Crisis Of Constitutional Government
by Stephen Zierak
This lesson is taught by Dr. Will Morrisey, Associate Professor of Politics at Hillsdale College. Since 2000, he has instructed Hillsdale students in American politics, political philosophy, and comparative government. Dr. Morrisey has published eight books on statesmanship and political philosophy, and he writes regularly for major newspapers and professional journals. He has served since 1979 as editor of “Interpretation: A Journal Of Political Philosophy.” Dr. Morrisey earned his BA from Kenyon College and his PhD in political science from New School University. This lecture was posted on the internet April 2, and those interested may register at Constitution.Hillsdale.edu. There is no fee. There will be three more lessons, available weekly on Mondays.
In January, 1820, Congress passed two bills that, together, became known as the Missouri Compromise. Maine was admitted to the Union as a free state. Missouri was admitted as a slave state, although slavery would be prohibited north of a 36-30 line (southern border of Missouri) in the western territories of the Louisiana Purchase—Missouri would be an exception to the line.
Thomas Jefferson in a 4/22/1820 letter to John Holmes had this to say: “…but this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. It is hushed indeed for the moment, but this is a reprieve only, not a final sentence. A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated, and every new irritation will mark it deeper and deeper.”
Why was Jefferson so concerned about the new law? The founders had understood the inconsistency between recognition of natural rights for all men and the practice of slavery. Southern states faced a situation where the majority or near majority of the population were negro slaves. Their economies relied on slavery. Yet, many from the south , such as Jefferson, Madison, and Washington, recognized the hypocrisy, and hoped for a better day when the necessities of slavery would give way to the realization of the revolutionary ideals. The Constitution was neither a racist document, nor a meaningless compromise. It was a mechanism to achieve the promises of the Declaration. The new Federal Government would have the power to outlaw the slave trade after twenty years. This was in fact done at the earliest possible moment with the Act Prohibiting Importation of Slaves of 1807. During the period of the Articles, slavery had been prohibited in the territory governed by the Northwest Ordinance. The idea was to limit slavery to only those states with large slave populations, to cut off the flow of new slaves, and over time (with growth of non-slave populations) to dilute the impact from an eventual abandonment of the slave system. The Missouri Compromise was, for the first time, expanding slavery into a territory. Rather than continued progress to the extinction of a pernicious system, we had voices actually justifying slavery and advocating its long term existence. Jefferson was well aware of where this would lead.
It got worse. No more states were admitted to the Union until 1836-37, when Arkansas (south of 36-30) came in as a slave state and Michigan came in as a free state, further legitimatizing the idea of balanced admissions. The Kansas Nebraska Act of 1854 created two new territories, and essentially repealed the Missouri Compromise by ending the no slavery north of 36-30, putting in its place “popular sovereignty” as the determinant of slave or free. This led to something of a civil war in what was known as “bleeding Kansas” over the status of the territory as slave or free. Then came the Dred Scott decision of 1857.
Dred Scott’s master had brought him into free territory, breaking the law by renting out his services. Scott petitioned for his freedom, and the case was heard by the Supreme Court in 1857. Chief Justice Roger Taney wrote the decision for a Supreme Court that had split 7 to 2 against Scott (although reasoning differed among the justices). From Taney’s opinion: “They had for more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit….The language of the Declaration of Independence is equally conclusive. (Taney here quotes from the self evident truths language.) The general words above would seem to embrace the whole human family, and if they were used in a similar instrument at this day, would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted…”
Not only did the Court rule against Scott (who was soon thereafter purchased and freed by the son of a former master), but it also ruled as unconstitutional any prohibition against slavery in the territories. America had moved from acceptance of slavery as a short run necessity to a continent wide long term reality. People in free states and free territories were not amused.
Slavery had become central to the national debate, even more so than tariffs and a national bank. The second generation of southern statesmen, those who followed the founders, had begun by looking to the Union as protection for slavery. Keeping the Union together would require toleration of southern slavery. By the late 1820’s, however, many southern politicians were beginning to raise the idea of separation, a south that was now strong enough to stand on its own. Indeed, Jefferson Davis, soon to become President of the Confederate States, criticized those like Jefferson and Madison who had argued from necessity rather than accepting slavery as a good, an indispensable foundation to the southern regime.
The Republican Party was founded to battle against this retreat from republican first principles, a federal union premised on the principle of equal rights. The most effective spokesman for this cause was Abraham Lincoln.
In October, 1854, Lincoln spoke out against the Kansas Nebraska Act. He explained the founders’ view of slavery as a present necessity, and the actions taken in the years of the early republic to limit its spread. Arguing for a return to the provisions of the Missouri Compromise, Lincoln had this to say: “If the negro is a man, is it not to that extent, a total destruction of self government, to say that he too shall not govern himself? When the white man governs himself that is self government; but when he governs himself, and also governs another man, that is more than self government—that is despotism.”
In June, 1857, Lincoln reacted to Dred Scott by informing those cheering Chief Justice Taney’s decision, what were the true intentions of the founders: “I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’ This they said, and this they meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.”
In 1858, Lincoln ran for Senate in Illinois against Stephen Douglas, main sponsor of the Kansas Nebraska Act. During this unsuccessful campaign, Lincoln delivered one of his most famous speeches, “A House Divided.” Lincoln referred to Matthew 12:25. Jesus had healed a man by casting out a demon. The Pharisees had claimed that Jesus had done this by the authority of Satan. Jesus replied that any kingdom, city, or house divided against itself cannot stand. Satan would never be so foolish to cast out Satan. Jesus could successfully cast out demons only by the authority of God. It was time to take a stand on slavery. “Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the states, old as well as new—North as well as South.” Our Constitutional crisis had become a crisis of a house divided.
Lincoln saw an essential identity in the moral crisis of the rightness or wrongness of slavery, and in the political crisis arising from the American regime of republicanism and from the nature of a federated state. There was a crisis of self government under God, made worse by the crisis of faction. He saw no support for slavery in either morality or logic. If slavery was a matter of skin color, then a white man would be subject to enslavement by a whiter man; if a matter of intellect, then a white man would be subject to enslavement by a more intelligent man. This must logically end in tyranny. If Justice Taney believed that slavery was in the interests of negroes, why does no man seek slavery for himself? As for popular sovereignty’s “right to choose” slavery, no man can choose tyranny over another.
While Lincoln despised the southern argument that slavery is a good, he was particularly concerned about the even more dangerous ideas of those who, like Douglas, corrupted the ideas of consent and self government in arguments for the possibility of slavery. Douglas presented himself as “caring not” whether states and territories voted slavery up or down—that was their business. Dred Scott had barred blacks from citizenship and the protections of the Declaration and Constitution; the Know Nothings wanted to also include foreign immigrants and Catholics as unprotected classes. Where would it end, but in total abandonment of the ideals of the Declaration and the acceptance of tyranny? Moreover, in the light of Dred Scott, Douglas was even unwilling to extend his concept of popular sovereignty to a vote to exclude slavery from a territory. You could vote for it, but not against it. This demonstrated the fig leaf nature of “popular sovereignty”, a concept which in any event had no meaning in a natural rights regime. If popular might is right, then who will speak for liberty? The logic of Douglas’ arguments would extinguish the light of liberty in the American people. Douglas was mischaracterizing liberty as doing what I like, regardless of the rights of others.
Lincoln was a practical man. Illinois was a free state, but its people were not in favor of political and social equality for blacks. Lincoln wanted to persuade the people of his position on the question at hand, expansion of slavery into the territories. He reassured them that he was not arguing for full equality, but merely for the promises of the Declaration that any man, blacks included, had a right to the bread he earned. He worked around popular prejudices, attempting to push public opinion in a good direction on the matter of slavery. Lincoln was not a racist, but he was a race pessimist. He did believe that physical, though not moral, differences probably precluded full equality for blacks in a white dominated society. His preferred solution to the problem of race was mass colonization of Africa by blacks who would carry with them principles of republican government. This would be voluntary, and Lincoln never supported the idea of a segregation of races within the United States. Of course, the racial problems we have experienced up to present day suggest grounds for Lincoln’s race pessimism. It is only within the past half century that we have finally begun to address these problems.
Madison had been bold enough to write, “Where slavery exists, the republican principle becomes still more fallacious.” The few historical republics were in effect aristocracies because citizens were outnumbered by slaves. The founders had hoped that the Constitution would provide a framework for the peaceful resolution of the slavery problem in line with natural rights philosophy. The founders believed that an effective Union would require components with similar regime principles. Madison saw the United States as both a republic and a federal union of states, states with a legitimate interest in the institutions of each other. It was important that the supervising federal authority protect republicanism within the states to achieve Jefferson’s “empire of liberty.”
Article 4, Section 4 of the Constitution says the following: “The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” This provides protection from not only foreigners and Indian nations, but from interstate violence, and even from domestic disorder. Each state had entered the Union acknowledged as a republic, but how republican were they in reality? The mere distinction of color had justified the tyranny of man over man in what was at that time the most enlightened period mankind had ever experienced.
Certainly, without the compromises of 1787, there would have been no Union. Slavery was a current necessity to be minimized over time. But now America had to decide what it really was. Were we an aristocracy where slavery was morally right and socially elevating? Or were we a republic where slavery was morally wrong and socially degrading?
America chose the republican virtues. The cost was a Constitutional crisis resulting in a house divided, and the onset of a bloody Civil War. It was the heavy price we paid to expiate the original sin of our republic.
The eighth session of this course will be available on line April 9. The topic is Abraham Lincoln And The Constitution. The lecture is presented by Dr. Kevin Portteus.