Secession

H. Mills Thornton makes a compelling argument that the non sequitur in the disunionist case concerning exclusion from the territories, and the fact that unionists rarely pointed out the obvious error, demonstrates that something else was going on:

"The careful reader will have observed a fundamental non sequitur in the southern rights case. If the great threat of free-soil was that it would trap southerners in the South amidst the rising tide of Negroes, how would secession remedy the predicament? Would not independence shut southerners out of the territories even more effectively than would the adoption of a free-soil policy by the federal government? . . . If getting access to that territory was the primary southern goal, southerners had certainly not selected a means which gave obvious promise of being efficacious.

"It is essential to note, however, that . . . Unionists almost never mentioned the difficulty. The solution to this paradox is the identification of which element in the southern rights case was the primary source of its force. Despite all the discussion about the effects of free-soil upon southern slavery, the threat of Negro inundation was not the chief terror with which the case conjured; and the Unionists knew it. . . . The essence of the case was not what would happen to southerners when they were excluded from the territories but was the fact that they were to be excluded. That the exclusion would wreak ill in the economic and social environment of the South was mere lagniappe to the argument; the true ills would be wrought in the hearts of those debarred. Free-soil was an issue basically because it would represent an overtly discriminatory action by the common government."

* * *

"Secession, then, was not really intended as a remedy for the consequences of free-soil . . .. It was to be revenge for the condemnation implied by the policy and the inequality inherent in it. Southerners were Americans and they wanted to be treated like Americans; we must never forget that they saw themselves as struggling to preserve the substance of the American dream."

H. Mills Thornton III, Politics and Power in a Slave Society: Alabama 1800-1860 (Baton Rouge: Louisiana State University Press 1978), pp. 225-27 (emphasis added).

Plagiarism Plus

Over at Civil War Bookshelf, Dmitri Rotov notes that former president Carter has been accused of plagiarizing maps. I was going to post a brief item simply noting how important maps can be -- and how frustrating bad or insufficient maps can be. The number one complaint about Civil War books has got to be the dearth of maps. I frequently go to the internet (or other books) to locate usable maps to accompany my Civil War reading.

Then, doing a check to see what the current status of the dispute is, I ran across a post that explains that the plagiarism charge is the least of president Carter's problems. The post provides copies of the maps in question, so you can judge the plagiarism allegation for yourself. It also provides a simple and readily understandable explantation documenting the far more serious charge: the maps are copied but mislabeled in a way that appears designed to reinforce inaccurate and misleading statements in the accompanying text. I urge anyone intested in this issue to read Rick Richman's post at Jewish Current Issues, entitled "Carter's Maps: Worse than Plagiarism."

Obligatory Cat Photo

Here's Ariadne, alert on a summer day.

Historians Acting Well

I don't have any further reports of Historians Acting Badly, so I thought I'd mention the latest example of an Historian Acting Well.

Victor Davis Hanson's latest post at his blog Works and Days is yet another instance of his careful use of historical background to illuminate the parameters of present day issues.

Related Posts:

Historians Acting Badly I

Historians Acting Badly II

Popular History or No History?

Over at The History Enthusiast, Ph.D. candidate Kristen recounts the abysmal ignorance or confusion of even one of her brighter students:

"I had another student who confused most of the facts presented in her paper. For instance, she thought that Northerners wanted Texas to become a slave state because this would trick Southerners into gaining control over Congress, allowing Southerners to defeat Lincoln in the presidential election of 1844. No, those are not typos. Needless to say, my response in the margin was a rather lengthy one. I was really surprised by her paper because she had talked to me about it after class and seemed to be heading in the right direction. My teaching mentor has been really pleased with my lecture style, and our textbook is very clear and concise, so I'm not sure how she got so mixed up. Hopefully, for her sake, her final essay (due Tuesday) stays more on track."

Yikes! I am not, and have never been, a teacher, but this certainly is in accord with anecdotal evidence I have inadvertently collected -- the bright and well-educated teenager who looked at me blankly when I asked her when World War I took place, for example. (She was hazy about World War II as well.)

Incidents such as these make it hard for me to get too excited about issues that make some people upset or angry. Kevin Levin at Civil War Memory, for example, is frequently disappointed that many Civil War buffs regard the Civil War as entertainment or a celebration of the Lost Cause rather than contemplate its racial implications. Dmiti Rotov at Civil War Bookshelf seems to be outraged that Doris Kearns Goodwin gets prizes because she's a popularizer (and notwithstanding some ethical issues).

As for me, I'm delighted when I see that someone under the age of, say, thirty, knows anything about American history. If Doris Kearns Goodwin inspires 100 or 1,000 people to become interested in the Civil War or Lincoln, I say she can have her award. Ditto for James McPherson and Ken Burns. In an age when teenagers have never heard of World War I and aren't sure when World War II took place (much less between whom), I say that popular history is better than no history at all.

The Road to Disunion II: Secessionists Triumphant

This is as much a note to myself as anything else, but I'll dress it up with some background information to make it bloggishly useful.

If you are at all interested the causes of the Civil War -- or more accurately the causes of secession -- the first book you should read is David Potter's The Impending Crisis 1848-1861. The second book you should read is William Freehling's The Road to Disunion: Secessionists at Bay 1776-1854. Although Professor Freehling's writing style is poor, the book is nonethless wonderful.

I have been waiting for the sequel for years. Last summer, word came that Volume II would be published this coming March. The Oxford University Press site indicates that March 2007 remains on track as the publication date for The Road to Disunion: Secessionists Triumphant 1854-1861. This will be one of the few books that I will buy in hardcover, new and at full price. The advance reviews at the OUP site give a taste of the themes in Secessionists Triumphant. You can also take a look here at an address that Professor Freehling gave back in 2000, entitled "South Carolina's Pivotal Decision for Disunion: Popular Mandate or Manipulated Verdict?", which presumably figures prominently in his narrative.

Volume II should be particularly interesting because Professor Freehling's apparent thesis -- that secession was largely manipulated by southern radicals -- is controversial. In this, it seems to bear some similarities to the arguments of Michael F. Holt. Some other historians, such as Stephanie McCurrie in her superb Masters of Small Worlds: Yeoman Housholds, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country, have noted that there were organized elements in the push for secession in lower southern states. Others, such as H. Mills Thornton III, in his Politics and Power in a Slave Society: Alabama 1800-1860 and Lacy K. Ford, in his Origins of Southern Radicalism: The South Carolina Upcountry 1800-1860, have emphasized that secession was popular among white farming yeomen in the deep south precisely because it was rooted in fundamental values of white male freedom and equality. I do not regard these views as mutually exclusive and look forward to seeing whether and how Professor Freehling attempts to reconcile them.

The "note to myself" part of this entry is that I see that the Civil War Roundtable of New York will be hosting a talk by Professor Freehling on March 14, 2007. Frankly, I didn't even know that such a Roundtable existed. I've never looked for a local Civil War roundtable because I have the impression, or perhaps misimpression, that roundtables do nothing but sit around and rehash Pickett's Charge for the ten-thousandth time.

I guess I'll find out whether I am mistaken or not. I've already got March 14 reserved on my calendar. If you're in the New York City area, you should consider doing the same.

Somewhat Related Earlier Post on McCurrie, Thornton and Ford:

The Causes of Secession in the Lower South

The Fourteenth Amendment and Incorporation VI

All right. Back to the Fourteenth Amendment and Incorporation after a substantial delay. Let's look next at the speech of Senator Luke P. Poland (Republican, VT). Senator Poland's speech is sometimes cited as supporting the proposition that the Fourteenth Amendment was not intended to apply the Bill of Rights to the states. In fact, it proves exactly the opposite.

Senator Poland spoke on June 5, 1886 (thirteen days after Senator Howard gave his speech). He spoke only briefly about Section 1, precisely because, he said, he did not disagree with what had already been said (including, presumably, Senator Howard's explicit and widely-reported statements that the Privileges or Immunites Clause was designed to incorporate the Bill of Rights). Senator Poland explained that "all the questions in the proposed amendments to the Consititution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail."

Senator Poland's speech has been misinterpreted because he apparently did not understand that, in Barron v. Baltimore, the Supreme Court had held that the Bill of Rights did not apply to or limit the states -- or at least, in common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights. He expressed the opinion that the Privileges or Immunities clause secured “nothing beyond what was intended” by the similar provision in the original Constitution -- and he then quoted the Privileges and Immunities Clause, Article IV, Section 2.

But, he complained, slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”

In addition, Senator Poland analyzed Section 1 as follows:

“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”

The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference “to all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)

In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.

Previous posts:

The Fourteenth Amendment and Incorporation I

The Fourteenth Amendment and Incorporation II

The Fourteenth Amendment and Incorporation III

The Fourteenth Amendment and Incorporation IV

The Fourteenth Amendment and Incorporation V

Pearl Harbor

It's late, and I have nothing unique to say, but I just don't want to let this day pass without honoring those who died sixty five years ago -- and those who fought to avenge them. Thanks.

Rather than the typical Pearl Harbor graphic, I'll close with a picture of the peace that their sacrifices allow us to enjoy:

The Corporate Origins of Judicial Review

Alerted by Orin Kerr's post over at The Volokh Conspiracy, I read earlier today an article in the latest edition of the Yale Law Journal, The Corporate Origins of Judicial Review by Mary Sarah Bilder of Boston College Law School. From the introduction:

"This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as 'the Constitution' replaced 'the laws of England.' With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law. Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree to which the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial power."

With all due respect, I would say the article is OK but not great. On the plus side, I learned lots of things about the history of corporate charters (of both what we would now call commercial entities and municipal corporations). In addition, Professor Bilder's thesis, as a hypothesis, makes a lot of sense. It would explain, for example, why so many of the founding generation seem to have assumed that some sort of judicial review existed without ever discussing it in detail -- in the corporate context, it was just part of the generally assumed legal background, so common that no one thought to re-examine it or analyze it. But where the article falls down, I think, is in its failure to point to hard evidence establishing that limitations on corporate bylaws served as the unconscious blueprint for what we now call judicial review.

Make no mistake, the article is well worth reading. Professor Bilder may well be correct, and the journey is a fascinating one. I'm just not sure she gets us all the way to her destination.

Hummingbird at Sunset

After a long day

Poor James Madison!

I see that one Michael Lind, billed as the Whitehead senior fellow at the New America Foundation, is patting himself on the back for listing George Bush (43) as only the fifth worst president. But what really caught my eye was his nominee for fourth worst: none other than James Madison.

I would agree that Mr. Madison was a poor president. He got us into a war that was totally unnecessary and for which we were utterly unprepared -- not a good combination. Mr. Lind makes the case for the prosecution:

"Madison, the 'Father of the Constitution,' was a great patriot, a brilliant intellectual -- and an absolutely abysmal president. In his defense, the world situation during the Napoleonic Wars was grim. The United States was a minor neutral nation that was frequently harassed by both of the warring empires, Britain and France. But cold geopolitics should have led Washington to prefer a British victory, which would have preserved a balance of power in Europe, to a French victory that would have left France an unchecked superpower. Instead, eager to conquer Spanish Florida and seize British Canada, Madison sided with the more dangerous power against the less dangerous. It is as though, after Pearl Harbor, FDR had joined the Axis and declared war on Britain, France and the Soviet Union.

"It might have been worse. In 1812, Madison wrote Thomas Jefferson to ask what the former president thought of waging war simultaneously against Britain and France. Alarmed, Jefferson replied that this was "a solecism worthy of Don Quixote." Instead, the United States fought only the British, who torched Washington, D.C., while Madison and first lady Dolley fled to Virginia. Gen. Andrew Jackson's victory in the Battle of New Orleans (waged two weeks after the United States and Britain, unknown to Jackson, had signed a peace treaty) helped Americans pretend that the War of 1812 was something other than a total wipe-out."

But fourth worst? Worse, for example, than Franklin Pierce, whose foolish support of the Kansas-Nebraska Act started the Union on its final descent into Civil War? Worse than Jimmy Carter, whose craven weakness earned us the contempt of the Middle East, a contempt we are still dealing with today?

Ironically, Madison's presidency illustrates the vagaries of history. In the end, Madison got very, very lucky. Great Britain got tired of the war, and the United States was blessed with canny negotiators, including Henry Clay and future president John Quincy Adams. The resulting Treaty of Ghent, negotiated without the benefit of Andy Jackson's victory at New Orleans, extricated the United States from the war on reasonable terms. In the aftermath of Jackson's victory, the United States perceived itself as the victor. They had fought the British to a draw, or better, and shown themselves to be a power to be reckoned with.

Should Madison get the credit, as well as the blame? On the one hand, he really doesn't deserve it. But on the other, the fact is things turned out well. So long as Andrew Jackson, John Quincy Adams, Henry Clay, and others (Steven Decatur, Oliver Hazard Perry and Winfield Scott, for example) are not deprived of their shares, perhaps poor James Madison may have some too.

For further reading, I heartily recommend Gary Wills' brief book on Madison's presidency. Wills pulls no punches recounting Madison's numerous blunders, but in the end appreciates him for all his failings.

Historians Acting Badly II

Perhaps this sheds some light. In an essay about 9/11, published less than a month after the event, Eric Foner began as follows:

"I'm not sure which is more frightening: the horror that engulfed New York City or the apocalyptic rhetoric emanating daily from the White House. 'We will rid the world of evil-doers,' President Bush announces as he embarks on an open-ended 'crusade' (does he understand the historical freight this word carries?) against people who 'hate us because we are free'. This Manichean vision of the world, so deeply rooted in our Puritan past and evangelical present, is daily reinforced by the media as an emblem of national resolve."

Any questions?

Chief Justice or Circuit Justice?

Here's an odd and obscure one. Over at Prawsblawg, Steve Vladeck discusses Roger Taney's decision in Ex Parte Merryman. I'll let Professor Vladeck speak for himself:

"The short version: Taney, in Merryman, holds that President Lincoln's unilateral suspension of habeas corpus in Maryland at the outset of the Civil War was unconstitutional, a ruling that is just as famous for Lincoln's response (he ignored it), as for what Taney actually said.

"For this post, though, I want to focus briefly on one of the oddest things about the case: There is absolutely no historical consensus about the capacity in which Taney issued the decision. None. Whatsoever." (Emphasis added.)

After almost 150 years? Simply amazing!

Historians Acting Badly

Eric Foner has now joined Sean Wilentz in labelling President Bush (II) as the worst president in history. The purpose of this entry is not to explain why both articles are ludicrous -- if you don't know that, you're in the wrong place. Instead, I want to consider what they suggest about history and historical reasoning.

In his thoughtful post about the Foner article at the Alincoln blog, Brian Dirck expressed concern that it was inappropriate for historians to write such articles:

"As a practicing, professional historian, however, I have no business using my professional status to turn that perspective into an historical judgment concerning Bush's relative worth compared to other presidents in American history. To do so is impossible.

"Worse, I think it risks turning our profession into nothing more than a witting tool for the political exigencies of the moment. I know there are those in my profession who feel historians can and should use their training in our craft to involve themselves actively in the political controversies of our day. I respect that point of view, but I'm afraid I'd have to disagree. Professional historians are far more valuable as dispassionate, sober analysts who can use the tools of our craft to promote balanced, careful assessments of both the present and the past."

As I commented there, I have a related, but somewhat different, concern. I wonder whether articles such as these demonstrate that the reasons traditionally given for studying history are meaningless propaganda spread by our high school history teachers.

I am not a professional historian, practicing or otherwise. I read history simply because I find it interesting and often amazing. It's simply incredible to me that the Greeks defeated the Persians, that Socrates lived (but never wrote a word), that the conception of the role of the federal government 150 years ago bears no relationship to our current understanding of it, or that men charged from the trenches in World War I. You couldn't, as they say, make this stuff up. I read history looking for answers sometimes, but they are usually answers to historical questions. How did the Russians and Chinese come to be ruled by monsterous regimes? Why did white southern yeomen enthusiastically back secession?

But most historians, I think -- and certainly my high school history teacher -- would claim far more for the study of history, summed up in the adage, "Those who forget the past are condemned to repeat it." By studying history, the reasoning goes, one can learn lessons that can be applied to the present. I suppose the tendency to generalize is instinctive among humans, and I am guilty as everyone else, although I recognize that others may disagree with the conclusions I draw.

The most unfortunate corrolary of the Foner and Wilentz articles, I think, is that they tend to discredit the study of history and the generally accepted reason for studying history. If two such respected members of the academy can produce such silly partisan hit pieces cloaked in the objectivity of historically-based reasoning, does that not suggest that historically-based reasoning is an utter fraud -- something so malleable and manipulable that it is not worth the paper it is written on? The good professors seem bent on proving that the field of study to which they have devoted their lives wears no clothes.

Although my expectations are usually disappointed -- I do not recall historians condemning Professor Wilentz after his performance in The Rolling Stone -- I am hoping that Professor Foner's contribution may yet rouse historians (in addition to Professor Dirck) to express concern about the damage that such amateurish partisanship does to the study of history. I'm particularly hoping that historians such Don Kagan and Victor Davis Hanson will make their presence felt.

I'm going to watch for developments and will report any I encounter.

Another Book for the List

Robin Einhorn's new book, American Taxation, American Slavery (University of Chicago Press 2006) looks fascinating.

Other references:

University of Chicago Press page on the book

The Chicago Blog

A Washington Times review

A review in the William & Mary Quarterly

A related essay by Einhorn, "Tax Aversion and the Legacy of Slavery"

The Little Magician Is OK

Over at American Presidents blog, elementaryhistoryteacher has a fun post about Martin Van Buren's possible connection with the origin of the phrase "OK."

I'm more of a Henry Clay man than an Andrew Jackson guy, but I do have a soft spot for the Little Magician. He looks a bit like an elf, doesn't he? And it wasn't his fault that, within several months after his inauguration in March 1837, the economy collapsed and went into a depression for some ten years.

More significantly, citing an 1827 letter from Van Buren to Thomas Ritchie of Virginia, Michael F. Holt points out that he had the foresight to see that party conflict could serve as an "antidote" to sectional conflict. The Political Crisis of the 1850s (New York: W.W. Norton 1983), at 20-21. That's one smart guy.

My Accent's From New York!

These quizzes often are all screwed up, but in this case it's spot on.

What American accent do you have? Your Result: The Northeast Judging by how you talk you are probably from north Jersey, New York City, Connecticut or Rhode Island. Chances are, if you are from New York City (and not those other places) people would probably be able to tell if they actually heard you speak.
Philadelphia
The Inland North
The Midland
The South
Boston
The West
North Central
What American accent do you have? Take More Quizzes

Was Slavery on the Way Out in 1860? II

In an earlier post, I explained why I believed slavery was thriving as an economic institution immediately before the Civil War.

I'm pleased to see that Professor Link of the University of North Carolina is of the same opinion:

"Especially during [the 1850s], the Transportation Revolution expanded markets, spread commercial agriculture, fostered manufacturing, extended mining, and, not the least important, reinvigorated slavery's economic position. Wherever dynamic market forces made an appearance, slavery accompanied them, and, far from verging on extinction on the eve of the Civil War, the peculiar institution in Virginia remained adaptable, viable and modernizing. The evidence of slavery's resiliency can be found not only in rising slave prices but also in the use of slave labor for various enterprises."

William A. Link, Roots of Secession: Slavery and Politics in Antebellum Virginia (Chapel Hill: The University of North Carolina Press 2003), at 29.

The Oath of Office: A Coda

You may have heard or read that there's a tempest in a teacup brewing over a report that Keith Ellison (D-Minn.) may be sworn in over the Koran. It's clear that Mr. Ellison is bad news -- a radical muslim who has lied about his past. But what piqued my interest was whether the Constitution permitted the use of Koran in a swearing-in and, more particularly, the history of officeholders using books other than the bible, or no book at all.

Eugene Volokh has authored several interesting and persuasive posts on the topic, in which he has pointed to evidence that Presidents Pierce and Hoover affirmed, rather than swore (suggesting they used no book at all), and that John Quincy Adams swore but did not swear over a bible because he believed that the bible should be reserved for religious use. The posts are here and here.

I had never heard the John Quincy Adams story, although it is not inconsistent with what I have read about him. In his biography of JQA, Robert Remini briefly describes the swearing-in ceremony without referring to whether a bible was used (pp. 75-76):

"On inauguration day, March 4, 1825, Adams recorded his thoughts on this momentous occasion. 'After two successive sleepless nights,' he wrote, 'I entered upon this day with a supplication to Heaven, first, for my country; secondly, for myself and for those connected with my good name and fortunes, that the last results of its events may be auspicious and blessed.' Then, accompanied by companies of militiamen, he arrived at the Capitol and was inaugurated in the presence of Monroe, Vice President Calhoun, and many of his rivals and friends. In his address he spoke about his belief that 'the will of the people is the source and the happiness of the people the end of all legitimate government upon earth.' He also described how the country had grown into a 'confederated representative democracy,' a term not used publicly by any previous president. When he concluded his remarks, he took the oath of office from Chief Justice John Marshall."

I decided to go back further. Dimly recalling from David Currie that the very first statute passed by the First Congress controversially prescibed the form of oath to be taken by state as well as federal officeholders, I looked it up. Sure enough, 1 Stat 23 (June 1, 1789), "An Act to regulate the Time and Manner of administering certain Oaths," specifically permits affirmations and does not require the use of a bible or any book at all. It states, in relevant part:

"That the oath or affirmation required by the sixth article of the Constitution of the United States, shall be administered in the form following, to wit: 'I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.'"

The Miracles of Tung Oil

For a neophyte woodworker, there's no finish easier than Tung Oil. Just wipe it on, let dry, sand . . . about five coats. Here, I'm just applying an initial coat to a cherry-veneered subwoofer. Makes quite a difference, huh?