Liberty and Union

The Civil War Era and American Constitutionalism

Timothy S. Huebner

• Publisher: University Press of Kansas
• Year: 2016
• Print ISBN: 9780700624867
• eBook ISBN: 9780700622702
• Topic: Histoire
• Subtopic: Histoire de la guerre de Sécession

Choice Outstanding Academic Title

“This book is about the relationship between the Civil War generation and the founding generation,” Timothy S. Huebner states at the outset of this ambitious and elegant overview of the Civil War era. The book integrates political, military, and social developments into an epic narrative interwoven with the thread of constitutionalism—to show how all Americans engaged the nation’s heritage of liberty and constitutional government.

Whether political leaders or plain folk, northerners or southerners, Republicans or Democrats, black or white, most free Americans in the mid-nineteenth century believed in the foundational values articulated in the Declaration of Independence of 1776 and the Constitution of 1787—and this belief consistently animated the nation’s political debates. Liberty and Union shows, however, that different interpretations of these founding documents ultimately drove a deep wedge between North and South, leading to the conflict that tested all constitutional faiths. Huebner argues that the resolution of the Civil War was profoundly revolutionary and also inextricably tied to the issues of both slavery and sovereignty, the two great unanswered questions of the Founding era.

Drawing on a vast body of scholarship as well as such sources as congressional statutes, political speeches, military records, state supreme court decisions, the proceedings of black conventions, and contemporary newspapers and pamphlets, Liberty and Union takes the long view of the Civil War era. It merges Civil War history, US constitutional history, and African American history and stretches from the antebellum era through the period of reconstruction, devoting equal attention to the Union and Confederate sides of the conflict. And its in-depth exploration of African American participation in a broader culture of constitutionalism redefines our understanding of black activism in the nineteenth century. Altogether, this is a masterly, far-reaching work that reveals as never before the importance and meaning of the Constitution, and the law, for nineteenth-century Americans.

Part I

SLAVERY AND SOVEREIGNTY

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Prologue

SLAVERY, SOVEREIGNTY, AND AMERICAN CONSTITUTIONALISM

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On March 4, 1845, James Knox Polk, the surprise victor in a close election four months earlier, outlined in his inaugural address the principles that would guide his presidency. A former speaker of the US House of Representatives, the forty-nine-year-old Democrat from Tennessee had become the eleventh president of the United States and the youngest man yet to assume the office. Humbled by his victory, Polk struck a cautious tone, invoking the aid of the Almighty and announcing a dutiful adherence to the law of the land. “The Constitution itself, plainly written as it is,” he stated, “the safeguard of our . . . federative compact, the offspring of concession and compromise, binding together in the bonds of peace and union this great and increasing family of free and independent States, will be the chart by which I shall be directed.”¹

At numerous points, Polk praised and quoted the Constitution of 1787. He lauded it as “the most admirable and wisest system of well-regulated self-government among men ever devised,” and he cited its provisions as he described the relationship between the federal government and the states, the power of Congress to tax, and the nature of executive authority.² Avoiding partisan rhetoric, Polk presented himself as a careful constitutionalist, bound by his presidential oath to uphold a sacred text. Although concerned about “sectional jealousies,” the new president expressed a deep faith in Americans’ ability to resolve amicably their disputes. “If our laws be just and the Government be practically administered strictly within the limits of power prescribed to it,” he confidently stated, “we may discard all apprehensions for the safety of the Union.”³ Polk’s constitutionalism reflected a national commitment to honoring the handiwork of the American founders, as well as a deep belief that doing so would prevent partisan factionalism or sectional strife from undermining the republic. Yet by the time that Polk took the oath of office, the country had long been divided over issues that the founders had neglected to resolve.

THE FOUNDERS’ CONSTITUTION

The Constitution that Polk claimed could prevent dangerous divisions was itself the product of competing and often conflicting ideals. Launched during the late eighteenth century, at a time when Enlightenment thinkers emphasized human reason and progress and in a place where goods and ideas traveled in and out of busy Atlantic seaports, the Constitution grew out of intense political discussion and debate. Pamphlets, newspapers, handbills, speeches, and sermons all served as vehicles for expressing Americans’ dynamic and diverse beliefs about such concepts as liberty, property, taxation, rights, and the nature of government.

At least three ideological strains informed the thinking of the American founders. One mode of thought emphasized government by consent, private rights, and the right of revolution. Owing to the late-seventeenth-century British political theorist John Locke, this position stressed that people entered into civil society and formed governments in order to protect the fruits of their labor. Locke’s claims bolstered an evolving tradition that emphasized “the rights of Englishmen,” the idea that all Englishmen possessed certain fundamental liberties, including, for example, the right of trial by jury. If government became destructive of these ends, Locke believed, the governed possessed the right to change or reconstitute the governing authorities. Lockean thought particularly permeated Thomas Jefferson’s Declaration of Independence. In addition to being framed as a list of abuses carried out by the English monarch at the expense of the rights of colonists, Jefferson argued that “all men were created equal” and “were endowed by their Creator with certain unalienable rights,” including, borrowing from Locke, “life, liberty, and the pursuit of happiness.” Jefferson insisted in the Declaration that the American colonists possessed a right to separate themselves from England because English governance of the colonies had become destructive of the ends for which it had been established. A second, older way of thinking emphasized virtue and the common good. Drawing from classical political thought, many eighteenth-century British and American thinkers emphasized public virtue, or republicanism. Viewing the individual primarily as a citizen of the republic, this strain of thought warned against self-interest and emphasized the need for wise, virtuous representatives to look out for the good of the whole. The emphasis on morality tapped into Americans’ growing religiosity coming out of the Great Awakening, and many of the most fervent republicans held strong religious-based communitarian views. In a political sense, the ideal of civic virtue served as a sort of middle way between the excesses of liberty and the threat of concentrated power, two forces that republicans believed always existed in tension with each other. Only in a republic, wherein virtuous citizens elected virtuous leaders, could liberty survive. A third way of thinking emphasized national glory, greatness, and power. Hoping to emulate the best in the British experience, some of the founders saw the chance to build a great American nation and empire. Alexander Hamilton in particular worked to ensure that the American people observed the “principle of strength and stability in the organization of our government, and vigor in its operations.”⁴ Like-minded nationalists, including George Washington, looked to the imperial rather than the republican tradition in ancient history, focusing on “the moral, heroic, and self-realizing dimensions of the exercise and use of power.”⁵ Usually well-traveled and cosmopolitan in outlook, these nationalists often drew on their own experience of having waged a nearly eight-year-long struggle against one of the most powerful nations on earth. Aware that the American colonies lay on the periphery of the Atlantic world and that the British viewed them with condescension, nationalists sought to prove that America could survive—even thrive—on the international stage. The Constitution reflected in some measure all of these strains of thought.

In the most basic sense, by 1787 the founders clearly desired to increase national power. Although the thirteen American colonies had declared their independence from Great Britain in 1776, not until five years later, in the midst of the war for independence, did they ratify their first constitution, the Articles of Confederation. The Articles had definitively preserved the sovereignty of the states and granted few powers to a central government. Dependent on the states for revenue and hampered by a provision that required nine of the thirteen states to approve any significant legislation, the government under the Articles proved weak and ineffective, for it functioned more as a treaty among the states than as a blueprint for governing a nation. These shortcomings prompted a convention in May 1787, in Philadelphia, where all the delegates agreed that a stronger central government was necessary for the survival of their new country.

Still, they disagreed about exactly how much power to grant to the new government. While nationalists championed a vigorous government with an energetic executive, many at the convention, based on a republican reading of history and the experience of the British colonies, sought to disperse power in order to prevent its abuse. After months of debate and a series of compromises, the new constitution provided for three branches of government, each of which possessed specific responsibilities and powers. Article I provided for a two-house legislature, the Congress, to perform the lawmaking function. States would have a variable number of members in the House of Representatives, based on population in a decennial census, while each state, regardless of population, would choose two members to serve in the Senate. Article I, Section 8 of the Constitution outlined the powers of Congress, including the power to declare war, to tax, to make rules regarding new territories, and to regulate interstate commerce. Article II provided for a chief executive with ambiguous but potentially far-reaching authority. The Constitution conferred upon the president the power to veto acts of Congress (although Congress could override the veto with a two-thirds vote in both houses), made him the “Commander in Chief of the Army and Navy of the United States,” and gave him the power to make treaties with other nations. Article III created a federal judiciary, with the Supreme Court at its head, with authority to hear cases and controversies arising under the Constitution, federal laws, and treaties. The new government, in short, possessed numerous powers that had not existed under the Articles of Confederation. Nevertheless, the framers carefully attempted to delineate and separate power so that no one branch dominated the others. Such a scheme decreased the likelihood that power would be abused and necessitated deliberation and compromise in lawmaking.

To protect the private rights of individuals, meanwhile, many delegates argued for specific guarantees regarding property and other liberties. Framers with a liberal orientation, for example, sought to prevent reckless state legislatures from interfering with private contracts and property rights. Viewing government in Lockean terms as a neutral arbiter among competing interests, James Madison and others believed that one of the primary aims of the new government was to “establish justice,” meaning to prevent the passage of state laws reflecting a popular “rage for paper money, for an abolition of debts, for an equal division of property.”⁶ This view found its way into the Constitution’s preamble (“establish justice”), as well as the Article I, Section 10 prohibition on state laws “impairing the obligation of contracts.” Those with republican sympathies, who believed that the national government posed the greatest threat to individual liberty, argued that the Constitution should contain an actual list of rights that would be protected from encroachment by the new government. After considerable debate, in 1791 Congress and the states adopted a bill of rights in the form of a series of amendments to the Constitution. The last of these amendments, the Tenth, declared that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Nationalism, liberalism, and republicanism, in other words, all influenced the writing of the Constitution. The dividing lines among these ideologies were not always clear, and what resulted from the discussions and debate was the product of a series of compromises. The founders were both traditionalists and innovators in that they derived many of their ideas from well-established political philosophies while they also attempted to apply these lessons in the American setting. The Constitution thus privileged no one ideological perspective. Rather, the founders created a constitutional order that protected liberal self-interest by preserving property rights while at the same time attempting to preserve republican virtue by dividing and separating powers. Although they established a stronger central authority than had existed before, the founders remained divided over the precise relationship between the central government and the states. Paradoxically, the document they created provided for popular participation in politics at the same time that it served as a fundamental law placed above politics.

THE PROBLEM OF SLAVERY

Slavery emerged as the great unresolved issue of the founding era. As early as the drafting of the Declaration of Independence in 1776, slavery had divided those who sought to create an American nation. Jefferson’s original draft of the Declaration had included harsh criticism of the slave trade. Referring to King George III, Jefferson wrote, “He has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither.” Perhaps more important to Jefferson and his fellow Americans was the fact that the king was, in Jefferson’s words, “exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them.”⁷ This passage referred to Lord Dunmore’s Proclamation of 1775, which promised freedom to American slaves who sided with the British. At the urging of delegates from South Carolina and Georgia, the Continental Congress nixed Jefferson’s criticism of the slave trade, and the final version of the passage—“He has excited domestic insurrections amongst us”—highlighted only the threat of rebellion.

The Constitution ultimately contained three clauses that pertained directly to the institution of slavery. First, Article I provided that three-fifths of the total number of slaves in a state be counted when calculating a state’s population for purposes of taxation and representation in Congress. Known as the Three-Fifths Clause, this provision resulted from a compromise about whether to count slaves when calculating a state’s population. The three-fifths ratio itself originated in a proposed amendment to the Articles of Confederation that had pertained to how much revenue each state would contribute, based on its population, to the Confederation government. In 1787, Madison reintroduced the three-fifths ratio, or “federal ratio” as it was sometimes called, as a means of resolving a dispute between free and slave states under the new constitution. On the one hand, because slavery was rapidly disappearing from the North, few Northerners favored counting slaves at all for purposes of representation. On the other hand, Southerners maintained that accounting for slaves in this way reflected Southerners’ greater share of national wealth and ensured that this economic interest could not be ignored. The fact that the sides agreed on the three-fifths ratio reflected perhaps the founders’ ambiguity about whether population or wealth was being represented in the House of Representatives. Although Northerners reluctantly agreed to the three-fifths ratio, the practical effect of counting a portion of the slave population in addition to the free population was to increase the influence of the slaveholding states in Congress, to provide Southerners with a sort of bonus when it came to representation.⁸

Second, the Slave Trade Clause, also in Article I, stated that Congress could not prohibit the importation of slaves until the year 1808, twenty years after the ratification of the Constitution. This provision represented a compromise. Many Northern delegates at the Convention who opposed the slave trade as immoral sought its outright abolition, while representatives from Georgia and South Carolina saw no reason to place any limits on the practice. The possibility of a ban two decades in the future represented the moderate position between these positions. Moreover, the clause constituted a compromise on the larger issues of commerce and taxation. Most Northern delegates favored an unlimited power to regulate commerce with foreign nations and among the states, including the power to impose a tax on exports, while Southerners sought to limit congressional power over the slave trade and prevent any possibility of an export tax on Southern agricultural commodities. In essence, the Slave Trade Clause constituted an exception to Congress’s overall power to regulate commerce with foreign nations. The slave states, meanwhile, succeeded in writing a ban on export taxes into the Constitution.

Third, the Fugitive Slave Clause—by far the most contentious of the slavery clauses in subsequent decades—generated virtually no debate at the Philadelphia Convention. Located in Article IV, this clause required that a runaway slave be “delivered up” upon the claim of a master. Introduced near the end of the Convention’s deliberations, the clause ensured that enslaved persons could not simply gain their freedom by crossing from a slave state into a free state. An obviously important provision for slaveholders, the Fugitive Slave Clause ensured that the newly added free territories north of the Ohio River would not become a haven for runaway slaves, and it seemed to imply that slaveholders possessed an affirmative property right to hold slaves that could not be interfered with by states. Other clauses also appeared to ease the minds of slaveholders who feared slave revolts, for Congress possessed the power under Article I, Section 8 to “suppress insurrections” and Article IV provided that the US government could protect states from “domestic violence.”

Taken together, all of these provisions of the Constitution put slaveholders in a much stronger position than they had been under the Articles of Confederation. Some Southerners said so. Charles Cotesworth Pinckney of South Carolina seemed especially confident. “We have a security that the general government may never emancipate [slaves], for no such authority is granted; and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states,” he reasoned. “We have obtained a right to recover our slaves in whatever part of America they may take refuge,” he correctly continued, “which is a right we had not before.”⁹

Yet slaveholders had not won a complete victory at the Philadelphia convention. In at least two significant and related respects, the Constitution failed to protect the interests of slaveholders. First, neither the word “slavery” nor “slave” actually appeared in the text. Although delegates to the Philadelphia Convention routinely referred to “blacks,” “Negroes,” and “slaves” in the course of debate, the framers excluded such terms from the nation’s founding document. Instead, the Constitution referred to a fugitive slave as a “person held in service or labour,” while the Three-Fifths Clause referred to slaves simply as “other persons.” Some Northern delegates, who undoubtedly hoped that slavery would eventually wither away and did not want to write it into the Constitution in an overt way, favored such ambiguous language. These delegates assured themse...

Table of contents

• Front Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Part I. Slavery and Sovereignty
• Part II. War and Revolution
• Part III. Liberty and Union
• Epilogue: Liberty, Union, and American Constitutionalism
• Acknowledgments
• Notes
• Bibliographical Essay
• Index
• Back Cover