A Federalism of Forgetting and Reimagining

John Mikhail

Wirt was hardly incapable of supplying a detailed discussion of technical legal issues arising at the Virginia convention.  He did so, in fact, in the case Josiah Philips, whose bill of attainder and subsequent execution in 1778 was used by Randolph to score points against Henry, seeking to undercut Henry’s posture on a bill of rights by reminding the convention of a shameful episode ten years earlier when Henry didn’t seem to care much about rights. Wirt devoted multiple pages of his biography to the Philips attainder, noting problems in various accounts of what actually happened to him in 1778. He also attached an appendix to his biography that included Thomas Jefferson’s own recollections of the matter.  (Jefferson, who was in the Virginia legislature at the time, drew up the bill of attainder in coordination with Henry, who was then Governor, while Randolph oversaw Philips’ conviction and execution in his capacity as Attorney General, albeit apparently pursuant to a jury trial, not the attainder; for more on all this, see this terrific article by Matthew Steilen.)  When it came to the debates between Henry and Randolph over slavery, however, Wirt’s powers of analysis lay dormant.  He did not point out, for example, the fallacy in Randolph’s contention that the Fugitive Slave Clause proved that slavery could not be abolished under the Constitution (10 DHRC 1483-84), which Wirt easily could have done by pointing to the Northwest Ordinance of 1787 or other counterexamples to that claim.  Instead, Wirt simply avoided discussing slavery in his chapter on the convention, apart from the lone sentence to which I have referred.

The men who were acquainted with Henry and whose approval of his Life of Henry Wirt most wanted—influential patrons such as Jefferson (23-24, 30-31, 43-46, 65-66), Madison (61-64), James Monroe (65-67), and others—were instrumental in forging “the federal consensus” over slavery that dominated the American mindset during the interbellum period.  As LaCroix later explains, this consensus “held that slavery was a local matter, that the states alone could regulate it, and that therefore the U.S. government lacked authority over slavery in the states” (216).  Whatever their genuine views about this topic were three decades earlier, by the time the “Era of Good Feelings” rolled around, all three of these founders and other prominent Virginians preferred an account of the Constitution and its relation to slavery in which the plausible basis for abolition that Henry had outlined during ratification was treated gingerly, if not altogether ignored.  Wirt gave them what they wanted in this regard.  Showering Henry with praise for his powerful oratory, Wirt nonetheless avoided any critical engagement with the substantive arguments about slavery that Henry and other delegates had actually pressed at the convention.  Borrowing an apt phrase that LaCroix uses in a different context, the effect of Wirt’s delicate diplomacy “blotted out the memory of the previous multivocal struggle” (240) over the status of slavery under the Constitution, thereby promoting a new vision of federalism in the process.

Pinckney’s Political Catechism

Something similar can be said about Maria Henrietta Pinckney’s Political Catechism, another fascinating example of interbellum constitutionalism that LaCroix calls our attention to and lucidly explicates (218-235).  When Maria’s father, Charles Cotesworth Pinckney, presented the Constitution to the South Carolina legislature on January 17, 1788, he did so in a context in which the threat of abolition was taken seriously. Two months earlier, the French counsel in Charleston, Jean-Baptiste Perry, had sent a letter to the French Minister of Marine which described the “anguish” of South Carolina planters over the prospect that after 1808 the United States might not only “prohibit the importation of negroes,” but also “emancipate those born in this country after that time” (27 DHRC 41).  The day before Pinckney spoke, Rawlins Lowndes likewise had warned that not only the slave trade, but also slavery itself, would be threatened by Congress “whenever there was a majority of representatives from the eastern states, who were governed by prejudices and ideas extremely different from ours” (27 DHRC 109).  Seeking to quell worries like these, Charles Cotesworth Pinckney offered the first extended public defense of the Constitution’s relationship to slavery, which not only shaped how that instrument was ratified in South Carolina, but also how generations of historians have interpreted it:

By this settlement, we have secured an unlimited importation of negroes for twenty years; nor is it declared that the importation shall be then stopped; it may be continued—we have a security that the general government can never emancipate them, 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 states.  We have retained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make (17 DHRC 124, emphasis added).

Compare this statement with Maria Henrietta Pinckney’s third proposition in the Political Catechism.  “What is the nature of the Federal Constitution?” she asked, then responded:

It is a compact based upon cautious and jealous specifications. The distinguished body of men who framed it, guarded and defined every power that was to be exercised through the agency of the General Government—and every other power not enumerated in the compact, was to be reserved and exercised by the States (1830: p. 4, emphasis added).

Maria Henrietta Pinckney’s assertion that every power not “enumerated” in the Constitution was reserved to the States was the mirror image of her father’s claim that every power not “expressly granted” was reserved to the States.  It was also the functional equivalent of the unusual “Form of Ratification” by means of which the Constitution was adopted in South Carolina. Under the leadership of Maria’s uncle, Thomas Pinckney, her state’s convention ratified the Constitution on May 23, 1788, in a different manner than any other convention had done before then—by declaring its understanding that “no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union” (27 DHRC 400, emphasis added). 

South Carolina’s true understanding was better reflected in the letter that William L. Smith sent to Edward Rutledge during the First Congress, in which Smith acknowledged that only amending the Constitution would “prevent[] Congress from interfering with our negroes after 20 years or prohibiting the importation of them. Otherwise, they may even within the 20 years by a strained construction of some power embarrass us very much” (16 DHFFC 1283). That is why another South Carolina congressman, Thomas Tudor Tucker—older brother of St. George Tucker, who LaCroix discusses at length in Chapter 2 (83-84, 88-89, 98-104, 112-116)—moved to add the word “expressly” to the Tenth Amendment on August 18, 1789, thereby converting a weak limit on implied powers into a stronger one.  Yet this effort also failed.  When Tucker’s motion was renewed three days later, it was voted down in the House by a decisive margin of 32-17.  Every South Carolina member who cast a ballot on the motion voted in favor of it, but to no avail; at this point in time, the dominant coalition in Congress, rooted mainly in the mid-Atlantic states, supported broad implied powers. A concerted effort by South Carolina that began with Charles Pinckney’s proposal in Philadelphia to guarantee that “Each State retains its rights not expressly delegated” (2 Farrand 135) thus ended with a thud in August 1789, setting the stage for the intense controversy over the abolition petitions submitted to Congress in February 1790.

Was all of this history known to Maria Henrietta Pinckney in 1830? One assumes that much of it was or at least should have been, just as it was or at least should have been familiar to her father, her uncle, and other members of South Carolina’s ruling class many years earlier. These crucial moments in the formation of American federalism, however, seem to have been forgotten or ignored by the time Pinckney wrote her Political Catechism.  There is no trace of them in her forceful treatise, just as there is none in the South Carolina Exposition (116, 225) or Calhoun’s Fort Hill address (226-227, 407-408)—or for that matter in William Johnson’s opinion in Elkison v. Deliesseline, which LaCroix brings to life and contextualizes in such brilliant fashion in Chapters 2 and 3 (113-115, 159-204).  All of these interbellum constitutional discourses are written as if these formative events of 1787-1789 had never happened.

Webster’s Reply to Hayne

Consider finally the case of Webster’s Reply to Hayne, which LaCroix also discusses in several places in The Interbellum Constitution (231-32, 364-65).  As she notes, Webster’s second set of remarks in this 1830 debate are widely considered to be one of the greatest political speeches in American history.  Generations of American schoolchildren were taught to cite its memorable peroration, “Liberty and Union, now and forever, one and inseparable!” (364) In her Political Catechism, Maria Henrietta Pinckney took aim at Webster’s defense of the Union, repeatedly inveighing against “Messrs. Webster & Co.” (231) and his robust brand of nationalism. Yet with respect to certain fundamental questions, Webster was much closer to Pinckney than one might assume.

Like many interbellum politicians, Webster began his famous speech by trying to win over his audience by establishing his moderation on the slavery question.  In the United States Senate in 1830, this meant reassuring Southerners that Webster and other Northerners stood firmly in line with the federal consensus.  Webster’s method of doing this was to recall how, four decades earlier, Congress had turned away a memorial from the Pennsylvania Abolition Society, calling upon the United States to abolish slavery.  On Webster’s account of these events, a select House committee, comprised of six Northerners and one Southerner, reported the following resolution in March 1790, which then received the sanction of the entire House: “Resolved, That Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them in any of the states; it remaining with the several states alone to provide rules and regulations therein which humanity and true policy may require.” On the basis of this recollection, Webster insisted that “from that day to this it has never been maintained or contended at the North, that Congress had any authority to regulate or interfere with the condition of slaves in the several states. No northern gentleman, to my knowledge, has moved any such question in either House of Congress.”

Webster’s history of these events was neat and tidy, but it was also inaccurate and misleading.  To begin with, the select committee to which the 1790 abolition petitions were referred did not report the resolution he quoted in his speech.  Instead, this committee, chaired by Abiel Foster of New Hampshire, produced a different report, which implied that Congress could abolish slavery throughout the United States after 1808—just as Patrick Henry and the South Carolina planters had feared. That is probably the main reason why W.E.B. Du Bois later referred to the Foster Committee Report as “a sort of official manifesto of the aims of Northern anti-slavery politics,” circa 1790. Furthermore, the resolution to which Webster appealed did not receive “the sanction” of the House of Representatives, if by that one means that the House voted to approve this resolution.  On the contrary, the resolution was approved only by the Committee of the Whole, which then referred it back to the House, whereupon the House declined to adopt it.

Did Webster know his version of these events was misleading? It seems difficult to believe that he did not, in light of his own personal connection with Foster and the fact that both the Foster Committee Report and the Committee of the Whole Report were published in the House Journal, on which Webster relied in composing his remarks. Yet whether or not Webster was dissembling at this particular moment does not seem to matter as much as the symbolism of this crucial part of his famous speech.  As LaCroix reminds us, Webster was an enormously important expositor of the Constitution during the interbellum era. He not only argued landmark cases such as Dartmouth College, McCulloch, and Gibbons (132-144), but also Groves v. Slaughter and the Passenger Cases (362-381).  He also was a “Northern man”—one of the few Northerners, along with Kent (123-132) and Story (308-309, 354-362, 390-392), who played a significant role in the development of interbellum constitutionalism before the 1850s. (It is striking how many of the leading constitutional theorists of this period were Southerners.)  Finally, Webster was one of the nation’s most influential politicians throughout his lifetime, whose support for the notorious “Compromise of 1850” and its Fugitive Slave Law, in particular, was pivotal (365, 382, 391).

When Webster embraced the federal consensus in his Reply to Hayne, therefore, it mattered a great deal—not the least in how, for many years thereafter, his remarks influenced a younger set of Northern politicians, such as James Buchanan, Franklin Pierce, and Abraham Lincoln, along with abolitionists such as William Lloyd Garrison, Wendell Phillips, and, for a time, Frederick Douglass, to adhere faithfully to that understanding.  In 1866, for example, Buchanan published a retrospective account of the “needless war” in which he repeated Webster’s rendition of the origins of the federal consensus almost verbatim. “This doctrine was emphatically recognized by the House of Representatives in the days of Washington . . . and has never since been called into question.”  Like Wirt and Pinckney, however, Webster was not faithfully reporting the facts of American history as much as he was reinventing them. Once again, one is reminded of the “blotting out” of “previous multivocal struggles” to which LaCroix evocatively refers (240).

Multiple Federalisms, Common Source