but his statements concerning slavery were remarkable given the rancor of later debates:

Mr. POINDEXTER, of Mississippi, said he fully concurred with the gentleman from New York, in his solicitude to expel from our country, whenever practicable, anything like slavery. It is not with us, said he, a matter of choice whether we will have slaves among us or not; we found them here, and we are obliged to maintain and employ them. It would be a blessing, could we get rid of them; but the wisest and best men among us have not been able to devise a plan for doing it.

Rep. Poindexter did not deny that the federal government could condition Illinois' admission on the wording of its constitution, but he did assert that it was a futile exercise, for the people of a state could change their constitution at will, since [i]n the nature of free governments, no law could be irrepealable.” Remarkably, however, “he hoped that neither Ohio, Indiana, nor Illinois, would ever permit the introduction of slavery within their limits. He hoped, as far as we could, we should expel slavery from this country.”

After an intervening speech by Rep. Richard C. Anderson, Jr. of Kentucky, Rep. Tallmadge took the floor again. The most interesting part of his response (to me at least) addressed Rep. Poindexter's contention that, after statehood, citizens of Illinois could amend their constitution to permit slavery. Rep. Tallmadge argued that the Republican Form of Government clause of the Constitution might bar them from doing so – the first articulation on the floor of Congress of that argument of which I am aware:

With respect to the power of a State to change its constitution, he was not prepared to say that a State was, in that respect, under no restraint. Would Gentlemen admit a State into the Union to-day under a republican form of government, and permit it to call a convention to-morrow, and change its form of government to a monarchy? That State would cease, by the very act, to be a component part of the Union, and the same result would follow, he presumed, if a State were to violate the condition on which it was admitted into this Union, by admitting the introduction of slavery.

This was too much for future president William Henry Harrison, then serving as a Representative of the State of Ohio. Although “the introduction of slavery” was “the object of” Harrison's “abhorrence,”

he protested against the doctrine of the gentleman from New York. He could assure the gentleman that the people of that State [of Ohio] were fully aware of their privileges, and would never come to this House, or to the State of New York, for permission so to alter their constitution.

The resolution to admit Illinois passed by an overwhelming margin, 117 to 34. At the same time, those 34 negative votes – thirty-three from the north, one from Maryland – were an omen of the future.

The Man of Many Turns

I tend to be an Iliad man myself, but at the Claremont Institute website Classics professor Bruce S. Thorton makes the best possible case for the Odyssey: Clever, Enduring Odysseus:

Most important is Homer's insight that what is best and most admirable about human beings is to be found precisely in how we meet the challenges and risks of the hard natural world of pain and suffering. This is a notion intolerable to therapeutic moderns who believe that suffering and hardship are unfair anomalies to be corrected by progress, rather than the immutable limits that help to define us and create the conditions for our nobility and achievement. Odysseus accepted this paradox of human identity, which explains his rejection of Calypso's invitation to remain with her and stay young forever, an offer she spices up by emphasizing the hardship and suffering Odysseus must undergo before he can get home and win back his wife. Odysseus's response is a powerful assertion of the dignity of human life, of the value of living a life of meaning even at the cost of suffering and death:

"And if some god batters me far out on the wine-blue water,
I will endure it, keeping a stubborn spirit inside me,
for already I have suffered much and done much hard work
on the waves and in the fighting. So let this adventure follow."

Here is wisdom that we moderns, dazzled as we are by utopian dreams of a perfect world, need to relearn.

"You must educate them to keep them from our throats"

The educators among you should know that the drive for free public schools in the Northeast in the 1830s was motivated, according to Charles Sellers, by "bourgeois panic" that the ignorant and vicious working masses, armed with universal suffrage, would otherwise overwhelm decent society.

I have never encountered this idea before, but Sellers does indeed quote that icon of American education, Horace Mann, to great effect:

Mann warned that "if the ignorant and vicious get possession of the [political] apparatus, the intelligent and virtuous must take such shocks as the stupid or profligate experimenters may choose to administer." The school campaign, as parodied by Ralph Waldo Emerson, appealed to fear of a politicized majority -- "you must educate them to keep them from our throats."

With "unmitigated anxiety," Mann demanded that solid citizens support free schools as a "barrier against . . . those propensities . . . which our institutions foster." Thus, and only thus, "nobler faculties can be elevated into dominion and supremacy over the appetites and passions," he insisted, for "if this is ever done, must be mainly done during the docile and teachable years of childhood."

Tunguska Update

I've posted on Tunguska before, and explained that my intermittent interest goes back to college. Well, here's the return of another theory: a comet, or at least a piece thereof.

I'm stubborn. I'm still holding out for the mini black hole.

Andrew Jackson's Proclamation Regarding Nullification 5: "We are ONE PEOPLE"

Posts on Andrew Jackson’s Proclamation Regarding Nullification have been slow in coming because I have been having a hard time, frankly, trying to understand the core of the president’s reasoning.

In a way, this makes sense. Jackson’s Proclamation was an intensely political document, not a logical treatise. At the same, Old Hickory plainly believed that there was an underlying logic to the reasoning that led him to the conclusions he so vehemently expressed. With these precepts in mind, let me soldier on the best I can.

Perhaps the best place to start is here.

At one point in attacking secession Jackson set up what amounted to a straw man. Jackson asserted that the claimed right to secede was predicated upon the theory that the Constitution is a “compact between sovereign States who have preserved their whole sovereignty.” (Emphasis added.) From the nature of such a compact, as Jackson characterized the argument, it followed that “they [States] can break it when in their opinion it has been departed from by the other States.” Here is Jackson’s entire paragraph:

This right to secede is deduced from the nature of the Constitution, which they say is a compact between sovereign States who have preserved their whole sovereignty, and therefore are subject to no superior; that because they made the compact, they can break it when in their opinion it has been departed from by the other States. Fallacious as this course of reasoning is, it enlists State pride, and finds advocates in the honest prejudices of those who have not studied the nature of our government sufficiently to see the radical error on which it rests.

I term Jackson’s characterization a “straw man” because he created an argument that rested upon an assumption that virtually everyone would have rejected. Whether or not the states retained “sovereignty” in some or many respects, virtually no one contended that they “preserved their whole sovereignty.” From the beginning, the Federalists shouted from the rooftops that the theory underlying the Constitution involved divided sovereignty. Even if you contended that the States remained sovereign in many respects, clearly they had ceded sovereignty with respect to at least certain, specified matters to the federal government.

The question, then, from the perspective of the nullifiers, was not whether the States had preserved their "whole" sovereignty, but rather whether they had preserved so much of their sovereignty as reserved the right to nullify or secede.

Having set up this straw man, however, Jackson did not attack it on the limited ground that I suggested in the foregoing paragraph -- that the States did not reserve the right to nullify or secede. He went much further, adopting a Websterian position that shocked those who both opposed nullification (and secession) yet believed that the States retained substantial sovereignty and were wary of “consolidation.” “The people of the United States,” Jackson declared, rather than the states themselves, were the parties to the “compact”:

The people of the United States formed the Constitution, acting through the State legislatures [note that Jackson refers to "State legislatures" rather than to the conventions that ratified the Constitution], in making the compact, to meet and discuss its provisions, and acting in separate conventions when they ratified those provisions; but the terms used in its construction show it to be a government in which the people of all the States collectively are represented.

Even worse, the president proceeded to declare that Americans were “ONE PEOPLE”, and drove home the point by pointing to the election of national officers:

We are ONE PEOPLE in the choice of the President and Vice President. Here the States have no other agency than to direct the mode in which the vote shall be given. The candidates having the majority of all the votes are chosen. The electors of a majority of States may have given their votes for one candidate, and yet another may be chosen. The people, then, and not the States, are represented in the executive branch.

Similarly, Jackson maintained, the manner of electing members to the House of Representatives indicated that the People as a whole, not the States, had the most direct relationship with the federal government:

In the House of Representatives there is this difference, that the people of one State do not, as in the case of President and Vice President, all vote for all the members, each State electing only its own representatives. But this creates no material distinction. When chosen, they are all representatives of the United States, not representatives of the particular State from which they come. They are paid by the United States, not by the State; nor are they accountable to it for any act done in performance of their legislative functions; and however they may in practice, as it is their duty to do, consult and prefer the interests of their particular constituents when they come in conflict with any other partial or local interest, yet it is their first and highest duty, as representatives of the United States, to promote the general good.

President Jackson pointedly omitted discussion of the Senate. Senators were then elected by state legislatures, a fact that contradicted the argument.

Andrew Jackson's Proclamation Regarding Nullification 4: The Union is "coeval with our political existence"

Both Daniel Webster and Abraham Lincoln famously held that the Union was older than the Constitution. By way of a refresher, here they are:

Daniel Webster, February 16, 1833:

In 1789, and before this Constitution was adopted, the United States had already been in a union, more or less close, for fifteen years. At least as far back as the meeting of the first Congress, in 1774, they had been in some measure, and for some national purposes, united together. Before the Confederation of 1781, they had declared independence jointly, and had carried on the war jointly, both by sea and land; and this not as separate States, but as one people. When, therefore, they formed that Confederation, and adopted its articles as articles of perpetual union, they did not come together for the first time; and therefore they did not speak of the States as acceding to the Confederation, although it was a league, and nothing but a league, and rested on nothing but plighted faith for its performance. Yet, even then, the States were not strangers to each other; there was a bond of union already subsisting between them; they were associated, united States; and the object of the Confederation was to make a stronger and better bond of union. Their representatives deliberated together on these proposed Articles of Confederation, and, being authorized by their respective States, finally "ratified and confirmed" them. Inasmuch as they were already in union, they did not speak of acceding to the new Articles of Confederation, but of ratifying and confirming them; and this language was not used inadvertently, because, in the same instrument, accession is used in its proper sense, when applied to Canada, which was altogether a stranger to the existing union. "Canada," says the eleventh article, "acceding to this Confederation, and joining in the measures of the United States, shall be admitted into the Union."

Abraham Lincoln, March 4, 1861:

Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was "to form a more perfect Union."

I mention this because one of the more remarkable aspects of Andrew Jackson’s December 10, 1832 Proclamation Regarding Nullification is that he anticipated them both:

[The South Carolina nullification ordinance has] for its object the destruction of the Union – that Union, which, coeval with our political existence, led our fathers, without any other ties to unite them than those of patriotism and common cause, through the sanguinary struggle to a glorious independence – that sacred Union, hitherto inviolate, which, perfected by our happy Constitution, has brought us, by the favor of Heaven, to a state of prosperity at home, and high consideration abroad, rarely, if ever, equaled in the history of nations.

Two Additions to Brett's "Top 10 Civil War Blogs" List

At TOCWOC, Brett Schulte posted yesterday a list of Top Ten Civil War Blogs, in which he generously included this site. As anyone who’s been here before knows, categorizing this site as a “Civil War Blog” is a stretch. In Brett’s defense, the best I can say is – thanks!

Brett’s list and the one I would make are remarkably similar. Although I’d have to agonize over who I’d drop, my list would include two entries that didn’t make Brett’s:

First is TOCWOC itself. Brett understandably didn’t nominate his own blog, but I’m sure that it would be on almost anyone else’s short list and really needs no introduction or extended description from me. Brett and his cohorts produce everything from longer essays and book reviews to “short takes” on Civil War news. The variety of the topics and quality of the execution make it a daily stop.

The other omitted blog that is a favorite is Rene Tyree’s Wig-Wags. Readers of Rene’s blog will know that it is not devoted solely to the Civil War. Rene is currently studying military history and therefore diverts often to other conflicts and issues, but that’s what makes her blog enjoyable: you’re never quite sure what you’re going to get. Rene’s other great asset is that her enthusiasm really comes through. You can sense her delight when she begins a new course or dives into a book that offers a new perspective. I believe I also have Rene to thank for pointing out such useful adjuncts as Academic Earth, and her enthusiasm for the Kindle has piqued my interest (although I haven’t bitten yet). I check in at Wig-Wags regularly, and so should you.

Two Articles

Haven't read either of them yet, but here are two articles on SSRN that look interesting.

The first deals with Strader v. Graham, an 1851 Supreme Court case concerning slavery and slave freedom that the Supreme Court might, and perhaps should, have used to decide Dred Scott six years later. Here's the abstract:

In 1841, three Kentucky slaves in Louisville boarded a steamboat bound for Cincinnati. Within days, they had made their way to Detroit and then to permanent freedom in Canada. Their owner, a prominent central Kentucky businessman, soon tracked them down and tried to lure them back to bondage in the United States. When these efforts failed, he sued the steamboat owners for the value of the lost slaves in a Kentucky court.

After ten years of litigation, this case reached the U.S. Supreme Court. The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent a few years later when the Court considered the freedom claim of another slave, Dred Scott, whose case would produce perhaps the most important decision ever handed down by the U.S. Supreme Court.

The key issue in Dred Scott - how, if at all, a Negro slave could obtain his freedom by spending time on free soil - had also been considered by the Court in prior cases. This Article deals with one of these, Strader v. Graham, 51 U.S. 82 (1851), the case brought by the Kentucky businessman whose slaves escaped on the defendants’ steamboat and the only Kentucky slave case ever to reach the Supreme Court.

This Article provides a detailed description of Strader, including its factual background, its reflection of Kentucky slave law in the first half of the nineteenth century, and its significance for Dred Scott and other subsequent slave-related matters. Part I provides an overview of Kentucky slave law as it evolved up to the time of the Strader litigation. Part II describes Strader’s factual background and the Kentucky court decisions it produced. Part III covers the Strader case in the U.S. Supreme Court. Part IV deals with post-Strader events, including a review of the Dred Scott case and the role that the Strader decision played in that litigation. Part V provides some concluding observations about how the Strader case reflected the role of slavery, law, and lawyers in antebellum Kentucky and what Strader and Dred Scott might teach us in the modern era.

The second article addresses one aspect of the so-called "incorporation" debate -- that is, did Section 1 of the 14th Amendment "incorporate" the Bill of Rights. The article looks at contemporaneous newspaper coverage to determine whether the reading public would have understood this to be an aim of Section 1:

For over sixty years scholars have debated whether Section 1 of the Fourteenth Amendment “incorporated” the Bill of Rights guarantees and thus made them enforceable against the states. Recently, the debate has turned to what the state legislators might have known when they ratified the amendment. In this paper, presented at the University of San Diego Law School on January 7, George Thomas discusses the body of evidence already available and then presents new evidence gathered from a search of newspaper archives for the period 1865 to 1869. He discovered one newspaper article that clearly makes the incorporation case and three others that offer lesser degrees of support for the proposition that educated men of the era were aware that Section 1 included the Bill of Rights. But 96% of the articles that discussed “privileges” and “immunities” gave no hint of a connection with the Bill of Rights.

Andrew Jackson's Proclamation Regarding Nullification 3: Was Jackson the Author?

Long ago, I published several posts that constituted a sort of prequel to a discussion of Andrew Jackson’s December 10, 1832 Proclamation Regarding Nullification. Those posts examined the president’s State of the Union message delivered to Congress six days earlier. Before launching into an examination of the Nullification Proclamation itself, I thought I would tackle a side issue: were the views expressed in the Proclamation really those of President Jackson?

No one has doubted that President Jackson passionately embraced the conclusion of the Proclamation – Nullification and its sibling secession were

incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.

Surprised, however, by the difference in tone between the State of the Union message and the Proclamation, some contemporaries believed that Jackson could not have authored or endorsed portions of the Proclamation laying out the theoretical underpinnings of those conclusions.

These speculations were fanned by the knowledge that the president’s brilliant Secretary of State, Edward Livingston -- a transplanted New Yorker who had moved to Louisiana – had participated in the creation of the Proclamation: indeed, the Proclamation bore his name, as well as the president’s, at the end. Somehow, the story went, Livingston had bamboozled the president, who was interested only in the bottom line conclusions, into signing off on a document that incorporated historical and constitutional ideas that the president did not really understand or endorse. In short (as Richard Ellis summarizes the argument), the president was “a bumbling old fool, manipulated by his advisors.”

This view “does not hold up under careful scrutiny.” The evidence “overwhelming indicates that . . . Old Hickory was very much his own man.”

James Parton’s Life of Andrew Jackson, first published in 1860, includes a vivid description of the creation of the Proclamation that belies the contention that Jackson was not in charge. Parton relates that, “on one of the last days of November [1832],” the president read a “pamphlet containing the proceedings of the South Carolina [Nullification] Convention.”

Jackson then retreated to his office and furiously wrote at least fifteen to twenty pages of what became the Proclamation:

He went to his office alone, and began to dash off page after page of the memorable Proclamation which was soon to electrify the country. He wrote with that great steel pen of his, and with such rapidity, that he was obliged to scatter the written pages all over the table to let them dry. A gentleman who came in when the President had written fifteen or twenty pages, observed that three of them were glistening with wet ink at the same moment. The warmth, the glow, the passion, the eloquence of that proclamation, were produced then and there by the President's own hand.

Parton implies that Jackson produced both portions of draft text and additional “notes and memoranda.” The entire mass of papers was then delivered to Livingston in order to “draw up” the final document “in proper form”:

To these pages were added many more of notes and memoranda which had been accumulating in the presidential hat for some weeks, and the whole collection was then placed in the hands of Mr. Livingston, the Secretary of State, who was requested to draw up the Proclamation in proper form.

Notwithstanding Livingston’s involvement, Parton produces contemporaneous eyewitness evidence showing that Jackson was the ultimate author of the Proclamation. The president carefully reviewed the draft that Livingston produced and rejected those portions “which did not represent his views.” Parton relates:

[Jackson associate and advisor] Major [William Berkeley] Lewis writes to me: "Mr. Livingston took the papers to his office, and, in the course of three or four days, brought the proclamation to the General, and left it for his examination. After reading it, he came into my room and remarked that Mr. Livingston had not correctly understood his notes – there were portions of the draft, he added, which were not in accordance with his views, and must be altered. He then sent his messenger for Mr. Livingston, and, when he came pointed out to him the passages which did not represent his views, and requested him to take it back with him and make the alterations he had suggested. This was done, and the second draft being satisfactory, he ordered it to be published.”

Major Lewis also told Parton that Jackson had specifically endorsed “that portion to which . . . the State-rights party would particularly object":

“I [Lewis] will add that, before the proclamation was sent to press to be published, I took the liberty of suggesting to the General whether it would not be best to leave out that portion to which, I was sure, the State-rights party would particularly object. He refused.

“‘Those are my views,’ said he with great decision of manner, ‘and I will not change them nor strike them out.’"