There was no Southern Abraham Lincoln. Or rather, there was: He moved from his native, slaveholding Kentucky to Illinois and won political prominence there, saying things Southerners never would have tolerated. We know this, because when Lincoln eventually came to the attention of Southerners, they did not like him at all.

There was no intra-Southern rebellion against slavery by whites. The principled anti-slavers in the South—Washington, Jefferson, Madison—themselves owned slaves and hoped, at best for slavery’s gradual decline. Washington set an example by emancipating his slaves in his will. Jefferson was too much in debt throughout his life to do even that. And such men were at the summit. Antislavery sentiment declined after the founding generation passed.

As for black Southerners, they did resist and even rebel. Individuals won their freedom, if only by escaping to the North. But the slaves never acted in concert in sufficient numbers to win their freedom on the battlefield until reinforcements arrived in the person of U. S. Army troops. They found no allies among poor Southern whites. There was no 1848-style uprising of the oppressed, propertyless masses.

Why did the Southern political system enjoy such support from whites, such acquiescence from blacks? I shall argue that Eugene Genovese’s ‘paternalism’ explanation captures part of the truth. The other part, paradoxically, was that white Southerners really did govern themselves to a considerable extent, and they banded together in order to continue to do so.

The slave system was seen by whites, across social classes, as the foundation of their whole way of life, a way of life that in large measure fulfilled the American political intention of self-government, comprehending the security of natural rights. Tocqueville writes that in the South at the time of the founding “the whole race of whites formed an aristocratic body, headed by a certain number of privileged individuals,” the big planters (Tocqueville I. chapter 18). After primogeniture was abolished, free laborers in effect competed with slaves; they did not cooperate with them. Free laborers depended upon the plantation owners for work, or they worked their own small farms. No bonds between freemen (white or black) were established. (There was a bond between workers and slaves, and it was significant; but it was also international. The Confederacy expected British diplomatic recognition, on the basis of the importance of cotton imports to British manufacturers and workers. But the British workers, represented by such men as Bright and Cobden, were antislavery; they tolerated considerable hardships during the war but did not support recognition of the C. S. A. There is a difference between a temporary, though heavy sacrifice, and the prospect of a lifetime of competition at the lower end of the economic scale.)

Tocqueville to a degree exaggerates the aristocratic character of white Southerners. America, North and South, always had commercial agriculture—not a feudal order of lords and peasants (Moore 111). On the other hand, Southerners were rural capitalists, not urban capitalists, ‘bourgeois’ types. If they could not be real aristocrats, they could imitate aristocrats, try to enjoy aristocratic privileges without having a genuinely feudal social order (Moore 121). In South Carolina—admittedly, an extreme case—plantation owners deliberately undercut merchants, artisans, small farmers. There was simply no basis there for a white popular movement against planter control (Countryman 165). Such tactics were not so thoroughly successful elsewhere, but they were sufficiently successful so that the big planters controlled the state governments throughout the South between the founding and the Civil War. In other states, the other interests had more power than they had in South Carolina, but it wasn’t enough to injure planter interests.

Those interests were lucrative. Southern quasi-aristocrats made enough money to sustain themselves comfortably at the top of the social and political pyramid. Adam Smith was right; slavery contradicts commerce. The North was more prosperous than the South. But slavery does not damage commerce so much that it drives a slaveholders’ economy to disaster. By world standards, the South was prosperous. And its economy for a time complemented that of the North. From 1815 to 1830, cotton was the major cause of industrial growth in the United States (Moore 116), as the crop picked by slaves was shipped north to the textile mills of New England. The South fully participated in the burgeoning international economy, as well. By mid-century, the planters scarcely needed Northern markets anymore—or so they thought. Between 1840 and 1860, 80% of the cotton used by Britain was from the American South (Moore 116). Slave labor was integral to American industrial development for several decades. Adam Smith might have argued that such development would have been stronger and better-balance had there been no slaves, but the slaves were there and they were useed profitably by Southerners and (indirectly) by Northerners. When Lincoln assigned blame for slavery on Americans as a people, not on Southerners alone, he meant it and he was right.

The price of liberty is eternal vigilance, Americans told themselves, and they were far from regarding the emancipation of slaves as a narrowly economic threat. It is true that slave rebellions never posed a major military threat to any Southern government. It is true, also , that as the decades wore on, fewer and fewer Southern planters worried that the slaves could ever pose such a threat. (For example, in his voluminous writings Jefferson Davis never once worries about a rebellion on his plantation; quite the opposite, he and his wife were shocked that ‘their’ slaves ‘betrayed’ them by siding with the Yankee invaders.) But that doesn’t mean that the average Southerner did not fear slave rebellion. The example of the bloody Haitian revolution of 1791-1804 proved unsettling. The offer of freedom to slaves by Virginia governor Lord Dunmore in exchange for slave support of the Tories associated slave rebellion with tyranny—so much so that Jefferson cites such “incitements” in the Declaration of Independence’s list of indictments against George III. Even a disinterested and intelligent man like Tocqueville predicted racial extermination after abolition.

A look at the demographics shows why such apprehensions could be plausible. By 1860 the white population of the South was 9 million, of which 350,000 were slaveholders. There were 4 million slaves in the South. Most of the slaves were in the Cotton Belt, i.e., the lower South (Moore 116, 119; Genovese 5). Given such numbers, Southerners would ask, If we emancipate the slaves, where will they go? Tocquevile says that race war would be “inevitable” (I. chapter 18) because the only alternatives would be amalgamation or domination, and amalgamation was out of the question for reasons of racial antipathy (“We scarcely acknowledge the common features of humanity in this stranger whom slavery has brought among us” [I. chapter 18]). After the war, Southerners of course found a third way: a limited race war in the form of a guerrilla conflict establishing segregation with domination, the attempt to reconstitute some of the old slave society under the conditions of formal freedom. But before the war, Southerners would hardly desire to wrench their society out of joint simply in order to appease Northerners with post-Reconstruction plan of abolitionism-cum-racial-subordination. Why take the risk? Why incur the costs? Especially if you miscalculate the resolve of the North in any long war, as the Southerners did.

But if the slaveholders were the minority of whites, why did the white majority not jettison them and take over? The answer seems to be that the planters—with such men as Washington early, Calhoun later, Davis later still—were very astute politicians. The non-slaveholders concentrated in the South of the upcountry. They were independent farmers or ‘yeomen.’ the yeomen wanted nothing more than to govern themselves. Ensconced in the state legislatures, the planters wisely left them alone. Taxes were low; the hand of the state was light or nonexistent. Why rock the boat? (See Foner 11-12). Further, although 7% of the slaveholders owned 75% of the slaves (Genovese 5), the small slaveholders were interspersed with the upcountry whites . Local elite families often owned a few slaves, and exerted considerable influence. All the whites, upcountry or lowland, slaveless or slaveholding, very much preferred white supremacy to civic equality with blacks. The Virginians of the Jefferson-Robert E. Lee school, trembling over slavery in the knowledge that God is just, were perhaps more conscientious than most people, North of South. James M. McPherson presents strong evidence for the view that yeomen fought because they detested the prospect of sharing political power with black freedmen. Understanding that non-slaveholders posed a potential problem, secessionists embarked on a concerted and successful campaign to exploit that racial animosity.

It is this very American passion for self-government that accounts for the popularity of John C. Calhoun. As Ericson shows (75 ff.), Calhoun started not as a tariff polemicist or a pro-slavery champion but as a constitutional theorist concerned with local self-government. Although the debate over slavery itself sharpened (between North and South) as the secession crisis brewed, the self-government theme never went away. Planters and yeomen sincerely cared about that, and many sincerely supposed that the slave system must be maintained in order to sustain Southern self-governance. In the lower South especially, Calhoun could and did argue—in the late 1840s, in response to reports that a young Illinois Congressman named Abraham Lincoln was readying legislation to ban slavery in the District of Columbia) that emancipation in the South would result in “the prostration of the white race” because liberated blacks with citizenship rights would make alliance with Northern politicians, control patronage in the South, and ruin Southern whites.

Appeals to self-government were powerful in the upper South, also. As late as 1860-61, in the wake of Lincoln’s victory, the upper South of tobacco farmers remained in the Union after the lower, Cotton-Belt South seceded. Only when Lincoln called up troops to use against the lower South did the Virginians and other upper-Southerners secede, as a matter of principle, in defense of self-government.

As for poor whites, with little or no property, they too consented to the system. They saw the prospect of emancipated slaves as an immediate threat to their own meager livelihood. If the participated in the slave patrols, they could get their own sense of being in command. Planters prudently discouraged fraternization among slaves and poor whites, not only informally but with legal restrictions (Genovese 22-23).

With regard to the yeomen and the poor whites, the planters enjoyed the very significant advantage of information control. Speakers at Southern political barbecues acted like teachers, instructing ‘students’ on the finer (and not-so-fine) points of policy and Constitutional rights, mostly as presented through the Calhounian lens. The barbecues were like “political schools wherein lectures were delivered for the education of the masses: (Silbey 57). It would be surprising to learn that the lessons offered presented abolitionism in a positive light. Increasingly, one of the lessons taught was a very old one: ‘Us against Them,’ that is, we decent Southern folk against those tariff-imposing, slave-loving barbarians of the North. New England is indeed the New England, and we Southerners will hang together or be hung, separately. Whereas on Indian policy the Southern states and the federal government effectually—one driving Indians out, the other holding open the door (Tocqueville I. chapter 18), no such collaboration existed on slavery, at least in Southern eyes. Rather, they saw the encirclement of the South. To stifle internal faction, foment a sense of external threat, Machiavelli advises.

Churches cooperated with these strategies. Jefferson and other founding-generation anti-slavery Southerners could at times believe, or at least hope, that secular progress would send slavery to a gradual and peaceful oblivion. The Northern slaves did abolish slavery in the years after the founding. Slaves in Southern states, they told themselves, would take longer to emancipate, but someday emancipation would be feasible. But nineteenth-century Americans experienced the Second Great Awakening. They were substantially more religious than the founding generation had been. This increased religiosity gave abolitionism a much harder edge, as so many historians have said. But it may have given pro-slavery advocacy a harder edge, as well. As one’s religiosity increases, the need for a stronger justification of a dubious practice also increases. Slavery started to be presented not as a necessary evil but as a ‘positive good.’ Slaveholders did enough in the way of humanitarian care for slaves to tell themselves they were good masters, pursuing the aristocratic practice of noblesse oblige (Genovese 1976 62-68). This ethos culminates in Jefferson Davis’s claim—made by many Southerners of the time—that black slavery was divinely ordained, as may be seen in the Old Testament’s strictures concerning the tribe of Ham. Or, as Frederick Douglass said, speaking from a rather different point of view, “religious slaveholders are the worst” (Douglass, chapter 10). Tocqueville argues that liberty in the United States requires strong bonds, of which religious bonds are among the most important (I. chapter 3; I. chapter 17). The strength of social bonds makes up for the weakness of government, prevents weak governments from collapsing. Those who govern by consent must appeal simultaneously to principle and to self-interest (I. chapter 3). Selective quotation from the Bible can appeal mightily to both, thereby winning the most ardent assent.

The slaves themselves, despite their substantial numbers, were eminently controllable. though numerous, slaves were outnumbered, except in South Carolina. Sheer force made them feel their minority status more acutely. By the 1820s, a master could kill his slave with impunity (Genovese 37); the slave patrols were active. slave escape was difficult, if only because there was nowhere nearby to run and hide. The fugitive railroad beckoned some, but if anything this was a safety valve, allowing the most courageous and vigorous slaves a convenient self-exile. Slaves were also dispersed, with no good way to communicate and thereby coordinate resistance. Also, as Douglass so eloquently shows, slavery was degrading. Having cut Africans off from their own communities, from many of their customs, and their means of education, slaveholders deliberately deprived slaves of modern education, as well. Douglass’s personal testimony on this point (Douglass, chapter 6) is confirmed by Tocqueville (I. chapter 18).

Genovese calls plantation slavery a form of paternalism—neo-feudalism, as distinguished from true feudal patriarchy. Paternalism is somewhat ‘anxious,’ vague, unstable. This can be seen most clearly on the ‘theoretical’ level in George Fitzhugh’s notorious tract, Cannibals All! Fitzhugh wants to put forth a thoroughgoing critique of Locke and advance a return to Filmerian patriarchy. But he concedes to Locke the key point: the labor theory of value. Fitzhugh does not see that the labor theory of value puts the axe to the root of patriarchy. But paternalism does succeed in “undermin[ing] solidarity among the oppressed by linking them as individuals to their masters” (Genovese 5). Tocqueville notices one important feature of this system: “In the South the master is not afraid to raise his slave to his own standing, because he knows that he can in a moment reduce him to the dust at pleasure” (I. chapter 18). The slave got tantalizing glimpses of equality, enough in some cases to give him a stake in the system. This sort of thing was exemplified on the Jefferson Davis plantation by James Pemberton. Pemberton was Davis’s closest friend, aside from Davis’s older brother, Joseph. Davis and Pemberton went hunting together (demonstrating, among other things, that Davis trusted him with a gun). Offered his freedom if Davis died, Pemberton is said to have said, No, I want to stay and look after Mrs. Davis in her old age. Few slaves were so favored, but slaveholders were in a postion to manage incentives as well as to mete out punishments (see Douglass, chapter 2). Genovese argues that the slaves forced planters to adopt an incentives system, but the point is that the incentives system was within the slave system. Thus, for example, slaves had their place in the slaveholder’s family—as ‘children’ (Genovese 74)—but at the same time slaves feared that their real families could be broken up at any time, as indeed had already been done when they were removed from their villages in Africa by slave traders (Genovese 452).

Some slaves fought for the Confederacy. It is likely that more (180,000—12% of all U. S. troops by 1865) served in the Union army. When emancipation finally did come, the slaves showed all the characteristics of a long-divided, long-conquered people. Some celebrated. Some were apprehensive. As it happened, both groups were right, as freedom turned out to be both better than slavery and very dangerous to the former slaves. All the elaborate strategems and institutions of the slaveholders had failed to win black consent to slavery. When emancipation came, they took it, never waxing nostalgic about the good old days of gracious living, as Mrs. Jefferson Davis did. But during those old days, they never had a chance of mobilizing effectively against slavery. They were strong enough to cause poor and middle-income whites to fear them, and maintain political cohesion with the planters. They were too weak to overthrow the self-governing, slave-dominating whites.

In her book American Citizenship, Judith Shklar argues that, for the founding generation, the value of American citizenship was “derived primarily from its denial to slaves, to some white men, and to all women” (16). This is an exaggeration, inasmuch as citizenship is primarily a means of securing natural rights; the ‘primary’ contrast, if there was one, was between the full citizens of an independent republic and the subjects of a monarchic empire. The Declaration of Independence charges the king with imposing the institution of chattel slavery on the colonies, but did not compare the condition of slaves to the condition of subjects. This is not to deny that such comparisons were made—George Washington charged the British with trying to make the colonists “tame and abject slaves, as the blacks we rule over with such arbitrary sway”—but it is to deny that this ‘negative’ definition of citizenship was primary.

This notwithstanding, the farther ‘South’ one went, and the closer to the Civil War one got, the more many Americans in the South did define themselves as citizens against the conditions of slavery and the supposed character of slaves. That is, Shklar’s argument describes antebellum Southerners better than it does the American Founders or Americans generally. Political cohesion, reinforced by the ‘Us against Them’ trope, along with the unusual combination of hierarchy and laissez-faire localism practiced by the planters, made paternalism feel very much like self-government to whites, and allowed for a considerable degree of real self-government by whites.

As Lord Charnwood observes, “The South was neither base nor senseless, but it was wrong.”

 

Works Cited

Charnwood, Abraham Lincoln.  Garden City: Garden City Publishing Company, 1917.

Countryman, Edward: The American Revolution. New York: Hill and Wang, 1985.

Davis, Varina: Jefferson Davis, Ex-President of the Confederat States of America: A Memoir. 2 volumes. Freeport: Books for Libraries, 1971.

Douglass, Frederick: Autobiographies. New York: The Library of America, 1994.

Ericson, David F.: The Shaping of American Liberalism: The Debates over Ratification and Slavery. Chicago: University of Chicago Press, 1993.

Fitzhugh, George: Cannibals All! Or, Slaves Without Masters. Cambridge: Harvard University Press, 1973.  

Foner, Eric: Politics and Ideology in the Age of the Civil War. New York: Oxford University Press, 1980. 

Genovese, Eugene: Roll, Jordan, Roll: The World the Slaves Made. New York: Random House, 1976.

McPherson, James M.: What They Fought For, 1861-1865. Baton Rouge: Louisiana State University Press, 1994.

Moore, Jr., J. Barrington: Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World. Boston: Beacon Press, 1966.

Shklar, Judith: Redeeming American Political Thought. Chicago: University of Chicago Press, 1992.

Silbey, Joel: The American Political Nation, 1838-1893. Stanford: Stanford University Press, 1991.

Tocqueville, Alexis de: Democracy in America. Harvey C. Mansfield, Jr. and Delba Winthrop translation. Chicago: University of Chicago Press, 2000.

The American founding period lasted from 1775 to 1791, although one might (and many have) extended it a decade or so in either direction, or both directions, without any serious protest. The question of black slavery was a major public issue in those years, but not a predominant issue. In the minds of the colonists, several issues were more urgent.

There was the Revolutionary War itself, a long and difficult struggle with a formidable occupying power. The war was a civil war, pitting English against English, and many of the English Americans remained loyal to ‘King and Country.’ The revolutionaries fought most immediately for themselves, not for their slaves. The British attempted to exploit slavery for military advantage, signing black troops to fight against the colonists (Countryman 162). Unlike the 1861-65 civil war, slave emancipation during the Revolutionary War would have been a clear-cut advantage for the cause of natural-rights republicanism.

The colonial English resisted the ever-increasing tendency toward landlordism and tenancy, the lack of free trade, taxation without representation—all features of an imperial system in which merchants and traders were crushed in other places, such as Ireland and India (Countryman 12, 49, 52). The passions, fears, and ambitions of the colonists were concentrated on those evils and on resistance to them. Insofar as they thought about the slaves at all during the war, they thought of them as a potential menace to their own freedom—rather as they thought of Amerindians, many of whom also allied with the British.

Just as arduous as the war, in its own way, was the intellectual and political task of founding the world’s first commercial republic based upon the philosophy of natural rights and the principle of popular sovereignty—two not-necessarily-compatible materials. This entailed working out these doctrines in practice, under circumstances largely unknown to the European writers who had formulated the theory. The extensive literature on the old form of republicanism—the mixed regime—was of dubious value to the Founders, who did not live in a society with a titled aristocracy or (after 1781) a monarch (Wood, Creation, 217-222). Understandably, the Founders made mistakes. The Articles of Confederation (for example) failed, but retained many partisans. Working out the complex issues of union vs. states’ rights, real vs. virtual representation, ‘corruption’ vs. ‘citizen virtue’ consumed considerable energy.

That is, the dual effort of first vindicating rights on the battlefield and then attempting to secure them in the political struggles following independence was aimed at ending ‘slavery’ or the threat of it for the colonists. Under the circumstances, it is not surprising that chattel slavery seemed a less urgent concern.

Having said this, however, it is then important to unsay it, at least to some degree. Slavery surely was a major issue during the founding period, if under the surface more often than not.

Judith Shklar has marshalled substantial evidence showing that the colonists often contrasted their freedom with slavery. It is impossible not to see that this motif had resonance; even if it was a rhetorical trope, it was rhetoric used too often not to have been judged to have a strong effect on Americans. The freedom-slavery dichotomy of course had preoccupied the colonists on many occasions, and for a long time. Kathleen M. Brown details the decades-long struggle in Virginia simply to define the relations of blacks, free and slave, to the whites. The paternalism of “genteel, restrained authority of [planters’] household” (361) may have been materially stable but it was “anxious,” psychologically precarious (see also Greene 95). In the lower South, where over two-thirds of the population consisted of slaves, the precariousness must have been more than psychological (Greene 143). In particular, South Carolina planters actually managed to dominate and block the economic advance of merchants, artisans, and small farmers, deliberately and firmly establishing themselves as the dominant political and economic actors in the state (Countryman 164-165).

By 1750, under the influence of Locke, paternalism itself was under attack (Wood, Radicalism, 147). But without patriarchy or at least paternalism, how else is slavery to be justified? That is, the very ideology that worked to free white colonial men from white imperial men undermined the household authority of white men. By the beginning of the founding period, the precariousness of slaveholding had been upgraded to the status of a principled anxiety. Jefferson’s fulminations in the first draft of the Declaration of Independence against the alleged English imposition of slaves upon Americas—an attempt to externalize the evil for the sake of a worthy political object—would not have been conceivable without the prior moral, natural-rights critique of paternalism and slavery. The reaction of Jefferson’s fellow Continental Congress representatives to this line of argument suggests that the Founders deliberately subordinated the slavery issue to the immediate problem: unity in opposition to the British Empire. To defeat British rule in America, the revolutionaries needed South Carolina and Georgia to be with them, not against them.

The year 1787 saw two careful attempts simultaneously to recognize the dilemma posed by slavery and to limit slavery’s reach. Edward Countryman remarks that the Constitution and the Northwest Ordinance were framed at more or less the same time, plausibly contending that this was likely to have been no accident (191). The Convention delegates set a time limit on the slave trade, compromised on Congressional representation with the three-fifths rule, and established the fugitive slave provision. In William H. Riker’s judgment, the northern and middle Atlantic states could have imposed an antislavery provision, but did not want South Carolina and Georgia to reject the Constitution—the same scenario as that in 1776. My own view is that the stakes were larger. Virginia barely ratified the Constitution, even with the clauses countenancing slavery. Without such provisions, ratification was highly unlikely. In other key states—particularly Massachusetts and New York—the issue of slavery was no impediment to ratification but the issue of state self-government was. It is one thing to end the slave trade—a legitimate power of any national government. It is another thing to ratify a constitutional law that would permit the federal government to reach into each state and confiscate property, causing (in those states where slaves were numerous) a potentially serious threat to the white minority. An antislavery provision would have been object lesson number one for every Anti-Federalist in the country, whether pro-slavery or anti-slavery.

Without Virginia and South Carolina (at a minimum) the United States would have been prey to the divide-and-conquer strategies of Britain, France, even Spain. The natural rights of the white population would have been threatened while the natural rights of the black population would in no way have been secured. The choice of the Founders boiled down to this: Shall we secure our own natural rights, abolish slavery in the states amenable to abolition, and (not incidentally, as Riker shows) obtain the Congressional power to pass navigation acts by a simple majority, thus insuring northern-middle Atlantic dominance in that area? Or shall we split the Union, thereby putting our own rights at hazard, and let ourselves in for intra-American trade wars? It could not have been a difficult decision to make. It was a decision that confirms the sense that black slavery was indeed a major public issue for the Founders, but not the overriding issue. ‘Slavery’ in the sense of the potential loss of natural and civil rights by the dominant whites was of course the issue for the Founders, and they acted in accordance with that not-inconsiderable concern.

While I take the moral passion of William M. Wiecek and many others seriously, I regard his argument as overdrawn. “The framers’ generation considered slavery to be entwined with human progress”? The farther south one went, the more likely that they did, but the major Founders from Virginia north did not. Quite the opposite: Jefferson and many of the others too-optimistically regarded ‘progress’ as likely to leave slavery in the dust. Slavery was “wholly compatible with the American constitutional order”? The Constitution was “permeated” with slavery? Not wholly: the Constitution recognized slavery and delimited it; the Northwest Ordinance barred it from the western territories. Slavery was “an integral part of the legal order of nearly every colony by the time of the American Revolution”? Then why did so many states abolish it within their borders by a decade or so after the Convention? Slavery was designed for “race control” not labor control? Then why were slaves imported? Did Americans bring Africans here in order better to control them? What for? Race control is possible without slavery, as the post-Reconstruction South would demonstrate, and as English and other European imperialists were demonstrating throughout the founding period. Race control once blacks were in North America could have been achieved by driving them away, as was done with Amerindians (who were rather more formidable militarily than blacks could have been at that time). It makes more sense to say that slavery was primarily for labor control; the Amerindians perished under slavery, and whites would stand for it. Hence the use of blacks, and hence the ‘need’ of race control for the purpose of labor control. The key Founders recognized that such labor control was wrong, inconsistent with natural-rights principles except in the temporary, attenuated sense that no one realistically assumes that all human beings in all times and places are prepared to assume the civil rights and responsibilities they will need to defend their natural rights effectively.

The Founders established a commercial republic in order to secure natural rights for the dominant white population. But precisely because those rights were understood as natural, and therefore inherent in all human beings, inevitable questions and criticisms arose, somewhat sotto voce during the founding period, but with increasing insistence as the country survived and prospered. The principles of commerce, as conceived by the Founders, following Adam Smith, wedded the labor theory of value (contra patriarchy) with the right of each person to the fruits of his/her labor. Modern republicanism maintained that natural rights are best secured by self-government, which, among other things, means real, not virtual representation in ruling institutions. Both the commercial and the republican principles of the new regime empowered elites that needed ever-widening constituencies in order to compete for positions of authority. the scope of civil/political rights thus widened, first encompassing factory workers in the early decades of the nineteenth century, then the slaves, and finally women. In each case, the principle of ‘No taxation without representation’—that virtual representation is inadequate security for natural rights–became increasingly evident to a critical mass of Americans, ‘elite’ and ‘non-elite.’ That the problem with respect to blacks was more severe than the problem with respect to workers and women may be seen in the need for a second civil war to begin to settle it. The very intractability of the problem, and the Founders’ understanding of that intractability, explains why they did not undertake to solve it in their day, nationwide. They had indispensable preliminary work to do. In the meantime, the Founders did abolish slavery where it could be abolished, and they kept it out of the northwest territories. Retrospectively, one can always wish for more. But, as the Founders’ contemporary and political enemy Dr. Samuel Johnson remarked on another topic, “If wishes were horses, beggars would ride.” The Founders did secure natural rights for ‘themselves and their posterity,’ instituting the regime most likely to eradicate slavery in places where it had gained a firm foothold.

 

Works Cited

Appleby, Joyce: Liberalism and Republicanism in the Historical Imagination. Cambridge: Harvard University Press, 1992.

Brown, Kathleen M.: Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia. Chapel Hill: University of North Carolina Press, 1996. 

Countryman, Edward: The American Revolution. New York: Hill and Wang, 1985.

Greene, Jack P.: Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture. Chapel Hill: Unversity of North Carolina Press, 1988.

Riker, Jack P.: The Art of Political Manipulation. New Haven: Yale University Press, 1986.

Shklar, Judith N.: Redeeming American Political Thought. Chicago: University of Chicago Press, 1992.

Wiecek, William M.: “‘The Blessings of Liberty’: Slavery in the American Constitutional Order.” In Goldwin, Robert A. and Kaufman, Art, eds.: Slavery and Its Consequences: The Constitution, Equality, and Race. Washington: The American Enterprise Institute for Public Policy Research, 1988.

Wood, Gordon S.: The Creation of the American Republic, 1776-1783. New York: W. W. Norton and Company, 1992 [1964].

Wood, Gordon S.: The Radicalism of the American Revolution. New York: Alfred A. Knopf, 1992.

 

In his majority opinion, Oliver Wendell Holmes attempts to justify a hierarchy of constitutional principles. Specifically, in construing Article VI’s “authority” clause and its “supreme law of the land” clause, he rates explicitly-stated constitutional prohibitions over implicit prohibitions, and he claims that treaty law overrides the unspecified ‘reserve powers’ of the states, mentioned in the Tenth Amendment.

Holmes’s argument regarding the wording of Article VI has been disputed on the grounds that Article VI’s reference to laws made in pursuance of the Constitution and treaties made under the authority of the United States both refer to the obligation to pay debts contracted during the Revolutionary War under the Articles of Confederation, as well as to future debts contracted under the Constitution. But while these debts are specifically mentioned in the Article’s previous clause, there is no need to assume that the language of the clause under scrutiny refers back to obligations undertaken under the Articles of Confederation alone; clearly, the language refers to future treaties, as well. Moreover, the language of the Tenth Amendment does not overturn the treaty power. Holmes could have confined his decision to those points, which would have forced the plaintiffs to narrow the dispute to whether hunting (as opposed to shipping) migratory wildfowl really falls under the interstate commerce clause. (After all, the birds aren’t being shipped across state lines; they are moving on their own.)  He chose not to, but instead took the opportunity to advance a new way of interpreting the Constitution as a whole.

Holmes begins by appearing to have recourse to the ancient Roman principle, ‘the public safety is the supreme law’ or, as his contemporary, John Dewey, might have put it, necessity is as necessity does. But this maxim won’t ‘do’ for Holmes, at least in its naked meaning. It would not restrict a government to its own “authority” any more than it would restrict it to a constitution. “Authority” suggests a distinction between legitimacy and tyranny. Naked necessity could imply an appeal to despotism.

Holmes has almost ventured beyond ‘broad construction’ of the Constitution, into extra-constitutional ground. But he does not want to step too far away from constitutional law. To do so would put at hazard his own authority as a judge. Moreover, he also does not want to step into the extraconstitutional terrain preferred by the Framers, the terrain of natural right, which he regards as a land of myth, a realm harmonized by the mystic chords of memory that Lincoln invoked futilely on the eve of the Civil War.

Holmes makes a different move. He defines the Constitution as “a constituent act” (emphasis added) whereby the Framers “called into life” (note the God-language) a document that is more than a document, more than the sum of its language. The meaning of this document develops, grows, in ways that “could not have been foreseen completely by the most gifted of its begetters.” The Framers hadn’t simply composed a document; they had “had created an organism.”

The Holmesian Constitution is no longer simply a contract, to be construed by careful analysis of its language, whether ‘strict’ or ‘broad.’ Jeffersonian ‘strict construction’ versus Chief Justice John Marshall’s ‘broad construction’ both get brushed aside, as both are bound up in the verbal/contractarian framework. Rather, the new, historicized, ‘living,’ ‘organic’ Constitution must be interpreted historically, by which Holmes does not mean in line with the original intent of the Framers but “in the light of our whole [national] experience and not merely in [the light of] what was said one hundred years ago.” (“In the beginning was the Word? No! In the beginning was the Act!” The new Constitution is Faustian.)

With respect to exegesis, this means that a treaty can only be constitutionally limited if it flatly contradicts some specific “prohibitory words” of the document, some exact ‘Thou shalt not’ of its ‘creators’ or ‘begetters.’ But the vaguer language of the Tenth Amendment is not specifically prohibitory; the meaning of those words is changeable in ‘history,’ meaning in the course of the Constitution’s ‘organic development’ or ‘growth.’ “We must consider what this country [and with it, in the new, organic sense, the Constitution] has become in deciding what [the Tenth Amendment] has reserved [to the states].

Here is Holmes’s exegetical opening. The case now becomes an anticipation of what would be done with the commerce clause in the 1930s. The nation has evolved; corporations transcend state boundaries and so (in the issue before the Court here) do migratory birds. In both instances, social development including technology and commercial industrialism have posed problems in ways the states are no longer competent to solve. The treaty power, suitably ‘misread,’ can be used to solve this problem, reversing the original intent of the framers of the Tenth Amendment. Wedded to a commitment to American nationalism, the hierarchy of explicit over implicit reserved state powers follows from this new, historicist approach to Constitutional interpretation.

What validates this hierarchy? The Framers themselves, as well as Jefferson and even Marshall would reply: Nothing at all. To them, Holmes would be freebooting. ‘This is not constitutional construction at all,’ they would say, ‘except in the sense that Holmes is reconstructing our Constitution. This is not an exercise in contract law, the verbal analysis of a document with a stable meaning delivered by the language of the document itself.’

Thus Holmes abandons natural right, natural law, and contractarianism for natural history or evolutionary organicism. As it plays out in constitutional exegesis, this approach enables him to supersede the Framers intentions in a limited way: Where the Framers explicitly prohibit, he must still respect their intention. But where they are vague, or leave things unstated, he can silently contravene their intention.

What justifies this, in Holmes’s mind? “[W]hat was said a hundred years ago” most emphatically justifies nothing, he contends. But what was said at that time? Exactly one hundred years before 1920, the Missouri Compromised saved the old Constitution, the Constitution as understood by the Framers and by Jefferson and Marshall. But this salvation was only temporary. As Civil War veteran Oliver Wendell Holmes learned in his life’s formative experience, the old way of understanding the Constitution could not save the union the Constitution was intended to solemnize and reinforce. Holmes believes that organicism will better meld ‘nation’ and ‘Constitution’ to ensure an ever-strengthening Union, one that will never again disintegrate into the carnage of modern, techno-industrial war.

The old Constitutional order at best permitted only a temporary Missouri Compromise. Holmes’s new Constitutional order (enunciated, appropriately enough, in a case called MISSOURI v. Holland) brings forth what he hopes will be a permanent Missouri Synthesis, whereby a states-rights challenge to the national government is dialectically and ‘organically’ subsumed, not patched over. The past—the Constitution of “one hundred years ago”—is not authoritative. The true authority of the United States government is now and in the future, as America has grown and will grow.

It may seem faintly comic to load such weighty matters into a dispute over migratory birds. But Holmes might not have thought so. As any resident of Washington, D. C. would have known, in 1914 the last passenger pigeon died in its cage at the Washington Zoo. A major food source for earlier Americans, the seemingly numberless flocks of passenger pigeons had provided food for the burgeoning American populace as it extended its rule from one end of the continent to the other. The pigeon was a victim of precisely the same commercial-industrial economy that called for a rethinking of the commerce clause. This was also the political economy that had helped the United States to win the Civil War against the States-Righters of the Confederacy. How could a thoughtful man of Holmes’s generation not see these linkages: Union and the need for increased power over often-recalcitrant states; but, at the same time, the vast increase and then displacement of rural folk (simultaneous with the very destruction of one of their principal foods) in an industrializing economy, and the consequent need for the national management, the federally supervised conservation, of natural resources that know no conventional, ‘contractual’ state boundaries. Migratory Americans had extinguished a huge population of migratory birds; without nationwide governance from a centralized state, Americans themselves might eventually become extinct.

Quite apart from the question of the legitimacy of Holmes’s constitutional jurisprudence, however, the problem will be this: If you replace the deductive logic of the old constitutionalism with the dialectical logic of ‘growth,’ will not this Hegelian means result in the Hegelian end, a worldwide bureaucratic state? Where does that leave the self-government of “We the People”?