TONGUES 17 страница

As news came back that the halls of Montezuma had been conquered, the Polk administration became entranced by the idea of annexing all of Mexico. But the New York State Democrats, the largest and oldest branch of the party, split in two over whether the new territories should be open to slavery. As southern constituents grew more agitated about the crisis, John C. Calhoun stepped forward to offer a doctrine that had been developing for a few years now—but that was peculiarly suited to the current situation. This idea re-amplified slavery’s leverage in the political equations of expansion, using constitutional interpretation to highlight the declining relative demographic and financial force of cotton. It was not a rehash of nullification, which Calhoun had abandoned after his defeat by Jackson in the 1830s. It was far more significant than nullification.

Back in 1819, Calhoun had told the rest of Monroe’s Cabinet that he believed that the Constitution allowed Congress to ban slavery from federally controlled spaces, such as new territories. But by 1836, abolitionist petitions were calling for Congress to use its power over federal territory to end the slave trade and even to ban slavery itself in the District of Columbia. In January 1836, Senator Calhoun responded to these demands with a speech that outlined a foundational idea. He told the Senate that he did not find in the Constitution the right of petition to which the anti–Gag Rule forces kept referring. But he did find the Fifth Amendment, and it limited federal power over individuals’ property by decreeing that no one could be “deprived of his property without due process of law.” Calhoun now proceeded to build a sweeping principle on the back of this sentence. “Due process,” he insisted, could mean only “trial by jury” of a specific criminal. Here was the opposite of due process: legislative fiat that erased the property claims of a whole class of people. And, “were not the slaves of this District property,” Calhoun asked, and were not their enslavers a whole class of property-owners? Presumably Congress could not prevent people from buying or selling said property, either, since salability is usually one of property’s characteristics.²⁹

Calhoun was stating an idea that would eventually be known as the doctrine of substantive due process. The “due process” requirement to which the Constitution referred could not be fulfilled simply by passing a law, for a law that invaded the rights of property-owners ran up against something too fundamental for procedure to alter. In Calhoun’s vision, the Fifth Amendment was a geological outcropping that confirmed that beneath the Constitution lay an underlying substantive, tectonic plate of natural law that allowed owners to hold and use property. In 1844, a Mississippi congressman named William Hammett even argued that this federal right also protected enslavers from the actions of state legislatures. Thus the state-mandated emancipations completed by northern states were unconstitutional. Shocked northern congressmen foamed in anger at Hammett’s claim. But enslavers seemed to accept it instinctively as soon as they heard it.³⁰

After the Civil War, pro-big-business legal thinkers from the North would, ironically enough, take up a version of Calhoun’s idea. From the 1890s through the New Deal era, the Supreme Court repeatedly used substantive due process to strike down legislative attempts to regulate Gilded Age industry, protect workers’ rights, or break up monopolies. Substantive due process shaped (and continues to shape) the political economy of the United States in enduring ways. Like his modern cousins, Calhoun offered in his argument for substantive due process a doctrine of radically unfettered property ownership. It implied that enslavers were forever protected from popular majorities that might try to prevent them from taking full advantage of the boundless resources of a conquered continent and an ever-growing world market. Nor is it clear that southern partisans had the worse argument in the terms of precedents available in their time. Justice Story’s 1843 opinion in Prigg v. Pennsylvania gave an anchor point to the claim that the Constitution recognized enslavers’ fundamental rights to property in human beings and compelled the federal government to protect those claims, even against state legislatures.³¹

The ur-version of substantive due process had been fermenting slowly since 1836, but it had usually stayed in the shadows. How awkward it would have been in the early 1840s if, in the midst of G.T.T. escapes and bond-repudiation, enslaver-entrepreneurs had claimed that governments could not impair the rights of property and contracts. However, war and conquest had by 1847 created new incentives for politicians to find justifications for new slavery territory. Calhoun’s argument went even further than that, of course, envisioning an alternative and highly radical version of economic modernity.³²

The ambient friction of the Wilmot Proviso debate gave Calhoun and his allies the opportunity to use their logic on audiences that were ready to hear about how the North was trying to strangle the constitutional rights of the South, on the back of whose success the free states’ own growth built. In February 1847, Calhoun offered the Senate a set-piece exposition of his argument that enslavers had a fundamental right to use and move and exploit enslaved human beings. In this, the most significant speech of his long career, he laid out the constitutional and political argument behind which increasing numbers of enslavers would unite over the next fourteen years.³³

First, Calhoun insisted that the territories were the equal possession of all the states, free or slave. He also rejected Congress’s right to require that new states’ constitutions outlaw slavery. And then he swung his sledgehammer: “ Resolved. That the enactment of any law which should directly, or by its effects, deprive the citizens of any of the States of this Union from emigrating, with their property, in to any of the territories of the United States, will make such discrimination [between citizens from different states of the Union, coding those from free states as worthy and those from slave states as unworthy] and would therefore be a violation of the Constitution. ” This resolution referenced the “common blood and treasure” argument—that the slave states had shared equally with the free in the costs and dangers of conquest—but it ultimately depended on his claim that the Constitution protected enslavers’ ability to hold, move, sell, buy, and exploit people as property. He implied that the federal government should pass laws to enact the institution of slavery on federal territory, for to do otherwise would be to deprive individual slave owners, and indeed all southern whites—who were, after all, potential property-holders—of their rights. Thus, the only constitutional fate for the territories was a future in which federal marshals rounded up runaways in California, federal attorneys defeated freedom suits in New Mexico, and federal customs officials regulated and protected the interstate slave trade into Utah.

Thus Calhoun offered a viable alternative to the claim that southern political bullying was protecting an economically backward institution. Southern politicians could now claim that constitutional rights mandated political solutions to their own decline in relative political power. And at the moment when Calhoun made this move, the vision of perpetually expanding slavery as an alternative but still modern economy was once again becoming plausible. The second half of the 1840s brought a small uptick in cotton prices. Enslavers always believed that fresh territory would yield a future of creative-destructive bonanzas. Lest one claim that Calhoun’s intervention was irrelevant, because the frontier farther southwest was too arid to slake enslavers’ thirst for cotton booms, remember that a century later, Arizona would be the nation’s biggest cotton producer. California’s Central Valley, using a labor force that was barely free, would then be the most profitable agricultural district in the world. And after these 1847 resolutions, southern newspapers and magazines began to shape a fantasy in which a new generation of right-handed entrepreneurs opened up northern Mexico, yet un-seized lands in the Caribbean, or Pacific islands such as Hawaii, on whose volcanic soil sugarcane had thrived since the first Polynesian settlers planted it.

“I give no advice,” concluded iron-faced old Calhoun. “But I speak as an individual member of that section of the Union. There I drew my first breaths. There are my hopes”—hopes not just in South Carolina, as in the days of nullification, but also in Alabama, at his son Andrew’s slave labor camp, hopes of an ever-expanding South. “I am,” said Calhoun, “a planter—a cotton planter. I am a southern man and a slaveholder; a kind and merciful one, I trust—and none the worse for being a slaveholder. I say, for one, I would rather meet any extremity on earth than give up one inch of our equality—one inch of what belongs to us as members of this great republic.” He knew others would agree.³⁴

STILL, AS OF 1847, the game Calhoun played was a long con. The bonds of loyalty linking non-planter southern white men to national parties had been forged in the hot fires of the 1830s. And many still hoped that their party’s leadership would put forward a viable interregional consensus candidate for the next presidential election. James Polk did not plan to be one of those candidates. The president had grown weary of the gridlock over the territories. He was also preoccupied by negotiations in Mexico City, which had been going on almost as long as those in Congress. One reason for their delay was the Polk administration’s increasing desire to persuade domestic public opinion into demanding that the United States swallow the entire conquered nation.

John G. Palfrey’s Massachusetts Whigs protested that the annexation of Texas had “stimulated the appetite” of the (rest of) the American people for more territory. “If the Slave Power continues to be strong enough,” wrote Palfrey, states carved from Mexico would be “admitted to the Union with constitutions, forced on them through artifice and intimidation, recognizing and perpetuating slavery,” and adding to the Slave Power’s strength in Congress. About the only thing upon which Calhoun and Palfrey could agree was that all of Mexico was too much. “ We have never dreamed of incorporating into our Union any but the Caucasian race,” Calhoun proclaimed. “More than half of the Mexicans are Indians, and the other is composed chiefly of mixed tribes.... Ours, sir, is the government of the white race.” Palfrey also thought that Mexico’s “nameless and mongrel breeds” would fit poorly into the United States.³⁵

Just as Calhoun tried to convince southern Whigs and Democrats to align with each other along sectional lines, Palfrey and his fellow Massachusetts Conscience Whigs were splitting their party’s 1848 state convention by insisting that it should reject any presidential nominee who did not state clear opposition to adding new slave territories. When the resolution failed, Palfrey and his Conscience allies left the party. Meanwhile, the New York Democrats also divided. One faction, led by Martin Va n Buren and called “Barnburners” by their opponents (after an apocryphal farmer who burned down his barn to kill off the rats), argued that the expansion of slavery hurt the “free white laborers of the North and South.” Proclaiming allegiance to “Free Trade, Free Labor, Free Soil, and Free Men,” these dissident Democrats gathered with Whig splinter groups and Liberty Party activists and created the Free Soil Party. They named Va n Buren, a man who had spent decades displaying his allegiance to southern planters, as their presidential candidate. His running mate was Charles Francis Adams, son of original Conscience Whig John Quincy Adams, who had been felled by a fatal stroke on the floor of the House earlier in 1848.³⁶

Back in Washington, the Senate had finally received the Treaty of Guadalupe Hidalgo, the result of negotiations with the representatives of defeated Mexico. In addition to confirming Texas annexation, the treaty gave the United States 525,000 additional square miles of the conquered nation-state—13 acres for each of the 23 million people in the Union. This was the third-biggest acquisition of territory in US history, after the Louisiana Purchase and Alaska. The Senate eliminated an article that promised recognition of land claims granted by the Spanish or Mexican governments. The treaty opened the new southwest to a massive Anglo real-estate grab. If that wasn’t enough incentive for settlers to start dispossessing Mexicans and Indians, gold was discovered at Sutter’s Mill, California, in January 1848.

Yet the great giveaways promised by Guadalupe Hidalgo did not turn a controversial war into a success. In the course of two years of debate over the fate of the conquered territory, southerners, anxious to protect their future access to political leverage and entrepreneurial possibilities, had moved toward arguing that a slave West was the price of union. Meanwhile, northerners, convinced that southern enslavers were treating them the way they treated their slaves, had already destabilized electoral calculations. The political system had depended since the bank war on the stability created by two party alliances, each one balancing regional interests. Those coalitions might not survive the election chaos coming in the fall. Even if they did, it was unclear that the parties could persuade enough southerners or enough northerners to accept compromise and resolve the question of organizing the new territories.

In fact, 1848 was putting immense pressure on political arrangements on both sides of the Atlantic. Parisians barricaded the streets and fought the French army. When the smoke cleared, the terrified bourgeoisie was welcoming a second Napoleon, the first one’s nephew, as the leader of a new republic that would soon become an empire. Across the Rhine, people rose up against the rulers of various German states, demanding a liberal, unified nation in some cases, and more radical outcomes in others. When the revolutions collapsed, political refugees fled the European mainland, including one named Karl Marx. He landed in London and spent the rest of his life holed up in British libraries, but many “Forty-Eighters” came to the United States. Meanwhile, in July, in the little Erie Canal town of Seneca Falls, several hundred reformers gathered for an impromptu “Woman’s Rights Convention.” Among the organizers was Elizabeth Cady Stanton. Frederick Douglass, escapee from slavery and one of the most effective conduits of enslaved people’s critiques of white power, was in attendance. The convention drafted a “Declaration of Rights and Sentiments,” a document that claimed for women the right to vote.

The Seneca Falls gathering helped launch a movement for women’s rights in the United States. This development would have long-term effects on politics that would be as radical as anything done in Europe in 1848. At the time, few male politicians took the Seneca Falls gathering seriously. The revolutionary ferment in Europe was more widely discussed, yet it seemed far away. Far more pressing, judging from the obsessive interest of newspapers and the inflammatory rhetoric of politicians both inside and outside the Capitol dome, was the still unresolved question of the Mexican territories and its potential effect on the fall presidential election. National party leaders, seeking to contain destabilizing confrontations, tried to nominate centrists who could appeal to both sections. The Whig convention chose Zachary Taylor, one of the Mexican War’s victorious generals. Virginia-born, first cousin to James Madison, Taylor was a southwestern planter who owned more than one hundred people in Louisiana, and he had the useful virtue of possessing no political biography. The Democrats did something similar. Brushing off a convention walkout by southern extremist William Lowndes Yancey, they nominated Lewis Cass of Michigan.³⁷

Cass’s campaign circulated region-specific campaign biographies—one for the North and another for the South, with predictably targeted emphasis. But the new Free Soil Party still won 10 percent of the national popular vote, showing that pressure initiated by the Wilmot Proviso had opened seams in the party system. Ironically, Free Soil votes helped put a slaveholder in the White House: in New York, Va n Buren and the Barnburners pulled enough ballots from the Empire State’s Democrats to allow Taylor to collect all thirty-six of the state’s electoral votes. The general also swept most of the South. Southern whites assumed that the president-elect would support slavery’s expansion into the Mexican Cession.

Yet Calhoun did not trust either Taylor or the party system. In January 1849, he and four other southerners in Congress issued a printed “Address”: it warned that if the North’s anti-southern attitudes continued to grow, and the South did not respond, slavery’s expansion—and slavery itself— would end. A Congress dominated by the likes of John Palfrey the younger would ban the interstate slave trade. Then there would be no injections of new capital, and no stick to hold over enslaved people’s heads. An expanding black population would demographically drown whites, and forced emancipation would follow. After that, interfering northern whites would demand for ex-slaves “the right of voting and holding public office,” resulting in “the prostration of the white race”—political servility and forced interracial marriage—“a degradation greater than has ever yet fallen to the lot of a free and enlightened people.”³⁸

The only way to avoid this disastrous future was for southern whites to unite in demanding equal access to the territories. As Calhoun argued in a southern caucus called to discuss the address, “the South could take their slaves into California and New Mexico.... Congress was bound... to put it [slavery] on the same footing with other property. It required no law of Congress to authorize slavery there.” A united southern front behind this substantive-due-process interpretation would force the North to a “calculation of consequences.” Inevitably, the North would back down, and the expansion of slavery would be implanted permanently in the nation’s constitutional landscape, even as new territories became slave states. Most of all, political victory would compensate enslavers for the economic losses they had suffered since the late 1830s, which had lost them control over the economic rudder of the United States, since new slave-state recruits in the halls of Congress would block all future antislavery measures.³⁹

One might be tempted to view pro-slavery-expansion zealots as extremists who were more interested in intellectual abstractions than in actually expanding slavery. But in little more than a decade, these people would launch a war to achieve a redefinition of the United States in which the national government made an explicit and perpetual commitment to defend and spread slavery. They were serious. And they were inking these ideas about slavery as a fundamental property right protected by the Constitution, with all that implied, into the common assumptions of southern politics. In 1849, the propagandizing so far by advocates of substantive due process as a southern right was already working. The “Address” drew widespread support in the southern press. Editors reminded common whites that the struggle to keep slavery’s borders open was their fight, too. If the slave frontier closed, the risk of a repeat of the Haitian Revolution would increase. Even without a massive rebellion, poor whites would be taxed to compensate enslavers for mandated emancipation. Afterward, the rich man could use wealth “to maintain his position,” but the common white man would lose “that native, free-born, and independent spirit which he now possesses.” Constituents responded to this kind of talk, and Mississippi state politicians organized a “Slaveholders’ Convention” for October 1849. Senator Henry Foote, Calhoun’s Mississippi ally, began to organize an 1850 region-wide convention—an implied threat, a gathering that could be repurposed into a body ready to deliberate on nation-un-making.⁴⁰

In Congress, meanwhile, southern Democrats maneuvered to commit the federal government to new guarantees of expansive definitions of slaveholders’ property rights. They started with the recovery of fugitive slaves. Justice Story had conceded in Prigg that the South had constitutional leverage on this question. Proslavery Democrats were determined to make the federal government take ownership of enforcing the Constitution’s fugitive clause. If they operationalized the federal government’s commitment to protecting enslavers’ ownership of property when said property ran away into another state, Congress would also find it hard to deny enslavers the right to move property into federal territory. Senator James Mason offered a bill that would eliminate the trial of accused fugitives by northern local juries, a bill that potentially would allow white southerners to accuse anyone of escaping from slavery, with little proof of ownership, and haul them south.⁴¹

Southern enslavers were coalescing around key principles, raising their demands, and increasing the pressure to find a solution to the territorial issue. Meanwhile, news from California made it clear that gold veins first struck in 1848 would dramatically enhance the US financial system’s ability to promote growth. But the fevered migration of more than 80,000 American “49ers” to California in 1849 increased the tension of the territorial debates. The majority of the migrants were northerners, yet southern whites who came often brought slaves to work the mines. Mexico had abolished slavery in California some twenty years prior, but enslavers saw no reason why California had to be a free state. It even could be two states: north and south; free and slave. Yet Congress couldn’t create a territorial government until it resolved its ongoing impasse, so for now lawless uncertainty reigned in California.⁴²

The Congress elected in November 1848 would not be officially seated until December 1849. But shortly after his March 1849 inauguration, President Taylor secretly encouraged some California and New Mexico settlers, mostly northerners, to hold conventions. The state constitutions they’d write would ban slavery. When southern Whigs, who would soon face their own very southern constituents, found out, they rushed to condemn Taylor’s betrayal. Back home, politicians and editors began to plan an all-South convention, scheduled for Nashville in July 1850. As the thirty-first Congress finally convened in December, many wondered if this would be the last gathering of all the states’ representatives in Washington. Party alliances showed little sign of cohering again. The House took sixty-four ballots to name a Speaker, finally changing its rules so that a Georgia Democrat won. Relieved, it turned to the business of hiring an official “door-keeper”—an employee position similar to sergeant-at-arms. But then northern and southern representatives turned that, too, into a fight: Should they hire a proslavery or antislavery man? Then, in his official Presidential Message, Taylor boldly asked the gathered representatives and senators to admit California and New Mexico under constitutions that banned slavery. Congress collapsed into a chaos of roiling, seething rhetoric: threats of disunion (the southerners); proclamations of joy at the prospect of slave rebellion (a few Free Soil men); insistent claims that northerners would not be bullied (Democrats and Whigs from the free states); shrieks of “bad faith” and “cheating”; and complaints of insults and dishonorable exclusion from territories won by southern blood (the southerners again).⁴³

After two months of shouting that threatened to rend all comity forever, a troop of wrinkled old men rode into the breach. On the night of January 21, 1850, Henry Clay had visited Daniel Webster at his lodgings in Washington to confirm that his fellow old Whig would back his play. On the 29th, the Kentuckian rose in the well of the Senate Chamber, where he had spent much of the last four decades. Clay presented eight resolutions that set off advantages for one section with those granted to the other, and he offered them all together, a pill to swallow, all-or-nothing. Historians often say that the Compromise of 1850, which these resolutions initiated, provided the North with a crucial decade in which to become strong enough to defeat the South when war eventually came. Whether that is true or not, Clay himself came close to scuttling his own union-protecting efforts. He insisted that the unitary nature of his proposals forced the warring sides to commit to all the bargains at once, but opponents accused him of egotistical motives—pointing out that a single large proposal identified the compromise with its author. Moreover, while a real compromise is a win-win solution, in which each side can claim victory, it is also possible for parties in conflict to view a bundle of alternating surrenders as a lose-lose solution. Such an outcome might be not the end of conflict but the fertile source of new ones.⁴⁴

So what did Clay propose, in order to achieve what became called, ominously, a “final resolution” of the territorial conflict? First, he said, admit California as a free state. Second, New Mexico and the rest of the new southwest would be organized as territories “without respect to slavery”—that is, the choice on slavery would be deferred until a territory’s actual population could choose. The hope here was that southern partisans would accept this plan as nonexclusion of slavery by Congress. Clay and others denied that slavery could prosper in New Mexico and Utah. Many assumed that this expedient would allow the territories themselves to ask quietly for admission as free states.

Although the loss of California was going to be a hard pill for southerners to swallow, Clay had some goodies for them as well. The United States would fund the outstanding debts of the Republic of Texas. This would make New Orleans investors happy, fourteen unpaid years after they had financed the enslavers’ war against Santa Anna. Clay did suggest something that abolitionists had desired for years: a ban on the slave trade inside the District of Columbia. But he paired that with a resolution stating that Congress had no power to obstruct the internal slave trade between states. And one final resolution might also make northern partisans likely to think that they had “lost” the compromise. This was a call for an ironclad, watertight fugitive slave bill like the one recently introduced by James Mason. Enslavers complained that their territorial concessions left them hemmed in by free states that would drain the slave population by a kind of unchecked osmosis. A fugitive slave act would put teeth into Prigg, making the federal government the servant of enslavers by helping them to control their property in human beings, as if Calhoun’s substantive-due-process interpretation of the Fifth Amendment was the legitimate one.

Clay had thus built his proposed compromise on the backs of African Americans, whom he condemned to an endless future of slavery—the expansion of which would be limited, but which would still continue. And by bundling together the issues, Clay pre-twisted northern votes for compromise into legitimation of extreme southern viewpoints, making a free-state congressional majority normalize ideas that to many northerners seemed antithetical to the Constitution. Debate on his bill was in consequence long and bitter. Taylor demanded California’s immediate admission, without slavery. Southerners demanded half of California, all of New Mexico, and more territory for Texas. Jefferson Davis, Henry Foote, James Mason, and a host of southerners, preaching a proslavery Constitution, paraded the full array of substantive-due-process claims through the House and the Senate. The climax of their drama came when Calhoun, dying of tuberculosis, was carried into the Senate chamber on a stretcher. The South Carolinian shivered under blankets as Mason read his final speech for him. This one laid out no arguments about due process, instead warning in emotional terms that the long conflict over slavery and its expansion was snapping the cords of union that bound southern and northern whites. Religious, intellectual, and now political associations were fracturing along the lines of slave and free labor. (He did not add financial associations, which were being repaired.) The gist of the speech was this: the hardest of hard-core southerners were ready to accept a fugitive slave bill, to be sure, but little else of Clay’s compromise.

A few days later, William Seward, a New York senator, delivered a speech insisting that constitutional guarantees or not, a “higher law”—the law of God—impelled antislavery northerners to block the expansion of the institution. Still more galling to enslavers was Seward’s air of arrogance about the other “higher law” that had supposedly given greater power to the free states: the laws of political economy. The free labor system, he stated, had enabled New York, “by her own enterprise, [to secure] to herself the commerce of the continent, and is steadily advancing to command the commerce of the world.” It was as if New Yorkers had never bought or sold a bale of cotton.⁴⁵

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