A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic
George William Van Cleve
University Of Chicago Press, 2010
408 pp., $48.00
Slavery's Constitution: From Revolution to Ratification
Hill and Wang, 2009
208 pp., $25.00
Allen C. Guelzo
"No Union with Slaveholders!"
"On the Fourth of March, 1861, Abraham Lincoln took the oath of office as the six-teenth president from Chief Justice Roger Brooke Taney—and managed, at the same time, to box the chief justice on the judicial ear. Or, at least, to draw a bright line of constitutional understanding between himself and the author of Dred Scott v. Sanford. "There is some difference of opinion," Lincoln announced, about whether the Constitution's fugitive slave clause "should be enforced by national or by state authority." This distinction might be immaterial to the fugitive, but if Congress was to pass laws on the subject, shouldn't "all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not, in any case, surrendered as a slave?" And just to make sure that no one assumed that he was merely calling for more accurate identification of suspects, Lincoln asked whether any such legislation should also explicitly "provide by law for the enforcement of that clause in the Constitution which guaranties that 'The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?' "
To the naked eye, there seems nothing particularly momentous in that question. But there was. The "free man" who should not be mistaken and "surrendered as a slave" could only be a free black man, otherwise it would have been impossible to mistake him for a slave in the first place. And Lincoln was here suggesting that congressional legislation should protect that free black man because, under the Constitution, "citizens of each State" are entitled to the procedural protections of the Constitution's privileges and immunities clause. Citizens. Only four years before, the chief justice sitting behind Lincoln had pronounced in Dred Scott v. Sanford that the Constitution did not and could not recognize black people as citizens, whether they were free or slave. Now, on almost the anniversary of Dred Scott, Lincoln threw Taney's own words back at him.
But he did more. Everything which was, at that moment, dividing the republic and threatening to tip it into civil war was, Lincoln said, strictly an argument about constitutional theories, not about the things the Constitution actually said. "Shall fugitives from labor be surrendered by national or by State authority?" Lincoln asked. "The Constitution does not expressly say. May Congress prohibit slavery in the territories? The Constitution does not expressly say. Must Congress protect slavery in the territories? The Constitution does not expressly say." What reasonable American would want to smash the Union when the grounds of disagreement hung on theories? No one, presumably—unless of course the chief justice had, four years before, proclaimed that the Constitution did say, expressly, that Congress could not prohibit slavery in the territories, and that Congress really is obliged to protect it there because the Constitution "distinctly and expressly" affirms the "right of property in a slave." If the Constitution recognizes the "right of property in a slave," then that property has no rights of its own, and the owners of that property have every ground on which to demand its protection and sustenance by the federal government.
But what Taney announced as fact, Lincoln relegated to opinion. In 1858, during his celebrated debates with Stephen A. Douglas, Lincoln flatly declared that "the right of property in a slave is not distinctly and expressly affirmed in the Constitution." Now, Lincoln was president, and the Constitution he had sworn to preserve, protect, and defend would be understood by him to offer no national recognition to slavery at all. From that seed, you might say, the Civil War sprang.
That Lincoln revered the Constitution is not really to say anything different from what almost every other American of his generation would have said about it. "No slight occasion should tempt us to touch it," Lincoln warned in 1848. "Better, rather, habituate ourselves to think of it, as unalterable. It can scarcely be made better than it is …. The men who made it, have done their work, and have passed away. Who shall improve, on what they did?" Only the most radical of abolitionists were inclined to regard it, in William Lloyd Garrison's kindling terms, as "an infamous bargain … a covenant with death and agreement with hell" because it seemed to offer shelter to chattel slavery. But by the 1880s, there were many more voices of question about the untouchable perfection of the Constitution, and unlike Garrison, they were expressing eerie parallels to voices in that same decade which were beginning to question the untouchable perfection of the Bible. "The Constitution of the United States had been made under the dominion of the Newtonian Theory," wrote Woodrow Wilson, whose PhD dissertation in 1883 on Congressional Government: A Study in American Politics frankly questioned the wisdom of a government of separated powers. "The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton." The 18th century had no sense of historical progression, development, and evolution, Wilson objected; it believed that certain fixed truths were available to be discovered, whether in physics or in government. Wilson's century thought it knew better, and understood that the intricately balanced mechanisms of the U.S. Constitution were like one of David Rittenhouse's orreries, and needed to be superseded by something more efficient, supple and responsive to changes in the national environment.