Lincoln’s Legacy, the Emancipation Proclamation, and Modern Slavery

This wasn’t the review I thought I was going to write. But in answering the last question of the evening, Allen Guelzo reminded the audience that ‘Emancipation has a past and a present. A past, that we are right to celebrate. But it also has a present, that we need to do more to work towards.’ An important reminder that whatever we think about the achievements of the past, it shouldn’t blind us to the problems of the present. And so an evening that had interested, but troubled me, was ultimately redeemed.

The event to which I refer was the 10th annual Lincoln Legacy lecture, held at my new employer, the University of Illinois at Springfield. Two lectures were delivered – Allen Guelzo, speaking on ‘Four Roads to Emancipation’, and Ron Soodalter, talking about ‘A Blight on the Nation: Human Trafficking and Slavery in America Today’. The idea was to demonstrate that the issues covered in the historical lecture were still, in some way, issues that confront us today. Yet in the prepared talks, that link was not always clear.

Professor Guelzo’s lecture outlined the fact that emancipation, at least in the form outlined by the Emancipation Proclamation, was not really the preferred option of anyone in 1861. Lincoln himself preferred a system of gradual, compensated emancipation, and indeed had tried to instigate a gradual emancipation scheme in Delaware that he hoped would lead to the other Union states adopting a similar plan, which would then eventually spread further south.

This was insufficiently radical, however, for many other Northerners, including Congress in its Confiscation Acts – the second of which provided for captured Confederate slaves to be freed. Others who tried to unilaterally abolish slavery in other areas – such as John C Fremont in Missouri, or General David Hunter in South Carolina, found themselves relieved of their command. In Guelzo’s telling of the story, Lincoln was terrified that too hasty action would be challenged in court, where Chief Justice Roger Taney, of Dred Scott fame, would be all too happy to pass a legal judgement prohibiting federal officials from interfering in slavery.

(A third road – that of slave self-emancipation through running away – was also offered by Guelzo, although this was a road left largely unexplored. This was a shame, as it left the audience largely unaware of the role that fugitive slaves had played in tipping the hand of generals like Butler and Hunter into radicalizing their anti-slavery stance).

To Lincoln, therefore, it became clear that a Presidential decree using his broadly defined ‘war powers’ could be used to force the pace of emancipation without being subject to legal challenge. For this reason, Guelzo argued after questioning, Lincoln deliberately left the Emancipation Proclamation entirely devoid of reasons justifying emancipation.

In this telling of Emancipation, Lincoln emerges very much as an unmitigated hero. Indeed, Guelzo made his adulation of Lincoln clear from the start – saying that only a man with the depths of Lincoln’s revulsion against slavery would have pursued emancipation in the face of such big disincentives, constitutional and judicial.

The problem with all of this is that it seemed to present too unambiguous a hero narrative. There is one key question – why did Lincoln take 22 months to act on what was supposedly such a strong moral conviction? Citing gradual emancipation doesn’t really cut it – the situation was pie-in-the-sky, and even if Lincoln thought it was a sensible and moderate plan, it wasn’t going to work. Similarly, when presented with potential ‘outs’ by men like Fremont and Hunter, Lincoln didn’t take radical steps, but rather distanced himself from them. In short, the lecture all seemed a little too convenient, a little too hesitant to think about setting blame at Lincoln’s feet – a little too self-congratulatory.

By contrast, Soodalter’s lecture erred, if anything, too much on the other side. Whereas Guelzo ended his lecture on the optimistic note of ‘henceforth and forever free’, Soodalter reminded the audience of the systematic economic, legal and political removal of rights from freed slaves in the American South, before moving on to warn of the modern presence of human trafficking and slavery worldwide.

It was a jarring talk, one that did not sit easily with the optimism or the congratulatory tone of Guelzo. It reflected two things. Firstly, that political advocacy leads itself to much clearer and more pointed lectures than history. Guelzo himself acknowledged that one of the tricky aspects of his lecture was that all four roads, and none of them, led to emancipation directly. Transmitting that level of nuance in a public lecture is a tricky task, and it’s not surprising that can lead to the hero narrative. Soodalter’s plaintive cry for greater attention to modern-day slavery, by contrast, was able to focus its anger and its message much more directly.

Secondly, it showed that using history to shine a lens to the present can be troubling and controversial. There was a clear change in the atmosphere in the audience, with several bristling at the political overtones of Soodalter’s talk; others (as became clear in questioning) disliked the implicit undercutting of Lincoln’s agency in ensuring that Emancipation had a positive legacy.

This was certainly the case. Soodalter erred on the side of emphasizing continuity in the history of slavery. I suspect this was more of a rhetorical device than anything; he admitted openly in questioning that the difference between legal slavery and slavery existing only underground was a critical difference – though that did not exculpate us from doing more to spot the problem where it still existed. The emphasis on continuity also highlighted a point that has become increasingly crucial in my own historical thinking; namely that it doesn’t matter what the law says if it is neither respected nor enforced.

After the lectures had finished, I intended to write the following: that though the lectures had been interesting, they sat uncomfortably with one another. That (as much as it might be heresy to say it in this town) Lincoln needed considerably greater critical reflection; and that this had been highlighted by Soodalter’s calling attention to the ways in which the promise of the Emancipation Proclamation hadn’t been fulfilled.

About halfway through the questioning, though, someone raised that very issue – that neither speech seemed to sit comfortably with the other. And then the whole tenor of the evening changed. Soodalter softened his tone; Guelzo (perhaps freed from the tyranny of the lecture) gave a little ground, even if still reluctant to criticize Lincoln’s actions explicitly. And it was his reminder at the end – that slavery and emancipation and slavery have a past and a present – that helped the evening leave with a useful reminder of how appreciating the past can inform us in making a better future.

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Making It Up As They Went Along

One of my favorite teaching subjects is the settlement of the Jamestown colony. Oh, how the students get a kick out of the haplessness of the first Virginians. Just take a look at who ventured across the Atlantic in the first place. Who on earth would populate a colony with young men? Who would think that silversmiths and perfumers would be more ready for the exigencies of building a town than carpenters and craftsmen?

That’s without even thinking about Jamestown’s geography. Settling in the midst of a malarial swamp at the height of summer hardly seems like the most sensible course of action. Especially in a world without air conditioning. Then add in the imperious attitude toward Native Americans, and you end up with a combustible mix that seems destined to end either in the annihilation of the English or an ignominious return home.

The return home almost came to pass in 1610, before Lord De La Warr happened to catch the escaping colonists and forced them to return. Then, a period of quasi-military discipline helped to turn the colony’s fortunes around. But it was another few years before the future success of the colony began to seem inevitable – the discovery of tobacco, combined with a shift in policy towards encouraging individual cultivation of land and a recognition of the importance of settler consent in affairs of government.

Then again, what else should we have expected from the Virginia colonists? The whole purpose of settling at Jamestown was that it hadn’t been claimed by another European country. The instructions explicitly demanded setting up far enough away from the Spanish that they wouldn’t bother to attack. Knowledge of that part of the eastern American seaboard was close to non-existent – banking on the discovery of gold may have been excessively optimistic, but no more ridiculous than banking on the ability to provide, well, any other individual staple good or commodity.

The Virginian colonists, in short, were making it up as they went along. They were taking a scary leap into the unknown, and cobbling together a plan based on what they had heard about Spain in Central America and what they knew of the Old World. Unsurprisingly, the plan was rather unrealistic. The colony survived through a series of fortunate circumstances more than any visionary foresight from English promoters. Yet in time, that set of circumstances became transformed into a profitable and long-lasting society.*

When delegates came to Philadelphia in 1787 to discuss amending the Articles of Confederation, they were part of a society that had been making it up as they went along, too. It was crazy to think that governments long established could be replaced, overnight, with something similarly stable and long-lasting. Reading Thomas Jefferson’s preamble to the Declaration explains something of that ambivalence. Why else would mankind be predisposed to consider evils sufferable if change was not a complex, painful, and uncertain process?

That thought has been sticking in my mind as the Presidential election heats up, when we are subjected to endless encomiums about the wisdom of the Founding Fathers and their foresight. The delegates that met at Philadelphia, as I explained in my last post, had little idea that their Constitution would even become law, much less survive for 225 years.

And they were well aware that Americans were making up their government as they went along. Their combination of looking to the future while relying on guides from their past had led to all sorts of stumbles and missteps. Why else would America have needed a (second) convention to discuss the general failings of the Articles of Confederation? How else could the Framers have looked at state constitutions which guarded against the British evil of executive tyranny, only to replace it with state legislatures that frequently and flagrantly overstepped their legal limits.**

I’ve been thinking about this because in praising the far-seeing wisdom of the framers of the Constitution, we are holding them to a higher standard than they themselves would have done. Think about just how tentative their preamble was – a ‘more perfect union’. Plenty of work still to be done.

In fact, if there was far-seeing wisdom from the Framers, it was the wisdom of Socrates. To paraphrase Donald Rumsfeld, the Framers knew what they did not know. Alexander Hamilton gives the classic example of this in Federalist 35, when he argues that no generation knows how society will develop in the future; consequently, any constitution should only lay out general principles.

This argument, by the way, explicitly aimed to justify the broad powers of taxation given to the federal government. It was by no means a small-government screed. (Though it was also not a forerunner of the welfare state – Hamilton also advocated that government would naturally be run by merchants in perpetuity).

The point is, to expect a fountain of political wisdom to come from a snapshot in time is unrealistic. We never have all the facts, and even if we did, they would soon change. It’s easy to look back and praise or chastise the decisions made in the past. It’s harder to be sure what will happen in the future. With the study of history, we might not have to make up quite so much. But it is ridiculous to place greater weight on the past than even contemporaries knew it could bear. To a certain extent, we’re always making it up as we go along. And whether we’re thinking about 1607, 1787, or 2017, we could do with keeping that in mind.

*I have avoided using the word ‘successful’ as that would very much depend on your perspective.

**Just take a quick look at the report of Pennsylvania’s Council of Censors in 1784!

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Happy Constitution Day?

On September 17, 1787, the Constitutional Convention broke up in Philadelphia, following months of hard, tense negotiations. It was tiring work. The stress of trying to record the proceedings of the convention for future generations nearly killed James Madison. But despite the enormous piss-up at the City Tavern, the really hard work had only just begun.

225 years ago, the Constitution was not ‘The Constitution’. It was a proposed model for a new frame of government that had yet to be approved by the Confederation Congress, much less approved by the popular vote of a single state. The process of making the Constitution ‘The Constitution’ would take the best part of a year, and there would be more than a few problems along the way.

In late September, for example, Pennsylvania’s General Assembly wished to call for a ratifying convention before Congress had even sent notification that they approved the report of the Constitutional Convention. Opponents of the Constitution, realizing what was up, decided to bolt for home to deny the Assembly a quorum. It was, after all, the last day of the Assembly’s session, and if they stalled for time they may be able to mobilize a more effective opposition.

Federalists, on the other hand, were furious, and a crowd gathered to find the recalcitrant Assemblymen and force them to attend debate. Eventually, two were found, and dragged kicking and screaming through the streets of Philadelphia, and taken to the State House (ironically, the very same place the Constitutional Convention had itself met). There, the doors were locked shut behind them until a ratifying convention had been safely called.

In the ensuing newspaper debate, one author ominously warned that further violence would follow if anyone attempted to exercise their democratic right to oppose the Constitution. To give one particularly unsubtle example: “I would therefore advise him to choose some other subject for his remarks in future, if he wishes to escape the just resentment of an incensed people, who may perhaps honor him with a coat of TAR and FEATHERS”. Whenever I think of the ratification of the Constitution, that’s what I think of – both Federalists and Antifederalists doing their damnedest to avoid debates.

Once Pennsylvania had ratified the Constitution, a group of Federalists met in the public square of Carlisle to celebrate. Only this time, it was the Antifederalists who were determined to block celebration at all costs. At the march of the militia drum, men poured into the public square and beat the Federalists with barrels and staves. The next day, the Federalists were allowed to have their celebration, but only if followed by an Antifederalist protest, where the Chief Justice of Pennsylvania was hanged in effigy.

These are perhaps the two most violent incidents of the ratification debate. But they were by no means the only battles that occurred. Other writers protested about different forms of intimidation – pressure brought to bear on newspaper editors not to print Antifederalist essays, for example, or postmasters intercepting the post to prevent distribution of Antifederalist materials.

Even at the time the first federal elections were held, not all Americans had been persuaded of the wisdom of the new Constitution. North Carolina held out until late 1789; Rhode Island, ever the obstreperous child, didn’t ratify until mid-1790 – almost two years after the ratification of the ninth state.

Yet today, at educational institutions all across America, there will be a host of events dedicated to celebrating ‘Constitution Day’. In news coverage across the US, today is described as the 225th anniversary of the Constitution. Of the words of the Constitution, maybe. But 225 years ago, the word had not yet become flesh and lived and breathed among us.

As with so much in the American Revolution, this sanitizing of history to remove the conflict of the ratification debate from popular memory troubles me greatly. It troubles me because it ignores the fact that many people took a quite literal beating to ensure the Constitution became law. It troubles me because it ignores the ways in which opponents of the Constitution won quite considerable concessions from its supporters – not least a Bill of Rights.

Most importantly, it troubles me because the ratification debate is in many ways the best celebration of the principles of democratic self-government in the Revolutionary Era. It was messy and violent and fractious and in certain cases probably relied on rigging the rules of the game more than it should have done. But it worked in uniting 13 remarkably dissimilar states and binding them to a central government. All this in an era when it was hard enough to establish stable politics in any one state, let alone across a whole continent.

Clearly, I’m not one to lament a large series of public events inviting closer reflection on the Constitution. However, I can’t help but think labeling September 17th ‘Constitution Day’ imposes a false impression of the Constitution’s creation. The Constitution became law because ‘the people’ voted for it, not because Madison and Hamilton and Wilson and Washington and Franklin et al willed it. 225 years ago, that was all the Constitution was – a document they wished for. It only became more than just words through a much deeper and wider struggle.

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Violence, Democracy, and Passage of Time

Today seems like one of those days when the myth of the American Revolution has a really negative effect on public debate. The attacks on US Embassies in Libya and Egypt, it goes without saying, are tragic acts of violence. They show that the course of democracy is a dangerous one, that in any polity there exist those who wish to destroy it, and that for many people, defending liberty is something that means more than just typing out a few words on a blog.

When I think about the American Revolution, though, I’m struck by just how fast we expect the blessings of democracy to transform a nation’s fortunes. Politicians will praise the genius of the Constitution, and the genius of the ‘Founding Generation’. Public history all too often presents an image of the Revolution with singular linearity between the Stamp Act, the Declaration of Independence and the Constitution, blithely ignoring the fact there were a full 22 years between those events – if we include the ratification of the Bill of Rights, we’re looking at 26 years. Or, to put it another way, it’s like collapsing everything that happened between the end of Reagan’s Presidency and now into one moment.

If we consider the Revolution as a longer process, then it’s not at all surprising to find that it was a contingent and messy event. Many of the participants changed their mind on a number of key issues. There were periods of panic when people stopped to think whether the risks they’d taken were worth it. When people pondered if it was even possible for a nation to be conceived in liberty.

Take the case of James Wilson. Insofar as he has a popular reputation today, it is as the democrat in the Constitutional Convention who insisted that a governmental ‘pyramid’ raised to a high level needed as broad a base as possible. Eight years before that, though, he was two blocks from Independence Hall fearing for his life as a mob, or the city militia (delete according to your perspective) surrounded his house, hoping to arrest him over his role in defending those accused of collaborating with the British during their occupation of Philadelphia. Some of Pennsylvania’s most prominent politicians (including numerous members of the future Constitutional Convention) stood alongside him on his balcony. Shots rang out and people died on the streets of Philadelphia, not at the hands of the British, but at the hands of Americans.

If you were wondering what effect the Fort Wilson incident had on Pennsylvanian politics, by the way, it seems most likely that the populace supported the militia/mob. I’m not one for monocausality in explaining election results, and there was an awful lot going on in Pennsylvania in 1779. But the elections for the Pennsylvania Assembly that year definitely helped the supporters of the militia more than the friends of Wilson. Or to put it another way, at least in the short term, violence worked.

Remember, though, those incidents occurred in 1779 – three years after Independence, eight years before the Constitution. Even if Egypt and Libya and the other countries of the Arab Spring were to follow the American timeline, we’d be waiting until 2024 for them to put the key planks of constitutional stability into place. And when we’re comparing this to America, it’s also worth bearing in mind that there was no murdered leader like Gaddafi; no physically deposed and arrested tyrant like Mubarak. While there was definitely a problem with loyalism, and while scores of the revolutionary war had to be settled, there wasn’t the decades of oppression and the institutionalization of the military that exists in North Africa.

There is no magic wand of democracy. Throughout history, democracy has only been achieved at great personal and physical risk – all too often, it has only been achieved at the point of a gun. And when leaders have been deposed, that doesn’t mean that a new, stable regime can instantly take its place. After all, mankind is more disposed to suffer, while evils remain sufferable, than to abolish the forms of government to which they have become accustomed. Democracy takes time. It is a violent, messy, unclean process. The sooner our history and our public memory remembers this fact, the sooner we might be able to make progress in the present.

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Political History and the San Antonio Spurs

Matthew Yglesias has accused Americans of being hypocrites this week, claiming that if they truly valued team-work and grift in sports, then everyone would cheer for the San Antonio Spurs. Instead, though, they follow the glamour of the Heat; clamour for Blake Griffin’s dunks, and turn a blind eye to a team that pursues excellence in its own quiet way.

I wonder if something similar can be said about the way historians approach the past. Not that they are hypocritical, exactly, but that their attention naturally turns to events of resounding significance rather than examining areas where, all things considered, the lack of change was more notable. (As a historian of the American Revolution, I am clearly open to these charges myself). Indeed, one of the most memorable lectures I attended as an undergraduate was Christopher Haigh’s full-frontal attack on the very title of the course which we were studying. What was ‘Renaissance, Recovery and Reform’ if not a more interesting way of saying ‘Progress, Progress and Progress?’

Presidential rankings are open to a similar charge. When asked the question “Who was America’s greatest President?” the top answers are familiar – Washington, Lincoln, FDR, in some order. What unites them, clearly, is that they dealt with times of national crisis. Yet there is more than a fair amount of luck that characterizes any Presidential term. Would Jefferson be considered such a great President had Napoleon not offered the sale of the Louisiana Territory? What were the peculiar and distinctive challenges that faced, say, Chester A Arthur? Besides, doing nothing is sometimes better than doing something. Either things are working as they should be, or systems deserve a fair and full experiment before bringing judgment.

Ranking historical figures risks intensifying a further problem – in seeking to classify them as ‘better’ or ‘worse’ than each other, we become reductionist in the values we promote when thinking about political leadership in the present. There is more than one path to successful leadership. Clement Attlee was Prime Minister in one of the most significant governments in British history, laying the foundations of the welfare state that has lasted to this day. Yet in contrast to FDR, who gets most of the credit for the policies of the New Deal, Attlee is scarcely treated with great popular affection or warmth. That isn’t surprising – in terms of his personal appeal, he does not stand a favourable comparison with his predecessor and successor, Winston Churchill. Nor was he the most outstanding political talent in his Cabinet. Yet in many ways an unassuming figure who let other figures take control of their individually consuming tasks was the ideal man for the job at the time.*

There is a danger, though, in looking only at times of change for historical study. It can lead to a fallacy in which the only valid version of successful leadership can roll off a list of significant achievements where positive agency can be proven. There is always something seductive about the eye-catching initiative, after all. Yet imagining the past as a period permanently pregnant with crisis can mistakenly alter our perception of the present. Sometimes, keeping things ticking over is all that is needed. Even the most ardent revolutionary envisages a future time when there is no need for violence or tumult.

If there is a plea from this post, it is to consider that the Era of Good Feelings might give similarly valuable lessons as the 1790s. (After all, five new states were admitted to the Union and the Monroe Doctrine was coined). James Monroe, despite his penchant for revolutionary-era headwear, may not be as lodged in the historical firmament as George Washington – but then again, what were the pressing crises that faced the Monroe Administration? Certainly nothing so weighty as creating a new government from scratch.

This, I realize, leaves me drawing the uncomfortable parallel of Washington as LeBron and Hamilton as Dwayne Wade, compared to Monroe’s Tim Duncan. I’m not sure I’m prepared to push the argument quite that far. There is, though, something to be said for studying periods of seemingly less moment in as much detail as we pore over times of cataclysmic change. Even change is only important insofar as it can be measured against some previous understanding of normalcy.


*Important side note: I am aware that some historical rankings of Prime Ministers place Attlee at or near the top. I am also aware that popular polls show nothing like the same admiration for his leadership. To take The Times rankings, one person asked placed Attlee at number 22; no-one else ranked in the top 10 had a ranking lower than 16th from the lowest expert polled.

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Salutary Neglect and the War of 1812

Over at, James Lundberg has asked why there is no clear public memory for the war which made Andrew Jackson famous. I’ve previously dealt with the topic of the War of 1812 on here before; in that post I made a slightly tongue-in-cheek argument for public commemoration, essentially arguing that cultivating public memory of obviously complicated events might inspire a more sophisticated consideration of the past in wider society. Today, though, I want to make a somewhat more serious argument.

By happy coincidence, this week I will be finishing my Early Republic course with a consideration of the War of 1812. As I told my class on Thursday, finishing the course in 1815 is a tricky finishing point, as it symbolizes a meeting point between the rising political figures of the Age of Jackson and the last remnants of the Revolutionary generation. Lundberg points out that 1812 sits in a period often considered moribund and lifeless, or, in the words of Richard Hofstadter, ‘dreary and unproductive … an age of slack and derivative culture’.*

And sure, the 1810s and 1820s might not have as many tales of derring-do and American awesomeness as the Revolution did. Then again, there’s a reason that the Revolution is such an epochal moment in world history – events like that don’t happen often. If they did, not only would the world be a much scarier place, but the Revolution would lose much of its exceptionalism.

It is harder to place the War of 1812 on such a historical pedestal in American public memory. This isn’t for want of trying – the recasting of the War as a ‘Redeclaration of Independence’ certainly had a rhetorical appeal for the History Channel. Ultimately, though, neither Americans nor the British care much to remember the whole affair. British Prime Minister David Cameron joked about this on a recent visit to the White House, saying “we so much more prefer talking about defeating the French.”

Many a true word is spoken in jest. For it is preposterous to think that the outcome of the war would have been so poor for the British had the USA not declared war at the end of a protracted European conflict. It was the desire and necessity of defeating Napoleon that exercised the great minds of Britain in 1815 – US belligerence was something akin to an annoying cousin yapping at you while trying to sort out a serious dispute with an angry neighbour. As Lundberg writes, ‘both sides proved able arsonists’, but lacked clearer final objectives. Even though the shadow of the Battle of New Orleans would be hugely significant in the course of American history, Britain treats the event to this day with something of a shrug. Waterloo is a much happier memory.

Ruminating on all of this, it occurs to me that Burke’s notion of the ‘wise and salutary neglect’ of the American colonies in the 18th century is equally applicable to the 19th century. While ‘we won because Britain didn’t care’ might not be the most glorious epitaph for a war, it does explain an awful lot. Freedom from European wars did count for a lot in the development of early America.

Looking back on the 1800s, Republicans were able to have the luxury of chronically underfunding the military – allowing the flourishing of a version of republican ideology that ultimately fuelled the growth of popular democracy. Heck, the lack of British interest in recolonizing North America even allowed New England state governments to actively undermine the leadership of the President in a time of warfare and more or less get away with it.

The thing is, the marginality of the USA in 19th century geopolitics hardly worked out badly in the long run. Working out how to turn notions of popular sovereignty into stable forms of government, or how to bring western territories into a constitutional order, or how to develop an integrated national economy might not be as glamorous as Washington and friends kicking some imperial ass at Yorktown. But history does not consist of simple morality tales of awesomeness.

Sometimes, it’s a good thing not to be important in the grand scheme of things. Britain mostly looking in a different direction in 1812 actually provided an opportunity for greatness. Salutary neglect was not just important as an 18th century phenomenon – Britain’s lack of attention to the USA during the Napoleonic Wars had similarly beneficial consequences for American growth and development.

*Given that my next research project will be looking at the formation and revision of state constitutions in the early 19th century, you can take it as read that I disagree with this statement.

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Commentaries on William Hogeland and Akhil Reed Amar

Over at William Hogeland’s blog, there’s been a series of posts on Akhil Reed Amar’s recent talk* on the Jacksonian constitution. Both the talk and the posts are well worth reading for the full context of what I’m responding to here. Essentially, Hogeland takes a well-directed aim at the liberal consensus surrounding the adoption of the Constitution, pointing out how bitter conflict really defined early American politics in a way that a history which venerates the ‘Founding Fathers’ obscures. While I don’t agree with all of the class conflict aspects of Hogeland’s work, there are a few points that I wanted to expand on myself.

 Like Hofstadter, Amar turns certain unarguable and far from uninteresting assertions — that the convention was presided over by a military figure, met in secret conclave, and went beyond its express instructions — into elements of a paranoid conspiracy theory

I’m teaching a course on the Intellectual Origins of the American Revolution this quarter, and if there is one thing that really shines through the sorts of texts on which historians like Bernard Bailyn rest much of their ideological history/history of ideas, it is the fear of a military character. The fear that military discipline and the spoils of war can corrupt a republic wass scarcely a new idea in political thought. When we think of the Roman pseudonyms adopted by country party men and American revolutionary essayists, those who stood up to military demagogues loom large.

All of which is a long way of saying that while there are many parts of Antifederalist writings that seem paranoid, the fear of a military man turning republican government into a despotic or tyrannical one was hardly without foundation. Even if we account for the widespread popularity of Washington at the time, no-one in America would have disagreed with the proposition that not every general was a Cincinnatus. Antifederalists had a tough case in making their argument because many of their arguments were of necessity abstract. But on the fear of military men being natural candidates for President, they were unquestionably right – Jackson, Grant, Eisenhower all turned great military victories into personal power.

“They put the thing to a vote.” This is the big moment, really the climax of the speech. And from here I’ll stop giving time markers, because the thing I’d like to say responds mainly to the narrative that starts here. He’s saying (triumphantly, as if delivering the coup de grace): The ratification process was democratic, so the Constitution it ratified was structurally and intentionally democratic in the way he’s been saying it was.

This, on the part of Amar, seems to be a classic case of reading the present (or at least reading future events) back into the past. What was legitimate about the vote that ratified the Constitution? Under the terms of the government of the United States at the time – heck, under the terms under which the Constitutional Convention met – the unanimous approval of the 13 states was necessary. Yet even the Constitutional Convention failed to meet this criterion (Rhode Island never showed up), let alone the ratification standard of 9 states agreed on by the convention delegates.

Thus Amar’s argument that ‘the fix wasn’t in’ really doesn’t stand up to scrutiny. The process of ratification itself was a fix. It was a very clever fix, granted – no Antifederalist could hope to argue against popular conventions and not seem paranoid. Just because a loyal opposition developed very soon after ratification does not mean that the process of ratification shouldn’t be considered with an asterisk.

And even then, the convention process was carefully manipulated. While some historians seem to hold up the ratification debate as an exemplar of rational discourse, contemporaries certainly did not see it this way. Witness Antifederalist complaints about newspaper editors refusing to print their essays. Witness complaints about postmasters refusing to distribute Antifederalist literature through the postal network. Or, witness Philadelphia Federalists dragging members of the General Assembly kicking and screaming to the Pennsylvania State House, then locking them in the chamber, to make sure that a ratification convention could be called before the Antifederalists themselves had a chance to develop an effective political organization. A ruthless manipulation of fortuitous circumstances helped Federalists win the ratification debate.

All of which is to say that the process seems legitimate because it succeeded. But I can imagine a number of counterfactual histories in which the Constitution does not receive popular consent. What if it had been ratified by popular referendum? What if ten, or eleven, or twelve states had been deemed necessary for ratification? After all, Virginia and New York ratified in large part because 9 states ratified before they came to a vote. Process and principle are two different, if related things – and throughout the years of the Revolution, those who had most political success trod a careful balance between the two.**

And he says “we didn’t have time” to put the Declaration, by contrast, to a vote: war made opposition to independence impossible; opposing independence just got you tarred and feathered; nobody who opposed independence came to a position of authority in founding America.

Huh? John Dickinson? More important: Robert Morris? What on earth is he talking about here?

Or, perhaps more important still, Tench Coxe, who actually went and took British protection in New York and Philadelphia, yet still managed to become Hamilton’s assistant in the Treasury Department in the 1790s. This is important, because it comes back to the legitimacy of the Federalist administration of George Washington. Leading Federalists were men of the British Empire – often foreign-born or foreign-educated, and many with somewhat dubious connections in the 1770s and 1780s (take James Wilson or Alexander Hamilton defending loyalists, for example). When people accused Federalists of Anglophilia or an unnecessary support they had concrete examples they felt they could point to.

Amar’s claim that the popularity of the Constitution is demonstrated by the repeated election of Federalists (under a 1788 definition) to national office also smooths over incredibly bumpy parts of US history. The way he presents this in his talk ignores the way that many Federalists move to the Republican Party in the 1790s in horror at the way the Washington administration conducts its business.

Sure, on the most general level, you can say that Republicans supported the Constitution as much as the Federalists did. Their difference wasn’t over the Constitution, but over interpretations thereof. Such an argument, though, surely owes more to myth-making and a desire to write conflict out of the early years of the Republic rather than particularly forwarding our understanding of the past. The way in which Antifederalists and Republicans meld critiques of the Constitution and extra-governmental political mechanisms (which, of course, have a longer heritage in 1790s America than the new-fangled Constitution) into the operation of the political system help define the operation of the Constitution in a very different way to that envisaged by Washington, Adams, or Hamilton. To pretend that this can all be subsumed into ‘supporting the Constitution’ strays dangerously into an unhelpful consensus history.

As I said earlier, I don’t necessarily agree with Hogeland on some of his arguments relating to the importance of class conflict in the founding era. Yet I share his concern that conflict is so frequently written out of popular narratives of the Revolution – or that at least, where conflict is present, it’s a disagreement among friends. It’s a key theme of my work that process is important in establishing governmental norms. But it’s also crucial to recognize that there are always competing definitions of what is ‘democratic’ or ‘representative’ or ‘legitimate’ in any polity. That, too, is important in looking at Amar’s talk – what many Jacksonian scholars consider to be innovations of the 1820s or 1830s seem to me to be prevalent in the 1770s. But that is a blog post for another day…

*Incidentally, the University of Oklahoma’s Institute for the American Constitutional Heritage seems to have done a tremendous job in putting together a program of speakers for their event, even if I agree with large parts of Hogeland’s critique.

**This is one area where I disagree strongly with Hogeland. He talks about the May 1, 1776 by-election in Pennsylvania, and frames it as a ‘referendum on Independence’. He doesn’t, though, account for the competing legitimacy of the committee system in Philadelphia at the time, nor does he take into account the fact that elections for the PA Assembly had a more restrictive franchise than the committee system (at least that’s my reading of it, I’m happy to discuss this in comments if people wish to disagree). By May 1776, popular faith in the Assembly to represent popular opinion had evaporated to a greater or lesser extent, and there was an alternate power structure in place. Again – where process and principle are not the same thing, and straddling the two carefully leads to the greatest success.

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