Sunday, May 27, 2018

Two New Collections of Documents about the Central Event in American History

Sandy Levinson

The last month has seen the publication of two remarkable collections of documents relating to the run-up to the conflagration of 1861-1865 and the government of the ostensible Confederate States of America.  Dwight T. Pitcaithley has published, with the University Press of Kansas, The U.S. Constitution and Secession:  A Documentary Anthology of  Slavery and White Supremacy.  I should note that it includes an extremely enthusiastic foreword by yours truly, for I am indeed extremely enthusiastic about the book.  It focuses on speeches and other interventions particularly between Lincoln's election in November 1800 and his Inauguration on March 4, 1861.  At that point, it was clear that the future of the Union was at stake, and it is extremely illuminating to see what kinds of bargains were on offer (and rejected).  The time for sheer posturing was coming to an end; it was now necessary to figure out what one was truly committed to and what one might compromise about.  The book makes it clearer than ever that the basis of Southern demands was protection of a virulently racist form of chattel slavery, nothing more, nothing less.  There is little evidence that Southerners were truly demanding the "nationalization" of slavery, pace Lincoln.  But they clearly wanted not only protection for extension of slavery into the territories (and guarantees that slaveowners would be allowed to "sojourn" in so-called "free states" while in transit to slave states, but also, one suspects, acceptance of the probability of further American expansion into Cuba or Mexico and accepting slaver as altogether proper there as well.  But one of the reasons I am so enthusiastic about the collection is that it should force us to consider more deeply our own general attitudes toward "compromise."  If we admire Lincoln for not making compromises that would have saved the Union, then why, for example, do we admire the Framers in 1787 who made shameful compromise with slavery in order to establish the Constitution in the first place?  Was Garrison wrong in describing the Constitution as "a Covenant with Death an Agreement with Hell"?  I think not, so why do we admire those who signed the covenant (or made compromises, as in 1820 and 1850, that strengthened slavery.  And why does Joseph Story, the author of the shameful decision in Prigg v. Pennsylvania, escape the obloquy directed at Roger Brooke Taney for Dred Scott, which I find at least as defensible as Prigg?  In any event, the Pitcaithley reader is a magnificent contribution to the literature on the War and on the constitutional conflicts that underlay it.  HIs sixty-page introduction to the book is the best short introduction to the constitutional issues posed by slavery that I am familiar with.

Mark Graber and Howard Gillman have just published, with the Oxford University Press, Volume Five of their Complete American Constitutionalism:  Part I:  The Constitution of the Confederate States.  It brings together a wide variety of essential, and largely unknown, documents relating to the constitutional system established by the seceding states in their effort to create a Confederate States of America.  A short preface and longer introduction are both enormously illuminating.  If the U.S. Constitution is thought (rightly or not) to be the first example of "liberal constitutionalism," i.e., devoted, overall, to a vision of individual liberty and rights as outlined in the Preamble, the CSA constitution is useful as an example of an explicitly "illiberal constitution" designed to preserve white supremacy and to make explicit that blacks had no rights granted by the Constitution.  What may be surprising is the extent to which the CSA Constitution tracked the 1787 predecessor save for the latter's making crystal clear its racist foundations.  As Alison LaCroix has argued, the Confederates esteemed the 1787 Constitution, believing, however, that it had been significantly misinterpreted.  In their own way, they were restorationists, if not "originalists" avant la letter.  This means, among other things, that institutionally the Confederacy was significantly similar to the U.S.A.  Given that the CSA, like its predecessor, was a federal system, a number of similar controversies arose with regard to the allocation of national versus state power.  And guess what, the CSA can scarcely be described as wholeheartedly committed to "states rights," especially when winning a war was at stake.

As with the Pitcaithley collection, I am personally embarrassed by the sheer freshness of the material and the importance of integrating it into any attempt to understand American constitutional development.  I am sure that I am not the only person who will have this response.  It would be a shame if only academics like myself (or their students) study these books.  Neither requires an academic background.  Anyone who actually is interested in the kinds of debates available on Balkanization should be able to profit from these books.


I just finished the Pitcaithley book a couple of days ago and can add a strong recommendation for it.

If we admire Lincoln for not making compromises that would have saved the Union, then why, for example, do we admire the Framers in 1787 who made shameful compromise with slavery in order to establish the Constitution in the first place?

Lincoln was open to certain compromises including an amendment that explicitly would (wrongly and in no way compelled by the text though he thought it was basically implied) protect slavery from national regulation.

I fail to understand how much more could be expected regarding slavery in 1787, especially given much of the pro-slavery effects were implicit. For instance, e.g., Prigg v. PA was in no way compelled by the text and history (Paul Finkelman's recent book on slavery and Marshall/Story/Taney is telling on this point).

The current rule as each state had one vote. The 3/5 Compromise of one House was of limited change there. The fugitive slave provision generally matched acceptable practice even in MA, about the only state without slavery at the time. The narrow twenty year tolling of the end of the international slave trade would likely have been passed by normal legislation too. And, the failure to properly enforce the ban (put in place as soon as possible) isn't compelled.

Compromise at some point is not worth it. And, other than putting the Southern Democratic Party platform into law, not sure what would have changed the South's desire to secede in 1860. Anyway, the documentation is appreciated as would those behind the 13-15A.


No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

The ability to "interfere" here is particularly notable. Congress has many powers and there was no "except for slavery" exception to them. The twenty year limit basically shows this.

I agree with Joe's points. I add that as to the Corwin Amendment (Joe quotes it in his second comment), that left plenty of room for potential action by Congress: abolition in DC and on federal installations; bans on slavery in the Territories; control over the admission of new states; bans on the interstate commerce of slavery; etc. The slaveholding traitors clearly understood this, since many of their proposed amendments would have erased those powers.

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I agree with Mark's last comment & looking it up, see Sandy Levinson referenced "The Slaveholding Republic: An Account of the United States Government's Relations to Slavery" in his forward to the cited book. That book reaffirms the point, esp. the last chapter.

Story's opinion in Prigg receives the obloquy it is due in Paul Finkelman's new book, Supreme Injustice: Slavery in the Nation’s Highest Court.

“Arguably,” Finkelman writes, “for the lives of northern free blacks, fugitive slaves, and southern slave owners, Prigg, while less well-known today, was actually more important than Dred Scott.” Story’s opinion in Prigg, Finkelman continues, “left the northern states without any legal authority to prevent kidnapping of free blacks. … The fact that slave catchers could now operate in the North without having to prove the seized person’s slave status threatened all northern blacks. In reaching these holdings, Justice Story ignored the language of the fugitive slave clause and the structure of the Constitution, rewrote the history of the Constitution, reshaped or ignored relevant precedents, and ignored the facts of the case to justify his opinion.”

The other villains of the book are Chief Justices Marshall and Taney.


The only effect that the Corwin amendment would have had would have been to require two amendments to the Constitution to give Congress the power to abolish or interfere with slavery. The first amendment would have been to repeal the Corwin amendment; the second would have been to give Congress the power to abolish or interfere with slavery. And there would have been no reason not to combine the two amendments into one.

I read the Finkelman book. I think he laid it on a bit thick, but especially as to Marshall, it was a useful balance to how often his pro-slavery position has been ignored. It is especially notable how large his slave holdings were.

The Corwin Amendment could be repealed. I think the Article V reference to the Senate can be as well [a somewhat similar attempt to keep a basic aspect of the House of Lords was also avoided by first repealing it -- see the fox hunting case in the UK].

But, as long as it was in place, it still had more "effect" -- that is, it would be an explicit limit on congressional power to "interfere" with slavery in the states even if some express constitutional power was used to do so. For instance, the Emancipation Proclamation very well might have been unconstitutional, unless secession was in effect assumed.

Joe, I don't think that I agree as to the effects that you claim that the Corwin amendment would have had. First, the Corwin amendment prohibited only amendments to the Constitution; it did not limit the exercise of express constitutional powers. Second, the amendments it would have prohibited were amendments to give Congress power, not amendments to give the President power. The Emancipation Proclamation was not issued pursuant to a statute, but pursuant to the President's constitutional power as commander in chief.

As to the Emancipation Proclamation, Congress did separately legislate in ways that "interfered" with slavery in the states during the Civil War, including confiscation acts. The EP in that respect was only a final step to what they already was doing.

I'm not sure how strictly beyond that how the amendment would be applied. See, e.g., how the First Amendment has been applied to executive actions. In practice, congressional action will be involved, including passing funding to enforce the emancipation proclamation or the like.

The amendment blocks additional amendment "which will authorize or give to Congress the power to abolish or interfere, within any State." The implication, which Lincoln repeatedly granted, was that right now Congress did not have such power in states with slavery. Thus, the focus on territories (and to a lesser extent other things cited by Mark Field) & Benjamin Curtis (who dissented in Dred Scott) arguing the Emancipation Proclamation was unconstitutional.

It would have to amend the Constitution to obtain it.

Yes, Lincoln repeatedly said that Congress had no power regarding slavery in the states. (Too bad that the Commerce Clause was viewed more narrowly in those days.)
That's why Lincoln was willing to support the Corwin Amendment; referring to it in his first inaugural address, he said, "holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable." But it wouldn't have been irrevocable, and I assume that the slave states knew that.

Okay. I'm not sure what is left then.

The narrow inference would be more explicit akin to the 16A making clear what many figured was allowed (see, e.g., a 5-4 court opinion) anyway.

Sure, the amendment would not be irrevocable.

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