Monday, April 18, 2011

Selective "States  Rights"

Map of the Confederacy

In the period before the Civil War it was accepted that yes the US government with the states could indeed abolish slavery by constitutional amendment. That was why so many in the South were so afraid of the rising number of Free states that would, they feared, eventually reach a number that would allow the abolition of Slavery by constitutional amendment.1

In fact the original 13th amendment recognized this fact by the fact it was even proposed, and further efforts were made to make it impossible to amend by other constitutional amendments further recognizing that the abolition of slavery by constitutional amendment was recognized pre Civil War as a perfectly legal possibility.2

I'm puzzled why some consider that the actual 13th amendment that abolished slavery is some sort of augmentation of Federal power and the original proposed amendment guaranteeing slavery is also not an augmentation of Federal power? After all in both cases 3/4's of the states had to ratify it to become law.

The fact of the matter is that before the Civil War virtually no-one, North or South, Pro-Slavery or Abolitionist believed that the Federal government could abolish slavery or interfere in the states were it was legal. Virtually everyone thought that abolition by constitutional amendment was legal but that any chance of that happening was a very distant prospect in the far future. Of course despite the remoteness of the possibility hysteria was whipped up over this possibility.3

Mention has been made over the fact that the states rights rhetoric of the pro-South / pro-slavery lobby before the Civil War had a decided slant. Basically it was for states rights if the result was pro-slavery and against them if the result was anti-slavery. Thus the Federal Fugitive Slave Act, which required Federal agents and Judges in Northern States and send fugitives back to the South. These alleged fugitives were given fewer rights of defence then other defendants. Attempts by various Northern states to give such defendants more rights via what were called Personal Liberty Laws were denounced as attacks on slave owners and more interference by the Federal government in those states to enforce the Fugitive Slave Act demanded.4

And of course Northern Laws that abolished slavery to the extent that the passage of a slave through it, so-called transit, was not allowed. I.E., the slave was immediately freed by local state law was bitterly denounced in much of the South and demands indeed made that the Federal government force Northern states to allow the transit of slaves regardless of local laws.5

In fact a case called Lemmon vs. the People. In this case a Jonathan Lemmon brought his eight slaves to New York City in 1852. Mr. Lemmon was on his way from Virginia to Texas. He went to New York City to board a fast ship to Texas. While there His eight slaves escaped. In the resulting case the Lawyers acting for the state of Virginia on behalf of the Lemmon's argued that there was a right of transit for slave property regardless of what the laws of the state of New York said. The appeal was lost but it was going to be appealed to the Supreme Court of the USA when the Civil War intervened. Given the Dred Scott decision it is likely that the court would have found that there was a right to transit for slave property in Free states. In fact the entire tenor of Federal Court cases and the US Supreme Court had since 1840 been pro-slavery.6

In fact the entire tenure of Taney’s monumentally flawed Dred Scott decision was to massively strengthen slavery by making Federal legislation to prohibit slavery in the territories illegal, by stating that a territorial legislature could not ban slavery and by claiming that Blacks whether slave or free had no rights under the Constitution. Taney’s decision is monument to bad argument. He for example ignores the fact that Blacks had access to State courts and had in fact used Federal courts to say nothing of the fact that Blacks could vote in several states for Federal candidates including the President. As disallowing the Missouri compromise he systematically ignored that the Federal government systematically regulated all sorts of things in the territories so why not slavery and he deliberately conflated prohibition of slavery with confiscation of property.7

Also rejected by many Southerners was the idea that the settlers in the territory could reject or inhibit slavery there in any substantial fashion. Regardless of what the settlers of a territory wanted a slave owner had the right to go there with his slave property, that was one of the "state rights" and such a right had to be aided and supported by the Federal government. Of course when a territory became a state it could then abolish slavery but it could not interfere with the slavery that was there. Further if a territorial legislature refused to pass or otherwise create the legal structure to support slavery the Federal government must provide such support by means of a Federal slave code for the territories.8

Thus Federal interference for slavery was wanted and desired, indeed demanded, but Federal interference against slavery utterly prohibited in this view of "states rights".9

As for exactly how slavery was abolished. Lincoln's Emancipation Proclamation should be mentioned here. Both Lincoln and the Republicans, (Along with the Abolitionists), recognized that in peacetime the President or indeed Congress could NOT abolish slavery by fiat / proclamation only a constitutional amendment would do. In fact Lincoln was relying on his emergency and war powers and certainly a Civil War is an emergency. Under the US Constitution and simple customary law regarding executive powers in an emergency it would appear that Lincoln was NOT exceeding his actual powers with this measure. Certainly Lincoln justified it as a war winning measure legally. And the proclamation was carefully drafted so that it did not exceed what Lincoln and his cabinet thought was Lincoln's war making and emergency powers. Now the Emancipation Proclamation did not free all the slaves, that and possible legal challenges to it made the passage of the 13th amendment seem like a good idea.10

As said before slavery was in the end abolished by a perfectly constitutional means, the 13th Amendment, that then got the required number of states to pass it and make it law.

In the end the effort to defend slavery by all means possible resulted in greatly hastening the institutions demise and further helping to insure that it would be through the terrible process of bloody civil war. In the end the refusal to accept limits on slavery and to reasonably contemplate its ultimate demise created a situation of crisis that in the end precipitated civil war and the destruction of slavery. The fact is Abolitionists were a not much liked minority in the North, no one in the North including Abolitionists seriously contemplated the destruction of the institution in the states were it was legal. However fearful slave owners and their allies sought to strengthen the institution and did not want limits on it because they felt that limits represented a threat to its survival. They also largely refused to accept that sooner or later the institution would perish. Rather than accept that reality they acted to provoke the North by seeking to spread the institution including into states where it was totally illegal, (so-called transit rights). It was needless goading given that slavery was not terribly adapted to the west and unlikely to strike deep roots there.11

In fact many pro-slavery people believed slavery was national and freedom merely local and they didn’t understand how this could be seen as both provocative and deeply disturbing to many. It also frankly reversed the actual law which was slavery was local in that it required positive law to make it effective. Freedom was the default state. Thus they demanded a Federal slave code while at the same time proclaiming that the Federal government could not forbid slavery in the territories or even restrict it.12

The result of all this was disaster and slavery ended a lot sooner than it would have otherwise and at great cost in lives. All from what amounted to a refusal to face reality and impossible demands.

1. See Potter, David M., The Impending Crisis, Harper Torchbooks, New York, 1976, pp. 444-484, McPherson, James M. Battle Cry of Freedom, Ballantine Books, New York, 1988, pp. 117-130, Stampp, Kenneth M., The Imperiled Union, Oxford University Press, Oxford, 1980, pp. 226-245, Levine, Bruce, Half Slave Half Free, Hill and Wang, New York, 1992, pp. 160-176.

2. Potter, pp. 531-535, McPherson, pp. 251-257.

3. Footnote 1, Especially Potter, and see also Freehling, William W., The Road to Disunion, v. I & II, Oxford University Press, Oxford, 1990, & 2007.

4. See Stampp, 1980, pp. 191-245, Fehrenbacher, Don E., The Dred Scott Case, Oxford University Press, New York, 1978, pp. 485-540, Finkelman, Paul, An Imperfect Union, The University of North Carolina Press, Chapel Hill NC, 1981, pp. 313-338.

5. IBID, Finkelman, pp. 285-338.

6. IBID, and pp. 236-284, Fehrenbacher, pp. 444-445.

7. Fehrenbacher goes over Taney’s opinion in his book and annihilates it as the partisan piece of legal crap it is; see pp. 335-416. Finkelman in a much briefer manner goes over the case and also shows its significant legal / historical flaws, pp. 274-284.

8. IBID, Fehrenbacher, pp. 449-513, Finkelman, pp. 313-338, Stampp, 1980, pp. 226-245.

9. IBID.

10. McPherson, pp. 557-560, 838-841.

11. See Morrison, Michael A., Slavery and The American West, The University of North Carolina Press, London, 1997. A good book but married by a refusal to see that trying to force slavery on the west was both a mistake and frankly illogical. The authors handling of both sides as having equal arguments is frankly simply wrong. What especially galling is the way he handles the massive electoral fraud in Kansas by the pro-slavery group. The author seems to think the pro-slavery group was equally moral to the anti-slavery group, (which did not engage in electoral fraud), and thus whisks away the little problem of the pro-slavery group making a total mockery of democracy. See also Stampp, Kenneth M., America in 1857, Oxford University Press, 1990, pp. 110-181, Potter, pp. 199-224, 297-327.

12. Finkelman, pp. 313-338. See also Potter, 267-296, Stampp, 1980, pp. 226-245.

Pierre Cloutier

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