Fateful Lightning: A New History of the Civil War & Reconstruction (18 page)

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? … It is absolutely certain that the African race were not included under the name of citizens of a State… and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

The government did not choose to grant them much:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
⁶⁸

This rendered all questions about transit laws and the Missouri Compromise moot, and reduced the only real question in
Dred Scott
to a matter of Scott’s race. Even if Scott’s master had violated free-state laws by taking Scott into free territory, Scott himself had no legal standing as a citizen before the federal courts, and the federal courts had no reason to listen to his suit, justified or not.

Taney’s argument from race caused only one part of the sensation; after all, Taney’s notions about Scott’s “inferior” race were not much different from what most white Americans and even many abolitionists believed (they merely differed as to whether that was sufficient reason to enslave someone). The political blockbuster of the
Dred Scott
decision came when Taney actually turned to consider Scott’s own plea, that residence in a free territory could terminate his slave status. Taney proceeded to deny this plea in the clearest and most chilling terms. No territorial government in any federally administered territory had the authority to alter the status of a white
citizen’s property, much less to take that property out of a citizen’s hands, without due process of law or as a punishment for some crime.

This, of course, meant
any
property of
any
white citizen in
any
territory. In effect, Taney had resurrected John Calhoun’s “common property” doctrine and overturned any federal or territorial law that in any way interfered with a citizen’s “enjoyment” or use of his property—which in the case of John Emerson had been his slaves Dred and Harriet Scott. Taney then attacked the Missouri Compromise as unconstitutional on the grounds that it deprived slaveholders of the use of their slave property north of the 36°30′ line. In two sentences he destroyed popular sovereignty, the Compromise of 1850, and the Kansas Nebraska bill as well, for if it was unconstitutional for Congress to ban slavery from the territories, it was equally unconstitutional for the federal territories to do it for themselves, no matter what the majority vote of a territory on the question might be.

The two sections of the Taney opinion, running over 250 tightly printed pages in the Court’s
Reports
, fit together as integral parts. The first reduced Dred Scott to a noncitizen, fit only to become some real citizen’s “property,” and the second denied the federal government any authority to restrain in any way the spread of slavery in any place where the federal government—as opposed to the individual state governments—had jurisdiction. In fact, only the states themselves were left by Taney with any constitutional authority to deal with slavery within their own borders, and even that might be the next safeguard to be questioned by a federal court.
⁶⁹

In terms of what the
Dred Scott
appeal actually required before the law, Taney need not have done more than declare that Scott simply had no standing before the Court. The explanation for the Taney’s decision to reach beyond Dred Scott himself and strike down the great compromises lies largely in Taney and his Court. Five of the seven justices who voted in the majority were Southerners. John A. Campbell, an Alabamian, would later serve as an assistant secretary of war in the Confederacy, and Robert Wayne Grier, John Catron, and Peter Daniel were all pro-slavery partisans. Taney himself was a Marylander (and brother-in-law of Francis Scott Key, the author of “The Star-Spangled Banner”) and an old Jacksonian Democrat who had served as Jackson’s attorney general in the successful effort to destroy the Bank of the United States. His opinion in
Scott v. Sanford
became Taney’s effort to settle the slavery question where Congress, the presidents, Clay, Webster, Taylor, and Wilmot had failed, and to settle it in favor of the South.

Far from settling the slavery question,
Scott v. Sanford
only aggravated it. The game of balances had gone far beyond the point where a simple declaration from the Court could end it. The new Republican Party replied that a decision so defective in constitutional logic and so repugnant to popular opinion could never be binding as law, and Abraham Lincoln denounced Taney’s attack on the natural right of blacks to freedom as a turning of the Declaration of Independence upside down. “Our Declaration of Independence was held sacred by all, and thought to include all,” Lincoln declared, “but now, to aid in making the bondage of the Negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not recognize it at all.”
⁷⁰
Meanwhile, Stephen A. Douglas was coming up for reelection to the Senate in 1858, and it was clear that the Illinois Republicans would be quick to challenge Douglas on how he could reconcile popular sovereignty—and the right of territories to vote slavery in or out according to their popular majorities—with Taney’s declaration that neither Congress nor a federal territory had the authority to ban the transportation of slaves to those territories.

President James Buchanan, relieved at not having to deliver an opinion on the slavery controversy himself, happily announced his full intention of applying the Dred Scott decision to the trouble in Kansas, and welcomed the application of the pro-slavery legislature for the admission of the Kansas Territory to the Union as a slave state.
⁷¹

I
t seems only human nature to hang the label
irrational
on what we do not understand, since it is easy for us to assume that something must be irrational if our ingenuity is unequal to the task of deciphering it. That may actually reflect more on the limits of our ingenuity than on any supposed irrationality in what we are studying. For that reason, it should come as a practical and fundamental warning not to impute irrationality to people in the study of history (or any other human endeavor) too quickly.

Nevertheless, the behavior of Northern and Southern politicians in the ten years before the Civil War is often described as irrational by many historians, as though the Civil War was a product of an undiagnosed madness, or a paralysis of communications so great as to make the tower of Babel the only worthwhile comparison. The great Allan Nevins described Southerners “in the final paroxysm of 1860–61” as being “filled with frenzy,” while Northerners turned “grimly implacable” over slavery. “The thinking” of North and South alike, concluded Nevins, “was largely irrational, governed by subconscious memories, frustrated desires, and the distortions of politicians and editors.” Dominated by “stereotypes” of each other, Northerners and Southerners were possessed by “fear,” and “fear was largely the product of ignorance, and ignorance—or misinformation—largely the product of propaganda.”
¹

Nevins’s was only the mildest of historians’ voices in the twentieth century who blamed the war on irrationality. Sometimes the irrationality took the form of an “egocentric sectionalism,” as it did for Frank Lawrence Owsley; other times, as for James
Garfield Randall, it was a kind of political dementia that caused a systematic failure in the American political system and “incredible blundering” by a generation of incompetent politicians. Avery Craven believed that “sane policy” had been abandoned in the heat of unreason, and that “uncalled-for moves” and “irresponsible leadership” had doomed the nation to civil war and the wanton destruction of compromises that might have augured a better American future.
²
It did not relieve the bleakness of this interpretation that all of these historians had come of age as the Progressive movement was withering on the vine and American entry into the First World War was turning into a sucker’s bad bargain. Just as it was easy to believe that irrationality had brought on the Great War and the rise of even more lethal forms of political madness, it was not difficult for embittered Progressives to cast the same dim light on the Civil War. The Civil War was, in these arguments, just one more function of political irrationality, with personal blundering in one case, structural folly in another.

The difficulty with this accusation of irrationality arises from the ease with which it permits us to discount the meaning of politics in a democracy, and perhaps even democracy itself, since the Progressives had a distinctly uneasy relationship to democracy. As much as Randall, Craven, and Owsley were not wrong to discover exaggerated rhetoric, policy blunders, and brainless leadership causing serious abrasion between North and South, it is only from the comfortable point of view of another century that all the rhetoric seems exaggerated, all the policies inarguably blunders, and all the leadership uncomprehending of the abyss toward which they were pedaling.

Looked at on their own terms, both the South’s fears of territorial and economic strangulation and the North’s fears of a “slave power” conspiracy are anything but irrational, and only someone who refuses to think through the evidence available to Americans in the 1850s would find either of them at all illogical. “Is it nothing to
yell
about,” asked South Carolinian William Gimball in a letter to Elizabeth Gimball in 1861, “that we are prevented from carrying our property into the common territory of the United States? Is it nothing to yell for that the government is to be in the hands of men pledged to carry on the ‘irrepressible conflict’ against us? Is it nothing that they send incendiaries to stir up the slaves to poison & murder us? Is it nothing that our brothers at the North rob us of our property and beat us when we reclaim it?”
³

On the Northern side, Abraham Lincoln is not usually considered a candidate for irrationality, but he was convinced of the existence of a “slave power” conspiracy and in one of his most famous speeches accused a U.S. senator, the chief justice of the U.S. Supreme Court, and two presidents of being its aiders and abettors. John Bigelow, whom
Lincoln would appoint as his chargé d’affaires in Paris in 1861, reduced the contest between North and South to “a struggle… between the aristocratic or privileged element in our government and the democratic. The two cannot live in peace together.”
⁴

Similarly, only the benefit of hindsight allows us to write off the succession of compromises, from the Missouri Compromise of 1820 to the last-minute attempts to broker compromise under the nose of secession and disunion in 1861, as evidences of widening failure. Until the firing of the very first gun, Northerners and Southerners were driven not by irrationality but by the clearest political logic on offer. “As long as slavery is looked upon by the North with abhorrence; as long as the South is regarded as a mere slave-breeding and slave-driving community; as long as false and pernicious theories are cherished respecting the inherent equality and rights of every human being, there can be no satisfactory political union between the two sections,” declared the
New Orleans Bee
in December 1860. While the premises of that proposition may be questionable, the logic that flowed from them was not. “If one-half the people believe the other half to be deeply dyed in iniquity; to be daily and hourly in the perpetration of the most atrocious moral offense,” continued the editor of the
Bee
, “how can two such antagonistic nationalities dwell together in fraternal concord under the same government?”
⁵
Far from reeking of irrationality, secession and disunion were perfectly coherent and logical political choices within a political system that all along had confirmed that secession and disunion were viable options.

By the same token, the political system did not break down—the Southern states simply decided that it had fallen into the wrong hands and that they would no longer choose to use it.
⁶
Far from losing confidence in that system, Northerners and Southerners struggled for workable compromises right down to the last minute, even while the room for creating nation-saving compromises narrowed beyond all hope of maneuver, and they continued to agitate for them almost all the way through the war in the form of Northern and Southern peace movements. If there is anything that is genuinely appalling in the political context of the Civil War, it is the dominance of the most glittering and hard-edged political rationality. It was the hard edge of that rationality that, in the end, made a final compromise impossible.