"Whose house is that?"

After outlining his compromise resolutions individually on January 29, 1850, Henry Clay then discussed his proposed “scheme of arrangement and accommodation” as a whole. Clay maintained that his “project contains about an equal amount of concession and forbearance on both sides.” His remarks, however, were addressed almost exclusively to those “[a]t the North.”

It is not clear (to me at least), however, that this means that Clay anticipated stiffer resistance to his proposals from northerners than from southerners. Clay positioned himself as a southerner attempting to explain to northerners why concessions on slavery-related issues were matters of life and death to southerners living amidst slaves. It strikes me that this might well have been Clay’s way of trying to convince southerners that his proposals did offer them adequate protection.

In making his appeal, Clay contrasted the importance of slavery to the north and to the south. To the north, Clay maintained, antislavery was “[a]n abstraction, a sentiment.” To northerners, the issue was “sentiment, sentiment, sentiment alone”, “a sentiment without sacrifice, a sentiment without danger, a sentiment without hazard, without peril, without loss.”

But to the south, slavery was central to “the social fabric, life, and all that makes life dear”:

In the first place, sir, there is a vast and incalculable amount of property to be sacrificed, and to be sacrificed, not by your [northerners] sharing in the common burdens, but exclusive of you. And this is not all. The social intercourse, habit, safety, property, life, everything, is at hazard in a greater or less degree in the slave States.

To the south, northern threats to slavery were a matter of life and death. Clay conjured up lurid images of death and destruction in the south while northerners remained “safely housed, enjoying all the blessings of domestic comfort, peace, and quiet in the bosom of their own families”:

Behold, Mr. President, that dwelling-house now wrapped in flames. Listen, sir, to the rafters and beams which fall in succession, amid the crash; and the flames ascending higher and higher as they tumble down. Behold those women and children who are flying from the calamitous scene, and with their shrieks and lamentations imploring the aid of high Heaven.

Whose house is that? Whose wives and children are they? Yours in the free States? No. You are looking on in safety and security, whilst the conflagration which I have described is raging in the slave States, and produced, not intentionally by you, but produced from the inevitable tendency of the measures which you have adopted, and which others have carried far beyond what you have wished.

"Congress has no power to prohibit or obstruct . . ."

The eighth and final compromise resolution that Henry Clay introduced on January 29, 1850 is the least well known. It generally gets only a passing reference, at most. This is, presumably, because it neither proposed nor resulted in the passage of legislation. It merely declared that Congress had no power to “prohibit or obstruct” the interstate slave trade:

8th. Resolved, That Congress has no power to prohibit or obstruct the trade in slaves between the slaveholding States; but that the admission or exclusion of slaves brought from one into another of them, depends exclusively upon their own particular laws.

The resolution was presumably intended to reassure the south that, despite the 5th and 6th resolutions (which held that Congress had the power to regulate the slave trade in the District of Columbia and strongly implied that Congress had the power to abolish slavery there as well), Clay was not suggesting that Congress had similar power over the interstate slave trade under the Commerce Clause.

Clay's remarks on the resolution were brief. The resolution, he declared, “merely asserts a truth, established by the highest authority of law in this country, and in conformity with that decision I trust there will be one universal acquiescence.” Indeed, Clay maintained, the resolution was probably unnecessary,

but that I thought it might be useful in treating of the whole subject, and in accordance with the practice of our British and American ancestors, occasionally to resort to great fundamental principles, and bring them freshly and manifestly before our eyes, from time to time, to avoid their being violated upon any occasion.

Clay's allusion to “the highest authority of law in this country” must be a reference to the Supreme Court. He seems to have had a particular decision in mind, but I don't know what it was. If you do, please enlighten me in the comments!

Compromise and Rotten Compromises

Since I'm hip-deep in a series of posts about the Compromise of 1850 and the Great Compromiser himself, I thought it was appropriate to report that I just ran across a reference (at Lawrence Solum's Legal Theory Blog) to a book entitled On Compromise and Rotten Compromises. Here's the description:

When is political compromise acceptable - and when is it fundamentally rotten, something we should never accept, come what may? What if a rotten compromise is politically necessary? Compromise is a great political virtue, especially for the sake of peace. But, as Avishai Margalit argues, there are moral limits to acceptable compromise even for peace. But just what are those limits? At what point does peace secured with compromise become unjust? Focusing attention on vitally important questions that have received surprisingly little attention, Margalit argues that we should be concerned not only with what makes a just war, but also with what kind of compromise allows for a just peace.

Examining a wide range of examples, including the Munich Agreement, the Yalta Conference, and Arab-Israeli peace negotiations, Margalit provides a searching examination of the nature of political compromise in its various forms. Combining philosophy, politics, and history, and written in a vivid and accessible style, On Compromise and Rotten Compromises is full of surprising new insights about war, peace, justice, and sectarianism.

I haven't read the book (and almost certainly won't) and know nothing about the author. But if you read it and apply the author's analysis to the Compromise of 1850, let me know.

For my thoughts on whether the Compromise of 1850 was a Good Thing or a Bad Thing, see here

About the illustration:

An illustrated sheet music cover for an abolitionist song composed by Jesse Hutchinson, Jr. The song is dedicated to antislavery editor Nathaniel Peabody Rogers, "As a mark of esteem for his intrepidity in the cause of Human Rights." It is illustrated with an allegory of the triumph of abolitionism. In a landscape a railroad car, "Immediate Emancipation," is drawn by a locomotive named "Liberator" and followed by another locomotive, the "Repealer," which pulls a second car "Liberty Votes and Ballot Boxes." The "Liberator" was the name of a prominent antislavery newspaper published in Boston by William Lloyd Garrison. "Repealer" probably refers to the Irish insurgent movement in support of the repeal of the Legislative Union, a cause with which many abolitionists in the United States were allied. Flags bearing the names of two other abolitionist publications, the "Herald of Freedom" and "American Standard" (i.e., Rogers's" National Anti-slavery Standard), fly from the "Emancipation" car. The trains approach a bend in the track, nearing a station where a number of people gather to welcome them. Beyond the station is a church. In the distance two other trains, one marked "Van" and the other "Clay," crash and their passengers flee. These allude to Democrat and Whig presidential hopefuls Martin Van Buren and Henry Clay. The reference to Van Buren suggests that the music-sheet appeared before the Democratic convention in May [1844], when James K. Polk, not Van Buren, received the party's presidential nomination.

"I have not now occasion to add another word"

In his remarks of January 29, 1850, Henry Clay next turned to the issue of fugitive slaves. His seventh resolution provided:

7th. Resolved, That more effectual provisions ought to be made by law, according to the requirement of the Constitution, for the restitution and delivery of persons bound to service or labor in any State, who may escape into any other State or Territory in the Union.

Although the law that would eventually result would become flashpoint of conflict, Clay's statement in support of his resolution was exceedingly brief. The resolution related “to a subject embraced in a bill now under consideration by the Senate.” “I have not now occasion to add another word.”

About the illustration:

A sheet music cover illustrated with a portrait of prominent black abolitionist Frederick Douglass as a runaway slave. Douglass flees barefoot from two mounted pursuers who appear across the river behind him with their pack of dogs. Ahead, to the right, a signpost points toward New England. The cover's text states that "The Fugitive's Song" was "composed and respectfully dedicated, in token of confident esteem to Frederick Douglass. A graduate from the peculiar institution. For his fearless advocacy, signal ability and wonderful success in behalf of his brothers in bonds. (and to the fugitives from slavery in the) free states & Canadas by their friend Jesse Hutchinson Junr." As the illustration suggests, Douglass himself had escaped from slavery, fleeing in 1838 from Maryland to Massachusetts. He achieved considerable renown for his autobiography "Narrative of the Life of Frederick Douglass," first published in 1845. The Library's copy of "The Fugitive's Song" was deposited for copyright on July 23, 1845. An earlier abolitionist song composed by Hutchinson, "Get Off the Track!" (no. 1844-14), also used a cover illustration to amplify its message.

"Who is there who is not shocked at its enormity?"

In his remarks of January 29, 1850, Henry Clay next introduced his fifth and sixth compromise resolutions, which, “like the third and fourth [the two Texas resolutions], are somewhat connected together.” These concerned slavery and the slave trade within the District of Columbia:

5th. Resolved, That it is inexpedient to abolish slavery in the District of Columbia, whilst that institution continues to exist in the State of Maryland, without the consent of that State, without the consent of the people of the District, and without just compensation to the owners of slaves within the District.

6th. Resolved, That it is expedient to prohibit within the District the slave-trade, in slaves brought into it from States or places beyond the limits of the District, either to be sold therein a merchandise, or to be transported to other markets without the District of Columbia.

Before turning to Clay's remarks, a couple of points are worth noting. First, several aspects of the Fifth resolution were bound to be controversial. Northerners, of course, would be unhappy that slavery was proposed to be retained in the District. But southerners would be unhappy too. The major problem was that the resolution described abolition in the District as “inexpedient” but possible under certain conditions. That is, it conceded that Congress had the power under the Constitution to abolish slavery. In addition, some might reasonably ask – What happened to Virginia? The resolution listed the consent of Maryland as a prerequisite to abolition in the District. Why not Virginia?

Likewise, the sixth resolution was subject to attack from both sides. Southerners would complain that Congress had no power to limit the slave trade at all. But northerners would no doubt focus on the extremely limited nature of the restriction. Residents could continue to buy and sell slaves in the District. The resolution prohibited, in effect, only the operations of commercial slave traders.

Clay, presumably concerned about southern objections, emphasized the limited nature of the restriction in his speech. To assuage northern concerns, he disingenuously tried to characterize the exemption of individual sales as a humanitarian provision. At the same time, he attempted both to enlist southern support and reassure northerners by affirming that southerners detested the slave trade every bit as much as northerners did (citing none other than his arch enemy John Randolph of Roanoke):

I do not mean by that [the slave trade] the alienation and transfer of slaves from the inhabitants within this District – the sale by one neighbor to another of a slave which the one owns and the other wants, that a husband may perhaps be put along with his wife, or a wife with her husband.

I do not mean to touch at all the question of the right of property in slaves amongst persons living within the District; but the slave trade to which I refer was, I think, pronounced an abomination more than forty years ago, by one of the most gifted and distinguished sons of Virginia, the late Mr. [John] Randolph [of Roanoke].

And who is there who is not shocked at its enormity? Sir, it is a great mistake at the North, if they suppose that gentlemen living in the slave States look upon one who is a regular trader in slaves with any particular favor or kindness. They are often – sometimes unjustly, perhaps – excluded from social intercourse. I have known some memorable instances of this sort.

Clay also referred indirectly to the justification he would likely provide for not including the consent of Virginia as a prerequisite to the abolition of slavery in the District: Virginia's portion of the District had been retroceded to it:

But, then, what is this trade? It is a good deal limited since the retrocession of the portion of the District formerly belonging to Virginia.

There are Alexandria, Richmond, Petersburg, and Norfolk south of the Potomac, and Baltimore, Annapolis and perhaps other ports north of the Potomac. Let the slave-dealer, who chooses to collect his slaves in Virginia and Maryland, go to these places; let him not come here and establish his jails and put on his chains, and sometimes shock the sensibilities of our nature by a long train of slaves passing through the avenue leading from this Capitol to the house of the Chief Magistrate of one of the most glorious Republics that ever existed.

Why should he not do it? Sir, I am sure I speak the sentiments of every Southern man, and every man coming from the slave States, when I say let it terminate, and it is an abomination; that there is no occasion for it; it ought no longer to be tolerated.

"For the sake of peace"

Henry Clay began his defense of his two Texas-related resolutions on January 29, 1850 by setting forth his views on Texas's extensive territorial claims. On the one hand, he maintained “that Texas has not a good title to any portion of what is called New Mexico.” On the other hand, the issue was not entirely clear. “I must say that there is a plausibility, to say the least of it, in the pretensions that she [Texas] sets up to New Mexico. I do not think they [arguments made by Texans] constitute or demonstrate the existence of good title, but a plausible one.”

What, then, did Clay propose? Paraphrasing his 3rd resolution, he briefly described the borders he recommended. These “embrac[ed] a vast country abundantly competent to form two or three States – a country which I think the highest ambition of her greatest men ought to be satisfied with as a State and a member of this Union.”

Perhaps because he knew that his definition of the borders would make Texas supporters unhappy, Clay moved on quickly to the payoff. He described his resolution proposing that the federal government “will provide for the payment of all that portion of the debt of Texas for which the duties received upon imports from foreign countries was pledged by Texas at a time when she had authority to make pledges.”

Although everyone knew that the amount that would be assumed was crucial, Clay denied it:

How much it will amount to I have endeavored to ascertain, but all the means requisite to the ascertainment of the sum have not been received, and it is not very essential at this time, because it is the principle and not the amount that is most worthy of consideration.

The proposal, Clay maintained, was “founded upon principles of truth and eternal justice.” Texas had invited loans to be made to her based upon representations that import duties would be “sacredly pledged” for their repayment. Upon annexation, “[t]he United States became the owners of that pledge and the recipient of all the duties payable in the ports of Texas.”

Now, sir, I do say that, in my humble judgment, if there be honor, or justice, or truth amongst men, we do owe to the creditors who thus advanced their money upon that pledge the reimbursement of that money, at all events to the extent that the pledged fund would have reimbursed it, if it had never been appropriated by us to our use.

In a small but significant way designed to bring joy to the ears of Texas creditors, Clay quickly modified the caveat in the last clause. After annexation and war, “it is impossible now to ascertain how much would have been received from that source by the State of Texas if she had remained independent.” Reimbursement should not, therefore, be limited to the amount of duties collected at Texas ports. The assumption should be that, had Texas remained independent, she would have collected such duties “as would have been adequate to the extinction of the debt to which I have referred.”

Clay then tied his two Texas resolutions together. Clay used his ringing, mesmerizing, room-filling baritone to urge “accommodation” “for the sake of peace”. Try reading his closing words on the Texas issues aloud:

But, sir, it is not merely in the discharge of what I consider to be a valid and legitimate obligation resting upon the United States to discharge the specified duty, it is not upon that condition alone that this payment is proposed to be made; it is also upon the further condition that Texas shall relinquish to the United States any claim that she has to any portion of New Mexico.

Now, sir, although, as I believe, she has not a valid title to any portion of New Mexico, she has a claim; and for the sake of that general quiet and harmony, for the sake of that accommodation which ought to be as much the object of legislation as it is of individuals in their transactions in private life, we may do now what an individual in analogous circumstances might do, give something for the relinquishment of a claim, although it should not be well founded, for the sake of peace.

It is therefore proposed – and this resolution does propose – that we shall pay the amount of the debt contracted by Texas prior to its annexation to the United States, in consideration of our reception of the duties applicable to the extinction of that debt; and that Texas shall also, in consideration of a sum to be advanced, relinquish any claim which she has to any portion of New Mexico.

Are There Two Bills of Rights?

I have occasionally on these pages wondered whether there are, or at least should be, two sets of the provisions of the Bill of Rights: one that is applied against the federal government, another against the states. Here's how I expressed it in a post entitled Are There Two Sets of Constitutional Amendments?:

Here's something I don't get. Can the same constitutional amendment mean one thing when applied to the federal government and another when applied to the states?

I use the Second Amendment only because it makes for a vivid and easily-understood example. Assume that the original understanding of the Second Amendment was that it did not create an individual right to bear arms (for convenience, I'll refer to the opposite of an individual rights model, a "militia model"). Assume further -- and I think that the legislative history clearly shows this to be the case -- that, in passing the Fourteenth Amendment, the 39th Congress believed that the Second Amendment did create an individual right to bear arms, and intended that the States should be barred from from infringing that individual right.

Logically, you would then have, in effect, two Second Amendments, or at least two versions of the Second Amendment. The first, applicable directly to the federal government, would convey no individual right to bear arms. The second, applicable to the States via the Privileges or Immunities Clause of the Fourteenth Amendment, would convey an individual right. In other words, the federal government would be free to restrict an individual's right to bear arms, but the States would not be free to do so.

I've never found a clear answer to my question, but a recent post by Prof. David Bernstein at Volokh at least suggests that I'm not crazy. Although the post focuses on a different issue (whether the Supremes will or should use the Privileges or Immunities Clause rather than the Due Process Clause for purposes of analyzing whether to incorporate the Second Amendment into the Fourteenth), in the course of it Prof. Bernstein refers to my issue.

I'm happy to report that Prof. Bernstein suggests that it may make good sense to apply a given Amendment differently against the states and the federal government, and he appears to agree that the Second Amendment may be the perfect example of where such a dichotomy is warranted by the historical evidence (emphasis added):

Second, I would explain why I think it’s important to decide this case on [Privileges or Immunities] grounds. My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government. This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means. Heller came out the “right” way, but by a bare 5–4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms. By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the [Privileges or Immunities] Clause protected an individual right to bear arms. In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

"And running up that river to the southern line of New Mexico"

In his introductory remarks of January 29, 1850 on his compromise proposals, Henry Clay next unveiled both his third and fourth resolutions, “which having an immediate connection with each other, should be read and considered together.” Both concerned Texas: the third, its boundaries; the fourth, assumption of its debt:

3d. Resolved, That the western boundary of the State of Texas ought to be fixed on the Rio del Norte [the Rio Grande], commencing one marine league from its mouth, and running up that river to the southern line of New Mexico; thence with that line eastwardly, and so continuing in the same direction to the line established between the United States and Spain, excluding any portion of New Mexico, whether lying on the east or west of that river.

4th. Resolved, That it be proposed to the State of Texas that the United States will provide for the payment of all that portion of the legitimate and bona fide public debt of that State, contracted prior to its annexation to the United States, and for which the duties on foreign imports were pledged by the said State to its creditors not exceeding the sum of $_____ in consideration of the said duties so pledged having been no longer applicable to that object after the said annexation, but having thenceforward become payable to the United States; and upon the condition also that the said State of Texas shall, by some solemn and authentic act of her Legislature, or of a convention, relinquish to the United States any claim which it has to any part of New Mexico.

As the final clause of the fourth resolution makes clear, both resolutions in fact were designed to resolve the festering dispute over the border between Texas and New Mexico territory. As I have discussed before, Texas claimed that the Rio del Norte formed its western border all the way up into what is today the State of Colorado (and thence further north into what is now southern Wyoming). This area encompassed a large portion of New Mexico territory, including virtually all of the territory's populated areas.

Before examining Clay's discussion of these points, I'd like to return to a topic I've mentioned before: the location of Clay's proposed boundary. In particular, in an earlier post I noted that uncertainty and disagreement existed concerning what Clay meant, or thought he meant, when he referred to "the southern line of New Mexico." Some assert, and I tentatively endorsed the idea that, Clay must have believed that the southern boundary of New Mexico lay far north of its actual location. I'm now having doubts about that conclusion.

Article V of the Treaty of Guadalupe Hidalgo described the boundary between the United States and Mexico as follows (emphasis added):

The boundary line beween the two Republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.

The southern and western limits of New Mexico, mentioned in the article, are those laid down in the map entitled "Map of the United Mexican States, as organized and defined by various acts of the Congress of said republic, and constructed according to the best authorities. Revised edition. Published at New York, in 1847, by J. Disturnell," of which map a copy is added to this treaty, bearing the signatures and seals of the undersigned Plenipotentiaries. And, in order to preclude all difficulty in tracing upon the ground the limit separating Upper from Lower California, it is agreed that the said limit shall consist of a straight line drawn from the middle of the Rio Gila, where it unites with the Colorado, to a point on the coast of the Pacific Ocean, distant one marine league due south of the southernmost point of the port of San Diego, according to the plan of said port made in the year 1782 by Don Juan Pantoja, second sailing-master of the Spanish fleet, and published at Madrid in the year 1802, in the atlas to the voyage of the schooners Sutil and Mexicana; of which plan a copy is hereunto added, signed and sealed by the respective Plenipotentiaries.

In order to designate the boundary line with due precision, upon authoritative maps, and to establish upon the ground land-marks which shall show the limits of both republics, as described in the present article, the two Governments shall each appoint a commissioner and a surveyor, who, before the expiration of one year from the date of the exchange of ratifications of this treaty, shall meet at the port of San Diego, and proceed to run and mark the said boundary in its whole course to the mouth of the Rio Bravo del Norte. They shall keep journals and make out plans of their operations; and the result agreed upon by them shall be deemed a part of this treaty, and shall have the same force as if it were inserted therein. The two Governments will amicably agree regarding what may be necessary to these persons, and also as to their respective escorts, should such be necessary.

The boundary line established by this article shall be religiously respected by each of the two republics, and no change shall ever be made therein, except by the express and free consent of both nations, lawfully given by the General Government of each, in conformity with its own constitution.

Henry Clay presumably had access to both the treaty and to a copy of the Disturnell map referenced in Article V. That map, a copy of which appears at the top of this post (click to enlarge) is quite clear as to where the southern border of New Mexico is. Consistent with the treaty, the maps shows that boundary as running slightly north of El Paso.

It is true that the map appears to be inaccurate in one respect. The map identifies the 32 degree north latitude line (which I have drawn in red on the Disturnell map). It shows the southern border of New Mexico (which I have drawn in blue on the Disturnell map) as lying somewhat north of 32 degrees north. Furthermore, it shows El Paso as lying north of 32 north latitude, but south of the southern border of New Mexico.

In fact, El Paso is slightly south of 32 degrees (according to this site, it is 31 degrees 48 minutes north).

Comparison with a contemporary map may make the slight discrepancy clearer. The northern border of west Texas, which is also the southern border of the State of New Mexico in that area is the 32 degrees north latitude line. El Paso lies just south of that line. The Disturnell map shows the 32 degrees north latitude line just south of El Paso.

This discrepancy, even if noticed, could hardly have confused Henry Clay (or anyone else) into thinking that "the southern line of New Mexico" lay at 34 degrees north latitude (the northernmost line on both the Disturnell and the contemporary map). As you will see, that line lies far to the north, pretty close to the base of what is now the Texas Panhandle.

Obviously I cannot know what geographic misconceptions Henry Clay may have had. But it really stretches credibility to think that he was that far off.

Henry Clay: "[I]t is inexpedient . . ."

Several months ago I set out to review Henry Clay's speeches in the Senate on January 29, 1850 and February 5 and 6, 1850 in support of his compromise resolutions. I got no further than looking at the Great Pacificator's brief remarks concerning his first proposed resolution, advocating the admission of California as state “without the imposition by Congress of any restriction in respect to the exclusion or introduction of slavery,” Let's return to the Senate on January 29, 1850, almost one hundred sixty years ago.

Henry Clay next presented his second resolution, which concerned the erection of territorial governments in the territory acquired from Mexico (other than California) and the status of slavery there:

2nd. Resolved, That as slavery does not exist by law, and is not likely to be introduced into any of the territory acquired by the United States from the Republic of Mexico, it is inexpedient for Congress to provide by law, either for its introduction into or exclusion from any part of the said territory; and that appropriate Territorial governments ought to be established by Congress in all of the said territory, not assigned as to the boundaries of the proposed State of California, without the adoption of any restriction or condition on the subject of slavery.

Before turning to Clay's discussion and defense of the resolution, it is worth noting the conflicting positions and pressures the resolution attempted to mediate, which accounts for its delicate and defensive wording. On the one hand, the resolution repudiated the Wilmot Proviso and the northern position that any law establishing territorial governments had to include a provision that explicitly barred slavery.

In an attempt to placate northerners, the resolution argued, in effect, that the Proviso was unnecessary (“inexpedient”). Even without the Proviso, slavery would not enter the territories, for two basic reasons. First, Mexican law had outlawed slavery. Clay tacitly endorsed the theory that that law remained in effect until and unless it was explicitly superseded by a law affirmatively permitting slavery. Second, and perhaps more fundamentally, the laws of nature and geography made it exceedingly unlikely that slavery would take root in the arid southwest.

But these points, of course, highlighted the reasons that mere elimination of the Proviso would not satisfy some southerners. The legal point in particular was sure to rankle. If existing law already prohibited slavery in the southwest territories, then slavery could have a fair opportunity to gain a foothold there only if a new law superseded the old and explicitly permitted slavery. Simply eliminating the Proviso was a sham that deprived the South of its asserted right to an equal chance to settle in the territories.

It was on the horns of such dilemmas that any resolution concerning the territories was caught. Let us see now how Clay tried to walk the tightrope.

Clay's introductory discussion focused primarily on northern supporters of the Proviso, emphasizing that existing law already barred slavery in the territories. “The truth of law which [the resolution] declares is, that there is does not exist, at this time, slavery within any portion of the territory acquired by the United States from Mexico.” At the same time, in an attempt to blunt southern as well as northern objections, Clay argued that, since the laws of nature and geography barred slavery, “I believe it [establishing slavery] could not be done even by the force and power of public authority.”

Overlooking the fact that California, too, had been part of Mexico and presumably subject to its laws, Clay argued that the failure of slavery to take root in California demonstrated that it could certainly not flourish in the southwest:

Sir, facts are daily occurring to justify me in this opinion. Sir, what has occurred? And upon this whole subject, I invite Senators from the free States especially to consider what has occurred even since the session – even since the commencement of this session – since they left their respective constituencies without an opportunity of consulting with them upon that great and momentous fact – the fact that California herself, of which it was asserted and predicted that she never would establish slavery within her limits when she came to be admitted as a State; that California herself, embracing, of all other portions of the country acquired from Mexico, that country into which it would have been most likely that slavery should have been introduced; that California herself has met in convention, and by a unanimous vote, embracing in that body slaveholders from the State of Mississippi, as well as from other parts, who concurred in the resolution – that California by a unanimous vote has declared against the introduction of slavery within her limits.

Finally, Clay alluded to president Zachary Taylor's plan to leave the southwest country without territorial government until it petitioned for admission as states. This, Clay maintained, was unacceptable because it would abandon the inhabitants to lawless anarchy and violence:

Sir, much as I am disposed to defer to high authority, anxious as I really am to find myself in a position that would enable me to cooperate heartily with the other departments of the Government in conducting the affairs of this great people, I must say that I cannot – without a dereliction of duty – consent to an abandonment of them without government, leaving them to all those scenes of disorder, confusion, and anarchy which I apprehend, in respect of some of them, there is too much reason to anticipate will arise. It is the duty, the solemn – I was going to add the most sacred duty – of Congress to legislate for their government if they can, and at all events to legislate for them, and to give them the benefit of law, and order, and security.

The Petitioners in McDonald are "arguing for a revolution"

Law Prof Orin Kerr reported yesterday at Volokh that the petitioners in McDonald v. City of Chicago - the Second Amendment case pending before the Supremes, which presents the issue whether the Second Amendment applies against the states (and their political subdivisions, such as the city) - "filed their merits brief." I haven't read it yet, but Prof. Kerr characterizes the brief as "truly remarkable" in that its primary argument seeks to overturn the Slaughterhouse Cases, an 1873 decision in which the Supremes narrowly construed the Privileges or Immunities Clause:

[The brief] devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause. It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause. It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

The photo at the top depicts a group of freedmen in Richmond, Virginia in April 1865.

"By international standards . . . the South was an economic powerhouse"

I really enjoyed John Majewski's Modernizing a Slave Economy: The Economic Vision of the Confederate Nation. I therefore procured a copy of his first book, A House Dividing: Economic Development in Pennsylvania and Virginia Before the Civil War. In the opening pages, Prof. Majewski points out that, although Northerners such as William Seward characterized the South as physically decrepit and economically degraded, it is possible to reach a very different conclusion:

We now know that Republicans greatly exaggerated the degree of southern stagnation. Economic historians have conclusively shown that the South was remarkably prosperous on the eve of the Civil War. Southern incomes - at least those for whites - rose rapidly between 1840 and 1860. High crop prices for southern staples such as cotton and tobacco accounted for much of this prosperity, but white southerners were hardly passive recipients of good fortune. They built thousands of miles of railroad tracks, improved the productivity of farms and plantations, and established a small but growing industrial base. By international standards, at least, the South was an economic powerhouse.

Remembering the Victims of Communism

All One Hundred Million of them, give or take.

You might want to remember that the next time you put on your Che t-shirt, or watch some Hollywood moron (or our president) embrace Hugo Chavez.

How About A Quickie?

It's been a while since I've built an audio kit (other than replacing the output transformer on and generally neatening up the wiring of my Assemblage ST-40), primarily because I've got more amps and preamps than you can shake a stick at. But I ran across one the other week I just couldn't resist: a battery-powered preamp.

I've long wanted to try battery power. Although most of you are probably shaking your heads, battery power has a small but enthusiastic group of advocates. The argument is that, because the equipment is not connected to the "mains" (as the British say), you eliminate the hum, noise and grunge that subsists in power lines and household circuits. In addition, audio equipment operates on direct current. By sourcing your power from batteries (which supply direct current), you eliminate the need for expensive and potentially noisy transformers needed to convert the AC from your walls.

Another consideration that made the kit a no-brainer was the source: Doc Bottlehead. For those of you who don't know him. Doc. B (aka Dan Schmalle) is a Washington State-based tube fanatic who has sold reasonably priced preamp and low-powered tube amp kits (300B and 2A3 based) over the internet for well over ten years. Doc's kits tend to have slightly racy names. His first product, for example, was the S.E.X. (Single Ended eXperimenters Kit).

Another Bottlehead mainstay for years has been the superb Foreplay preamp. I have two, one built from a kit purchased from Bottlehead, the second a Foreplay clone I put together using super duper parts, including stepped attenuators sourced from Welborne Labs.

Feeling the itch, I stopped by the Bottlehead site for the first time in a long while and immediately saw that Doc was now offering a battery-powered preamp kit called the Quickie for all of $99. I ordered one as quickly as I could fill out the form.

Both in my personal experience and according to the fans who flock to the Bottlehead Forum, Doc is extremely reliable, and this time was no exception. My Quickie showed up in a little over a week, and this morning I got to work. So far I've attached the hardware to the top plate. Now to fire up the soldering iron and start the wiring.

Merrill D. Peterson, R.I.P.

I just saw a post by David Post at Volokh reporting that Merrill D. Peterson died in late September at the age of 88. A little searching turned up additional notices at Reason and the NYT.

I haven't read Prof. Peterson's biography of Thomas Jefferson, but his The Great Triumvirate: Webster, Clay, and Calhoun is a model of political biography that illuminates not just his nominal subjects but the period in which they dominated their country.

R.I.P., Professor.

The War Between the Rich and Poor States?

Although I haven't quite finished Prologue to War, I couldn't resist taking a peek this afternoon at my next book, James L. Huston's Calculating the Value of the Union: Slavery, Property Rights, and the Economic Origins of the Civil War - and I'm already excited.

For starters, Prof. Huston has clearly absorbed his Gavin Wright, and in particular Prof. Wright's invaluable observation that slavery was not merely a method of labor organization; it was also a means of capital accumulation. Second, Chapter 2 is crammed full of valuable tables concerning state-by-state population, acreage, wealth, etc. Some are readily available elsewhere, but it's nice to have them all together in one place. Others are more unusual, and highlight important facts often overlooked.

To pick but one example, Prof. Huston puts together of a list of the states ranked by total wealth as of 1860. The top five are all northern states: New York, Pennsylvania, Ohio, Illinois and Massachusetts. But he then juxtaposes that list with another ranking the states by wealth per capita, white population only. Now eleven of the top twelve states are slave states, and the seven states that seceded before Lincoln took office appear in the top eight. The sole exception is Connecticut, which comes in at no. 5.

Prof. Huston quite rightly suggests that these tables throw doubt on the usual picture, in which "the North is characterized as the dynamic, growing economy while the South is described as sinking into backwardness and poverty - usually by some comparison of New York to Virginia or Ohio to Kentucky."

In terms of wealth, the mighty economies of Pennsylvania, Ohio, and New York . . . look like the sick and underdeveloped economies that Republicans called the slave states. One could almost say that the war between the states was not between the slave and free states, but between the rich and poor states.

Happy Halloween (Part 2)!

Frank Zappa played in New York on Halloween for years, and I went every year. It's therefore particularly appropriate that I wish you Happy Halloween with "Goblin Girl."

I Only Urinate in My Own Fireplace

In 1811 [the new British Minister to the United States Augustus John] Foster was thirty-three. He was handsome, self-assured, and so confident of his superior breeding that he felt able to ignore American crudities and insults. Foster's diary and letters are full of contemptuous comments - he was particularly amused when an uncouth congressman urinated in his fireplace and when other legislators, confusing caviar for jam, had to spit out their overly large mouthfuls.

Bradford Perkins, Prologue to War: England and the United States 1805-1812.

Abe Says "Cheese!"

Now my day is complete, thanks to Woman's Day magazine:

Taking a stand as “the big cheese” in Washington, DC, this sculpture of the 16th President of the United States was made from a 1,000-pound block of mild Cheddar cheese by sculptor Troy Landwehr. Photo courtesy of Tiffany Bridge.

"For more than two years the United States wallowed in purposeless humiliation"

Bradford Perkins expresses his acid views so artfully that I can't resist giving you another sample. Here is the beginning of a chapter entitled "America's Humiliation", discussing the early years of the James Madison administration:

"The Lord the Mighty Lord must come to our Assistance, or I fear we are undone as a nation." Thus wailed a Republican leader [identified in a footnote as Nathaniel Macon], not merely a carping Federalist, at the end of February, 1809. But Jehovah did not deign to aid his chosen people. Instead, He sent James Madison as his vice-gerent, and the new President was no Moses. Madison never pointed out any route to a promised land of peace and plenty, and for more than two years the United States wallowed in purposeless humiliation.

The 1807 Embargo Says, "Ouch!"

Bradford Perkins' analysis of the policies pursued by the British and Americans in the period leading up to the War of 1812 is a model of subtlety. Reviewing each decision, he carefully looks at the facts and assumptions that underlay it, turning them over to show how a closer examination might make them seem to appear very different, leading to a different decision.

At the same time, subtle analysis can produce rather brutal conclusions. Here are Prof. Perkins' closing thoughts on the Jeffersonian Embargo of 1807-1809:

[Jefferson's] most ambitious venture in foreign policy had failed, save only in perhaps delaying the outbreak of war with England - and that, until a less favorable time. The Embargo imposed many of the disadvantages of war on the nation by destroying trade; it secured none of the prospective advantages, such as the conquest of territory or the capture of enemy ships and commerce at sea. Diplomatically, Jefferson failed either to coerce or seduce the European belligerents. Economically, the Embargo proved ruinous at home. Politically, it encouraged fissiparous tendencies in Republicanism and temporarily reinvigorated the most unpleasant forms of Federalism. If Jefferson had acted strongly at the opening of his last Congress [in December 1807], he might have achieved an acceptable substitute for the Embargo. By his inertia he was negatively responsible for its continuation until February, 1809, and for the disgraceful scenes of humiliation and panic which sullied America's reputation for years.

About the illustration:

In this satirical [1809] cartoon, "Intercourse or Impartial Dealings," President Jefferson is depicted as being held up for money by Napoleon and King George. Critics of Jefferson believed that he had paid too much for Louisiana and was prepared to pay too much for the Floridas. This cartoon also satirizes the failure of Jefferson's use of the embargo and restrictions on trade as a curb on French and British depredations of American shipping.