The Purpose and Powers of the Senate, Part I: Context

    At few points in the history of the United States of America have the powers and significance of the United States Senate been a more fervent topic of conversation than is presently the case. Shifting demographics and increasingly polarized political rhetoric have conspired to produce an electoral environment in which a comfortable majority in the upper house of Congress no longer seems possible for either major party to achieve, one result of which has been a broad reassessment of how the Senate functions. The filibuster, for example, whose theoretical purpose is to prevent particularly controversial bills from being approved by all but a supermajority of Senators, has since become an almost insurmountable barrier to all but the most broadly appealing legislation. And though the Constitution has always granted the Vice-President the responsibility of casting a tie-breaking vote in the event of a deadlock, the frequency with which that prerogative has been used of late almost certainly falls well outside what Framers originally envisioned. And what of the Senate’s special responsibilities? Is it advisable for fifty-one of one hundred elected representatives to hold the power between them of appointing federal judges who hold officer for life? Or cabinet secretaries who possess tremendous influence over public policy? Should fifty-one people, quite possible representing far less than half the population of the United States, be able to ratify a treaty that holds the same power as federal law? Why, in short, does the Senate function the way that it does? And what was it, in retrospect, that the Framers were trying to achieve with its creation?  

    In attempting to answer some of these questions, the discussion that follows will necessarily be somewhat diffuse. Notes on the Debates in the Federal Convention (1787) by James Madison (1751-1836) will serve as a primary source in terms of the conversations which gave rise to the Senate in the first place, along with Notes of the Secret Debates of the Federal Convention (1787) by New York delegate Robert Yates (1738-1801). Some additional documentation from that same period would also seem to be of interest, not least among them being certain of the Federalist Papers. But some amount of time will also necessarily be spent exploring the origins of the basic concept of a legislative upper house, specifically within the 18^th-century Anglo-American tradition. The Framers, to be sure, did not set out with the intent of simply echoing the fundamental assumptions which surrounded and perpetuated the contemporary British House of Lords when they created the United States Senate in 1787. That being said, having all of them been raised and educated within a social context that placed a great deal of significance upon British parliamentary conventions, they could not help but have internalized some amount of reverence for the same. The fact that so many of the first constitutions adopted by the states described a bicameral legislature with a distinctly static, privileged, and powerful upper house would seem to speak to this exact turn of mind. Getting at the source of these ideas would accordingly seem essential if one is to reach an understanding of why the Framers made the Senate what we now know it to be. But first, for the sake of clarity, let us take a moment or two to establish exactly what the Senate is and what it does.

    The United States Senate serves as the upper house of the national legislature, the United States Congress, with one hundred members elected for infinitely renewable terms of six years each. These one hundred members are assigned two to every state and each member possesses one vote when it comes time to approve or reject legislation. The Senate has two presiding officers, one of whom is also the Vice-President of the United States. The other presiding officer, who oversees Senate sessions in the absence of the Vice-President, is called the president pro tempore (being Latin for “president for a time”) and is customarily the most senior member of the majority party. In terms of partisan offices, the person who functions as the practical administrator of the Senate – inasmuch as they control the day-to-day agenda – is the Majority Leader, while the Minority Leader serves as the chief representative of the minority party. Senate elections are held in a staggered fashion, with one third of the total membership standing for election every two years, and seats that become unexpectedly vacant are either filled on appointment by the governor of the relevant state or by way of a special election.

    In terms of the Senate’s particular functions, it possesses both legislative and executive responsibilities. Speaking to the latter, every bill that is approved by a majority vote of the House of Representatives must also be approved by a majority vote of the Senate if it is to become an Act of Congress. Under the terms of the Constitution, any type of bill may originate in the Senate so long as said bill does not propose to levy taxes. In addition, while the Senate is not formally restricted from “appropriating” – i.e., spending – monies that have already been raised, the leadership of the House has customarily insisted that this also lies outside the Senate’s remit. In consequence, while the Senate may vote upon legislation which proposes to spend federal funds – and has done so – the House invariably refuses to give such bills a hearing. A bill which is approved by the House and sent to the Senate or approved by the Senate and sent to the House may be ratified as is, amended and sent back, or result in the formation of a conference committee. Any Senator may speak during any debate for as long as they are able unless – with a few key exceptions – three-fifths of their colleagues vote to bring the debate to a close. But while this fact has, in the past, resulted in individual Senators attempting to hold the floor for hours at a time in order to frustrate the passage of a particular piece of legislation, what it tends to mean in modern practice is that most bills placed before the Senate require the support of sixty Senators for formal approval. The act of holding up a bill until a three-fifths vote is achieved – or merely of threatening to do so – is known as a “filibuster.”

    Beyond acting as a secondary debating chamber for the purpose of legislation, the Senate also possesses the exclusive responsibility to “advise and consent” – i.e., vote – upon a number of executive branch proposals. Treaties, for example, which the Constitution maintains shall have the same weight and significance as federal law, must be submitted by the President for Senate approval before they can come into force. The Senate must also approve the nomination of cabinet secretaries and under-secretaries, federal judges – up to and including Justices of the Supreme Court – the directors of various executive-branch organizations, and – in cooperation with the House – the Vice-President of the United States in the event that the office has become vacant. Historically speaking, the significance of the Senate’s appointment power has varied markedly depending on the political climate of the era and the nature of the relationship between that body and the President. Across the entire 19^th century, for example, the Senate formally voted to reject a Supreme Court nominee only seven times, two of which were the result of a persistent conflict between President Grover Cleveland (1837-1908) and the proponents of the Free Silver movement who controlled the New York wing of the Democratic Party. During this same span of time, the Senate voted to reject another seven cabinet nominees, fully five of whom were submitted by the notoriously unpopular John Tyler (1790-1862). In all other cases during this first century and a half of American history, the appointments in question were either approved or withdrawn.

    In terms of formal rejections, the 20^th century was even more quiescent. Between the years 1900 and 1999, only four Supreme Court nominees and four cabinet picks were actively denied by the Senate, and in both cases, the 1980s witnessed the last such occasion to date. But while this might appear to indicate the emergence of a smoother working relationship between successive presidents and Senate majorities than during previous eras in American history, a more than cursory examination tells a dramatically different story. But for the odd occasion – as noted above – wherein the relevant relationship was for some reason particularly strained, the Senate has historically tended to approve the nominations submitted by the executive branch by fairly comfortable margins. Even mutual suspicion has not always doomed a given nominee. In the 1930s and 1940s, for example, in spite of the ire which he aroused after threatening in 1937 to “pack the court” with more agreeable judges who would vote to sustain his various New Deal initiatives, President Franklin Delano Roosevelt (1882-1945) still managed to rack up sizeable margins of victory – 63-16 for Hugo Black (1886-1971), 62-4 for William O. Douglas (1898-1980) – for his chosen appointees. And in 1975, in the immediate aftermath of the Watergate Scandal (1972-1974) and the resignation of President Richard Nixon (1913-1994), Nixon’s former Vice-President Gerald Ford (1913-2006) succeeded in having John Paul Stevens (1920-2019) voted onto the Supreme Court by a margin of 98-0. But while this trend generally continued into the 1980s and 1990s – with Ronald Regan’s rejected nominee Robert Bork (1927-2012) being more than balanced out by the unanimous conformations of Antonin Scalia (1936-2016) and Anthony Kennedy (1936-) – the collegiality which used to characterize the appointments process thereafter began to fray.

    While, as aforementioned, the Senate has not voted to reject either a Supreme Court nominee or a cabinet nominee since the late 1980s, pre-emptive withdrawals have become far more common and the margins of successful votes have become far smaller on average. Of the three people that President George W. Bush (1946-) nominated to the Supreme Court of the United States, for instance, one, John Roberts (1955-), was confirmed by a vote of 78-22, another, Harriet Miers (1945-), was withdrawn, and the third, Samuel Alito (1950-), was confirmed by a vote of 58-42. Bush’s successor, Barack Obama (1961-), managed a broadly similar average, with two successful confirmations – Sonia Sotomayor (1954-), 68-31 and Elena Kagan (1960-), 63-37 – and a third – Merrick Garland (1952-) – which was effectively rejected without a vote. And while all three of the nominations made by President Donald Trump (1946-) were ultimately confirmed, the margins in all three cases amounted to ten votes or less. A comparable story has played out in terms of cabinet appointments as well. Before 1993, the Senate voted only eleven times to reject a cabinet nominee and three nominees were withdrawn before a vote could be held. Since that time, while a nominee has yet to be formally rejected, fully sixteen of them have been pre-emptively withdrawn. And of those that were approved, particularly in the last years of the 2010s, several only just managed to scrape by to confirmation. Whereas Hillary Clinton (1947-) and John Kerry (1943-) were each approved as Secretary of State by over ninety votes in their favor, Rex Tillerson (1952-) was appointed to the same office on a margin of 55-43 while Mike Pompeo succeeded him by a count of 57-42. Even granting the possibility that the Trump Administration represents some manner of historical aberration – at this point more of a hope than a certainty – the recent confirmation of Antony Blinken (1962-) by a vote of 78-22 would nevertheless seem to indicate that the era of wholly uncontroversial appointments might already have ended.

    Similar patterns seem to play out when one compares other cabinet nominations from the last three administrations. Treasury Secretary Jack Lew (1955-) was approved by a vote of 71-26, his successor Steve Mnuchin (1962-) by a margin of 53-47, and Mnuchin’s successor, Janet Yellen (1946-), by a count of 84-15. While this might not seem like a particularly alarming development, it bears nothing that nominees from either party to lead the Treasury Department prior to Lew were regularly confirmed by a unanimous vote. In terms of the office of Attorney General, an even more interesting comparison can be made. Upon being nominated for said office in 1991, William Barr (1950-) was approved unanimously, both by the Judiciary Committee and on the Senate floor. Barr was approved for a second term almost thirty years later when he was nominated again in 2019, but this time by a vote of 54-45. In the interim, some, like Barr’s immediate successor, Janet Reno (1938-2016), met with little resistance at all, but the general trend was definitely towards closer and closer margins. By the time of Barr’s second confirmation, his predecessors Lorretta Lynch (1959-) and Jeff Sessions (1946-) had each been confirmed by less than seventy votes, with Sessions succeeding to the office by a final tally of only 52-47.

    Evidently, as the 20^th century has given way to the 21^st, both cabinet confirmations and Supreme Court confirmations have become increasingly contentious affairs. And while in the days when unanimous approval was common there might not have been much enthusiasm on the part of the American public to question the nature of this particular prerogative of the Senate, the tensions that have accompanied more recent appointments has understandably brought with it a good deal of popular scrutiny. None of this is to say, of course, that partisan politics has never before seeped into and greatly influenced the confirmation processes of the Senate. As aforementioned, there have been numerous occasions in the past during which the relationship between either the President and the Senate or the President and some faction of his own party has been turbulent enough to interfere with cabinet or Supreme Court appointments. It’s just that for most of the last century this has not been the case, while for most of the last two decades it very much has. For better or worse, the United States would presently seem to be in the midst of another unusual but not unheard-of period in its increasingly lengthy history during which political deadlock and disagreement are more or less the norm. And while it has not always been the case that these periods have produced a great deal of philosophical introspection on the part of the American people – particularly on the subject of previously un-scrutinized norms – such a moment of self-examination would seem to be very much in the offing. The events of the last four years in particular have given rise to intensely probing discussions about the purpose of certain institutions and the manner by which their continued existence is justified. The Senate, as the implications of its role in confirming certain executive branch appointees have become clearer and clearer, is just such an institution. It accordingly bears asking – in keeping with the spirit of the times – how and why this institution came to be, how it has changed over the course of its existence, and what certain of its responsibilities were originally intended to signify.              

The Perpetuation of our Political Institutions, Part XII: The Lincoln Fallacy, contd

    The long-term effects of the passage of the Fugitive Slave Act (1793) shows yet another facet of the law’s exceptionally problematic nature. As discussed above, enforcement of the cited non-interference clauses would have been challenging enough even if the legislation in question had been left to operate in a vacuum. But the United States of America presented no such thing. In addition to have barred slavery entirely on their own initiative, many states in the north of the American republic began passing legislation in response to the Fugitive Slave Act over the course of the 19^th century specifically for the purpose of frustrating its effectiveness. As the Act made no mention of allowing those accused of being fugitive slaves to petition for a formal jury trial, for example – stating instead that the accuser need only present “oral testimony or affidavit” to a duly certified judge or magistrate – states like Indiana and Connecticut adopted laws to that exact effect over the course of the late 1820s. Similar statutes were passed in Vermont and New York in the early 1840s, with both states going so far as to provide lawyers for the accused. And in 1826, Pennsylvania went to the length of decreeing by way of legislation that,

If any person or persons shall, from and after the passing of this act, by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretense, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, to any other place or places whatsoever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this commonwealth having competent jurisdiction, be deemed guilty of a felony.

In part, these laws were intended to protect the free black populations of the relevant states from being captured and enslaved on the basis of one-sided testimony. A jury trial would allow for a more thorough discovery of the facts, permit the accused to speak in their own defense, and serve generally to prevent free people of color from being treated like anything less than American citizens. Such statutes naturally also succeeded in frustrating the work of slave catchers whose quarry really were fugitives by requiring them to prove to the satisfaction of a jury that the target of their search was indeed legally enslaved. That this latter outcome was seen as a desirable one by at least some state legislators during this era is amply borne out by the text of the Pennsylvania statute cited above. Granted, few of Pennsylvania’s sister states were willing to go quite so far in offering protection to those who wished to escape from bondage, but the relative ubiquity of these so-called “personal liberty laws” would seem to be proof enough that the concepts of “lawful” and “unlawful” are not necessarily synonymous with those of “right” and “wrong.” Which comparison naturally brings things full circle back to 1838, Abraham Lincoln, and his formula for the perpetuation of America’s political institutions.

    Lincoln’s intention, recall, was to counteract the rise in vigilante activity then sweeping across the American states – a trend which he believed augured the disintegration of the American republic – by elevating strict observance of the law to something on the order of a sacred duty. Neither the threat of Britain nor the example of the Founders, he avowed, could any longer dissuade people from acting strictly out of self-interest, and so it fell to some other principle to promote public service and discourage destructive personal ambition. But while “the law of the land” seemed to fit this bill rather well – being impersonal, applying to everyone, and existing as the product of a democratic process – even a brief examination of the circumstances and elements involved reveals a number of troubling implications. On the subject of slavery, for example, it wasn’t particularly clear which laws exactly Lincoln was declaring that his audience should religiously observe. The Fugitive Slave Act, as cited above, declared that somebody seeking to transport an enslaved person back to their owner need only provide proof of their claim to the relevant judicial authority in the form of oral testimony or by swearing an affidavit. And since Article VI of the United States Constitution – by way of the so-called “Supremacy Clause” – made it clear that, “The Laws of the United States […] shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby [,]” these same judicial authorities should presumably have acquiesced. But what of the state laws discussed above? Were they of no account? What if a slave catcher insisted that they should not have to submit to a jury trial in a state wherein the law guaranteed a jury trial to those accused of being fugitive slaves? What should the judicial authority to whom the claim was presented have done in such a situation? What should the slave catcher have done? If no one present was competent to declare a state law to be effectively nullified by the terms of the Constitution, what was supposed to occur in an instance such as this?

    Such a hypothetical situation would seem to become stickier still if it were to take place, say, in the Commonwealth of Pennsylvania. As aforementioned, the legislature of the Keystone State declared in 1826 that the involuntary removal of anyone who might be construed as currently or formerly enslaved was absolutely forbidden. What, then, was a person to do if they were approached in Pennsylvania by the agent of a Virginia plantation owner and told that their farmhand was in fact an escaped slave? Federal law tells them not to obstruct the proceedings to follow. State law tells them that the proceedings to follow are illegal. Where lies the righteous path that Lincoln so loudly championed? In the absence of a ruling by the United States Supreme Court, who was to say which law ought to be followed and which ought to be tossed aside? Should the Pennsylvanian have bowed to the primacy of federal law? Should the slave catcher have given way to the law of the state in which they found themselves? Lincoln had made it sound as though his solution was so simple, yet this is clearly not a situation to which the concept of “simplicity” quite applies. “Let every American [..] swear [,]” he said, “Never to violate in the least particular the laws of the country, and never to tolerate their violation by others.” But what if “the laws of the country” were working at cross purposes? What if they were designed to work at cross purposes?

    This last question gets at perhaps the most troubling aspect yet of Mr. Lincoln’s aforementioned prescription, specifically in terms of its relationship to the institution of slavery. His overarching aim, recall, in recommending to his fellow citizens that they treat every law – even those they recognize to be bad laws – with a degree of religious observance was the ultimate preservation of the union of American states. The normalization of mob violence which threatened to unravel the bonds of republican government in America, he observed, came from a place of selfishness; from individuals disregarding the validity of the law of the land in favor of their own particular impulses or desires. The surest counter, then – in the absence of a common enemy or a common source of inspiration – was something that would effectively force people to be selfless. But while the law in itself doubtless seemed like it could serve just such a purpose, the reality was far more complex that Lincoln seemed willing to acknowledge. His belief, as stated, was that observing the law constituted a selfless act and that bad laws should and would be remedied by way of the proper institutional channels. In point of fact, of course, neither of these convictions was demonstrably true. While developing the habit of bowing to the law might in time have promoted a shared sense of selflessness and social responsibility among the American people, the laws to which they were leaning to bow would not always be particularly altruistic in themselves.

    The Fugitive Slave Act, for example – or, indeed, the legal construct of slavery as a whole – was not proposed, approved, and enforced for the benefit of the greater good. Rather, it served the interests – almost exclusively and by design – of a particular class of regional agriculturalists whose personal prosperity depending on the ownership and forced exploitation of otherwise blameless human beings. And this was not a hidden thing. Slavery was known to all and sundry as the primary economic basis of the Southern United States, and the Fugitive Slave Act represented an unambiguous attempt by the political elites of this region to bend the institutions of federal power to their suit their own particular needs. Bearing this in mind, a person living in Pennsylvania, say, or Indiana, or Connecticut who was determined to take Lincoln’s advice to heart would inevitably be forced to confront a potentially painful contradiction. Lincoln tells them that in order to help preserve the American republic they need to put aside their personal desires and simply obey the law. But at the same time, their knowledge of what the law is and what it means must also tell them that obeying it at all times will sometimes require them to condemn certain kinds of people to lives of servitude, torture, and death. Being selfless, in essence, will require them to sometimes serve the selfish desires of others. What are they to make of this? How can they reconcile the end which Lincoln tells them they should pursue with the consequence they know that such a pursuit might entail? To be sure, there were bound to be millions of Americans in 1838 who would think little of assisting in the apprehensions of those identified to them as fugitive slaves. But those millions more who looked upon slavery with a sense of abject horror? Who took pride in the fact that their home state had outlawed the practice? They would be left in an impossible situation. Which must give way, their convictions or the law?

    Mr. Lincoln seemed to think that this question was answered easily enough. Bad laws, he said, will be recognized as such and, “Should be repealed as soon as possible [.]” To that end, “Let proper legal provisions be made for them with the least possible delay [.]” But how likely was this, really? Law, as aforementioned, is never really the product of the popular will in the way that some people might like to think. The American people don’t make American law, but rather choose those who do. And these chosen few don’t simply carry out the stated will of their constituents, but rather mix their understanding of what the voters want with their own desires and intentions and then attenuate the result based on the circumstances of the moment. Legislators belong to parties whose platforms and principles don’t always speak all that directly to the issues confronting a given constituency, and elections – particularly in the 19^th century – are not always the product of a thorough airing of the issues so much as they are the product of investment by certain interests, blocs, or persons. And none of this is to mention, of course, the extent to which political institutions and the rules that govern them might be – or have historically been – manipulated in order to provide a disproportionate advantage to one group or community over another. Bearing all of this in mind, Lincoln’s belief that it was permissible to obey bad laws because they would surely be repealed before long would seem to be either exceptionally naïve or willfully ignorant.

    Even if the majority of American voters in 1838 believed wholeheartedly that the Fugitive Slave Act should have been repealed, it would almost certainly not have happened. The simplest reason for this, as aforementioned, was that not everyone would have cause to agree that the Fugitive Slave Act was a bad law. Southerners would mostly claim that it was, Northerners would mostly claim that it wasn’t. Who was right? Well, the Northerners, in point of fact, but that would have mattered very little in terms of getting the thing off the books. And why was that? Because, for many reasons, Southern slaveholders wielded a great deal of power. Slaveholders made up the elite class of every Southern state, after all. They controlled the county offices, the judgeships, the sheriffs’ offices, the state assemblies, governorship, and Congressional seats. And while in large part this was due to their economic power – agriculture being both the primary industry in which slaves were deployed and the cornerstone of the contemporary American economy – it was also the result of what their economic clout was able to buy them. Mind you, this isn’t to say that the specifically Southern contributions to the United States Constitution were the product of bribes or other such corrupt dealings. That said, there definitely existed an understanding on the part of delegates from Northern states that wealthy slaveholding jurisdictions like Virginia, Maryland, and the Carolinas did rather need to be appeased. Without the money and the prestige that these states would inevitably bring to the whole concept of an American union, the project might have been doomed to failure at the outset. It was accordingly for this reason that certain Southern proposals were accepted. Northern delegates had no reason to permit three-fifths of all slaves to be counted towards popular representation in Congress, other than the fact that the Southern delegates demanded it. Delegates from Northern states likewise had no cause to approve of such language as made it legal for the deputized agents of slaveholders to legally abduct such persons as they claimed to be property, other than that they wanted to ensure the continued cooperation of the slaveholding South.

    The result of all of this, of course, was that by the standards of most people living in the United States right now – and also by the standards of no small number living there in 1838 – 19^th century Americans were pretty much stuck with a whole host of very bad laws. These laws had been approved by state legislatures, by Congress, and were even enshrined in the Constitution, and their collective effect was to promote suffering, exploitation, and death. And what was Abraham Lincoln’s response to this reality? What did he tell his young and impressionable audience to do? Obey the law, he said, and depend on something happening which is functionally impossible to keep you from committing a morally questionable act in the process. The Fugitive Slave Act wasn’t going to be repealed, one of the results of which was that some people in Lincoln’s adopted home state of Illinois – perhaps even some of those who attended his speech in Springfield – might very likely find themselves faced with a dreadful choice. Do they obey the law and turn over someone they are told is a fugitive slave to who knows what kind of horrors, or do they help the accused to go free and risk the supposed dissolution of the American republic? If Lincoln’s aim was truly to promote selflessness and altruism among his fellow Americans, one would hope he desired for those who took his words to heart to behave in such a manner that placed human life and human freedom above the selfish desires of a wealthy elite. But this, as herein discussed, was not really what he argued.

    The young man from Kentucky might be forgiven, of course, and perhaps should be. Faced with at times shocking outbursts of popular violence – and convinced that the normalization of said violence would at length spell the end of the United States as he knew it – his search for some means of both explanation and solution was admirable in itself. But while his diagnoses of what was ailing the American republic as it moved towards the middle of the 19^th century, if somewhat flawed, was not wholly without merit, his prescription for the same was exceedingly short-sighted. And yet, how could it not be? Having identified a problem which seemed to cut to the very essence of what the United States had been to that point in its history, how could he have been expected to come up with a solution that came anywhere close to addressing the magnitude of the issue? How was a largely self-taught young man of twenty-nine supposed to talk his way into saving the American republic? It wasn’t a reasonable proposition in the slightest degree, and Lincoln almost certainly should not have made the attempt. The fact that he did, however, does tell us something about the man and his times. Clearly, Lincoln was a conscientious person, and one who felt some amount of responsibility towards both his fellow man and the nation of his birth. And while his aforementioned analysis of the problem at hand was deeply flawed in some very significant ways, the fact that he spent time and effort attempting to remedy what he believed was the most pertinent evil of his day speaks well of his conviction at such a young age.

    For that matter, it is also very much worth noting that Lincoln looked around at the United States of American in 1838 and saw a nation that was in the midst of a kind of diffuse but persistent crisis. Civil war was not necessarily in the offing – any more than it was at any point between 1832 and 1861 – and the economy wasn’t in freefall, but there did seem to be something about the mood of the American people which Lincoln believed was symptomatic of something that was potentially as devastating. People were acting selfishly, he observed, and taking the law into their own hands. They had gotten into the habit of valuing their own desires over the needs of the larger community and grown increasingly comfortable pursing whatever it was they wanted to the exclusion – or to the detriment – of anyone and everyone else. And while, in the immediate, the victims of this selfish turn were relatively few, Lincoln believed it would only be a matter of time before concepts like selflessness and altruism vanished entirely and the American republic dissolved into a mass of mutually antagonistic individuals who saw no value whatsoever in trying to promote a “common good.” He made this out to be something of a new problem, based on his assessment of the waning influence of the elements that to his mind had thus far contributed to a common sense of nationhood. But in reality, it is a threat that has always lingered beneath the surface of the American soul. How does a government “of the people” maintain the respect of the people? Why should anyone heed institutional authority when the basis of that authority is that all people are equal and free? There was no way Lincoln was going to be able to answer these questions conclusively at the tender age of twenty-nine, but it says something rather profound about the American experience that he felt them as pressingly in 1838 as many of his countrymen still do to this day. “The law” might not have been the conclusive answer that Lincoln believed it to be, but at the very least he was pointing his attention at the right things. At the very least he understood that the American experiment in self-government was not somehow magically self-sustaining. It needed to be tended to, constantly, or else it would surely fail.

    Or else it will surely fail.

    Anyway, that’s me. Where are you at on this one?                           

The Perpetuation of our Political Institutions, Part XI: The Lincoln Fallacy, contd

    While the events and the outcome of the Missouri Mormon War of the 1830s would certainly have been pertinent to the context in which Abraham Lincoln sought to address the Young Men’s Lyceum in Springfield, Illinois in January of 1838, there undoubtedly remains a subject whose relevance to his stated argument slots more neatly into the man’s reputation and legacy. That subject, of course, is slavery. Lincoln is inarguably most famous for helping to eliminate the institution of chattel enslavement in the United States, to the point that he is often referred to as “The Great Emancipator” when his deeds to that end are recalled. But in 1838, it seemed, so early in his life and career, his opinions on the subject of slavery were either substantially undeveloped or simply unlike what they would become. Granted, Illinois was not a slave state – if only just – and it may have been the case that Lincoln did not give as much thought to the institution as he might have done had he never left his native Kentucky. Then again, the fact that he made reference to both the lynching of Francis MacIntosh and the murder of Elijah Lovejoy in his speech to the Springfield Lyceum – both of which events were indelibly tied to the existence and implications of slavery – would seem to indicate that he actually had given some amount of thought to the social and moral effects which had been wrought upon the American republic by the legal ownership of human beings. Lincoln’s speech was not about slavery, of course, so as much as it was concerned with the significance of vigilantism to the integrity of the United States. But in the era in the 19^th century which preceded the Civil War (1861-1865), no aspect of public life was entirely unconnected from the institution in question. Lincoln’s various assertions would seem to amply bear this out, and the implications of his core argument are all the more troubling as a result.

    As aforementioned, the thing that Lincoln was advocating for was a scrupulous – one might almost say religious – observance of the law. There was little else left to help bind the American people together, he observed, and so it fell to them as a community to embrace a new form of civic piety. “Let every man remember [,]” he said,

That to violate the law is to trample on the blood of his father, and to tear the charter of his own and his children’s liberty […] While ever a state of feeling such as this shall universally or even very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.

A bold declaration, to be sure, but not a particularly disconcerting one on its face. Why shouldn’t people obey the law? Wasn’t that the whole point of republican government? Weren’t the laws of the United States the result of a process of consent and negotiation? In theory, perhaps, this was indeed the case. But as Lincoln expanded upon this concept in terms of its practical significance, he also ended up acknowledging one of the thornier issues that a philosophical worship of the law was unlikely to entirely satisfy. “In any case that may arise,” he continued,

As, for instance, the promulgation of abolitionism, one of two positions is necessarily true—that is, the thing is right within itself, and therefore deserves the protection of all law and all good citizens, or it is wrong, and therefore proper to be prohibited by legal enactments; and in neither case is the interposition of mob law either necessary, justifiable, or excusable.

    There would seem to be a pretty obvious fallacy at the heart of this statement. Or, if not a fallacy, then tremendous a failure of imagination. Lincoln declared, taking abolitionism as an example, that either the principle was right and deserved to be protected by the law or it was wrong and ought to be prohibited. Fair enough, perhaps, in principle, but this is clearly not how such things work in practice. Things that are right in themselves, whether they ought to be protected or not, are often prohibited by the vested interests that hold the reins of power. And just so, while certain things may be, in principle, wrong and objectionable to the very essence of human nature, they nevertheless enjoy the benefit of legal protection. It is not simply a matter – as Lincoln seemed to intimate – of good policy being protected and bad policy being prohibited, if for no other reason than that measures of “goodness” and “badness” are so often extremely subjective. His stated example of abolitionism was very much a case in point. The various enslaved peoples and free Black peoples then living in the United States most assuredly thought of the abolition of slavery as wholly positive effort. And so, too, did the members of the various anti-slavery societies and Christian denominations located in the northern United States who began to advocate for the elimination of slavery as early as the 1790s. But the inhabitants of the contemporary American South would have been of quite the opposite opinion. Those who owned slaves would almost certainly have described abolitionism as an insupportable attack on their livelihood and culture. And those who didn’t own slaves would doubtless still have found reason to voice much the same opinion on the grounds that their social and economic standing stood to diminish significantly in the event that every enslaved person was suddenly set free. So what, then, did that make abolitionism? Good or bad? Worthy or protection or properly prohibited?

    The answer, notwithstanding Lincoln’s rather simplistic explanation to the contrary, was that such considerations didn’t actually matter. It wasn’t a question of numbers – that is, whether the number of people who were opposed to slavery was greater than or lesser than the number who supported it – but rather one of power. The South, as of the late 1830s, was almost exclusively represented in Congress by people who personally owned slaves, while the North was represented in large part by people who were either dead set against offending their southern colleagues by suggesting that slavery might not be morally defensible or who felt that slavery was strictly a matter for the states to regulate. The result, predictably, was that slavery remained on the books and abolitionism was the subject of frequent controversy and repression. Did this mean that abolitionism was a wrong in itself which ought to have been prohibited? Of course not. As aforementioned, considerations of good and bad, right and wrong hardly entered into the discussion of whether slavery or abolitionism should have been legal or illegal. It was, once again, all just a question of power. Whether one thought of slavery or its abolition as being particularly good or bad, slavery was the law of the land in the American republic in the late 1830s. And this was not just the case in the jurisdictions where the actual ownership of slaves was permitted.

    If slavery was a matter left to the states to regulate as they saw fit, after all, it stood to reason that some of them might choose to prohibit it while others might choose to preserve it. In the resulting patchwork of legal regimes, the difference of a handful of miles might accordingly determine whether a person was property or not. That is to say – in theory at least – if slavery was illegal in Pennsylvania and legal in Maryland then a person who was enslaved in Maryland might cease to be so if they crossed the state line. One doesn’t need much of an imagination to perceive in this kind of arrangement the possibility of a mass exodus of fugitive slaves into such jurisdictions where the practice had been banned. Those who owned slaves were not inclined to tolerate such an outcome, and those who did not were nevertheless conscious of the need to at least nod in the direction of compromise if the union of American states was to be as perpetual as they hoped.  Early efforts aimed at protecting the property of slave owners were accordingly shaped by both the context in which they were offered and the nature of the authority by which they were to be empowered. Deals were made, coalitions were cobbled together, and progress – of either side of the issue – was often halting and limited in scope.

    In 1785, for example, amidst an attempt by the assembled delegates to dispose of a number of competing land claims made by the states via the mechanism of a federally administered “western territory,” Massachusetts delegate Rufus King (1755-1827) sought to add a clause to an existing ordinance which would have mandated the return of fugitive slaves who had escaped into the region to their duly identified owners. This represented a strategic decision of King’s part, for he was at the same time proposing that slavery itself be forbidden in the territory in question. Thomas Jefferson had earlier suggested that the federal lands – and whatever states were formed out of them – be free of slavery, but a clause to that effect was removed before the relevant ordinance was approved by Congress in April of 1784. When King sought to re-insert the anti-slavery provision into the text of the legislation, he accordingly did so in an attitude of conciliation. Jefferson’s failure had proven that Congress would not tolerate a ban slavery in federal territory outright, but perhaps the pro-slavery elements therein would trade an anti-slavery provision for a clause which would ensure that their existing slave property would be protected. King’s “fugitive slave clause” accordingly declared that,    

Upon the escape of any person into any of the states described in the said resolve of Congress of the 23d day of April, 1784, from whom labor or service is lawfully claimed in any one of the thirteen original states, such fugitive may be lawfully reclaimed and carried back to the person claiming his labor or service as aforesaid, this resolve notwithstanding.

But while King’s two-part revision to the Ordinance of 1784 was ultimately shot down, slavery’s days were nevertheless numbered in what was now federal territory in the region of the Great Lakes. Before significant numbers of Americans could begin to migrant into the newly surveyed region, Congress passed yet another ordinance which rather pointedly accomplished both of the measures that King had suggested.

    The Northwest Ordinance (1787) essentially sought to organize the territory that Congress had taken possession of by way of the Ordinance of 1784, specifically in terms of its political, legal, and administrative characteristics. The territory would have a governor, for example, to be appointed by the President, and a secretary, and a court system. A general assembly was also to be established, consisting of an upper house and a lower house, the most important responsibility of which was to send a non-voting delegate to Congress. And in terms of the laws of the region, one particular mandate stood out. Notwithstanding whatever measures that the aforementioned legislature would see fit to take going forward, it was stated in Article 6 of the Northwest Ordinance that,

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

Evidently, though King’s attempt at conciliation was met with failure in 1785, the essence of the thing had had enough of an impact on his fellow delegates to Congress that they reconsidered their objections in fairly short order. If slavery was an issue which the representatives of certain jurisdictions felt strongly enough about to want to see it forbidden in any new states which thereafter joined the union, then perhaps the representatives of those regions in which the institution had become an economic cornerstone ought to seek some means of compromise. To be sure, these pro-slavery partisans would have preferred for the growth of chattel enslavement to be entirely unhindered by federal law, particularly as such ordinances might have limited their own ability to purchase and settle upon cheap and fertile western land alongside their human property, but their more immediate concerns took precedence. If, in order to promote harmonious intersectional relations, the slaveholding interests in Congress allowed for the prohibition of slavery in the trans-Appalachian west, then they might at least succeed in trading such an outcome for the protection of their existing property in slaves.

    Such strategic thinking, as it had motivated Rufus King in 1785 and allowed for the passage of the Northwest Ordinance in 1787, likewise figured into the debates which produced the United States Constitution by way of the Philadelphia Convention. Up to that point, most of the states north of Maryland had at least taken preliminary steps towards the abolition of slavery. Pennsylvania had initiated a gradual process of manumission in 1780. The Supreme Judicial Court of Massachusetts ruled slavery incompatible with the state constitution in 1783, the same year that New Hampshire began its own emancipation process. And Connecticut and Rhode Island did the same beginning in 1784. But while the continued existence of slavery in the various Southern states would seem bound to give rise to an intractable divergence of interests when representatives of the two groups came together in Philadelphia for the purpose of devising a more robust form of national government, the resulting document is remarkably quiet on the subject and its future in the United States of America. The terms “slave” and “slavery,” for example, are nowhere to be seen. Instead, the text of the Constitution talks around the topic in question while offering a fairly limited series of guarantees and restrictions. The slave trade, referred to rather obliquely as, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit [,]” was to be protected from federal restrictions or bans until the year 1808, with the exception of taxes not exceeding ten dollars per head. And for the purpose of representation in Congress and taxation thereby, apportionments were to be made according to, “The whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The category of “all other Persons” naturally referred to slaves.

    And then there was Article IV, Section 2, which contained what is arguably the single clause perhaps most obvious in its unambiguous reference to slavery. According to said provision – in a distinct echo of both King’s 1785 proposal and the cited terms of the Northwest Ordinance of 1787 –  

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Seeing as how the adoption of such language would functionally expand the scope of the fugitive slave clause embedded in the governing charter of the Northwest Territory to cover the whole of the United States, this clause was met with some resistance upon its introduction during the debates of August 28^th. As proposed by South Carolinians Charles Pinckney (1757-1824) and Pierce Butler (1744-1822), the idea was for fugitive slaves, “To be delivered up like criminals [,]” a comparison which they doubtless hoped their northern compatriots would uncritically accept. In the immediate, however, this was not to be the case. Pennsylvania’s James Wilson (1742-1798) was the first to object, complaining that, “This would oblige the Executive of the State to do it at the public expence.” This was followed up by Connecticut’s Roger Sherman (1721-1793), who declared that he, “Saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.” Though these both amounted to a rejection of the Southerners’ proposal, it bears noting the degree to which Wilson and Sherman appeared to differ in their view of the fugitive slave issue.

    Sherman’s complaint appeared to be chiefly practical in nature, if also more than slightly dehumanizing. In his opinion, it seemed, a slave was like any other piece of personal property which a person might lose, mislay, or have taken from them. If a person’s horse were to escape its corral, or wander off, or be stolen, was it the state’s responsibility to ensure its safe return? Or was it solely up to the owner to take action as they saw fit? Sherman seemed to of the latter opinion and viewed slave property in this context as being no different than livestock. If a slave escaped from bondage, their owner was free to attempt to track them down. But as this had nothing to do with the general welfare of the community, said owner ought not to expect public assistance of any kind. Wilson’s argument was not wholly dissimilar, though somewhat less bluntly put. Sherman made it sound as though he felt that the protection of private property to the extent that Pinckney and Butler proposed represented an unjustifiably frivolous use of public resources. Wilson, by comparison, phrased his objection in such a way as to suggest that in addition to a practical concern for the use of public monies, he was also disinclined to allow the taxes collected from people who had rejected the institution of slavery to fund the continued enslavement of certain luckless individuals. And this was a perfectly sensible complaint, upon reflection. If the people of Wilson’s own Pennsylvania had opted to abolish slavery within the confines of that state – which, as aforementioned, they had – then why should they have been charged with upholding the continued enslavement of individuals in other states? Why should they have been expected to continue funding something that they had already rejected as being inherently immoral?

    Whether Pinckney and/or Butler saw the wisdom in these arguments or not, they did immediately agree to withdraw their proposition. The business of the day was concluded, the alterations made to the existing draft constitution were read into the record, and the gathering was accordingly adjourned. But then, in the midst of the next day’s discussion, Mr. Butler again proposed the adoption of a national fugitive slave clause. And this time, for whatever reason, nobody objected. It is impossible to know for certain how and why this happened the way that it did, though it does seem probable that more took place than was recorded. James Madison, whose Notes on the Debates of the Federal Convention remains the primacy source document on the day-to-day events of the Philadelphia Convention, did not also keep account of what transpired outside of the formal proceedings thereof. And while much of what the Constitution would eventually become is demonstrably the product of the debates which had been convened for that purpose, one imagines that a fair number of informal discussions also transpired before, after, and in between official sessions. Many delegates shared accommodations with their peers, or frequented the same coffee houses, or took their meals in the same taverns, and it stands to reason that some of the conversations that took place in these otherwise primarily social contexts eventually wound their way back to the overarching political concerns that had brought them all to Philadelphia in the first place. Bearing this in mind, it seemed quite likely that the swift adoption of the fugitive slave clause into the text of the Constitution on August 29^th in spite of its swift rejection on August 28^th was the product of some series of private discussions between its sponsors – Pinkney and Butler – and the delegates most likely to offer continued resistance to the same. And while there is no way of knowing exactly what was traded in exchange for the tax dollars of otherwise anti-slavery northerners being used to fund the perpetuation of human bondage in the United States, it seems probable that the bargain proceeded along the same lines as similar deals had done previously. Namely, in exchange for a relatively small degree of assistance from states where slavery was otherwise illegal in protecting the enslaved property of states where it was permitted, the slaves states would countenance some relatively minor restrictions on the institution and its expansion.

    The same “back and forth” doubtless also motivated the passage of the Fugitive Slave Act of 1793, the first of two federal laws which sought to provide a mechanism of enforcing Article IV, Section 2 of the United States Constitution. Said act stated, in part,

That when a person held to labor in any of the United States, or in either of the Territories on the Northwest or South of the Ohio river, under the laws thereof, shall escape into any other part of the said States or Territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any Judge of the Circuit or District Courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such Judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such State or Territory, that the person so seized or arrested, doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such Judge or magistrate to give a certificate thereof to such claimant, his agent, or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State or Territory from which he or she fled.

To a certain kind of person living in one of the states wherein slavery had at that point been abolished, this clause would doubtless have been problematic enough, specifically as it enjoined their local magistrates to uphold the enslavement and certify the recapture of human beings then held in bondage. But the clause that followed, in its various implications, was in many ways far more troubling. “Be it further enacted,” it read,

That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent or attorney, when so arrested pursuant to the authority herein given and declared; or shall harbor or conceal such person after notice that he or she was a fugitive from labor, as aforesaid, shall, for either of the said offenses, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by and for the benefit of such claimant, by action of debt, in any Court proper to try the same, saving moreover to the person claiming such labor or service his right of action for or on account of the said injuries [.]

The extent to which these terms, by essentially forcing private individuals to render assistance in perpetuating the enslavement of other human beings, were almost calculated to cause offence would seem to be fairly obvious.

    The language, for one thing, was at times alarmingly vague. The phrase “knowingly and willingly,” for example, when used in reference to actions taken by a given individual in opposition to the seizure of a fugitive slave, were in actual fact open to a fair bit of interpretation. To that end, consider the following hypothetical. A black person knocks on the door of a farmhouse in a rural area of state in which slavery is prohibited by law. They greet the man who answers, tell them that they have been travelling for some time and would like to rest for the night, and offer to exchange some amount of their labor for the privilege of temporary lodging. The farmer, being a generous sort of person, replies in kindness, invites the traveler inside, and agrees to provide them with a warm bed and a hot meal in trade for a few odd chores. The next morning, however, as the traveler is setting about their agreed-upon duties, an armed party rides up and approaches the farmer. The traveler is a fugitive slave, he is told, and the party has been deputized by the owner in question to capture and transport them back to where they belong. The traveler insists that this isn’t the case, that they were born free and are merely on the way to visit relatives in a nearby town. Who, under these circumstances, is the farmer supposed to believe? If the traveler is indeed a slave, then any attempt to obstruct the capture would constitute a violation of the terms of the aforementioned statute. But if the traveler is telling the truth, and the armed party has either made a mistake or is attempting an illegal abduction, doesn’t the farmer have a moral obligation to refuse his assistance? In either case, how can they be sure of what they are being told? How can they be expected to act in accordance with the law when what they know is only what they have been told? The presumption, of course, is that those who present themselves as having been authorized to recapture fugitives will always be trustworthy, and that those innocents who might get abducted in the process – by mistake or otherwise – are ultimately of no consequence.

    Likewise, consider the cited declaration that those who, “Shall harbor or conceal such person after notice that he or she was a fugitive from labor” would also be held in violation of the law. The troubling phrase, in this case, are the words “after notice.” By what means were those in a position to harbor fugitive slaves to gain notice of the fact? Any sensible runaway slave would surely hesitate before divulging their status to all but the most sympathetic individuals that they might meet during their flight. But if a confession is the only means by which someone might be given notice, in the moment, that the person to whom they are offering shelter is a fugitive slave, then the whole idea of attempting to enjoin local assistance for the recapture of the same would seem to be largely moot. So long as the person prepared to offer assistance does not pry after the status of their charge, then they should presumably have no cause to fear legal repercussion. As this could not possibly have been the intention of the men who framed the act in question, however, some other meaning must have lurked being the concept of “notice.” But what? How was a person living in a state where slavery was prohibited supposed to determine if the individual asking them for shelter wasn’t who they claimed to be? Were they supposed to doubt them on sight? Ask for proof of their freedom? Search through their belongings? Interrogate them mercilessly? And what if they did suspect that it was a fugitive slave who was asking them for help? Could it be proven in a court of law that they chose not to act of their suspicions? Could it be demonstrated conclusively that they chose to violate the law? Once again, there would seem to be a rather distressing presumption underlying the basic precepts of the cited legislation. In such states where free black people were otherwise the norm, requests for assistance from anyone who might be said to “look like a slave” were evidently to be treated with the utmost mistrust.