Friday, May 21, 2021

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 19th 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 19th 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 – 19th 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 19th 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?                           

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