The challenge of being the United States

 A few months ago I started a new historical project:  a study of controversies over slavery from the constitutional convention of 1787 until the outbreak of the Civil War.  I have already read through about half a dozen secondary works on various particular controversies--works that once again testify to the one-time strength of the American historical profession, now fallen on relatively barren times.  I am struck as I have been over the last few decades at how much technology has made research easier nowadays.  Nine times out of ten, when a secondary work that I am reading cites an article or even a primary source, I can have the original source on my screen within a few minutes.  Unfortunately, fewer and fewer people are taking advantage of these opportunities because they haven't been trained to do serious historical research, and I am not sure that any publishers are willing to publish them, anyway.  In any case, such research has always been more pleasure than business for me and this is turning out to be no exception.  Boiling the material down to a reasonable length will be hard, but I have solved problems like that before.  Meanwhile, I am learning an enormous amount not simply about different views of slavery but also about the fundamental dilemma that we Americans have struggled with since 1787.

Our constitution reflected the values of the Enlightenment in many ways, some of which contemporary observers prefer to ignore.  Despite the actual difference in legal status between free people and slaves and men and women, the founders used "persons" throughout to refer to all the nation's inhabitants.  They began with a promise of a "more perfect union," and their ratification process allowed the people of the nation, acting in statewide conventions, to transfer ultimate sovereignty from the states to the new national government.  And, using their recently devised state constitutions as a model, they codified procedures designed to carry out all the major functions of a government.  The constitution immediately became the ultimate source of authority when conflicts over governmental power arose.  Almost immediately, however, the inescapable flaw of such a system emerged.  Words require people to interpret them--and our history shows that political partisanship continually leads men and women to argue that even the simple words of the constitution do not mean what they say.

The first crisis along these lines occurred during the administration of John Adams, when Congress passed and Adams signed the Sedition Act in 1798.  The Bill of Rights had been ratified only a few years earlier, but that act made criticism of the President and his administration a crime, and several opposition leaders were tried under it.  Fortunately Congress allowed it to expire in 1800.  I was even more struck, however, by what I have just read about John C. Calhoun and his theory of nullification, which South Carolina tried to deploy to invalidate federal tariffs in 1832.  I have discovered that my high school textbooks gave an inadequate account of that crisis.  While South Carolina bitterly opposed the tariff, the real issue involved was the possibility of federal action against slavery, which militant South Carolinians wanted to rule out. Calhoun laid out his argument at For Hill, South Carolina, on July 26, 1832, in an address you can easily find in full, as I did, on the web.

Now in point of fact, the founding fathers' overriding goal in Philadelphia in 1787 was to create a much stronger federal government as an alternative to the chaos they were living through thanks to the Articles of Confederation.  That document had given each state one vote in the confederation congress, and any important measure required the unanimity of all.  The founders instead created a bicameral legislature specifically designated to pass legislation relating to all the major functions of government.  It created an executive branch led by a president to enforce those laws.  A new federal judiciary was given original jurisdiction "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority,"  And crucially, Article VI declared, in presumably unmistakable words,  "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."  Tariffs--the explicit source of the nullification controversy--were customarily part of the taxing power given to Congress, whose explicit authority to regulate commerce with foreign nations confirmed their legality.

Yet faced with the explicit issue of a high tariff and the threatened issue of national slavery controversies, Calhoun invented new constitutional meanings out of whole cloth.  First, without mentioning Article VI's supremacy clause, he denied that the people of the states had surrendered state sovereignty to the federal government.  They had, it is true, ratified the constitution--but he insisted that they reserved the right as states to call the federal government to account any time that they believed it had exceeded its powers.  He also denied the clear authority of the federal judiciary to decide cases under the constitution.  To maintain liberty, he claimed, the people must have means of defense against a hostile majority that might take control of the whole federal government. "By nature," he said, "every individual has the right to govern himself; and governments, whether founded on majorities or minorities, must derive their right from the assent, expressed or implied, of the governed, and be subject to such limitations as they may impose. Where the interests are the same, that is, where the laws that may benefit one will benefit all, or the reverse, it is just and proper to place them under the control of the majority; but where they are dissimilar, so that the law that may benefit one portion may be ruinous to another, it would be, on the contrary, unjust and absurd to subject them to its will; and such I conceive to be the theory on which our Constitution rests."  The only way to maintain the equality which Calhoun posited between the states on the one hand and the federal government on the other was to allow both to be the judge of their powers and exercise a veto on acts of excessive power by the other.  That specifically meant that a new state convention could declare an act of Congress unconstitutional and refuse to obey it--as a South Carolinian convention did in 1832, only to back down the next year after Calhoun, then Vice President of the United States, had helped arrange a tariff compromise.  This he called the power of "interposition" of a state between an unjust federal government and its citizens.

Calhoun, it seems to me, was trying to keep the spirit of the Articles of Confederation alive, even though the constitution had created a completely different system, and even though, in my opinion, there is nothing in the constitution that remotely justifies his view.  Yet under the constitution all Americans remained free to debate its meaning, and ideas like Calhoun's were sufficiently common in the South as to bring about secession and the Civil War after his death.  Even in our own time southerners like the historian Shelby Foote have claimed that the founding fathers assumed a right of secession which, as Lincoln properly pointed out, cannot be justified by the words that they wrote.  And 122 years after the nullification crisis some leading southern politicians revived the doctrine of "interposition" to argue that states did not have to comply with Brown vs. Board of Education because the Supreme Court had overstepped its authority.  They did not prevail.

So far I have mentioned three instances, in 1798, 1832, and 1954, when Congress or state governments have refused to recognize the plain language of the constitution and its traditionally accepted meaning.  Unfortunately, the Supreme Court has at times done so as well.  Perhaps the most notorious case of this was the Dred Scott decision of 1857, in which Chief Justice Taney claimed that black people could never be citizens, even though there was nothing to suggest that in the constitution and they had in fact been citizens all over the country since its founding.  In 2008 I argued in a post here that Justice Scalia's 2010 opinion in Heller vs. District of Columbia, which first defined an individual right to bear arms not stated in the Second Amendment, was almost as dubious--and yet its argument has now been extended in a subsequent decision that could take away the rights to regulate gun ownership that states have exercised for most of our history.  Income taxes had been regarded as part of the taxing power since the founding of the Republic and the government had imposed one during the Civil War, but the Supreme Court suddenly defined them as unconstitutional in 1894, leading twenty years later to a constitutional amendment.  The present Supreme Court has eroded the first amendment's prohibition of an establishment of religion beyond recognition.  

The Trump administration is making many absurd claims about the meaning of the constitution, starting with the explicit denial of birthright citizenship, which is stated in the fourteenth amendment as clearly as anything could be.  Its idea of the "unitary executive," bound in all things to obey the president, is equally dubious in light of history.  The administration has now put these issues squarely before our court system now on many fronts.  I think it is likely to prevail on most immigration issues--although not on birthright citizenship--because the rights of aliens have been severely limited throughout our history.  Perhaps its most consequential steps so far relate to the elimination of various parts of the federal government that have been established and funded by acts of Congress, as well as President Trump's assertion of absolute authority over all federal civil servants.  The question is whether, to paraphrase Orwell, the court in at least sum of these cases will conclude that 2 + 2 can equal 5, if the chief executive so insists. In the past, the Supreme Court has corrected some of its worst decisions, but the demography of the current court suggests that its more recent mistakes will lst for quite a while.

When one reads the writings and speeches of 19th-century Americans, as I have been doing, one recognizes men and women to whom language meant a very great deal.  Since sounds and images could not yet be transmitted, the words the only way in which they could convey thoughts and experience, and reading was by far the most common form of entertainment.  I think that a successful democracy needs a society and a leadership that respect the actual meaning of words.  Such respect has diminished in recent decades, partly because my own profession has increasingly denied that words have any fixed meaning at all.  In so doing they, like demagogic politicians, have opened the door to authoritarianism.  Our functioning democracy depends, I think, on allegiance to something beyond ourselves.  Truth is such a thing.  We need it.