Saturday, October 28, 2006

A Good Marriage

In her book, The Old Revolutionaries: Political Lives in the Age of Samuel Adams (New York: Alfred A. Knopf 1980), Pauline Maier does a particularly fine job bringing Sam Adams to life. One of my favorite passages describes Adams on a good marriage (p. 39):

"'The Marriage State was designd to complete the Sum of human Happiness in this Life,' he noted [in a 1780 letter to Thomas Wells]. Where it proved otherwise, the fault was often in 'the Parties themselves, who either rush into into it without due Consideration, or fail in point of Discretion in their Conduct towards each other afterwards.' A good marriage required judgment on both sides, honor and justice, and above all concessions on minor points in the interest of a larger harmony. 'Of what Consequence is it,' he asked Wells, 'whether a Turkey is brought on the table boild or roasted? And yet, how often are the Passions sufferd to interfere in such mighty Disputes, till the Tempers of both become so sowered, that they can scarcely look upon each other with any tolerable Degree of good Humor.'"

The conclusion that Professor Maier draws is typical of her insights:

"All of this is strongly reminiscent of Adams's revolutionary politics -- his consistent patience, counseling the importance of avoiding haste in espousing war and independence; his mindfulness of the need for concession and consultation in achieving and maintaining unity within the revolutionary movement; his unwillingness to stand on pretence; his readiness to respect and even to prefer the judgment of the humble to that of the esteemed.'"

Both The Old Revolutionaries and Professor Maier's earlier book, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765 - 1776 (originally published in 1972) are highly recommended.

The Playoffs

The best way for a team to win a playoff series is for me to root against them. First, I rooted for the Yankees; they lost. Then, I rooted for the Mets; they lost. Then, I rooted for the Tigers; and they, of course, have now lost as well.

Does any team want to pay me to root against them? I'm accepting bids.

The Thirteenth Amendment

The Thirteenth Amendment was in the news recently. No, not the Thirteenth Amendment that banned slavery in 1865. The “original” Thirteenth Amendment, sometimes known as the Corwin Amendment, passed by Congress and sent to the states for ratification in 1861.

The Corwin Amendment represented a last-ditch effort to find a compromise that would encourage seceding states to return to the Union. It would have forbidden any later amendment to the Constitution permitting Congress to abolish or interfere with slavery. The full text stated simply:

“Article Thirteen

“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”

The Corwin Amendment made the news because of the Lincoln connection, and at least one blogger, Brian Dierck, has noted that
it still might, in theory, be ratified (although not as the Thirteenth Amendment). But I have not seen anyone discuss what, to me at least, is the most interesting issue associated with the Amendment: if it were ratified, would it in fact be effective? That is, could a Constitutional Amendment in fact bar further amendments to the Constitution?

I tend to agree with Akhil Amar of Yale Law School that the answer is probably “no.” In
America’s Constitution: A Biography, Professor Amar writes (p. 292):

“[O]ne might plausibly infer from the Preamble’s text about the rights of “our Posterity” and from the very act of ordainment that what We, the People originally established, We could later amend. Ongoing popular sovereignty formed the Constitution’s bedrock principle, which could not be abrogated without undermining the very foundation of the document. On this view, if some putative amendment purported to eliminate the right of a later generation to adopt still further amendments, such an attempted abrogation of a genuinely inalienable right would not be a permissible amendment of the Constitution’s general project. Rather, it would represent an impermissible repudiation of the basic legitimating concept. Thus, in general the Constitution had to remain subject to amendment.”

As an aside, the Corwin Amendment may have left a loophole. It would have barred Congress from making any further amendment that would authorize Congress to interfere with slavery in the States. But what if Congress passed a further amendment that simply barred slavery, rather than an amendment that authorized Congress to bar slavery?

I know of no evidence suggesting that the form of the proposed Thirteenth Amendment was intentionally designed to leave this loophole, or that anyone in the seceding states found the proposed amendment unsatisfactory for this reason.

Monday, October 23, 2006


A brief post to log in with Technorati. Technorati Profile

Sunday, October 22, 2006

The Fourteenth Amendment and Incorporation III

Having briefly discussed the Amendment as a whole, let’s begin to focus in on the key provision, Section 1. By way of reminder, Section 1 provides:

“1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.”

For reasons I won’t go into now, the Supreme Court over the course of the Twentieth Century generally used the Due Process Clause (“nor shall any State deprive any person of life, liberty or property, without due process of law”) to apply provisions of the Bill of Rights to the states. Current legal scholarship, however, has generally identified the Privileges or Immunities Clause (“No State shall make or abridge the privileges or immunities of citizens of the United States”) as the basis for incorporation. It is to the Privileges or Immunities Clause we must therefore turn.

OK, you say, That’s clear as mud. The phrase “privileges or immunities of citizens of the United States” is totally opaque. Are you really telling me that that means “the Bill of Rights”? The short answer is that that is precisely what I’m telling you. But to understand how and why that is the case requires us to do some historical digging.

Where to begin. Hmmm. How about with a clause in the original Constitution that contains a suspiciously similar phrase? Article IV contains its own Privileges and Immunities Clause. (Note: the Article IV clause is the “Privileges and Immunities” Clause; the Fourteenth Amendment clause is the “Privileges or Immunities” Clause.) The first sentence of Article IV, Section 2 provides as follows:

“1. The Citizens of each state shall be entitled to all privileges and immunities of Citizens in the several states.”

Most constitutional historians now believe that, during the period when the Constitution was drafted, debated and ratified (1787-89), the Privileges and Immunities Clause was generally understood to have a limited meaning. At the time, it seems to have been generally understood to act, in effect, as an interstate traveler non-discrimination provision, requiring states to provide to visiting citizens of other states the same basic civil rights (although not political rights such the rights to vote, hold office, sit on juries or serve in the militia) they provided to their own citizens. See generally Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House 2005), pp. 249-54.

At first blush, such a limited definition of the Privileges and Immunities Clause would seem to cut strongly against the argument that the Privileges or Immunities Clause imposed the Bill of Rights on the states; and, indeed, critics of incorporation have made precisely that point. But we are missing a step. The question is not, What did “privileges and immunities” originally mean in 1787-89? Rather, the question is, what did that phrase mean to the drafters, proponents and opponents of the Fourteenth Amendment in 1866-68?

As we shall see next, the meaning of the term “privileges and immunities” was dramatically transformed during the first half of the Nineteenth Century. We will also have to consider the fact that the “privileges or immunities” protected by the Fourteenth Amendment are not just any old privileges and immunities in general, but rather “the privileges or immunities of citizens of the United States.”

Previous Posts:

The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II

Saturday, October 21, 2006

Mahler's Ninth

For those of you who may just be dipping your toe into classical music – with Bach, say, or Beethoven – Gustav Mahler is too much. His symphonies are too long, too episodic, too disjointed, too contradictory, too jumbled, too weird.

I don’t care. I just can’t bear to post music reviews without including a recommendation of the composer I love the most.

Gustav Mahler was born in 1860 in Kaliste, Bohemia (now in the Czech Republic, then part of the Austro-Hungarian Empire). Although Jewish, he became a leading conductor in Central Europe, working his way up from regional ensembles in Austria-Hungary and Germany to the prestigious Vienna Court Opera, the center of the musical world, in 1897 (he had to convert to Roman Catholicism to get the job). After serving in that post for ten years, he came under increasingly vicious anti-semitic attacks, which he escaped by accepting offers of employment in New York as conductor of the Metropolitan Opera (1908) and the New York Philharmonic Orchestra (1909-11). In 1901 he met and in 1902 married 23 year-old Alma Schindler, beautiful, vivacious and mercurial. About her, Tom Lehrer quite accurately wrote:

The loveliest girl in Vienna
Was Alma, the smartest as well.
Once you picked her up on your antenna,
You’d never be free of her spell.

Mahler was smitten the first time he met her, and some of his most beautiful music reflects his deep love for her (most famously the Adagietto from his Fifth Symphony, written in 1901-02). He also experienced tragedy in the death of a young daughter in 1907, likewise reflected in his late symphonies. That same year, Mahler was diagnosed with having serious heart disease and was told he could die at any time. After returning to Europe from New York in April 1911, he died the following month in Vienna.

All the while, Mahler was also composing. As the years progressed, he developed a fairly regular schedule. After the conclusion of the conducting season he repaired to Southern Austria and the Austrian Alps, where he spent the summer months in romantic agony giving painful birth some of the most beautiful music ever created. He then completed orchestration over the winter while conducting. In this manner, he composed roughly a symphony a year from 1901 on, except for the years around 1907, when his daughter died and he learned of his heart disease. Even before this, thoughts of death informed Mahler’s music. In 1901-04, he wrote a haunting song cycle entitled Kindertotenlieder, Songs on the Death of Children. After 1907, the obsession deepened.

At the time, Mahler’s music was largely met with incomprehension. Although Mahler had his vigorous partisans from the time of his death, notably the conductor Bruno Walter, his reputation really revived only in the 1960s, thanks to the forceful advocacy of Leonard Bernstein, whose wildly passionate recordings of Mahler’s works remain available on Sony and DG.

I use the term “romantic” purposefully, for Mahler was a profoundly Romantic composer. Steeped in the German Classical and Romantic traditions, from Bach, Hayden, Mozart and Beethoven though Schubert and ultimately Richard Wagner and Anton Bruckner, Mahler (together, perhaps, with Richard Strauss, who looked into and drew back from the abyss) took Romanticism to the breaking point, to the point that it became so overripe and lush that it just fell apart, producing the Schoenberg revolution. (An aside: the only composer who wrote music more ripe than Mahler was Schoenberg himself, a friend and admirer of Mahler’s, whose beautiful and stupendously overwrought Gurrelieder, completed in 1911, is the terminal point of Romanticism.)

At the same time, Mahler was an intellectual and musical omnivore, an establishment insider who always remained an outsider by virtue of his Jewish heritage, a man torn by existential uncertainty, ever doubting, always unsure, ever experimenting. As a result, his music contains bizarre juxtapositions – a ripe, exquisitely beautiful romantic theme intermingled with a military march or a drunken and frivolous peasant dance or the bells of a herd of cows in a distant Alpine field. It can be tremendously disorienting.

My recommendation for a Mahler starter is his Ninth Symphony. Mahler appears to have composed the work, without orchestration, during the summer of 1909 and then orchestrated it in New York in the Fall and Winter of 1909-1910. Mahler viewed the composition of his Ninth as a death sentence. Alma (and many others) reported that, bearing Beethoven’s example in mind, Mahler had an outright, superstitious “fear of the idea of a Ninth Symphony,” “that no great symphonic writer was to live beyond his Ninth.” Mahler proved prescient. He began a Tenth Symphony, but the Ninth was the last work he completed before his death.

The Ninth contains all the stylistic difficulties mentioned above. Incongruous admixtures of different genres and moods, themes that half form and then dissolve, or having formed trail off into existential uncertainty. And yet . . . and yet . . . the Ninth is one of the most glorious, heartwrenching and beautiful pieces of music ever created. The ebb and flow and halting uncertainty of the piece, punctuated by glorious, swelling melodies, seems to capture the entire range of human emotion – the emotions of a man deeply in love, trying to absorb the entire world, knowing that death was near. Alternately rapturous, frivolous, resigned and sad, it is a shout of defiance, a paean to life, a wistful ode of regret for pleasures soon to be lost, a cry of despair, a quiet acceptance of impending fate holding out the faint yet irresistable hope of redemption all at the same time. Describing the lurching progression of the symphony’s first movement, the composer Alban Berg captured the feeling perfectly:

“Once again I played through Mahler’s Ninth Symphony. The first movement is the most wonderful music Mahler wrote. It is the expression of remarkable love for this earth, the longing to live upon it in peace, to enjoy nature to its greatest depths before death enters. Because death does come, inexorably. This whole movement is based on a foreboding of death. It appears over and over. All earthly enchantment reaches a peak; therefore we have these rising outbursts, always after the tenderest passages. This foreboding is strongest at the tremendous moment when in this profound, yet painful joy of life, death forcefully announces its arrival. Then there are those eerie viola and violin solos and knightly sounds: Death in armor! There is no rebellion against him! What comes after this seems to me like resignation. . . . And once again, for the last time, Mahler turns toward earth – not to battles and deeds, which he brushes off . . . but rather totally and only to nature. He wants to enjoy whatever treasures earth still offers him for as long as he can. He wants to create for himself a home, far away from all troubles, in the free and thin air of the Semmering Mountains, to drink this air, this purest earthly air with deeper and deeper breaths – deeper and deeper breaths, so that the heart, this most wonderful heart ever to have beaten among men, widens – widens more and more – before it must stop beating.”

This is not just some critic’s artificial construct. The manuscripts and original score of the Ninth are replete with notes reflecting Mahler’s obsession: “with anger”, “shadowlike”, “with greatest force”, “like a solemn funeral procession”. And even more tellingly: “Oh Youth! Lost! Oh Love! Vanished!”; “Farewell! Farewell!”

The first time you listen to the Ninth, you may well find it a disorganized, incomprehensible mess. Don’t despair. My suggestion is to try to give it one or two good listens. It’s long, well over an hour, but set aside the time to listen to the entire thing, including the stunning final movement. Take breaks between movements if you wish. After that, put it away for a week or a month or two. Then put it on as background music. Don’t focus on it; let the music come to you. After a while, you’ll find yourself involuntarily looking up now and again to hear a glorious tune swelling and find yourself disappointed when it fades away. Gradually, you will come to realize that the juxtapositions and spaces add to, rather than subtract from, the glory of the piece. The parts are beautiful, but the whole is truly greater than the sum of the parts.

There are countless versions of the Ninth. I’ll suggest John Barbirolli conducting the Berlin Philharmonic Orchestra on EMI. The performance has received accolades since it first appeared, and EMI has remastered the disc in reissuing it as (rightly) one of its Great Recordings of the Century series. On one medium-priced ($11.98) disc (many performances slop onto a second disc), it’s an outstanding performance worthy of the work and a bargain to boot.

One last piece of advice. If you ever get a chance to hear the Ninth, or any Mahler symphony, live, run, do not walk, to the box office. Mahler employs huge orchestral forces and a tremendous dynamic range, from massive trumpet fanfares, massed strings and thunderous percussion thwacks to solo instruments (and those cowbells) echoing faintly in the distance. All of this is difficult for even the best stereo system to duplicate in the home environment. Of all composers, I think Mahler benefits the most from hearing him in the true space of an orchestral hall. Listening live to the final notes of the Ninth fade away, almost imperceptibly, into utter silence – the audience doesn’t breathe – is one of the most powerful musical experiences I have ever encountered.

The Fourteenth Amendment and Incorporation II

All agree that, if the Fourteenth Amendment applied the Bill of Rights to the states, it was the first section of the Amendment that did so. Nonetheless, it is worth looking at the entire Amendment to furnish context:

“XIV - Citizen rights not to be abridged

“Passed by Congress June 13, 1866. Ratified July 9, 1868

“1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

“2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

“3. No person shall be a Senator or Representative in Congress, or Elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

“4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

“5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

For present purposes, and putting the first section aside for the time being, the key point to note is that the document was intensely political and of vital importance to the politicians who sought and opposed its passage. Section 3, for example, disqualified many pre-War southern officeholders from serving in the House and Senate or state offices. As a practical matter, this was expected to be highly advantageous to the Republican party. As the states in the Confederacy retook their seats in Congress, many southern pre-War officeholders and opinion leaders – the people who had led their states out of the Union – would be excluded, The hope was that this would make it more likely that others, more sympathetic to the Union and Republican values, to compete and take their place.

At the same time, Section 2 was designed to penalize southern states unless they permitted black males to vote. To the extent a state failed to permit all male citizens 21 years of age or older – including black male citizens -- to vote, that state’s representation in the House would be proportionately reduced. Either way, Republicans would presumably benefit. On a best case basis, the franchise would be given to black males, who would presumably vote overwhelmingly for Republican candidates. On a worst case basis, states that restricted the vote would be entitled to elect a reduced number of electors that would not threaten the Republican majority in the House.

This is not to say that the Fourteenth Amendment was simply a cynical political ploy. Many may well have viewed the Amendment as embodiment of Republican and American principles. Some, such as Thaddeus Stevens, the Radical Republican Congressman from Pennsylvania, believed that the Amendment did not go far enough because it did not guarantee the vote to black males.

Rather, the point is that, to many contemporary politicians and observers, Section 1 did not stand out as the most important provision of the Amendment. Much of the debate was focused elsewhere, on politically volatile issues such as those contained in Sections 2 and 3. For example, in his speech in support of the Amendment, Thaddeus Stevens spent little time on Section 1 and far more attention to later sections: “The Second Section I consider the most important article.” Cong. Globe, 39th Cong., 1st Sess. 2459 (May 8, 1866). Two days later, during a debate about Section 3, he said:

“Without that [Section 3], [the Amendment] amounts to nothing. I do not care a snap of my finger whether it be passed or not if that be stricken out. Before another Congress shall have assembled here, and before [the rest of the Amendment] can be carried into full effect, there will be no friends of the Union left on this side of the House to carry it out . . . . [T]he House will be filled with yelling secessionists and hissing copperheads. Give us the third section or give us nothing. Do not balk us with the pretense of an amendment which throws the Union into the hands of the enemy before it becomes consolidated.”

Cong. Globe, 39th Cong., 1st Sess. 2544.

This, in turn, helps explain the rather scant “legislative history” of Section 1 (that is, the amount of time and the number of words that the legislators devoted to explaining and arguing the meaning of the section). For the past eighty years or so, virtually all discussion about the Fourteenth Amendment has focused on Section 1. But at the time, that was simply not the case. In evaluating the legislative discussion of Section 1, we must always bear this in mind.

Wednesday, October 18, 2006

Abigail Fillmore

And here's a nice post about Millard's wife Abigail, who sounds as admirable as her husband.

Tuesday, October 17, 2006

Millard Fillmore

I’m a big fan of Millard Fillmore. He was a fine man who bears no resemblance to the current caricature of him. If people know his name at all, it's usually because late night tv hosts make fun of him, probably because his name is odd and because the few photos make him look like a stuffed shirt.

In fact, he was raised in grinding poverty in western New York (his father was a tenant farmer). Young Millard apprenticed in a mill, constantly reading to improve his minimal skills. His father's landlord recognized Millard's abilities and arranged for him to be apprenticed to become a lawyer. Millard ultimately became an outstanding lawyer and leading citizen of Buffalo, served at various times in the State legislature and in Congress, always with distinction, and was a leading member of the Whig party in Western New York, where he was uniformly respected and admired for his civic-mindedness.

One of the few who disliked Fillmore was Albany editor and powerbroker Thurlow Weed, who perceived Fillmore to be a threat to Weed's favorite, William Seward. Weed turned out to be more correct than he anticipated. Fillmore was unexpectedly nominated as Vice President on the Whig ticket in 1848, balancing the southern Taylor.

During the campaign, Fillmore's good sense and ability may well have saved Zachary Taylor from defeat. When Taylor accepted the nomination of the South Carolina Democratic Party, Weed called a meeting of New York Whigs to repudiate Taylor and nominate another candidate. With great difficulty, Fillmore persuaded Weed to delay the meeting, giving Taylor the opportunity to issue a letter explaining why he had accepted the nomination, which placated the Whig ranks.

Indeed, in a number of respects Fillmore's background strikes me as similar to Lincoln's. From humble beginnings, he was driven by the desire for self-improvement and ambition (in the best sense of the term). Through hard work he became a lawyer and intermittent legislator and was highly respected by his local community and those who knew him. He became a Whig who believed (and stated, even during the campaign) that slavery was evil and that it should not be extended to the Territories, while affirming that slavery in the southern States was a matter for those States alone.

One author sums him up as follows:

"[Fillmore was] a kind, gentle and generous husband and father; an orthodox Unitarian; a citizen immersed in his community's efforts at self-improvement; and an ardent and effective advocate of the best interests of his constituents."

"With an impeccable reputation, many friends, and virtually no enemies except for jealous rivals within his own party, Fillmore went to the Whig convention of 1848. His nomination for vice-president surprised him as much as it did Thurlow Weed."

"The bare facts of Fillmore's political career in New York only scratch the surface of the intelligence, character, determination, and hard work that it had required."

"Fillmore would have been a better star [than Seward] for Weed's ambitions, but he was in fact much too conscientious for Weed's taste. . . . Fillmore's emergence as vice-president was a tribute to his record and talents, as well as something of a vindication of the American political system."

Elbert Smith, The Presidencies of Zachary Taylor and Millard Fillmore (U. Kansas Press 1988), pp. 45, 46, 47.

It's small discoveries such as this -- the discovery of a truly decent, admirable and in some ways remarkable and important man who has unjustly faded into obscurity except as a caricature -- that can make the study of history such a pleasure.

The Fourteenth Amendment and Incorporation I

From their ratification in 1791 through the Civil War, the Bill of Rights -- or more precisely the first eight amendments to the Constitution -- did not apply to the states. For example, the provisions contained in the First Amendment against restrictions on speech, the press and assembly constrained only the federal government. Those prohibitions did not restrict the states from passing laws that (for example) barred people from speaking or writing or assembling to express views about any subject. The Supreme Court so held, correctly, in a case called Barron v. Baltimore (1833), well known to generations of law students.

In 1866, two-thirds of both houses of the 39th Congress, dominated by Republicans, proposed the Fourteenth Amendment to the states; three-fourths of the states ratified the Amendment in 1868.

Even today, almost 140 years after ratification, academics and lawyers continue to argue over the meaning of the Fourteenth Amendment. In particular, they continue to dispute whether and how the Fourteenth Amendment applied the first eight amendments of the Constitution against the States. In legal jargon, this dispute is often referred to as the debate over "incorporation," that is, Did the Fourteenth Amendment "incorporate" the Bill of Rights against the states?

In the last twenty years or so, starting with Michael Kent Curtis's No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Duke University Press 1986), legal scholars and historians have reexamined the evidence with a more careful appreciation of the underlying assumptions and understandings -- and misunderstandings -- held by the Republicans who drafted and propelled the Amendment to passage and ratification.

Having reviewed the evidence and arguments in some detail, I am firmly convinced that the Fourteenth Amendment was intended and understood to apply the restrictions contained in the first eight amendments (with perhaps one or two exceptions -- but I'll save that for a much later post) against the states.

In future posts, I will periodically review particular aspects of this dispute, focusing in particular on some of the speeches made by Senators and members of the House. Properly understood, they provide powerful evidence in support of incorporation.

Monday, October 16, 2006

The Fugitive Slave Acts

The Fugitive Slave Act of 1850 and its predecessor, the Fugitive Slave Act of 1793, are extremely interesting from a constitutional perspective. They were clearly “activist” statutes that depended on a “loose” construction of the Constitution that in other contexts southerners would have rejected as profoundly dangerous to their interests.

The Constitutional Provision

The relevant constitutional text appeared in Article IV, together with other clauses such as the Full Faith and Credit Clause, the Privileges and Immunities Clause and the Republican Form of Government Clause. The Fugitive Slave Clause provided:

“No person held in service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

The Clause was placed in Article IV, dealing with issues involving the States, not Article I, defining the powers of Congress. Moreover, the express language of the Clause did not authorize Congress to do anything. The Clause seems intentionally reticent. It uses the passive voice (“shall be delivered up”), and avoids describing who shall do the delivering. Nonetheless, the most reasonable inference would seem to be that it is the States that shall do the delivering up.

The Fugitive Slave Act of 1793

The absence of explicit authority did not bother the Congress of the founding era. In February 1793, the Second Congress passed the Fugitive Slave Act of 1793. In brief, the Act:

1. Authorized slave owners or their agents to seize fugitive slaves;

2. Required the owner/agent to bring the fugitive slave before a federal or state judge;

3. Upon the production of satisfactory proof, required the federal or state judge to provide the owner/agent with a certificate entitling him to transport the slave to the state from which he had fled;

4. Established a “penalty” of $500 to be “forfeit[ed]” by persons who harbored fugitive slaves or obstructed their seizure or return, recoverable by the owner in a civil action.

It is worth emphasizing how extraordinary this provision was from a constitutional standpoint. First, the text of the Constitution did not expressly give Congress the power to enact legislation dealing with any of the topics described above. In addition, the third bullet point above was particularly intrusive on the States. It required state judges to take a particular action (“. . . it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney . . .”).

The Supreme Court

The lack of express authority also did not bother the Supreme Court. In Prigg v. Pennsylvania (1842), the Court held that the Constitution gave Congress implicit authority to pass the 1793 Act. The breadth of the reasoning in Justice Story’s lead opinion is truly breathtaking:

“The fundamental principle, applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist, on the part of the functionaries to whom it is intrusted. The clause is found in the national constitution, and not in that of any state. It does not point out any state functionaries, or any state action, to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist, that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the constitution. On the contrary, the natural, if not the necessary, conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution. The remark of Mr. Madison, in the Federalist (No. 43), would seem in such cases to apply with peculiar force. 'A right (says he) implies a remedy; and where else would the remedy be deposited, than where it is deposited by the constitution?' meaning, as the context shows, in the government of the United States.” (Emphasis added.)

Justice Story specifically addressed, and rejected, the contention that the 1793 Act was unconstitutional because it did not lie within the enumerated powers of Congress:

"But it has been argued, that the act of congress is unconstitutional, because it does not fall within the scope of any of the enumerated powers of legislation confided to that body; and therefore, it is void. Stripped of its artificial and technical structure, the argument comes to this, that although rights are exclusively secured by, or duties are exclusively imposed upon, the national government, yet, unless the power to enforce these rights or to execute these duties, can be found among the express powers of legislation enumerated in the constitution, they remain without any means of giving them effect by any act of congress; and they must operate solely proprio vigore, however defective may be their operation; nay! even although, in a practical sense, they may become a nullity, from the want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpretation of the constitution, it must, in a great measure, fail to attain many of its avowed and positive objects, as a security of rights, and a recognition of duties. Such a limited construction of the constitution has never yet been adopted as correct, either in theory or practice. No one has ever supposed, that congress could, constitutionally, by its legislation, exercise powers, or enact laws, beyond the powers delegated to it by the constitution. But it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also; or, in other words, that the power flows as a necessary means to accomplish the end.” (Emphasis added)

In only one respect did Justice Story seem to doubt the constitutionality of the 1793 Act. He appeared to question whether Congress had the power to compel state judges and magistrates to act (bullet point no. 3 above):

“We hold the act to be clearly constitutional, in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty, upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point, in different states, whether state magistrates are bound to act under it, none is entertained by this court, that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation.”

Remarkably, in a separate opinion Chief Justice Taney (later of Dred Scott fame) specifically endorsed Justice Story’s reasoning and conclusion concerning the power of Congress to pass the 1793 Act:

“I concur also in all that is contained in the opinion concerning the power of congress to protect the citizens of the slave-holding states, in the enjoyment of this right; and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions; and no state is authorized to pass any law, that comes in conflict in any respect with the remedy provided by congress. The act of February 12th, 1793, is a constitutional exercise of this power . . ..”

The Danger to the South

Ironically, then, when southerners later pushed for a stronger federal Fugitive Slave Act, culminating in the Act of 1850, they were playing a dangerous game. The legislation they sought and obtained was necessarily based on an extremely “loose” interpretation of the Constitution and broad construction of Congress’ implied powers.

An example: Article IV also contained the Republican Form of Government Clause, and, unlike the Fugitive Slave Clause, the Republican Form of Government Clause contained language suggesting that the federal government – i.e., Congress – had the power to enforce it against the States:

"The United States shall guarantee to every State in this Union a republican form of government . . .. “ (Emphasis added.)

What if Congress determined that a republican form of government required adult male enfranchisement? Did the Republican Form of Government Clause give Congress the power to enact a law requiring States to give all adult males the vote?

Even more close to home for the south was the question of slavery in the territories (and the District of Columbia). The 1793 Act specifically applied to federal territories as well as to the States. Did not the Act, then, establish a founding-era precedent demonstrating that Congress had authority under the Constitution to legislate concerning slavery in the territories and in the District? In fact, in congressional debates “advocates of the Wilmot Proviso noted with relish [that] the [1793] fugitive-slave law was thus good precedent for Congress’s power to legislate with respect to slavery in the territories.” David P. Currie, The Constitution in Congress: Descent into the Maelstrom 1829-1861 (University of Chicago Press 2006), p. 184 n. 153.

Sunday, October 15, 2006


Little is known about Perotin, also known as Magister Perotinus. He flourished in the late Twelfth Century (c. 1190-1200), apparently living in Paris, and is associated with Notre Dame. For present purposes, the important thing is that Perotin’s works include the earliest known examples of Western music written in four parts.

Perotin’s surviving works are of two forms. In the conductus, the different voices move at the same speed. In the organum, the voices move at different speeds. The organa (plural of organum) consist of a lower voice that produces long, sustained pitches that barely change (in fact, the long tones are the opening tones of plainsong, stretched out so that the melodic character is essentially lost). Above this foundation are higher voices, which create a steady yet ever-changing pulse of dancing sound-patterns that ebb and flow, rise and fall.

The ”feel” of the forms is also different. In conductus, both music and words were newly composed, and the texts were in verse form. It is related to medieval lyric forms, and it has a correspondingly more secular feel. Organum, by contrast, was liturgical music, based on existing material (a plainsong melody and its words). These elements, together with the eerily-shifting and contrasting voices make organa smell more of the cathedral.

In Perotin, the Hilliard Ensemble, under the direction of Paul Hillier, performs six works by Perotin and three anonymous works to stunning effect. Particularly in the organa, the seven male voices (one countertenor, four tenors and two baritones – there is no instrumental accompaniment) create a haunting sound world of solemn beauty, making you feel (in the words of one Amazon reviewer) “as if you are in a vast and dark cathedral, lit only by stained glass and candlelight.”

At the same time, the works at times sound as if they could have been written in the second half of 20th Century. They contain surprising leaps and changes in tempo, and the ebb and flow of the great organa bring 20th Century minimalism to mind. Indeed, the booklet includes a quote by Steve Reich comparing his “stretching out” of a 15-second chord “as the basic pulsing harmony for a five minute piece” to Perotin’s technique in his organa.

The performances and recording are outstanding. The Hilliard Ensemble is widely regarded as one of the finest ensembles of male voices in the world, and Paul Hilliard one of the leading practitioners of medieval and early renaissance music. The ECM recording, made in a priory, is spacious and atmospheric yet clear, a perfect compliment to the music. I really cannot do justice to the beauty of this record. Listening to it is not a historical or academic exercise. The music just leaves you in awe, enveloped in its richness and mystery – which I suppose was Perotin’s intent.

Was Slavery on the Way Out in 1860?

In arguments about the causes of the Civil War, I sometimes see assertions that the north needlessly provoked the south into seceding because slavery was “on the way out” anyway when the War started. The suggestion is that, even without the Civil War, southerners would have done away with slavery within a reasonably short time after the 1861.

The evidence suggests otherwise. Among other things:


Slavery remained a viable economic institution as of 1861. The number of slaves had increased dramatically between 1800 and 1860, from roughly one million to roughly four million. The price of slaves was at an all-time high, indicating that slaves remained valuable and desired possessions.

Nor is it true that slavery was confined to agriculture, and that slavery would die as the (allegedly) outmoded plantation system receded. Even assuming that the plantation system was failing – and there is little or no evidence to support that assertion either – there is substantial evidence that southerners were ready, willing and able to employ slaves in non-agricultural settings. In his book The Peculiar Institution: Slavery in the Ante-Bellum South, the historian Kenneth Stampp points out that since the 1830s southerners had been employing slaves, with success, in iron works, tobacco factories, cordage factories, cotton mills, railroad construction and the like. By way of example, the famed Tredeger Iron Works in Richmond successfully converted from free to slave labor during the 1840s.

Indeed, the evidence indicates that a shortage of slaves was a factor retarding the development of industry in the old south. For example, in his book Origins of Southern Radicalism: The South Carolina Upcountry 1800-1860, Lacy K. Ford provides a detailed review of socioeconomic trends in the pre-War South Carolina Upcountry. As he explains, during the 1850's, railroads came to the Upcountry. Railroads and rising cotton prices significantly altered agricultural and business patterns in the Upcountry. Cotton production rose and production of staple crops and meat declined. Businesses such as dry-goods stores expanded; for the first time, banks and cotton brokers opened local offices. The value of both real property and personal property -- including slaves -- soared.

One thing that did not occur between 1850 and 1860 was significant expansion of manufacturing. As of the late 1840s, there were in the Upcountry two basic sorts of what we would call manufacturing (as opposed to small craft industries such as shoemaking or furnituremaking or local operations such as grain milling): the production of cotton textiles and iron production.

While there were certainly other factors at work, Professor Ford identifies a shortage of labor -- including slave labor -- as a central factor in the failure of manufacturing to expand. For example, discussing the iron foundries he concludes:
"All three companies relied heavily on slave labor, often hiring slaves from nearby planters on a part-time basis, and used whites only as supervisors or in a few skilled positions. Thus both the rising cost of hiring slaves and the growing opportunity costs of holding slaves out of agricultural labor hurt the iron companies tremendously."

As to the textile industry:

"The value of cotton goods manufactured in South Carolina declined by almost 40 percent during the same decade [1850-60]. Much of the decline was the result of the closing of a number of textile mills in the lower and middle districts of the state. These black-belt mills used mostly slave labor, and with slave values skyrocketing and agricultural profits high, the use of slaves in cotton mills became prohibitively expensive."

In short, Professor Ford's detailed analysis strongly supports the conclusion that slavery was a viable and indeed thriving institution immediately before the War. In times of high cotton prices, the demand for slaves for agricultural work was so high that it sent slave prices soaring. Moreover, South Carolinian whites had already demonstrated that they were ready to employ slaves in unskilled and/or semiskilled manufacturing work. There is every reason to believe that, if the price of cotton were to drop again, enterprising South Carolinians were ready, indeed eager, to absorb excess slave labor that became available in manufacturing work.

Thus there is every reason to believe that slavery was not tied to the health of the plantation-agricultural system and might survive and thrive even if the South turned increasingly to manufacturing. There is also strong reason to doubt the assumption that slavery was geographically limited to the South and to expect that it might be transplantable to territories opened to slavery by Dred Scott.

The Wolf by the Ears

The south seems to have been terrified of its slaves and caught in a dilemma (going back at least to Thomas Jefferson) that it had been unable to solve since 1776: how to free slaves without being swamped (in its view) by hordes of free blacks. Thus, even assuming that southerners concluded that slavery was no longer desirable (for whatever reason), they had never devised a feasible way to free slaves.

The south was no nearer to resolving this issue in 1860 than it was in 1800. To the contrary, the passage of time only made the problem more intractable. The number of slaves increased dramatically during the period. Although some continued to hope that colonization would provide an answer, that solution had never been realistic and was utter fantasy in 1860.

Complicating this further was the fact that it was illegal, or at least forbidden by custom, even to discuss the issue of freeing the slaves throughout most of the South. Even assuming that some southerners entertained the idea that such a drastic step was desirable or necessary – and there is no evidence that they did – they could not even raise it.

Geographical Movement

In making these points, I do not mean to exclude the possibility that slavery might have shifted geographically. In The Road to Disunion: Secessionists at Bay 1776 – 1854, William Freehling makes the point that historically northern states had abolished slavery prospectively when slave ownership fell below a percentage of 15% or 10%. Thus it is conceivable that one or more border states where slave ownership was slowly declining (not because large numbers of slaves were being freed, but rather because they were being sold into the deep south) – Maryland, Kentucky and Missouri – might have within, say, twenty years, abolished slavery prospectively.

But (again taking history as a guide), this would not have decreased the total number of slaves, but simply moved them. Either they would have been sold “down the river”, where they were desperately needed (Professor Stampp cites the complaint of Austin, Texas newspaper in 1858-59 “that Texas needed at least six million more Negroes”, Peculiar Institution p. 274), and/or they would have been sold into the territories opened to slavery by the Dred Scott decision. Deep South states with increased numbers of slaves would then have become even more resistant (if that’s possible) to the idea of freeing them.

So, When?

Without the War, when would slavery have been abolished in the United States?

The Constitution may be amended by ratification by the legislatures of three-fourths of the states. Let us assume that in the years after 1860 all of the border states except Virginia (Delaware, Maryland, Kentucky and Missouri) eventually provided for emancipation on a prospective basis, and that no additional slave states were admitted. That would reduce the number of slave states to eleven (which happen to be the eleven states that seceded in 1860-61).

Assuming all slave states would vote against a constitutional amendment to abolish slavery, and all non-slave states would vote for such an amendment, ratification could not occur until the Union contained at least 44 states, 33 free and 11 slave. The 44th state – Wyoming – was admitted to the Union in 1890.

This scenario is extremely optimistic, but it suggests that 1890 is the earliest conceivable date by which slavery might have been abolished. More likely, abolition would have taken at least another decade or two.

Friday, October 13, 2006

Shostakovich, 24 Preludes and Fugues

I think of certain composers whose careers extended into the 20th Century as “really” belonging to the 19th Century and its late Romantic tradition. Composers such as Gustav Mahler and Richard Strauss (who was still writing works of great beauty at the end of World War II) took Romanticism and stretched it to its limits, but not beyond.

It strikes me that Dmitri Shostakovich was the converse (or is it the obverse?): a true 20th Century "new man" and non-Romantic composer who was forced to look back to the Romantic and pre-Romantic traditions for inspiration or cover or both.

By virtue of the time and place of his birth (St. Petersburg 1906), Shostakovich wound up living in a totalitarian state ruled, for a good portion of his career, by one of the true monsters of recorded history. Musically, the regime (read: Stalin) was extremely conservative. Most famously, in 1936, Pravda published a front-page article (almost certainly authored by Stalin himself), entitled “Muddle Instead of Music”, condemning Shostakovich’s then-new opera, Lady Macbeth of Mtsensk:

“From the first minute, the listener is shocked by deliberate dissonance, by a confused stream of sound. Snatches of melody, the beginnings of a musical phrase, are drowned, emerge again, and disappear in a grinding and squealing roar. To follow this ‘music’ is most difficult; to remember it, impossible.

* * *

“Here we have ‘leftist’ confusion instead of natural human music. The power of good music to infect the masses has been sacrificed to a petty-bourgeois, ‘formalist’ attempt to create originality through cheap clowning. It is a game of clever ingenuity that may end very badly.”

Shostakovich, then 29, nearly wound up the Gulag, or worse, and he knew it (if there was any doubt, the Great Terror demonstrated what "end[ing] very badly" meant). He suppressed his Fourth Symphony, then in rehearsal, which was not publicly performed until 1961. He began producing politically acceptable “public” works, beginning with his Fifth Symphony. His more radical works, notably the quartets, he wrote “for the drawer.”

Ironically, Shostakovich’s genius was such that he was able to produce works of greatness despite – or possibly because of – the ruthlessly-enforced musical conservatism of the regime, notably his the Fifth and Seventh Symphonies – and the work that is the subject of this post.

Shostakovich’s “24 Preludes and Fugues”, written in 1950-51 (shortly after he was again criticized for “formalism” in 1948), may be the single greatest piano work of the last century. It certainly exemplifies the contradictory impulses that formed Shostakovich’s genius: a truly “modern”, post-Romantic work that is, at the same time, inspired by Romantic and pre-Romantic traditions. Explicitly based on Bach’s corresponding works from 200 years earlier, Shostakovich succeeded entirely in creating a work every bit as great as the master’s. Alternatively formal and playful, austere and frivolous, serene and dance-like, majestic and introspective, it is wondrously beautiful, conveying and evoking every emotion, from elation to laughter to sorrow and loss.

Shostakovich wrote the Preludes and Fugues to be performed at a Bach commemoration and competition by Tatiana Nikolayeva, who has a beautiful version available on Hyperion. Nonetheless, the version I’m recommending is that by Keith Jarrett on ECM. It’s a close call. If you read the Amazon reviews of the performances, you’ll see that both have their advocates and that even those who have strong preferences have a hard time explaining why. If I had to sum up the difference, I suppose I’d say that Jarrett places slightly more emphasis on the architecture and “public” aspects of the piece, through the use of greater dynamics and rhythm, although without being inappropriately dramatic, theatrical or “jazzy” in any sense; Nikolayeva’s softer playing slightly emphasizes the gentle, playful, introspective and wistful elements. Although both are superb, I think Jarrett strikes a slightly better balance. To top it off, the ECM discs are also better recorded and significantly lower in price.

There are a handful of classical piano works that I would take to my desert island. After Bach, the Shostakovich “24” tops the list.

The Causes of Secession in the Lower South

Wow! After all these years of neglect, the blog is still here. Well, I'm going to take advantage. The following post discusses three great regional studies of areas of the American south in the period leading up to the Civil War, focusing on what they tell us about the causes of secession. This entry is shamelessly stolen from a thread I posted at Civil War Talk.

Setting the Stage

Arguments about why the southern states decided to secede from the Union in the winter of 1860-61 are typically unsatisfying because they so often reduce themselves to two possibilities: (1) it was all about slavery; and (2) it had nothing to do with slavery. Missing from the discussion is recognition of the fact that even the most mundane event is rarely the result of a single cause – the ice on the sidewalk, my inattention and those treadless slippers all contributed to my falling when I went to get that newspaper last winter. Why is it reasonable to think that an event as momentous as secession should be the exception?

Historians, too, sometimes fall into this trap. Pushing particular theories, some minimize competing considerations. The best, however, offer an alternate way of conceptualizing the tensions that arose between the sections. Collectively, they suggest that there are many different ways, not inconsistent with one another, to understand why secession came to pass.

That said, it’s hard to avoid the conclusion that slavery was at the center of the secessionist impulse in the lower south in 1860-61. To begin with, any explanation must account for the fact that the great division in the country became that between the north and the south, rather than, say, between the east and the trans-Allegheny west. All things being equal, the latter division would seem at least as likely, with the interests of urbanizing seacoast eastern elites increasingly diverging from those of rural Mississippi River-oriented westerners. The status of slavery in the sections would seem to be the obvious answer.

In addition, slavery permeates the story of the increasing tensions between the North and the South. Yes, South Carolina got excited about the tariff back in 1832-33, but the tariff issue died down after that. There were some complaints about the tariff now and again, but nothing that seems to have come close to generating the vehemence necessary to serve as a spark for so radical an act as disunion. Other than that, virtually the entire standard story line – from the Mexican War to the Wilmot Proviso and the Compromise of 1850, from Kansas to Harpers Ferry and the election of Lincoln – concerns slavery in one form or another.

Finally, I must say that proponents of the “anything but slavery” view do their case great harm by their categorical denials. It may well be that factors other than slavery figured into secession, but arguments that slavery was utterly irrelevant to the issue just do not pass the smell test. Southerners presenting the case for secession highlighted scenarios of race war and white degradation. Is it really credible to argue that all that was irrelevant?

And Yet . . .

And yet . . . doubts remain. For one thing, at least at the beginning (1860-61), secession seems to have been wildly popular throughout the lower south, and throughout all segments of the lower south. Planters did not have to drag farmers along. To the contrary, in many instances yeomen were in the vanguard. To modern readers, this phenomenon seems to violate all received wisdom about the importance of class-based self-interest. Why would non-slaveholders be inspired to defend property they didn’t own? Why did yeomen so enthusiastically back (or lead) a rich man’s crusade? Were they dolts? Or does it suggest that something else was going on?

Second, the south’s decision to secede in 1860-61 strikes me (and many others) as major-league crazy. What had poor old Abe Lincoln done, for goodness sake? The people elected him president in a fair election, Jacksonian democracy in action. Sure, he had made clear that he wouldn’t permit further expansion of slavery in the territories if he could help it, but he’d made equally clear that he didn’t believe he had the power to touch slavery in the states and had no intention of doing so. Given his reassurances, why on Earth would otherwise normal people (presumably) go so bonkers just because they lost an election, without even giving the poor guy a chance? Does it suggest that even the possibility, however slight, of forced emancipation, was so unthinkable as to drive southerners over the edge? Or does it, again, suggest that something else was going on?

Three books I have recently read shed valuable light on that “something else” and put the pieces in place in ways that make sense.

The Books

J. Mills Thornton’s Politics and Power in a Slave Society: Alabama 1800-1860 (Baton Rouge: Louisiana State University Press 1978) relates the political history of a single lower south state from initial settlement through the decision to secede. In many ways, it is a frustrating book. Portions are extremely detailed, going on, for example, at length about the positions of minor politicians whose names I have already forgotten. Conversely, Professor Thornton (University of Michigan) assumes basic knowledge that I, at least, lack. Where are the “wiregrass counties” – and what is wiregrass anyway? If you refer repeatedly to the “Black Belt”, please tell me which counties you are including in the definition. And if you’re going to refer to towns I’ve never heard of, it would be nice to have a map showing me where they are. Frequent excursions to the internet for maps and other information were necessary. More importantly, I would have liked more economic background. The book makes clear, for example, that there was a substantial economic upturn in the 1850s that had significant impact on the landscape leading to the decision to secede, but I wanted more detail than Professor Thornton provides.

In these respects, Lacy K. Ford’s Origins of Southern Radicalism: The South Carolina Upcountry 1800-1860 (New York: Oxford University Press 1988) has better balance. Professor Ford (University of South Carolina) tells the corresponding political history of the upcountry of South Carolina (which necessarily involves a good deal of discussion about the low country as well). The book does not make unreasonable assumptions about reader knowledge; it is detailed but not to excess; and it successfully interweaves a good deal of economic history that explains and illuminates the political positions taken and battles fought.

Finally, in Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (New York: Oxford University Press 1995), Stephanie McCurry (currently at the University of Pennsylvania) conducts a similar study of the South Carolina Low Country. In particular, she sets out to identify the invisible yeomanry of the Low Country and to explore their conditions and values. She identifies, among other things, gender – in particular, the power that yeomen exercised over their wives – as an important, overlooked factor in understanding that world.

Power and Politics in a Slave Society

Despite its faults, Professor Thornton’s book is a revelation. The buildup of detail in fact serves a purpose, supporting the author’s thesis as to why a southern state dominated by yeoman farmers seceded. The key lies in Alabamans’ understanding of freedom and the purposes of government. Freedom was the ability not to be dependent on any other person or group, an atomistic, indeed anti-social vision of society in which every white male citizen was equal to every other. The paradigm was the yeoman on his farm, acting as his own master and, in theory, utterly free from outside influence. “The society was structured so as to demand, and to appear to allow, the achievement of individual autonomy. Therefore, each man’s self-respect was absolutely essential to his existence as a part of the social organism.” (p.219)

This conception of freedom saw any accumulation of power, however benign we might think it, as tyranny. The role of government and politicians was to identify and destroy any potential threats to individual autonomy and equality. It was for this reason, for example, that in the 1840s Alabama had virtually no railroads and no banks. They were perceived as dangerous combinations by which men were trying to become tyrannical masters over others. Even in the prosperous 1850s, when railroads and banks finally began to expand, the most popular politician in the state became so by waging war against them.

Alabamans were obsessed with liberty and equality because they saw every day the state to which they would be reduced if they ever relaxed their vigilance: slavery, the absence of autonomy. An Alabaman’s entire sense of self-worth and self-respect depended on his being free and equal as he understood it. To lose autonomy and self-government was “to abandon the substance of liberty – to slip screaming down towards the bestial black mass which formed the sum of all hatred and fear.” (p. 444)

The free soil movement thus attacked the Alabaman at precisely his most vulnerable point: his sense of dignity and self-worth. Even Alabamans who owned no slaves viewed barring slavery from the territories as limiting their freedom. The Alabaman atomistic vision of liberty depended on the existence of a society based on slavery. Without chattel slavery, the territories would resemble the north, a society based on dependence where tyrannical combinations and forces ruled and white men were enslaved by other white men. As the south grew weaker, the rich and the landless might be able to flee, but the Alabaman yeoman would be trapped, overwhelmed and ultimately annihilated in a race war. In the alternative – because “slavery promotes equality among the free by dispensing with grades and castes among them, and thereby preserves republican institutions” – the white yeoman would himself become a slave. As the Montgomery Advertiser argued as early as 1851 (pp. 206-07, emphasis in original):

“The total abolition of slavery would affect more injuriously the condition of the poor white man in the slaveholding States than that of the rich slaveholder; for the slaveholder, having the means which attends upon the possession of slaves, would be able to maintain his position, whilst the poor man would have to doff that native, free-born and independent spirit which he now possesses, and which he prizes above all wealth, and would have to become a virtual slave (barring color) of the rich man.”

But far more important was the fact that the free soil movement represented a direct threat to the core value of equality, which defined the farmer’s very existence. Northerners insulted and exhibited contempt for Alabamans, their institutions, even their churches. They made clear that they believed they were morally superior to Alabamans. This perceived degrading contempt was, perhaps, the most intolerable of all, for it showed that northerners believed that Alabamans were inferior, less than citizens. But if Alabamans were not equal citizens, they were slaves. Were northerners not treating Alabamans as such? And if Alabamans accepted this state of affairs were they not confirming their slavehood?

The election of Lincoln – not any acts he took – was the straw that broke the camel’s back because it represented the final confirmation, the proof, of all of these suspicions. The prosperity of the 1850s had, paradoxically, disoriented and shaken many Alabamans. For the first time, many entered the market economy; railroads, banks and some industry began to appear; towns were growing. These phenomena contradicted most Alabamans’ atomistic understanding of freedom. Even in their home state, tyranny seemed to threaten. At the same time, and related to these developments, there was increased intercourse with, and awareness of, the north. Now northerners were about to impose on Alabamans as master a man who had not even appeared on their ballot. The north was determined to enslave Alabama and the rest of the south; the shackles were already on, and they were about to snap shut. Although the December 1860 Alabama Convention included both “cooperationists” as well as “immediatists”, former Whigs as well as Democrats, there were no unionists. The citizenry – yeoman and planter, the Black Belt resident and the hill country denizen – uniformly believed that there was no choice but to secede. The alternative was slavery.

Origins of Southern Radicalism

Professor Ford reaches similar conclusions about the decision of the South Carolina hill country to secede. He emphasizes even more than Professor Thornton the unnerving contradiction between the new economic forces sweeping the state in the 1850s and the atomistic view of freedom. He also emphasizes somewhat more the fear that “abolitionism” would drown the yeoman in a sea of blood. But he, too, insists that South Carolinians’ understanding of freedom as based on absolute autonomy and equality was the crucial factor. Yeomen were freemen and expected and demanded to be treated as such. They were voters who exercised their franchise, they expected and demanded that they would be courted, and they punished candidates who failed to do so.

In the end, it was these values, Professor Ford argues, that compelled South Carolinian upcountry yeomen to secede (p. 372):

“Almost literally, Upcountrymen saw secession as the required defense of basic republican values. The republican citizen’s most cherished possession, his own independence and that of his household, was threatened by powerful external forces. One set of those forces [increasing economic activity and market participation during the 1850s] threatened to force him into slavery and degradation through the loss of his economic independence. The other set of forces threatened to free the entire black slave population to violate his home and family. Secession offered the independent citizen a chance to meet this challenge at the threshold, to defend the autonomy of his household by literally throwing himself across the doorway in defiance. This was the secessionist appeal that reached not just planters and slaveholders, but all whites who considered themselves entitled to liberty, and personal independence.

“In the final analysis, a unified South Carolina could secede because the dominant ideal in her society was not the planter ideal or the slaveholding ideal, but the old ‘country-republican’ ideal of personal independence, given peculiar fortification by the use of black slaves as a mud-sill class. Yeoman rose with planter to defend this ideal because it was not merely the planter’s ideal, but his as well.”

Masters of Small Worlds

Stephanie McCurry finds many similar phenomena in the South Carolina Low Country. Even there, property ownership was broadly distributed, and yeomen constituted a majority of the voters. “By current definition, the Low Country was as much a Republican society as any other area of the slave South.” Planter politicians had to court yeomen votes, and yeomen demanded that planters treat them as equals. Like their counterparts in Alabama, Low Country “[y]eomen were independent men and masters, entitled to the respect and public rights accorded such men in slave society, and they insisted on that identity in every exchange with planters.”

Nonetheless, the Low County was different in important respects. Although land and slave ownership were widely spread, there was a far greater concentration of wealth and political power than elsewhere in the south. The top decile of propertyholders controlled some 70% of the wealth, and planters occupied about 70% of the Low Country seats in the state house – and that figure is misleadingly low, because professionals and sons of planters occupied virtually all the remainder. Professor McCurry argues that these gross disparities did create tensions, suggesting that there were other factors at work reinforcing farmer-planter solidarity.

The key, Professor McCurry believes, lies in the hierarchical nature of Low Country society. Farmers embraced the rules and values that allowed planters to dominate the economic and political life of the Low Country because those rules also conveyed great benefits on farmers. Those same rules authorized yeomen, as “freemen”, to exercise virtually limitless masterly authority over their fenced homesteads and their households, including wives, minor children and, in some cases, slaves. This power extended into the common sphere, where yeomen had equal political rights and were entitled, by law and custom, to enforce these rules even against planters.

In the final crisis of 1860, pro-secession forces skillfully managed their campaign by emphasizing themes that touched on these core values. “The free white man here stands above and superior belonging to the master ruling class,” the Charleston Mercury proclaimed. Images of freedom or slavery, manly resistance versus slavish submission, repelling the invader at the threshold abounded. Men should manfully resist, not slavishly submit to, the abolitionists. The fact that much of the campaigning took place in militia settings increased white male solidarity and seems to have had a significant impact on voting patterns. Religion also played a significant role (“virtually every prominent minister . . . stood squarely for disunion”), and increasingly violent vigilante squads played a part as well.

Still, for all it insights, Masters is not perfect. First, while one of Professor McCurry’s major theses is that there was substantial tension between planters and yeomen, the evidence is not fully convincing. She does a good job documenting planter resentment toward and concern about the loyalty of yeomen; but the proposition that yeomen resented planters is based largely upon the assertion that yeoman must have been dissatisfied given planter economic and political dominance. While it may well be true that yeomen were aware of these gross disparities, Professor McCurry’s own evidence suggests that they reacted by insisting all the more adamantly that that they were, and that they be treated as, “freemen” who were absolute political equals of planters.

Second, and more subtlely, the book’s emphasis on white-white and male-female relationships may inadvertently downplay the effects on whites of the black majority. Professor McCurry carefully records that blacks constituted a large majority of the Low Country population (over 66% in 1860), and she notes (p. 47) that “the demographic predominance of black slaves is the crucial context for every other calculation and inquiry,” but the importance of that conclusion tends to get lost. It would certainly seem logical that the presence of a large slave population encouraged white male solidarity and provided a powerful incentive to yeomen to embrace a system that identified them as freemen and sharply distinguished them from slaves, however planter-dominated that system might be as a practical matter. Indeed, Professor McCurry herself notes that planter appeals to yeomen, such as those by John Townsend in two 1860 pamphlets, included pointed warnings that the consequences of emancipation would include loss of political rights, home invasion and rapine (p. 283):

“[In both pamphlets, Townsend] went to great lengths to elaborate the effects of emancipation on ‘the non-slaveholding portion of our citizens’ and the loss ‘to the non-slaveholder equally with the largest slaveholder’ of the ‘important privileges’ conferred by slavery. Among those privileges he listed political ones prominently: the right to militia duty, to serve on juries, to testify in court, and ‘to cast his vote equally with the largest slaveholder in the choice of his rulers.’ ‘In no country in the world,’ Townsend concluded, ‘does the poor white man whether slaveholder or non-slaveholder occupy so enviable a position as in the slaveholding states of the South.’ These propertied poor men, these yeoman farmers, could be counted on, if only to preserve their own privilege. In calling on all freemen to defend ‘an injured South . . . the peace and prosperity of their homes . . . the security of their property . . . and the cherished safety of their wives and daughters and sons,’ Townsend and many others nurtured the unity of the body politic.”


There is no doubt that the three works find differences. Professor McCurry in particular identifies gender as a powerful unifying force among white male freemen. So, too, does she contend that economic and political inequality created potential divisions and that secession required corresponding powerful additional forces to bridge those gaps. Professors Thornton and Ford suggest that increasing economic activity and market entanglements in the 1850s made yeomen more nervous and inclined to see enslavement around the corner. Professor McCurry downplays this factor in the Low Country but suggests that increasing economic disparity during that period, if anything, created increased tensions between the groups.

Nonetheless, the most striking thing about the three works is how similar their conclusions are. All three identify the white yeoman’s perception of himself as a freeman as central to his sense of self-worth and the foundation of his worldview. Both Professors Thornton and Ford see chattel slavery as the fundamental paradigm that shaped this view by making painfully apparent what slavery – the opposite of freedom – was. Professor McCurry might, at first blush, appear to differ, since she contends that mastery over homestead and subordinate household members was a principal reason that yeomen valued and supported the system. But the difference is more apparent than real, for, as suggested above, she too contends that slavery was crucial and encouraged the development of the rules that yeomen valued so much (p. 16):

“There can be no doubt that slavery gave shape to plantation households. Its reach, however, did not end there. For notwithstanding the fact that planters desired, in part, to repel the intrusions of other classes of free men, they could not simultaneously establish the requisite legal and customary basis of household integrity and masters’ authority without making more general claims. Rooted in notions of property rights, those claims extended inexorably to the household of every free and propertied man. Slavery thereby gave shape to yeoman households as well, to their legal boundaries, and, most important, to the gender and class relations that prevailed within them.”

So where does that leave us? At least in the regions covered by these three books, did chattel slavery “cause” secession or not? In one sense, these three works suggest that the answer is, “Not exactly.” Yeoman did not enthusiastically embrace secession in order to defend or support slavery per se. Rather, they did so to defend a system that gave them rights and status as freemen against outsiders who were threatening to deprive them of freedom and equality – their rights as citizens – and enslave them.

At the same time, however, all three books demonstrate that slavery was a crucial factor. Professors Thornton and Ford would assert that slavery directly shaped and gave meaning to white yeoman existence and values and that the perceived threat to the institution thus constituted an immediate threat to those values. Professor Thornton sums up the connection as follows (p. 449):

“The fear was general in Alabama that the Republicans intended, at least eventually, to adopt such a policy [of forced emancipation] for the South. And emancipation would rob equality of the substance which made equality worth having: the pride and self-assurance that flow from a sense of one’s political and social worth. Who would attribute dignity to, and seek to maintain, a position to which even a Negro could aspire? An equality with former slaves, far from generating pride, would be a source of shame – would become itself a form of slavery for whites.”

While Professor McCurry might place slavery one step further removed, she too recognizes that slavery generated the society and social rules that yeoman valued. In addition, she emphasizes that Low Country planters, who were directly motivated by fears about the threat to the institution, worked very hard – and successfully – to make yeoman understand that forced emancipation would destroy their status as well.

For those interested, all three books are available through Amazon (I purchased all three used through Amazon). There is also a fine joint review of the Ford and McCurry books at H-South.

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