Slavery and the Constitution: Explorations

TEXAS TECH LAW REVIEW

VOLUME 20 1989 NUMBER 3

SLAVERY AND THE CONSTITUTION: EXPLORATIONS

by George Anastaplo*

It is proper for more reasons than the most obvious one that I should open this series [of lectures on natural right and history] by quoting a passage from the Declaration of Independ- ence. The passage has frequently been quoted, but, by its weight and its elevation, it is made immune to the degrading effects of the excessive familiarity which breeds contempt and of misuse which breeds disgust. "We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." The nation dedicated to this proposition has now become, no doubt partly as a consequence of this dedication, the most powerful and prosperous of the nations of the earth. Does this nation in its maturity still cherish the faith in which it was conceived and raised? Does it still hold those "truths to be self-evident"? -Leo Strauss'

CONTENTS INTRODUCTION ...... 679 I. A PRELIMINARY CONVERSATION ...... 681

© Copyright 1989 by George Anastaplo. All rights reserved. The editors have complied with the author's stylistic preferences in this article.-Ed. * Professor of Law, Loyola University of Chicago School of Law; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago; A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago. 1. L. STRAuss, NATURAL RIGHT AND HtsToRY 1 (1953). See, on the Declaration of Independ- TEXAS TECH LAW REVIEW [VOl. 20:677

II. ARISTOTLE ON SLAVERY ...... 691 III. SLAVERY AND THE FEDERAL CONVENTION OF 1787 ..... 696 IV. SLAVERY IN THE TERRITORIES ...... 717

ence, Anastaplo, The Declaration of Independence, 9 ST. Louis U.L.J. 390 (1965); G. Anastaplo, Political Philosophy of the Constitution, in 3 ENCYCLOPEDIA oF TE AMElucAN CONSTITUTION 1413 (L. Levy, K. Karst and D. Mahoney eds. 1986); G. ANAsTAPLo, THE CONSTrrTUON OF 1787: A COM'ENARY 2-3, 21-22, 239-44 (1989) [hereinafter CoMMENTARY]. See, on Leo Strauss, G. ANASTAPLO, THE ARTIST AS THINKER: FROM SHAKESPEARE TO JoYcE 249 (1983) [hereinafter ARTIST]. Additional discussions of slavery and American race relations may be found in the following publications by me: 1) THE CONSTTuTnONALIST: NoTEs ON THE FIRST AMENDMENT 239-53 (1971) [hereinafter CoNSTi- TIJTIONAIIST]. 2) Essay No. IV, Natural Right and the American Lawyer, Essay No. V, Liberty and Equality, Essay No. VI, Law and Morality, Essay No. XV, Race, Law, and Civilization, and Essay No. XVI, Citizen and Human Being: Thoreau, Socrates, and Civil Disobedience, in HUMAN BEING AN CTIZEN: ESSAYS ON VuTuE, FREEDOm AND ma COMMON GOOD (1975) [hereinafter EssAYs]. 3) American Constitutionalism and the Virtue of Prudence: Philadelphia, Paris, Washington, Gettysburg, in ABRAHM LINCOLN, THE GmrrysauRo ADDRESS AND AMERICAN CONSTUTONAISM 77 (L. P. S. de Alvarez ed. 1976) [hereinafter American Constitutionalism and the Virtue of Prudence]. 4) Mr. Justice Black, His Generous Common Sense and the Bar Admission Cases, 9 Sw. U.L. REv. 977, 1042-46 (1977). 5) Book Review, 23 MOD. AGE 314 (1979) (reviewing books by Harry V. Jaffa and Garry Wills). 6) Abraham Lincoln's Emancipation Proclamation, in CONSTITToINAL GOvERNMENT IN AMEmCA: Essays and Proceedings from Southwestern University Law Review's First West Coast Conference on Constitutional Law 421 (R. Collins ed. 1980). 7) THE ARTsr AS THINKER: FROM SHAKEsPEARE TO JOYCE, Chapter X, Appendix B (1983). 8) Book Review, 27 MoD. AGE 365 (1983) (reviewing W. CROSsKEY & W. JEFFREY, JR., III, POumCs AN m CONSTuTION IN TE HISTORY OF mrE UNITED STATES: TBE PoLrmcAL BACKGROUND OF Tm FEDERAL CONVENTION (1980). 9) Book Review, 99 EIcs 655 (1989) (reviewing M. WirrE, Ptnt-soisv, "Tim FEDERAur," AND mHECoNSTITUTION (1987)). 10) Mr. Crosskey, the American Constitution, and the Natures of Things, 15 Loy. U. Cm. L.J. 181 (1984) [hereinafter Mr. Cromkey]. 11) How to Read the Constitution of the United States, 17 Loy. U. Cim. L.J. 1 (1985) [hereinafter" How to Read]. 12) The Northwest Ordinance of 1787: Illinois' First Constitution, 75 ILL. B.J. 122, 123 (1986). 13) Seven Questions for Professor Jaffa, 10 U. PuGEr SouND L. REv. 507 (1987) [hereinafter Seven Questions]. 14) THm UNrrED STATES CONSTITUTION OF 1787: A CoMMENTARY, 306 n.9 (1989). The appendices to this Commentary include a dozen constitutional documents ranging from the Deiaiation of Independence through the Gettysburg Address. My Commentary in its law journal form includes a selected bibliography in which there are recorded corrections for various of the items both listed here and cited in tie notes below. 18 LoY. U. Cm. L.J. 15, 225 (1986). The reader is urged, as with my other publications, to begin by reading the text of this article without reference to its notes, except for the note at the beginning of each part which indicates the occasion for which that part was originally prepared. 1989l SLAVERY AND THE CONSTITUTION

V. CALHOUN AND SLAVERY ...... 722 VI. DRED SCOTT AND THE LINCOLN-DOUGLAS DEBATES .... 732 VII. SECESSION AND THE RULE OF LAW ...... 74 VIII. NEITHER BiACK NOR WHITE: THE NEGRO IN AMERICA ...... , ...... 766 IX. DEMOCRACY AND RACIAL DIVERSITY ...... 780 CONCLUSION ...... 783

INTRODUCTION

It might be wondered why anyone should bother today, at least in the Western world, to study the problem of slavery since slavery as an institution has become "unthinkable." Americans can hope to learn, from such a study, about critical opinions and practices which have helped shape their political history and their constitutional doctrines. Constitutionalism itself, and the rule of law, can be illuminated by periodic reconsiderations of how American statesmen and the American people have dealt from time to time with slavery, its presuppositions, and its after- math. The virtually universal repudiation in oui tin of slavery (especially slavery keyed to racial differences) is drarhatically evident in the news of the day: systematic denials of equality tend to arouse fiercer opposition in the modern world than do systematic suppres- sions of liberty. Consider, for example, the repeated efforts to exclude the kepublic of South Africa from the community of nationsi but not the Soviet Union. There is no doubt but that the South African government practices out-and-out racial discrimination; perhaps coming as close as a Western country can openly come at this time to slavery on a grand scale. Still, it can be argued, even the second-class and third- class citizens of South Africa enjoy in tranquil years considerably more civil liberty (for example, freedom of speech) than most citizens in the pre-glasnost Soviet Union ever have. This, however, is generally taken to be an irrelevant distinction for anyone determining the responses to be made by governments and others to South Africa and the Soviet Union today. Of course, if South Africa were as powerful militarily as the Soviet Union, much more caution would have to be exercised in dealing with its TEXAS TECH LAW REVIEW [Vol. 20:677 government. But deep-seated resentment of its racial policies would probably continue. Not only does slavery pose the most radical challenge to both the contemporary dedication to equality and the pervasive hostility to racial discrimination, but it can also provide the point of departure for a most instructive examination of enduring principles and their application to issues of the day. Thus, I observe, in the concluding section of the third part of this article: One great advantage for Americans of the slavery issue has been that it has obliged them, through many of the formative years of the Republic (and perhaps down to this day)-it has obliged and permitted us to be always aware of the relation between law and morality as well as the limits of any doctrinaire morality. Proper reflection upon the dilemmas that decent people confront, because of their circumstances, can help us curb self-righteousness, something which can be crippling and even suicidal. We should be alert to the sorts of things one should take account of when one tries to make the best of a bad situation-and this applies to matters as diverse, and yet as similar, as the controversies today about abortion and about nuclear and biological weapons. My readers will see how I have attempted, in discussions developed on nine separate occasions over a quarter of a century, to apply what I believe to be enduring principles to the slavery question and related issues as they have manifested themselves in ancient times and in recent centuries, in this country and abroad.

Ii.

Each of the nine discussions used in this article was fashioned with the interests and needs of its particular audience in mind. (This partly accounts for whatever repetitions may be found in the pages that follow.) One is not likely to be useful if one speaks altogether abstractly, or without regard for circumstances, about practical matters. The title provided for each part of this article indicates the aspect of that part which is being emphasized, at least for organi- zational purposes, in this context. More often than not, both the titles and the notes for the nine parts of this article have been crafted for this occasion. The parts of this article are not presented here in the order in which they were originally prepared. Rather, they are presented 19891 SLA VERY AND THE CONSTITUTION

(beginning with the third part) in the order in which critical issues discussed therein have confronted American citizens since 1787. We move in Parts III through IX from the slavery issues in the Federal Convention (1787), to the problem of slavery in the Territories under the Constitution (1787-1820), to the Calhoun response to the growing challenge to slavery in the United States (1830-1850), to the Lincoln response to such Calhounian measures as the repudiation of the Missouri Compromise (1850-1858), to the abuse and use of the rule of law as Secession threatened to destroy the Union (1860-1861), to the race-relations issues (discussed by me in 1963) which remain since the suppression of slavery by war, and finally to the problem of racial discrimination as illustrated by South Africa today. There is considerable overlapping in my discussions of these seven stages. In fact, each of the nine parts of this article ranges at least from the Declaration of Independence to the Civil War. The conversation recorded in Part I (which is the second oldest part of this article) touches upon a series of issues to which I speak at considerably greater length in the following eight parts of this article. My associate in that 1977 conversation is an unabashed, and for me always an instructive, apologist for the Old South. Part II, with its suggested reading of an Aristotelian text, should remind us that the more we know, the more we may be equipped to learn from the works of the greatest minds.

I. A PRELIMINARY CONVERSATION 2 Can you tell me, Socrates, whether virtue can be taught? Or is it not teachable, but to be acquired by practice? Or is it

2. This colloquy was distributed in its Spring 1977 Newsletter by the Politics Department of the University of Dallas, having been prepared by Professor Thomas G. West of that department. The thirteen notes provided by the Newsletter editor in 1977, and adapted here to law journal format, are notes 4 through 16 infra. The original title of the colloquy was, "Slavery and the Constitution: A Conversation Between M. E. Bradford and George Anastaplo." The Newsletter introduction to the colloquy includes these observations by the editor: Every year since 1965, Professor George Anastaplo has been invited to the University of Dallas to hold an intensive four day seminar on a topic or author of political philosophy. The occasion of the following transcription, an excerpt from -last spring's seminar on The Federalist, was a visit by Professor M. E. Bradford of the University of Dallas English Department to one of the sessions.... The transcript begins about five minutes after Professor Bradford's arrival. The epigraph from Plato's Meno, notes 2 and 3, and notes 17 and 18 have been added by me at this time. Some of Professor Bradford's publications are listed in note 18 infra. TEXAS TECH LAW REVIEW [Vol. 20:677

to be acquired neither by practice nor by learning, but does it originate inhuman beings by nature or in some other way? -Meno 3 G,A. We had this morning a discussion of slavery that I should like to have had you here for. Let me just take one proposition and see what it does for you. [Laughter] M.E.B\: George, I intend in the distant future to prepare a careful edition of the proslavery arguments. I think that it would contribute to scholarly discussion. G.A.: What do you think of the proposition that the Consti- tution, as written and with its presuppositions, was such as to make slavery a questionable institution? MiE.B." I don't think that the Constitution positions itself, in a meaningful way, in either direction. And I'm not very unor- thodox about that at all. The company to which I belong is legion. I can maintain with more comfort, though I would not seriously maintain it, that the Constitution contains elements that depict slavery as a positive good-this is a long footnote to my reply to [Harry] Jaffa4 as die Constitution says that "we have 'x' number of blacks; that is not quite enough; we provide for the extension o the slave trade for so many years, which will provide enough"- G.A"6, , That's a long bow you're drawing- M.E.Bi: Nooo, noooo- GdA,. Isn't it quite clear, even in the document, that- M.E.B.: I'll tell you why I don't believe it. It's because- G.A.: -it's a very reluctant- MEEB':: Well, that's just looking at the text. Looking at the context that pr6aiueed the text-no, I won't maintain from that evidence- G.A.: The document itself indicates, looking at the text, that even if you knew nothing else, you'd say that this is an ingtitution- the importation of slaves-that's being allowed on sufferance. M.E,B.: No, but it's just as legitimate to construe it as an indication that as a result of the revolution, and the massive

3. PLkTO, MEsio 70A. See, on the Meno, G. Anastaplo, Noies Toward An 'Apologia pro vita sua', 10 ITERPRETATION 319, 341 (1982); see also Anastaplo, Book Review, 32 REv. oF METAPHYISCS 773 (1979). 4. Bradftt, The Heresy of Equality: Bradford Replies to Jaffa, 20 MOD. AGE 62, 68-69 (1976)1 Harry i Jaffa's original statement was "Equality as a Conservative Principle," a paper delivered at the 1974 meeting of the American Political Science Association. 1989] SLAVERY AND THE CONSTITUTION carrying-off of slaves, that they are short 'x' number, apd that a reasonable number of years of importation will restore that balance. And there is a good deal of evidence to this effect if yqp loqk at the deliberations in Virginia and South Carolina. Spencfr Roane and Harry Lee are good authorities on this.' Why were we content with twenty years more trade? Because that would give us all the blacks we could possibly use. G.A.: Well, certainly the people in South Carolina are making a bid for the slave trade. M.E.B.: And they're not alone. G.A.: But isn't that the principal source of the-! M.E.B.: No, the River Gods of Connecticut Were just as interested in it. G.A.: Well, you mean a few men who were Involved in the slave trade, perhaps, but not the delegates themselves, or thF people of Connecticut, in the sense that the people in Carolina were. But what about this argument, though, that the Constitution,-, M.E.B.: That the Constitution carries with it ar,- G.A.: That the Constitution, insofar as it is a masterly em- bodiment of the rule of law is, in principle, inimical tq an instipution which represents, at its best, a kind of moderate tyranny--anything but the rule of law, so far as the slaves were concerned? M.EB.: There are three or four ways of getting out of that One of them is that-ahh-it's simple for sompone who doesn't think that the word "citizen" includes Negroes, or that the word "man" does not include the Negro-or that the Negro is something in between a man and an orangutan, as Jefferson suggests, 6 There's a strict legalist way of doing it. G.A.: But the quick answer to that is that their own eperience with slaves-whom they dealt with and whom they mingled with in the most intimate as well as the most formal ways--, M.E.B.: Did they believe that? No, theK didn't. G.A.: O.K., so that's not- M.E.B.: I think that the answer, once again, George, *s fundamentally historicist. It has to do with the differenFe betwqen your

5. On these men, see R. MEADiE, PATRICK HENRY: PATRIOT IN IE ,NAING (1957); 3 THE DEBATES OF TE SvERAL STATE CON ENroNs ON THE ADopnoN OF Tkm FEDERAL CoNnTI1urroN (J. Elliot ed. 1888) [hereinafter DEBATES]. 6. T. JEFFERSON, Notes on the State of Virginia, Query XIV, in TiM PORTABLE THOMAS JE'ERsoN 187 (M. Peterson ed. 1975). TEXAS TECH LA W REVIEW [Vol. 20:677 conception of law and mine. If the slave was property at the time that the states became parties to the compact, then-ahh-men do not sign an agreement that has a clause that is visible to one group of them and :not to the other, saying that they will someday not be property. G.A.: Oh, no, I'm not saying that- M.E.B.: Nor do they by construction add provisions to that contract, without rendering it null and void. Now no one made an explicit indication inside any of the deliberations that surrounded the ratification of the Constitution, that it put slavery on the eventual footing toward extinction. Nowhere in Elliot7 is there any such evidence. What there is, is the reiterative argument on the part of the Federalists that the Constitution would be a great protection for slavery. And, particularly in Virginia, this argument is used with great effect. Now, as I say, I'm being historicist- G.A.: Yes, I can see that. M.E.B.: -but insofar as- G.A.: But I'm not- sure that you're being really historicist in one way, because you're not taking into account-sufficiently, it seems to me-the quite thorough- M.E.B.: You think law and slavery are themselves incompat- ible? G.A.: That's right. M.E.B.: No, I don't think that's historically verifiable. G.A.: But I'm not talking about history. I'm talking about fact. M.E.B.: Philosophy of law? Now- G.A.: That law itself and this kind of slavery- M.E.B.: You're sliding off into a Roman notion of law, and my conception of law is essentially prescriptive. G.A.: Anglo-American law-which I think you are right to insist upon as a critical part of the Constitutional setting-Anglo- American law, its presuppositions, its standards, its notion of what good and bad are, what the good life is-all these things that are implicit in it, simply are in conflict with what slavery is, as slavery was then known. M.E.B.: But that law was in force in the context inside of which slavery grew and flourished.

7. DEBATES, supra note 5. 19891 SLA VERY AND THE CONSTITUTION

G.A.: It's true that slavery flourished inside that context-in one sense of "flodrish"-but as one looks at those- M.E.B.: Well, if you take Fogel and Engerman's evidence8 it flourished. G.A.: If one looks at those slave codes-the laws relating to slavery, and so forth-one can see again and again that there's a serious problem in making it fit. M.E.B.: You think it's harder to have a slave code inside the Anglo-Saxon legal system- G.A.: That's right. M.E.B.: Than it is inside the Roman? G.A.: I don't know about other systems, but I think that inside the Anglo-Saxon, the Anglo-American legal system-and it's reflected in Mansfield's great opinion- 9 M.E.B.: Yes. But Mansfield's opinion also presupposed an homogenous society. And I think that's part of-wel have a heter- ogenous society-a multiplicity of factions and elements, and you have a law that comes out of an essentially xenophobic experience- an experience of political closure-then you have a built-in tension. In that sense, I suppose I would agree with you that our Anglo- American legal tradition, and our pluralism, are a perpetual source of tension in our political experience. But I don't think that that tension was widely perceived by the people- G.A.: As far as what their opinion was at the time-what I've been saying up to this point is that the Constitution- M.E.B.: George, it finally comes down to construction- G.A.: Now wait a minute- M.E.B.: You're finally making an argument for construction. G.A.: No, I'm not. I was about to shift it. I've been making an argument up to now as the nature of law, at least of Anglo- American law, and the nature of the kinds of restrictions that had to be imposed to keep slavery going. Now, to go to the other argument about what you call historicism, I think that one would not have to look far-you know better than I because you've looked more than I have-in that period to find again and again the most thoughtful men of the South condemning slavery, root and branch. You don't have to go to Elliot to look for that.

8. R. FoGEL & S. ENOERmAN, Tnm oN THE CROSS (1974). 9. Sommersett's Case, 20 S.T. 1 (1771) (Mansfield, L.C.J.). TEXAS TECH LA W REVIEW [Vol. 20:677

M.EJ.: You can even find it, occasionally, in the debates, tl q ratification debates. G.A. : Yqs. M.E.B.: But almost invariably the same men who said this said, you know, "We've got the wolf by the ears."' 0 G.A.: That's right: "We're trapped." M.E.B.: "And it is inconceivable"-,-they ay with a great deal more vehemence-"it is inconceivable that anything that we can think of can be done about it." G.A.: But the issue then becomes, you see, this: if it's that kind of situation, then of course- M.E.B.: This is the positive good- G.A.: -if it's that kind of situation, it's not a positive good, it's a necessary evil- M.E.B.: No, no, often what is buried inside of that is not a great sympathy for blacks, but this xenophobic feeling of danger- G.A,: Oh, yes- M.E.B.; r-which is more virulently racist than the pro-slavery atrgument of the 1830s. Fitzhugh and Ruffin," when they come a ong with the proslavery argument; are not frightened of blacks at all; they don't think like Jamaicans and people from Trinidad-, they don't have that West Indies mentality- G.A.: Where was that big slave revolt that frightened the South? M.E.B.: It happened in Virginia, but it wasn't- G.A.: No, but wasn't there one in the islands, though? M.E.B.: Yes, Santo Domingo. But it's one of the anomalies of the regime that there were no major slave revolts in the South. G.A.: But see, if they had this deep concern about it-"the wolf by the ears" situation-that in itself would indicate that there is very likely going to be a conflict between the institution itself and the other institutions by which these people ordinarily take their bearings. M.E.B.: This is pluralism, though. This is to me, George- what this is, is the difference between the momentum of the culture,

10. The phrase is used by Jefferson in a letter to John Holmes. April 22, 1820: "We have the wolf by the ears, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservaoon isn the other." T. JEFFERsoN, supra nqte 6, at 568. 11. G. Fnzisuo4H C N,s ALL! oR SLAVES wrrouT MAsoTRs (18 7); A. CRAVEN, EDMUND RuFFiN: SourHERN R (1964). 19891 SLA VERY AND THE CONSTITUTION running all the way back to Lord Coke' 2-I go back that far easily- the momentum from the beginnings of a real philosophy of law in England and the anomaly of having a group of people inside a society, who are men, and who cannot be citizens, who cannot be citizens simply because the kind of culture that the law preserves would be undermined by making them citizens. G.A.: Yes, but look: that's not the only alternative, citizens or slaves. There are many people in between. Ancient Athens, for instance, had a small number of citizens and a lot of other people who were men, and who were not slaves. Now, ultimately, one has to face the question-and no doubt you've done that many times- one has to face the question, since the Constitution is somehow dedicated to justice- M.E.B.: Slavery and justice are not irreconcilable. G.A.: -and I think that most reasonable men of the time would have seen slavery as at bottom unjust, however "necessary" it was. M.E.B.: George, read David Brion Davis's Slavery in the Age of Revolution.'3 He can find almost no one who was morally horrified with slavery. G.A.: But when someone like Washington says, in a private letter, not in public: Slavery is something I don't like to talk about, indeed, I don't like even to think about it' 4-that tells me more than reams of research would tell someone about what the opinion was. And when Jefferson can speak, in his old age, as eloquently as he does- M.E.B.: Yes, but all those remarks are subject to some interpretation. G.A.: And then when he frees his slaves upon his death- M.E.B.: Jefferson doesn't free his slaves- G.A.: No, no, Washington. M.E.B.: And Washington's testimony is much more eloquent in that he kept himself aloof from the controversy-there wasn't any controversy to speak of-he kept himself aloof from the question throughout his public life-

12. SIR EDWARD COKE, Com~MNTARY UPON LrTLETN (1628). 13. D. DAVIS, THE PROBLEM OF SLAVERY IN THE AGE OF REVOLUTION (1975). 14. Letter from George Washington to Alexander Spotswood (Nov. 23, 1794), reprinted in THE WRTINGs OF GEORGE WASHINGTON XXXIV, 47 (J. Fitzpatrick ed. 1940). TEXAS TECH LA W REVIEW [Vol. 20:677

G.A.: But he explains why he does. He explains that it is so painful- M.E.B.: It's his patriotic duty to keep aloof from the question. G.A.: Right, and it's so painful that he can't even think about it, much less talk about it. See? That attitude suggests the gross injustice of it. It's a terrible thing to be in a situation where you've got to do an injustice here in order to avoid a worse one there. M.E.B.: Isn't that political history? G.A.: But sometimes it's worse than others. And this was one of those times when they were trapped. Lincoln appreciated that, the sense in which they were trapped. But one has to begin with the recognition that one is trapped and then work from there. Then you have to talk about ameliorating the situation, whether or not you can get out of it gradually in the long run. M.E.B.: One of the ironies here, George, is that if slavery had gone toward the kind of natural extinction as an economic anachronism which a good many people-and slavery people-in the eighteenth century thought was inevitable, then all of this question would be moot. Had there been any real interest in the British type of manumission, that would at least have precluded the kind of explosive situation that erupts in the House Divided speech. 5 But this doesn't happen, and slavery is a roaring success economi- cally, politically, socially, and becomes part of the warp and wool of the life of the whole culture. And there is no longer any sense of having the wolf by the ears-there is very little of that after 1840- G.A.: If you're saying that, you know what you're saying? You're saying that the moral sensibility of the South was blunted, and I don't think that's so from what I've seen of those people. M.E.B.: If you look at the testimony of the Southern clergy, in the decade before secession, you will have to say that the moral sensibility is proslavery. G.A.: That may be explainable in these terms then: we are so locked into this institution now that we can't even do what our predecessors did-recognize it as an evil that we have to live with. You see? That would have been unfortunate. It seems to me that

15. A. LNcoLN, A House Divided, in 2 THE CoL CTED WORKS OF ABRAHs LNcouL 461 (R. Basler ed. 1953) [hereinafter Co.LEcTED WORKS OF LNcotLN]. 1989] SLA VERY AND THE CONSTITUTION one cannot think about slavery under the Constitution without starting with one massive fact. The massive fact is that it is unjust. M.E.B.: Well- G.A.: Unless one starts there, one is missing the- M.E.B.: Do you define the American regime in terms of notions like Justice with a capital J, or in terms of procedure? G.A.: I think you have to have both. M.E.B.: I think that the basic characteristic-there's a lot of scholarship to back this up-the basic characteristic of Anglo- American political thought is-one sees in law the procedural rather than the normative. The normative emerges from strict adherence to the procedure. G.A.: No, that is not-certainly that's an important element, but the common law is not just an emphasis upon process. You know, common-law judges have standards they're drawing upon. M.E.B.: The reason for the reverence for process is that process is the sifting and sorting, it is the product of generations of experience. And furthermore, that process is the best way to get at those normative things. But if you set out, with however laudable a conception, to impose them extrinsically without honoring all the limitations of process, without honoring all the bonds of compact, then you're outside of that political experience. You've got one foot over in the world of Roman law, of which I have an absolute horror. G.A.: Well, I don't pretend to know what Roman law was like. I do know that there were some salutary features about it, from what I've heard- M.E.B.: To use the language of John Ransom, it is "poured in from the top"-where the political identity is "poured in from the top.''16 G.A.: I don't know about that. All I know is that when one has the institution of slavery as it was found in the United States, one would expect that decent, intelligent men would be deeply troubled by it, and one does find that in the period when they are less hampered by their interests to look at the situation. M.E.B.: No. The percentage of blacks in the South at the time of the revolution was much higher than the percentage of

16. J. RANsoM, I'u TAKE MY STAND: Tim SouTl AN THE AORARiAN TRADMoN xvi (1930). TEXAS TECH LA W REVIEW [Vol. 20:677 blacks at the time of secession. At no time in American history was the whole country blacker than it was at the time of the revolution. G.A.: I don't see how that- M.E.B.: I think we over and over again confuse black scare with moral outrage at slavery. And I think that the number of people in the eighteenth century who felt a moral outrage at slavery was minuscule. The number of people who saw difficulties in the institution in view of what was happening historically was somewhat larger. I'm willing to argue that. I think that we anachronistically single out the people who seem closest to our view- G.A.: But there are certain things that-there's the Berlin Wall phenomenon. M.E.B.: A garrison mentality? G.A.: No. We have no problem in determining what side people want to be on when you've got to put up a Berlin wall to keep them from getting out. You don't need any more argument to tell you what Communism is like than to look over there-and if you've never seen that Wall, it's worth going to Europe just to see it. That tells you a lot about the political situation in Eastern Europe. See, I'm saying that there was in effect a Berlin Wall- M.E.B.: Yes, there was one, there was one. By the time of the secession there surely was one. By 1840-and probably by 1780- G.A.: Why? What were those slaves thinking about, that they wanted to get out? M.E.B.: Oh. You mean slaves wanting to get out? G.A.: Yes, slaves wanting to get out. Why did they have to put restrictions on slaves? Those were human beings who realized that this was not good for them-they wanted out. M.E.B.: Well, now the people who owned them did not believe that. And in some cases neither did the slaves. G.A.: In some cases the slaves didn't. But it is also an institution that people who owned slaves never saw helpful for people like themselves. They didn't say, "It would be good for this one of my children as distinguished from that one to go into slavery, because he needs discipline, because he needs such and such." Never- M.E.B.: He's only temporarily a possession. It- G.A.: But the point is that they didn't see it as good for people like themselves-to turn them into possessions-they only saw it as good for a different group, and those people had a decided 19891 SLAVER Y AND THE CONSTITUTION

tendency among themselves to evade it when they could. Not all of them, obviously. M.E.B.: Well, you have a whole series of anomalies here. When I was eight and nine and ten years old, my nurse was sometimes my great-grandmother, who had been born in Virginia in the late 1840s. She was in her nineties. Her testimony, and that of her sister, and that of the entire older generation whom I knew as a child was one that indicated absolutely no moral guilt that they had held slaves. G.A.: Well, how that happened-whether they were thoughtful about it, whether they realized what they were doing, whether 17 they had been traumatized over the years because of it- M.E.B.: Several of those things together, George, I'm sure. We must continue this conversation.18 G.A.: I'm sure we will. [Laughter]

II. ARISTOTLE ON SLAVERY' 9 The distinction between tactics and strategy is now almost universal, and everyone knows fairly well where each particular factor belongs without clearly understanding why. Whenever such categories are blindly used, there must be a deep-seated reason for it. We have tried to discover the distinction, and have to say that it was just this common -usage that led to it. 20 -Carl von Clausewitz i. Slavery figures prominently not only in ancient communities but also at the outset of the political teaching of Aristotle itself, a

17. See, on the natural traumatization of the South, Parts V and VIII of this article infra. (The reader is reminded that only notes 4 through 16 have been taken from the University of Dallas Politics Department Newsletter.) 18. Professor Bradford is the author of a monograph on Allen Tate; editor of THE FoRM DiscovERED: ESSAYS ON THE ACHIEVEMENT OF ANDREW LYTLE (1973); editor of Richard M. Weaver's THtE SourmaRN TRADrrION AT BAY (1968); and editor of John Taylor's ARATOR (1977). Among his other publications are the following: The Lincoln Legacy: A Long View, 24 MOD. AGE 355 (1980); Against Lincoln: My Dissenting Views, Am. SPECTATOR, Dec. 1984, at 37; Bradford and Jaffa: Once More on Lincoln, AMERICAN SPECTATOR, June 1985, at 25; Dividing the House: The Gnosticism of Lincoln's Political Rhetoric, 23 MOD. AGE 10 (1979). 19. This talk was given at the Paideia Principals Conference, Aspen Institute for Humanistic Studies, Aspen, Colorado, August 14, 1986. See, for a useful introduction to Aristotle, M. J. ADLER, ARISTOTLE FOR EVERYBODY (1978); see also ANASTAPLO, Aristotle on Law and Morality, 3 WINDSOR Y.B. OF ACCESS TO JUST. 458 (1983). 20. 2 C. voN CLAusEwrrz, ON WAR 1 (1984); see infra note 70. TEXAS TECH LA W REVIEW [Vol. 20:677 teaching which has had a profound influence upon Western thought. Apologists for slavery in Great Britain and the United States, for example, were aware of the discussion by Aristotle of slavery. When one probes into the Aristotelian discussion of slavery, one discovers intrinsic to it a recourse to and an understanding of nature which are largely missing from sophisticated political discourse today. For this reason alone, the Aristotelian discussion is very much worthy of our reconsideration.

ii. Slavery comes to view in Aristotle when the origins and constitution of the polis are discerned. 21 The polls is presented as the mature (and healthy) political association, that stage of accumula- tion and development most in accordance with human nature. Wherever Aristotle looked among political associations, he saw slavery. It appeared almost as much a part of communities as the family. Both family and slavery obviously served vital needs of community-the need for procreation and nurturing of children, and the need for the prosperous development of the community. Slavery, however, poses questions that the family does not. It is when Aristotle turns to the discussion of slavery that the first distinction between nature and law (or convention) emerges in his Politics. The polis itself had been recognized as a natural growth. As men gathered themselves into primitive and then more sophisticated communities, they established special relations both with women and with outsiders. The women became wives (neither mere sexual objects nor full partners); the outsiders among them became slaves (neither out-and-out enemies nor fellow citizens). A thoughtful student of the polis has to take both the marital relation and the master-slave relation into account. It is far easier to condemn slavery if the polis is not regarded as natural. That is, it is far easier to dismiss all slavery as illegitimate if the human being is not recognized as a political animal, if he is considered an "individual" who is ultimately independent of society. The ready dismissals in our time of Aristotle's concern with slavery

21. Aristotle's systematic discussion of slavery begins in chapter 3, of Book I of his Politics. See, for a useful introduction to that discussion, H. JAFA, Aristotle, in HISTORY OF POLrICAL PmiuosopHy 74-77 (L. Strauss & J. Cropsey 2d ed. 1972). See, on the nature and limitations of "equality," PLATO, LAws 757A-758A. 19891 SLA VERY AND THE CONSTITUTION may reflect a general depreciation of the status of nature in political discourse (including in political science). All this is not to suggest that slavery should be defended. But it is to suggest that the arguments for, or at least about, slavery should be taken more seriously than they are apt to be today. It should be noticed, lest we become self-righteous in our contempla- tion of ancient slavery, that Aristotle makes his arguments in response to a vigorous attack (which he reports) upon the established slavery of his day. In fact, we are led to suspect, the institution of slavery existed "even then" along with considerable sustained condemnation of it as always unjust.

lII.

Is it not prudent to assume that the ancient Greeks, who produced the greatest works of philosophy and perhaps of literature in the West, were at least as intelligent and highminded as we are? What did they see when they examined the political life of their time? Whatever one may believe or say generally about the human species (such as that "all men are created equal"), one cannot help but notice socially-relevant differences among people. Some of those differences have political significance, so much so that it is usually recognized (including among us) that some are better equipped to rule than others. Who will rule, and on what terms, depends in large part, of course, upon the regime (with its history, its constitution and laws, and its economic and other circumstances). Whether slavery will be permitted and precisely what it consists of depend upon the law of the land. Aristotle assumes, for example, that there are better and worse ways for the master to conduct himself with his slaves. But, it seems, the critical issue with slavery is not so much who will rule but rather who will be ruled. Can those who are to be ruled as slaves (and especially those who are to be permanently ruled) be reliably identified?

Iv. It is clear to Aristotle that permanent rule over others can be justified only in the case of natural slaves. Who are they? What are they good for? TEXAS TECH LA W REVIEW [Vol. 20:677

Vital to reliable identification of the natural slave is the expectation that both he and his master will be better off from their association than either of them is likely to be on his own. It would seem, therefore, that there is something inherently defective about the natural slave. But he is not so defective as to be utterly helpless, and hence useless, just as he is not constituted to be as useful as free, self-reliant men. If we should report to Aristotle that we know of no men who would be better off under the rule of a master, he would advise us that our circumstances may be such that no natural slaves can be reliably identified among us. He might well add the caution, however, that we should not neglect something presupposed not only by natural slavishness but also (and even more importantly) by sound politics-that the intellect should be primary, that reason should rule over bodily elements. That is, he would caution us against repudiating reliance upon nature along with belief in natural slavery. Natural differences between men, Aristotle says, emerge at birth. He does not suggest that slaves are naturally bred from slaves. Rather, he can be taken as suggesting that the son of a slave may be equipped to be a master-and that the son of a master may be fit only to be a slave. This is hardly a doctrine that the typical slaveholder is apt to cherish.

V. We turn now, with Aristotle, from the relatively few who are naturally slavish to most of the slaves found in any slave-holding community. These slaves, along with the institution of slavery, should be called into question for the thoughtful reader by Aris- totle's analysis of the natural slave. Most enslaved people, Aristotle recognizes, come from war, especially when one enslaves prisoners whom one might otherwise kill. Included among these wars are hunting expeditions for slaves. These expeditions, he hints at the very end of his discussion of slavery, are simply unjust. Ordinary wars may also be unjust, of course-and when they are, a question may be raised about the propriety of enslaving the resulting prisoners. The slave, it should not be forgotten, can always purchase his freedom by death-by refusing to surrender when defeated in battle or by committing suicide if he should happen to be captured. The 1989] SLAVERY AND THE CONSTITUTION slave, therefore, is someone who prefers life even at the cost of servitude. He may be quite sensible in making this choice, however degraded his life may be in some respects, at least for awhile.- Such a "trade-off" is a form of ransom or a form of repara- tions, designations with which we are much more comfortable. What the conqueror is truly entitled to depends in part upon his merits. Even the conqueror in an unjust war usually exhibits a certain virtue (or excellence), the virtue of superior power (which can depend on discipline, strategy, chance, etc.). Thus, even here, Aristotle suggests, there is likely to be some natural basis for enslavement. He thereby recognizes the unsentimental truth ratified by nature that, generally speaking, it is better to be strong than weak, it is better to be lucky than unlucky, it is better to win than to lose. To this extent, then, Aristotle acknowledges the justice there may be in the conventional slavery of his day.

vi. It must at once be added that this justice is most limited. Certainly, any recourse to war in order to secure an ample supply of slaves cannot help but expose the dubious foundations of conventional slavery. Besides, as Aristotle notices, the fortunes of war are such that good men are all too often enslaved. That good men were enslaved in Aristotle's time was most likely to be noticed when Greeks enslaved Greeks. And so the Greeks came to believe (as Aristotle indicates) that barbarians were far preferable to Greeks as slaves. This seems to have been a tacit deference by them to the promptings of nature: the strangeness of the barbarians, especially with respect to language, must have made it easier to avoid facing up to the fact that men were all too often enslaved who were no more destined by nature for slavery than their masters. (And if the differences between master and slave can be reinforced by a marked difference in color, so much the "better," as we know from the history of the United States. But we also know that the presence in pre-Civil War America of emancipated Africans who were quite able to take care of themselves called into question the legitimacy of any race-based slavery in a community.) Aristotle leaves it to us to make explicit one argument against even natural slavery which can be said to be implicit in his recognition that most conventional slavery was, at best, dubious. The TEXAS TECH LAW REVIEW [Vol. 20:677 distinction between the relatively rare natural slave and the multitude of conventional slaves is likely to be lost sight of because of the selfish interests of any ruling class. This can lead to the defense of unjust enslavements, or at least to the permanent political subjugation of a large part of the population (as happened in Sparta). This, when it is noticed, can lead to the prudent conclusion that any public argument for natural slavery is politically irrelevant if not even pernicious, whatever its intrinsic validity. vii. Even so, Aristotle (in his tough-mindedness) would have us recognize that conventional slavery has itself permitted salutary developments in communities that might not have been possible otherwise. Of course, modern technology can make slavery far less tempt- ing. But one must still wonder what slavery (that is, generations of productive slaves) contributed to the leisure freeing a few men for philosophy (including the natural sciences) and even more men and women for serious politics, thereby permitting the refinement of civilization (including the development of a liberating technology). This observation can remind us of the dark side of the foundations of great enterprises. (The relation between justice and expediency can well be explored here.) All this can mean, among other things, that even conventional slavery may have something beneficial about it, so much as to make it called for (or at least permitted) by nature in some circumstances. Thus, slavery well used can contribute to the emergence of a civilization which becomes aware of the ultimate questionability of slavery itself. The culmination of civilization with respect to our subject is the deceptively casual observation by Aristotle that of course no one would assert that someone not meriting enslavement ought ever to be a slave. In this manner, does not Aristotle call into question the no doubt useful slavery of his day, once again affirming thereby the authority in human affairs of nature?

III. SLAVERY AND THE FEDERAL CONVENTION OF 178722 General Pinkney said it was the true interest of the [Southern] States to have no regulation of commerce; but considering the

22. This talk was given as part of the "Inquiry into Contemporary Problems of Legal Ethics" 19891 SLA VERY AND THE CONSTITUTION

loss brought on the commerce of the [Northern] States by the revolution, their liberal conduct towards the views of South Carolina [with respect to permitting the importation of slaves], and the interest the weak [Southern] States had in being united with the strong [Northern] States, he thought it proper that no fetters should be imposed on the power of making commercial regulations; and that his constituents, though prejudiced against the [Northern] States, would be reconciled to this liberality-He had himself, he said, prejudices against the [Northern] States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever. -In the Federal Convention, August 29, 178723

i. Slavery is always with us. There are always some in every country who are enslaved by their circumstances, their passions, their limitations. And some of these, and others as well, may also be enslaved by law, as were millions of people of African descent in this country until 1865. Vestiges of that legalized slavery remain to be dealt with by American communities for generations yet to come. It should not require much argument to establish that the ethical and political issues facing the Federal Convention of 1787 continue to be relevant for us today. One question now, as then, turns upon opinions about the best possible relations between the races of mankind. This question may be seen in discussions about the compatibility of races, about natural differences (if any) among the peoples of the earth, about the consequences of centuries of developments (including the consequences of African enslavement and of American Indian extermination). In a sense, however, the race- relations question is now settled in this country; that is, it does seem to be generally recognized, at least for the time being, that merit selection should be ultimately decisive, no matter what the activity is for which the community as such is responsible. This principle of equality, which is grounded in the Declaration of

lecture series presented by the Loyola University of Chicago School of Law with the aid of the Baker-McKenzie Foundation of Chicago. The talk, given in Chicago on April 18, 1985, had Robert E. Rodes, Jr. and Bernard Weisberg as commentators. 23. 2 THE REcoRDs Oa TmE FEDERAL CONVENTION OF 1787 449-50 (M. Farrand rev. ed. 1937) [hereinafter Farrand]. TEXAS TECH LA W REVIEW [Vol. 20:677

Independence, has been acknowledged to have been decisively reaffirmed for Americans by the United States Supreme Court in Brown v. Board of Education.24 The arguments we hear now are "merely" as to the means for implementing a generally acknowledged principle. This is not to suggest, of course, that serious problems-and consequently bitter disputes-do not remain to be dealt with, including the perennial problem of the extent to which governance by judiciary is to be justified, especially when the consent of the governed is vital to the regime. But it is not only with respect to racial matters that the ethical implications of the 1787 handling of the institution of slavery remains relevant for us. Several current issues remind us that it is not slavery alone which can provoke what seems to be an "irreconcilable conflict." The pre-Civil War abolitionists are often echoed by our contemporary critics of widespread abortion, just as the pre- Civil War defenders of slavery made arguments on behalf of both their liberty and of the law of the land-arguments that can remind one of what "pro-choice" people say today. If the parallels here are instructive as to what is likely to happen among us, then it is the pro-choice people, like the pro-slavery people before them, who will have to back off, especially since it is far more difficult for the anti-abortion people, like the anti-slavery people before them, to compromise principles more deeply rooted in human dignity and divine law than are the positions of their opponents. 25 The thoughtful lawyer is familiar with the dilemmas faced here, ethical dilemmas which require even more of the lawyer than is prescribed by the canons of ethics. He knows, for example, that the right thing to be done in a variety of situations does not depend only upon his moral standards but also upon his civic-mindedness and his prudential judgment. Prudential judgment, in turn, presupposes information and understanding, which are things that the sensible lawyer of experience can be relied upon to appreciate. In any event, serious morality (like the serious politics serving morality) means that one has to allow for the interests and prejudices of others. The concessions one has to consider making-concessions with respect to one's own personal concerns for the sake of even higher ethical ends-such concessions are particularly demanding

24. 347 U.S. 483 (1954). 25. See, e.g., Anastaplo, One's CharacterIs One's Fate? 35 DE PAUL L. REv. 624, 627 (1986). 19891 SLAVER Y AND THE CONSTITUTION and instructive when one acts in a public body such as a constitutional convention or a legislature.

ii.

The concessions made to slavery in the Federal Convention of 1787 were such as to provoke the more radical nineteenth century abolitionists to condemn the Constitution as "a covenant with death and an agreement with hell." ' 26 I notice in passing that the language resorted to by these abolitionists draws much more upon Biblical images than the Founding Fathers ever did. This is related to the considerable change in the tenor of public discourse from the somewhat more measured tones of the Constitutional Period. Even so, the records we have of the Federal Convention reveal that slavery was generally considered by delegates to be a dubious institution, however much certain of the Southern States considered themselves obliged to protect and even to advance it. The nearest they came to praise of slavery on the floor of the convention may have been the observation by Charles Pinkney (of South Carolina): "If slavery be wrong, it is justified by the example of all the ' 27 world .... In all ages one half of mankind have been slaves." But this is an exception; in fact, it would be protested from time to time that this or that proposed measure threatened to "enslave" a particular state or group. Thus, a delegate from Maryland could condemn one proposal on behalf of the large states (Massachusetts, Pennsylvania and Virginia) as constituting "a system of slavery for states."'2 Slavery (whether actual or metaphorical) was clearly regarded as a bad thing. James Madison (of Virginia) could remark that "[w]here slavery exists, the Republican Theory becomes still more fallacious." ' 29 And Luther Martin (of Maryland) could say of one provision which recognized slavery that "it was inconsistent with the principles of the revolution and dishonorable to the Amer- ican character to have such a feature in the Constitution." 30 But it was left to Gouverneur Morris (of Pennsylvania), a hardheaded

26. See, e.g., S.LYNr, CLASS CONFLICT, SLAVERY, AND TEE UNITED STATES CONSTrrLON 154 (1967). 27. 2 Farrand, supra note 23, at 371. 28. 1 id.at 438; see also I id. at 165, 465, 512. 29. 1 id.at 318. 30. 2 id.at 364. TEXAS TECH LA W REVIEW [Vol. 20:677 champion of commerce and a friend of Alexander Hamilton (of New York), to make the most devastating attack upon slavery in the Federal Convention: It was a nefarious institution- It was the curse of heaven on the States where it prevailed .... Travel thro' [the] whole Con- tinent [and] you behold the prospect continually varying with the appearance [and] disappearance of slavery .... Proceed Southwardly, [and] every step you take thro' [the] great regions of slaves, presents a desert increasing, with [the] increasing proportion of these wretched beings .... The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and [South Carolina] who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections [and] damns them to the most cruel bondages, shall have more votes in a [Government] instituted for protection of the rights of mankind, than the [C]itizens of [Pennsylvania] or [New Jersey] who views with a laudable horror, so nefarious a practice.' Morris concluded his attack upon slavery with the insistence that he "would sooner submit himself to a tax for paying for all the Negroes in the [United States] than saddle posterity with such a Constitution. 32 No doubt, Morris's attack here was provoked by the prospect of having the relative political power of his constituents in the General Government reduced by the proposed counting of slaves in the Southern population. No doubt, also, selfish motives can be figured out for the disparaging remarks about slavery I have quoted from Madison and Martin.33 Even so, what is significant is that remarks of this character could be made by delegates to the Convention with the expectation that others would not take offense at them. And while the Convention was sitting in Philadelphia, the Congress, assembled in New York pursuant to the Articles of Confederation, enacted the Northwest Ordinance (on July 13, 1787). a1 That Ordinance opens its concluding article with the command, "There shall be neither slavery nor involuntary servitude in the said

31. Id. at 221-22. 32. Id. at 223. 33. See, e.g., 2 id. at 371. 34. See Anastaplo, The Northwest Ordinance of 1787: Illinois' First Constitution, 75 ILL. B.J. 122, 123 (1986) [hereinafter Northwest Ordinance]. 1989] SLA VER Y AND THE CONSTITUTION territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted." This, then, was the stance toward slavery of the men of 1787. The "positive good" argument on behalf of the institution of slavery did not become standard Southern doctrine (if it every really did) until well into the nineteenth century. In the eighteenth century, and certainly at the Federal Convention, slavery was regarded as no better than "the lesser evil."

I have been indicating what was said about slavery in the Federal Convention. I turn now to an examination of what was done about slavery in the Constitution itself, drawing primarily upon Madison's Notes for evidence about what the delegates were thinking of as they went about their task. There are, in the Constitution of 1787, three provisions dealing explicitly with slavery: the provision for counting slaves in the population for representation and taxation purposes; the provision for permitting the international slave trade to continue until 1808; and the provision for dealing with fugitive slaves. The slavery-related provision which proved the most controversial in the nineteenth century happened to be the one about which the least discussion is recorded by Madison for the three slavery-connected provisions: the Fugitive Slave Clause in article IV, section 2. It was quite late in the Convention before a proposal was made about fugitive slaves. (This was on August 28th. The Convention had assembled in May and was to adjourn in mid- September.) Pierce Butler and Charles Pinkney (both of South Carolina) moved "to require fugitive slaves and servants to be delivered up like criminals." But James Wilson (of Pennsylvania) observed that this "would oblige the Executive of the State to do it, at the public expence." And Roger Sherman (of Connecticut) added that he "saw no more propriety in the public seizing and surrendering a slave or servant, than a horse." Butler then withdrew his proposal in order to try again.35 It did not seem to be doubted that some provision would have to be made for fugitive slaves, especially if the borders between the

35. See 2 Farrand, supra note 23, at 443. TEXAS TECH LA W REVIEW [Vol. 20:677 states were to be as open to commerce as seemed to have been contemplated by the Convention. Not to provide for fugitive slaves in those circumstances would have amounted to a considerable de facto subversion of slavery in the South. This seems to have been understood as well by the Confederation Congress then sitting in New York City, for it had added to its dramatic prohibition of slavery in the Northwest Territory the conventional proviso, "That any person escaping into the [territory], from whom labor is lawfully claimed in any one of the original states, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid." On August 29th, Butler tried again, offering this suggestion to the Convention: If any person bound to service or labor in any of the [United] States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor 36 This was agreed to in the Convention without any recorded opposition. When the Committee on Style and Arrangement submitted to the Convention (on September 12) what turned out to be virtually the final draft of the Constitution, the Fugitive Slave Clause was substantially like that agreed upon on August 29, except that the language "the person justly claiming their service or labor" was changed to "the party to whom such service or labour may be due." That is, "justly claiming" was replaced by "is due," a somewhat more neutral term. On the other hand, "person bound to service or labor" was changed to "person legally held to service or labour." 17 This was further changed on September 15, the next- to-last meeting of the Convention, when "legally" was removed and "under the laws thereof" was added, so as to read, "No Person held to Service or Labour in one State, under the Laws thereof ." This was done, we are told by Madison, "in compliance with the wish of some who thought the term ["legal"] equivocal, and favoring the idea that slavery was legal in a moral view." ' 3 Thus,

36. Id. at 453-54. 37. Id. at 601-02. 38. Id. at 628. 1989] SLAVER Y AND THE CONSTITUTION

as we shall see, no more than a bare acknowledgment is made of the slavery laws of any State, with words such as "justly" and "lawfully" removed. Is not the dubiousness of slavery reflected in these changes? Of cotrse, the fact that such a clause was needed (a sort of "Berlin Wall" provision) further testified to the vulnerable character of slavery, especially in a country which is one country in large part because of the principles stated in the Declaration of Independence, principles which call slavery into question both as a repudiation of the created-equalness of all men and as a form of tyranny.

iv. The second constitutional provision dealing with slavery is the arrangement made in article I, section 9 with respect to the importation of slaves from Africa. This provision leads off the Bill of Rights-like list of section 9 restraints upon the General Government (and especially Congress), even taking precedence (so to speak) over the provisions relating to "the Privilege of the Writ of Habeas Corpus" and to bills of attainder and ex post facto laws. This slave trade provision reads: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such importation, not exceeding ten dollars for each Person. This provision reminds us of the differences in interests among the Southern States themselves, for it was North Carolina, South Carolina, and Georgia alone who resisted, and vigorously resisted, acknowledging in Congress immediate authority to stop something which Convention delegates could (without recorded contradiction) refer to as "iniquitous" and as an "infernal traf[f]ic [which had] originated in the avarice of British Merchants." 3 9 No doubt, there must have been slaveholders in states such as Virginia and Maryland who hoped to profit from sales of slaves to the Carolinas and Georgia (which had evidently been depleted of slaves during the Revolutionary War), just as there were Northern shipowners who stood to gain from a continued international slave trade. Even so,

39. Id. at 220, 370; see also text accompanying infra note 69. TEXAS TECH LA W REVIEW [Vol. 20:677 the detestation of that slave trade, both within the Convention and out-of-doors, seems to have been genuine and general. Such detestation, which is only natural and hence not surprising, is reflected in an exchange between Gouverneur Morris and the elderly Virgi- nian, George Mason. An exasperated Morris was "for making the clause read at once, 'importation of slaves into [North] Carolina, [South] Carolina, [and] Georgia [shall not be prohibited etc.].' " Mason was "not against using the term 'slaves' but against naming [North Carolina], [South Carolina, and] Georgia, lest it should give offence to the people of those States." 4 So unpopular was the slave-trade protection in the Constitution that its handful of pro- ponents took precautions in article V (the amendments article), lest that protection be removed from the Constitution immediately after the document was ratified. 4' The equality of the states in the Senate was similarly protected; it, too, was thought by many to be an improper concession, but one which (like the slave-trade concession) was considered necessary if all thirteen states were to be kept in the Union under the new constitution. Perhaps the slave-trade concession did not have to be made. 42 The Carolinas and Georgia did threaten to stay out otherwise. Would they have done so? How would the other Southern states, especially during the ratification campaign, have responded to such a loss? What risks should the delegates have run here? Among the risks they did run, and which were pointed out, was that of increasing even more the vulnerability of the Southern states by permitting an increase in their slave populations, thereby requiring 43 for those states additional national protection against insurrections. How important was the Union for the slaves? Little is ever said in Madison's record of the Federal Convention about the interests of the Africans themselves, although it is recognized that it was barbarous to hunt slaves in Africa and to transport them to North America. A very large proportion of the eventual total slave population in the United States was evidently brought in during the twenty-year "window of opportunity" permitted by the Constitu-

40. 2 Farrand, supra note 23, at 415. 41. See id. at 559, 602, 629-31. 42. See id. at 95, 364-65, 371-72. Compare id. at 374-75. 43. See id. at 220, 364. 19891 SLA VERY AND THE CONSTITUTION tion. 4 One can well wonder what the long-term interests of the newly-enslaved Africans truly were, especially when one takes into account the fate and eventual importance within the United States of their descendants, as compared with that life in Africa which helped make slavery possible. One can also wonder how much the concessions made in the Federal Convention to the Carolinas and Georgia, and the unwillingness of the delegates to call their bluff, can be attributed to the urgency to finish what had already been quite a long meeting. Be all this as it may, the slave-trade provision in the Consti- tution does have the merit of leaving slavery under a cloud, thereby tacitly instructing subsequent generations of alert citizens: the importation privilege was limited to "the States now existing"; it had to be protected by a limitation upon the import tax that could be charged, lest Congress use its taxing power to circumvent the prohibitions placed upon it with respect to regulation of the slave trade; and, as we have seen, precaution had to be taken elsewhere in the Constitution against any attempt to eliminate this provision from the instrument altogether by amendment. Thus, although the slave trade may be the only article of commerce explicitly protected in the Constitution, it seems also to have been the only one which it was expected that Congress would be eager to get rid of, which it did as soon as it was free to do so (that is, as of January 1, 4 1808). 1 And so, a generation later, John Marshall (of Virginia) could speak of the slave trade as "a horrid traffic detested by all good men"; and he could note with some satisfaction that America had been the first among the nations of the world to 'check' the monstrous traffic." 4 6

44. Eight of those 20 years were added on August 25, 1787. See id. at 414-15. It has been reported that some additional 250,000 slaves were illegally imported between 1808 and 1860. 45. See 3 ENCYCLOPEDiA OF THE AMERICAN CoNSTrrToN 1483 (L. Levy, K. Karst, and D. Mahoney eds. 1986); 4 id. at 1690-91. Laurence Tribe is quoted by C. Herman Pritchett as having said, "Slavery is the only economic arrangement our Constitution has ever specifically endorsed .... " Pritchett, CENTER MAGAZNE, Mar. 1980, at 21. But compare the following report in NEwswEEK May 25, 1987, at 65: "Dr. Benjamin Rush, [an Eighteenth-Century] progressive, went so far as to state that this [1808] clause made the Constitution an antislavery document." See also infra notes 76, 78. 46. 4 A. BEVERIDGE, THE LwE oF JOHN MAgsHJu 475, 477 (1919). Consider, also, Lincoln's distinction, much later, between the slave owner and the slave trader. America may also have the distinction of having produced the most humane account of an ordinary slave. Consider my letter to the editor, as published in the Chicago Sun-Times, Apr. 18, TEXAS TECH LAW REVIEW [Vol. 20:677

Americans could be reminded, even by the troublesome concessions made to slavery in the Constitution, that there was something fundamentally wrong with the institution. After all, it did go against the grain of the dedication to equality upon which the country depended for its integrity, that dedication which is even found reflected in the closing provision of article I, section 9 (the very section which had opened with temporary protection of the slave trade): "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." Americans were obliged to wonder, therefore, how there could be hereditary slavery if there cannot be hereditary nobility (or masters), just as the Declaration of Independence made them wonder how the indispensable "consent of the governed" requirement applied to the slaves among them.

V. The remaining constitutional provision dealing with slavery is that in article I, section 2: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed three-fifths of all other Persons. This was by far the most controversial provision dealing with slavery, so far as the Federal Convention itself was concerned: it

1984, at 48: I read with interest your recent editorial on the efforts of a teacher at Springfield High School to ban the book The Adventures of Huckleberry Finn. That there should be a controversy about the use of this book in our schools suggests the superficiality of much current discussion of serious literature. There are few characters in an American novel presented with the sympathy and the respect extended by Mark Twain to his runaway slave. Indeed, this presentation is a profound condemnation, in effect, of the institution of slavery-and a celebration of what the human spirit is capable of even in the most trying circumstances. The typical reader of the book should end up less of a racist than he might otherwise be. One must wonder whether those who condemn its use in our schools have truly read it. (I am not responsible for the rather puzzling caption supplied by the Chicago Sun-Times editor, "Twain respected Tom.") 1989l SLAVER Y AND THE CONSTITUTION was the most difficult to prepare, with the delegates returning to it again and again. Particularly troublesome for many Northerners, of course, was the prospect of permitting Southerners to use their property in making the count that would determine relative power in the House of Representatives. The fear was repeatedly expressed that such a political bonus would even encourage more importation of slaves. 7 It was also anticipated that free men in the North would 48 resent being put on a footing with slaves. This "three-fifths of all other Persons" formula goes back to the Congress under the Articles of Confederation, where the concern had been primarily with counting people with a view to determining 49 the taxation requisitions to be made by Congress to the states. Since all the states were regarded as equal in the Congress under the Articles of Confederation, population differentials did not affect voting strength. This was true in the Federal Convention as well. But in the course of efforts to determine how much each state should pay into the common treasury under the Articles of Con- federation, there had been recourse to population estimates-with Southerners not wanting to have their slaves counted at all, and with Northerners wanting to count them on a par with their masters-on the presupposition that only thus would the full economic 50 capacity and hence ability to pay of the South be properly gauged. The compromise hit upon by the Federal Convention was to connect a state's vulnerability to direct taxation with its voting strength in the House of Representatives. 1 It could not be definitely known at the time, although there was some anticipation of this, that direct taxation would not be a major source of revenue for Congress. It was not until after the Civil War, and then only in the form of the income tax for which a constitutional amendment was fashioned, that direct taxation became for Congress a major source of reve- 52 nue. Even so, the "three-fifths of all other Persons" provision did have an instructive effect. For one thing, it was noticed in the

47. See, e.g., I Farrand, supra note 23, at 561, 588; 2 id. at 220-22. 48. See, e.g., 1 id. at 583. 49. See id. at 201, 562; see also id. at 229. 50. See, e.g., id. at 580-81, 587-88. 51. See, e.g., id. at 196; 2 id. at 4-5, 182-83. 52. See, e.g., 1 id. at 594-95, 597. TEXAS TECH LA W REVIEW [Vol. 20:677

Federal Convention that the delegates, like the men who had written the Articles of Confederation, were ashamed to use the words "slave" and "slavery" in the document itself. 3 Abraham Lincoln, on the eve of the Civil War, was to make much of the delegates' reticence, suggesting that their avoidance of certain words in the Constitution reflected their recognition that slavery was nothing to be proud of, however much they had been obliged to accommodate themselves to it. This "three-fifths" formula is taken, especially in our time, as demeaning for the slaves. And in the Convention itself, there were heard protests against putting anything in the Constitution which would concede that "there could be property in men." '5 4 This came up especially in the course of discussions about whether the slave trade should be subject to an import tax." But does not the "three- fifths" formula look the other direction? Can it not also be seen- should it not be seen-as recognizing the humanity of slaves, especially when compared to other property?5 6 The South, it has been noticed, would have been willing, for representation purposes, to count its slaves as fully human-and this was several times argued for by some Southern delegates. 7 To argue that the slaves should be counted as full human beings confirmed, in effect, the teaching of the Declaration of Independ- ence that all men are created equal. The Civil War changed the three-fifths rule to a five-fifths rule, something which was thereafter confirmed by the second section of the fourteenth amendment. In a sense, then, the three-fifths rule reminded the country of the potential of those human beings who had been unfortunate enough to have been enslaved.

vi. Now that we have reviewed the constitutional provisions dealing with slavery, we can add to what we have already said about the ethical problems that negotiators can confront in such circumstances. Suppose these concessions had not been made in 1787 to

53. See, e.g., id. at 561; cf. 2 id. at 415. 54. See, e.g., 2 id. at 417 (James Madison). 55. See, e.g., id. at 374. 56. Cf.id. at 371. 57. See, e.g., 1 id.at 484-87, 542, 591-93, 596; see also 2 id. at 221-22. 19891 SLAVER Y AND THE CONSTITUTION the institution of slavery. What would have happened? Or rather, what were the Federal Convention delegates entitled to believe would be the likely consequences of "no compromise with slavery"? If there had been absolutely no accommodation for slavery, then it is likely that there would not have been a constitution which recognized considerably more powers for the General Government than had been recognized for it under the Articles of Confederation. This would have meant, among other things, that a great opportunity would have been lost for establishing on a firm footing, for the first time in recorded human history, a republican government for a large country, a government which (despite its grudging allowance of slavery) stood for the inalienable rights recorded in the Declaration of Independence. This sentiment is reflected in an observation by Hugh Williamson (of North Carolina), who said in the course of the slave-trade debate, that "both in opinion [and] practice he was against slavery; but thought it more in favor of humanity, from a view of all the circumstances, to let in [South Carolina and] Georgia on those terms, than to exclude them from the Union." 58 If the 1787 Constitution had not been agreed upon, the Articles of Confederation government would probably have remained in force in a weakened condition for perhaps another decade. That national government would also have had to leave slavery alone- and it would not have been able to do anything about the slave trade either before or after 1808. The Federal Convention delegates could further justify what they were doing by reassuring each other that slavery was on its way out, that one state after another would gradually do away with it. One particularly troublesome problem remained, however, for which no one had a satisfactory solution- and that was what was to be done with slaves in the event of a general emancipation. George Washington, who (at considerable cost to his estate) emancipated all of his slaves in his will, was disturbed by the prospects that lay before the slaves for whom he felt a deep obligation. (He was one slaveholder who refused to sell any of his slaves, once he had thought through what slavery meant.) In any event, the approach of Roger Sherman (of Connecticut), recorded on August 22nd, probably represented that of the typical delegate to the Federal Convention:

58. 2 id. at 415-16. TEXAS TECH LAW REVIEW [Vol. 20:677

He disapproved of the slave trade: yet as the States were now possessed of the right to import slaves, as the public good did not require it to be taken from them, [and] as it was expedient to have as few objections as possible to the proposed scheme of Government, he thought it best to leave the matter as we find it. He observed that the abolition of slavery seemed to be going on in the [United States and] that the good sense of the several States would probably by degrees compleat it. He urged on the Convention the necessity of despatching its business. 9 Of course, one argument against any compromise on that occasion is that one cannot anticipate developments which may upset what has been counted upon to justify the compromise. But it should be evident upon examination of such matters that the unanticipated can also make the refusal to compromise seem foolish. Does not one simply have to do the best one can on the basis of the information available at the time? Things did happen which made the pro-slavery position more formidable in the early nineteenth century than it had been in the late eighteenth century. First, there was the Santo Domingo uprising (in 1791) which terrified the South, making it most fearful of its own slave population. Then there was the remarkable growth of the cotton industry, which appealed to all too many people's avarice. (The cotton gin was invented in 1793.) And then there was the unexpected growth of the North, whereas it had been anticipated in the Convention and elsewhere that the growth in population (both by foreign immigration and by domestic migration) would be in the South and South- west. 6° This meant, among other things, that the South came to feel threatened by Northern power (which could be seen, for example, in the tariffs imposed in the 1820s)-and so the South tended to feel ever more on the defensive, especially about its least defensible institution, slavery. (The 1787 Convention delegates would have been surprised to learn that the constitutional refuge of the South would eventually be neither the Presidency nor the House of Rep- resentatives but rather the Senate, where population did not matter. But, as it turned out, free labor was drawn to states where there was no slavery to demean the laboring man.)

59. Id. at 369-70; see also id. at 371. See, on Washington and slavery, text accompanying note 14 supra. 60. See, e.g., I Farrand, supra note 23, at 585-86, 595, 604-05; 2 id. at 111, 305. 1989] SLAVER Y AND THE CONSTITUTION

We conclude our speculations about what might have happened without the slavery compromises in the Convention by touching upon the problem of what a dissolution of the Union could have meant. The South would have been left as an independent slavery- dominated country. There were reasons to believe that it would have been, or would have become, an expansionist power, moving with its slave codes into the Gulf of Mexico, Cuba, Mexico, and even farther South. What, then, was in the interest of the slaves- to be abandoned completely to the control of a country governed altogether by the slavery interests or to be left in a country in which compromises had to be made with slavery in order to preserve a Union which was (or could become) fundamentally hostile to slavery? These, then, are some of the concerns aroused by the abolitionists' determination to have nothing more to do with the Southern States.

vii. Perhaps we can usefully continue our ethical analysis here by considering, if only briefly, what would not have happened if the 1787 compromises had not been made. Perhaps the best evidence as to what would have been lost is what did happen under the Constitution. Among the things that happened under the Constitution was that the Government of the United States could and did control somewhat the expansion of slavery on the North American continent, even as the strength of the North grew relative to the South. The South knew from the beginning that the North was, or was likely to become, antislavery: after all, the South knew that the North was free to give expression to the doubts about slavery that the South itself felt but had to suppress because of its circumstances. The fact that the Union was recognized by the South to be ultimately antislavery may be seen in the Southern decision to secede in 1860- 1861: that is, the South had come to the conclusion that it was ''now or never," that it was steadily falling behind relative to the North, and that in the North an aggressive antislavery movement was growing. The South also knew that there could be found in the Constitution of the United States various powers which would eventually be used against slavery, once the antislavery movement was in full control of Congress and the Presidency. Consider, for example, the implications of the provision which had tied the hands TEXAS TECH LAW REVIEW [Vol. 20:677 of Congress with respect to the international slave-trade until 1808. Did not this very provision concede that, without the limitations therein, Congress would have been able to act at once, pursuant to its commerce power, against the international slave trade? And if so, did it not further suggest that Congress also had the power to deal with the slave trade within the United States as well? It was Southern fear of what was likely to happen when the Government of the United States was fully controlled by the North that had led to the fierce decades-long struggles about admission of states to the Union, for that affected the one safeguard remaining for the South (that is, in the Senate). (These struggles were abated, but only temporarily, by the Missouri Compromise of 1820.) The election to the Presidency of Abraham Lincoln in 1860, on a platform which ruled out the admission of any more slave states to the Union, appeared ominous for the South-and so it made its "now or never" move. Such a Southern move to go it alone probably could not have been stopped in 1787. The antislavery sentiment in the United States, as well as worldwide, was not then great enough to support the massive free-state sacrifices that may have been required to force the South to remain in the Union. Nor was the sense of Union- the sense of being one people worth maintaining as such-yet deep enough to promote sustained efforts to keep the country together: it took several generations of intimate association under the Con- stitution to achieve that. Besides, it did take four-score years for the North to become significantly stronger relative to the South than it had been in 1787. Thus, the longer the Union stayed together, the weaker the South became in it-and the better able the North would be to suppress secession and, in effect, slavery, if it should want to do so. Whatever the effects of the compromises of 1787, then, there remained enough vitality in the Declaration of Independence to permit and equip Northern Republicans to argue for the effective containment of slavery and to organize enough of the country to bring this about. The spirit of the Declaration of Independence could be discerned again and again in the Federal Convention as delegate after delegate acknowledged the ultimate dedication of the 61 American people (North and South) to the principle of equality.

61. See, e.g., I id. at 397-98. 1989] SLAVER Y AND THE CONSTITUTION

viii. Although there were significant compromises with respect to slavery made by Northern delegates in the Federal Convention, there were even more substantial concessions made by the Southern delegates. In fact, I have been suggesting, the Southern concessions can be considered to have been eventually fatal for the slavery interests. One must even wonder about the extent to which the more thoughtful Southern statesmen, who did hate slavery, were aware of this and were willing to have matters develop as they did. Southern concessions in the Convention included the provision for the entry of the Western States into the Union on an equal footing with the original states; the strengthening of the national government, especially with respect to the regulation of commerce and the levying of taxes; and the allowance of unlimited immigration into the United States. It was partly because of these concessions, it turned out, that the North was able in the 1860s to put into the field, and to equip properly, the massive armies which crushed the Southern rebellion. It was repeatedly recognized in the Convention itself that there were quite different interests in different parts of the country. 62 Madison, among others, kept noticing that the serious division in the Convention was not between the large states and the small states but rather between the slave states and the free states. 63 And it was further noticed by delegates that various provisions being considered for the Constitution, such as what could be done about taxing imports and exports or about regulating commerce or about allo- cating political power, very much bore upon the slavery question. 64 Thus, it can be said, the South sensed from the beginning what it was getting into (and, as Patrick Henry insisted back in Virginia, what it was not going to be able to get out of once it got in). There was, then, the sense of a bargain that had been made in 1787-and this proved critical to what happened as President Lin- coln and his associates marshalled the North to resist secession. A bargain meant that the Northern States were bound by such things as the Fugitive Slave Clause. But it also meant that the Northern

62. See, e.g., id. at 321, 405-06, 421; cf. id. at 342. 63. See, e.g., id. at 486, 601-02; 2 id. at 9-10. 64. See, e.g., 2 id. at 305-06. TEXAS TECH LA W REVIEW [Vol. 20:677

States could, in the Civil War period, invoke the rule of law and hence the moral standing of the Union cause. 65 Such constitutionalism was difficult for the South to counteract, especially since slavery itself very much depends upon the conventions which happen to have been established. That is, slavery does depend upon considerable respect for recognized property." Property in turn depends upon the rule of law. But law must ultimately be grounded in justice and reasonableness if it is to maintain its vitality-and the Constitution itself, and the fact that it was recognized to be to a remarkable extent the product of peaceful deliberation, seemed to everyone an extraordinary manifestation of what law could be. But however much slavery could be acquiesced-in as "the lesser evil," it itself could not be defended as reasonable and just: it simply could not be generally accepted as a permanent institution rooted in the inalienable rights and duties of men. To the extent that Americans North and South took constitutional government seriously, to that extent the institution of slavery did remain under a cloud. This meant, among other things, that the South had agreed to a bargain which virtually assumed that its "peculiar institution" eventually had to go, that the principles of the American regime were against it. It is the misfortune of the South that it was not able to continue into the nineteenth century that gradual elimination of slavery which the Federal Convention delegates had observed to be going on throughout the country since 1776. And yet the delegates had been several times reminded in the Convention that only a just system of government established by them could reasonably be expected to endure. 67 Their sensitivity with respect to these matters was evident even in their deliberations about slavery. Thus, as we have seen, when the Fugitive Slave Clause was being worked out, such expressions as "justly claiming" and "legally held" were removed, with the delegates settling for the bare reference to persons "held to service or Labor in one State, under the Laws thereof. .. 68 Madison explains in his Notes

65. See infra Part VII of this article. 66. See, e.g., 1 Farrand, supra note 23, at 594 (Edmund Randolph: "He urged strenuously that express security ought to be provided for including slaves in the ratio of Representation. He lamented that such a species of property existed. But as it did exist the holders of it would require this security."). 67. See, e.g., id. at 595-96; 2 id. at 6, 10-11. 68. See text accompanying supra notes 37-38. 19891 SLAVER Y AND THE CONSTITUTION that this was done "in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view." '69 Even here, that is, the delegates were reminded that the truly legal, as distinguished from the dubious legislation one does have to put up with from time to time, has to be grounded in, even as it should promote, the moral. In this, and in other ways, it is salutary to recognize that the Constitution of 1787 was, despite its compromises and limitations, fundamentally antislavery in its presuppositions and aspirations.

ix. I trust that I need add little to what I have already suggested about the significance of the deliberations concerning slavery in the Federal Convention of 1787. One great advantage for Americans of the slavery issue has been that, through many of the formative years of the Republic (and perhaps down to this day)-it has obliged and permitted us to be always aware of the relation between law and morality as well as the limits of any doctrinaire morality. Proper reflection upon the dilemmas that decent people confront, because of their circumstances, can help us curb self-righteousness, something which can be crippling and even suicidal. We should be alert to the sorts of things one should take account of when one tries to make the best of a bad situation-and this applies to matters as diverse, and yet as similar, as the controversies today about abortion and about nuclear and biological weapons. Vital to the efforts of American statesmen has been the determination, both in 1787 and in 1861, that the Union be preserved: the full realization of the principles set forth in the Declaration of Independence was believed to depend upon that. Thus, one must wonder whether it is possible for a politically active man to be moral simply by being "pure." Would a refusal by all antislavery people in public life to have had anything to do with slavery (whether in 1787 or in the pre-Civil War period) to compromise have been truly in the interest of the country, or of the North, or of republican principles, or of the South, or of the slaves themselves?

69. 2 Farrand, supra note 23, at 628. TEXAS TECH LAW REVIEW [Vol. 20:677

It should be evident that we have been very much occupied here with prudence, that virtue which is peculiarly concerned to reconcile the demands of the common good with the aspirations of the moral virtues. Lawyers, because of their experience in reconciling the private and the public, are particularly well equipped to appreciate the dictates of prudence. Lawyers do tend to recognize, at least when properly instructed by their profession, that one needs to be clear (even absolutist) in one's objectives even as one is somewhat flexible as to one's means. But this requires, among other things, that one's objectives indeed be sound, something which one's circumstances can make difficult if not (after awhile) virtually impossible. Thus, the South, before the Civil War, could not be truly prudent, bound as it was to an institution that was widely recognized as unjust. This tension led, it seems to me, to a deep irrationality in Southern life, with the depths of this seen not in the recourse to Secession itself but, a generation earlier, in the desperate sophistries of that brilliant South Carolinian, John C. Calhoun, perhaps the last Southern leader who could have returned his people to that goal of the gradual elimination of slavery which his predecessors during the Federal Period had taken for granted. This is not to suggest that serious mistakes were not made in the North as well, especially when the desire to make money led both to a reckless and provocative use of the tariff power and, especially after the Civil War, to a pervasive cultural and political coarseness. But it was the South that was most crippled by an inability to defer to the dictates of prudence. Indeed, it can even be said that the South had to rely upon others to do its thinking and its judging for it, in order that the good latent in the South might be given an opportunity to manifest itself and thus enrich the country. Similar observations apply to our contemporary situation, especially when we deal with various other countries around the world crippled by one 70 form or another of slavery.

70. See the passage from my Defense Intelligence College talk on Carl von Clausewitz printed in Anastaplo, What Is Still Wrong With George Anastaplo? A Sequel to 366 U.S. 82 (1961), 35 DE PAuL L. REv. 551, 559 n.41 (1986) [hereinafter Still Wrong]. See also the text accompanying supra note 20. See, on Calhoun, infra Part V. My Clausewitz talk will be published in "Intellic and Policy? A Symposium," edited by Richard B. Starcus, Teaching Political Science: Politics in Perspective, Vol. 16 No. 2, Winter 1989. 19891 SLAVER Y AND THE CONSTITUTION

IV. SLAVERY IN THE TERRITORIES7 ' Mr. Madison. Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the National character than to say nothing about it in the Constitution .... [It is] wrong to admit in the Constitution the idea that there could be property in men. -in the Federal Convention, August 25, 178772

1. The experience of the American people in dealing with the prospects of slavery in the Territories of the United States put to the test the proposition that the slavery-related provisions in the Constitution of 1787 may best be seen as reluctant accommodations by the Framers to the established slavery institutions in several of the original states. Particularly instructive is John Alvis's account of both the obstacles and the opportunities facing the Congress, and hence the people of the United States, as new territories were being opened for settlement with a view to their eventual admission to the Union as states. The most critical decisions were made by Congress with respect to territories which had not had their institutions decisively anticipated (especially with respect to the slavery issue) by those of the states with which they had been associated (as, for example, the institutions of Tennessee had been shaped by its association with North Carolina). Thus, Albert Gallatin (of Pennsylvania) had warned, during the 1798 debates in the House of Representatives on establishing a government for the Mississippi Territory, that that would be the last opportunity to check slave expansion into the 7 Southwest. 1

71. This paper, originally entitled "Slavery in the Territories and a Blushing Constitution," was prepared for a panel sponsored by the Claremont Institute for the Study of Statesmanship and Political Philosophy at the Annual Meeting of the American Political Science Association, New Orleans, Louisiana, August 30, 1985. This paper was in response to a paper by John Alvis of the University of Dallas, "The Slavery Provisions of the United States Constitution: Means for Emancipation." Professor Alvis's paper has been published by the Political Science Reviewer, Volume 17, Fall 1987. 72. 2 Farrand, supra note 23, at 415, 417. 73. See, on Albert Gallatin, 2 ENCYCLOPEDIA OF THE AMERICAN CONsn=rrlON 832 (L. Levy, K. Karst and D. Mahoney eds. 1986). TEXAS TECH LA W REVIEW [Vol. 20:677

Professor Alvis reminds us as well of how much of a compromise with the principles of the American regime, as set forth in the Declaration of Independence, the institution of slavery was-and was generally taken to be in 1787. But he is also aware of the subsequent commercial and other developments, including the ter- rifying slave uprisings in Santo Domingo, which hardened the hearts, or at least closed the minds, of Southerners to the prospect of that ultimate universal emancipation anticipated by the Founding Fa- thers. Instead, desperate Southerners even came to embrace the "positive good" doctrine of John C. Calhoun and his disciples. All this supports Abraham Lincoln's insistence that the Found- ing Fathers had hoped they had set the stage for the total eradication of slavery in the United States. However much a compromise the Constitution represented, the language of the document does (as Mr. Alvis puts it) "convey a stance against it in principle." It is Mr. Alvis's sensitivity to language which permits him to notice that the guarded way in which slavery is acknowledged "imparts to the concessions regarding the census and the return of fugitive slaves a shame-faced character." And he adds the telling observation, "Those who insisted on keeping the offensive word ['slave'] off the pages of the fundamental law thereby succeeded in making the Constitu- tion blush." Also telling is his recognition that the Constitution understands slavery to be completely the creature of state law. Mr. Alvis recognizes the power of Congress, under the Consti- tution, to regulate (that is, to govern) the territories of the United States before they become states. And this meant, among other things, that Congress could determine whether slavery was to be permitted in any territory. The Northwest Ordinance of 1787 reflects the power of Congress to do away with slavery in specified terri- 4 tories-but also to permit it in others? Thus, Dred Scott v. Sandford is simply wrong in holding, in effect, that no government was in a position to do anything adverse to slavery in a territory before statehood, an anomalous state of affairs. About these matters, too, Mr. Alvis has many useful things to say. ii. Even so, certain reservations, or at least queries, with respect to his argument (or a version, not necessarily his, of the argument)

74. 60 U.S. (19 How.) 393 (1857); see infra Part VI of this article. 19891 SLAVER Y AND THE CONSTITUTION may be instructive to notice here. Mr. Alvis recognizes that Congress had various powers, under the Constitution of 1787, to deal with slavery not only in the territories but in the original states as well. He refers, for example, to the tax power. But aside from import taxes, it is far from clear that taxation would have permitted an effective Congressional discouragement of slavery, limited as the tax power was by the uniformity requirement. True, white masters could be levied against both for themselves and for three-fifths of their slaves-but then, the slaves were presumably productive and hence each was able to supply by his labor the required three-fifths of the tax that one white man would be assessed. (In fact, were not whites without slaves likely to be hit harder by such a tax than whites with slaves, especially wherever slaves were roughly equiva- lent to whites in their productivity? If this is so, then such recourse to taxation would have had to overcome the resistance of whites without slaves who were being affected even more than whites with slaves.) A more serious threat to the continuation of slavery (touched upon by Mr. Alvis) was the commerce power of Congress, which could have been used to restrain "interstate" commerce in slaves, thereby making it difficult even for the original slave states to prosper from the institution of slavery. (Whether the products of slave labor, as such, could have been kept out of "interstate" commerce raises questions that are not limited to this issue.) Indeed, it was because the Commerce Clause threat to slavery came to be recognized, and quite early in the history of the regime under the Constitution, that various successful efforts were made to cut down 75 Congressional power with respect to commerce. I notice in passing that the commerce power of Congress with respect to slavery is implied in the 1808 provision that Mr. Alvis discusses. But I would not say, as is sometimes said, that the provision gives that power to Congress as of 1808. Rather, it is more useful to see that that provision suspends, until 1808, some of the considerable commerce power which Congress had from the very beginning of its tenure under the Constitution of 1787.76

75. See Mr. Crosskey, supra note 1, at 193-96, 199-202; see also How to Read, supra note 1, at 11-13; text accompanying infra note 139. 76. See CotmNTrARY, supra note 1, at 62-64; see also supra note 45. TEXAS TECH LAW REVIEW [Vol. 20:677

It should also be noticed that the relation between slavery and the commerce power may be seen in an exchange Abraham Lincoln had with Stephen A. Douglas in the course of their 1858 debates. Lincoln was confronted by this Douglas interrogatory: "I desire him to answer whether he stands pledged to the prohibition of the slave trade between the different States." ' 77 Lincoln's answer (put in terms of an uncertainty due to lack of adequate study by him of the issue) was carefully worded, since he wanted to reassure Southerners and Southern sympathizers in the North, as well as Northerners interested in domestic tranquility, without absolutely denying the power (including the commerce power) of the United States to deal with "interstate" traffic in slaves. To insist at that time upon recognizing the dormant commerce power of Congress to regulate the "interstate" slave trade must have seemed to him unduly provocative, unnecessary, and hence hardly useful in his circumstances. Such a recognition by him could well wait upon securing sufficient Republican votes in Congress, to say nothing of 78 electing a Republican President. We are reminded, by Lincoln's awareness of political necessities, of the principal reason that Congress did not do more than it did to restrain the spread of slavery into the territories during the first half of the nineteenth century: the antislavery people simply did not have the votes. (Fear, greed, and a head-in-the-sand attitude all played parts here.) Thus, however much of an affront slavery was to the principles of the Declaration of Independence, the territories issue required a political, not a constitutional, disposition, something seen in the Missouri Compromise of 1820. Or, put another way, it should not be considered a violation of the Con- stitution that slavery was permitted to spread to the territories. Rather, that it was not a violation of the Constitution reminds us that the Constitution was in certain respects defective, the Federal Convention of 1787 having been obliged to come to terms as it did with long-established slavery interests in the South. To argue, as some do, that permitting slavery to spread to the territories in itself violated the Constitution is an instance (albeit a

77. 3 COLLECTED WORKS OF LINcOLN, supra note 15, at 5; see also infra Part VI of this article. 78. See Mr. Crosskey, supra note 1,at 182-83. See, on Lincoln's opinion that the Framers of the Constitution expected slavery to be eliminated in due time, 3 COLLECTED WORKS OF LINcoLN, supra note 15, at 180-81, 306-09. See also supra note 45. 1989] SLAVER Y AND THE CONSTITUTION rather appealing instance) of the general tendency to read one's moral and political preferences into the Constitution. It is a tendency which has led for some time now to a greater reliance upon judges than upon legislators with respect to certain matters (and has contributed to the "politicizing" of the courts). Thus, what was done about slavery in the territories, or what was acquiesced in (partly for the sake of domestic tranquility), may well have been politically (and morally) wrong-but that did not make it automat- ically "unconstitutional." That it was wrong is likely-not, however, because of modern social contract theories, as some believe, but because of old-fashioned considerations of justice and the common good applicable to the circumstances of the day by men of prudence.

iii. Serious problems are apt to develop when political (or policy) questions are routinely turned into judicial (or constitutional) questions. Constitutional crises are more likely to confront us, as something called "the Constitution" gets "locked into" one or another chance disposition of an issue-and this means, among other things, that prudence is likely to be lost sight of. (It also means that constitutional amendments are more and more looked to in order to correct the "constitutional" pronouncements of judges. This is not to deny, however, the generally salutary effects of the Deseg- regation Cases since the 1930s.) Indeed, one could almost recom- mend a general rule that judges who are to be politicized as much as ours sometimes seem to have become should be people who have at one time or another successfully run as candidates for public office-and I would not count for this purpose one's election to the editorship of a law review, however exalted such election may sometimes seem to the participants. I believe it misleading to regard such an act as permitting slavery to move into the territories as a constitutional abuse rather than as a moral failing or as a political misjudgment. In the long run, I am suggesting, it is probably better for us, in facing up to our most serious problems, to rely upon prudence and politics rather than upon constitutional interpretation and constitutional manipulation. In this way, the American people are more likely to be shaped so as to insist upon the right thing being done for them both by judges and by legislators. It is well to be thus reminded of TEXAS TECH LAW RE VIEW [Vol. 20:677 the ultimate supremacy of the legislative element in our regime, whether in the government or in the people at large. 79

V. CALHOUN AND SLAVERY 80 We shall not shock anyone, we shall merely expose ourselves to good-natured or at any rate harmless ridicule, if we profess ourselves inclined to the old-fashioned and simple opinion according to which Machiavelli was a teacher of evil. -Leo Strauss"'

A now quite elderly law school teacher of mine, who served with defense counsel when frantic officials succeeded in their dis- graceful efforts (in 1953) to expedite the Rosenberg atomic espionage executions, recently recalled, "It was an episode of governmental insanity." ' 82 I am inclined, whenever I am reminded of the decades which led up to the American Civil War, to make a similar assessment of the conduct of the extremists of that period, abolitionists and secessionists alike.8 3 The volume of the papers of John C. Calhoun under review here-papers issued midpoint in a projected twenty-volume collection-shows Calhoun moving from the position of a respected national politician to the role he would perform for the last twenty years of his life as the idolized spokesman for the South. The public

79. See, on prudence, Part VI, Section vi of this article, infra. See also Seven Questions, supra note 1, at 521-27 (quoting extensively from Laurence Berns); infra notes 85 and 88. 80. This book review originally appeared, in an edited form, in 25 MoD. AGE 106 (1981) under the title, The American Alcibiades? The book reviewed is XI THE PAPERS OF JOHN C. CALHOUN 1829-32 (C. Wilson ed. 1978). Most of the notes provided here were prepared for, but could not be published in, the 1981 version of this review. 81. L. STRAUSS, THOUGHTs ON MACmAVELU 9 (1958); see also id. at 12-13. 82. Anastaplo, Speed Kills: The Rosenberg Case and the Perils of Indignation, Chi. Lawyer, July 1979, at 12, 22 (quoting Malcolm P. Sharp); see also CONSTrIUTIONALIST, supra note 1,at 632-39; Anastaplo, The Occasions of Freedom of Speech, 5 POLITICAL Sc. REvIEwER 383 (1975). See, on "governmental insanity" and the First World War, CONSTITUTIONALIST, supra note 1, at 784-85; infra note 96. Professor Sharp has died since this book review was prepared. See, on his career, Anastaplo, Malcolm P. Sharp and the Spirit of '76, U. Clu. L. Atumu J. 18 (1975) reprinted in 121 CONG. REc. 40241 (daily ed. Dec. 12, 1975). See also materials cited in Mr. Crosskey, supra note 1, at 216 n.2. 83. See, e.g., CoNsrrruoNA sT, supra note 1, at 239-53. Consider Lord Charnwood's phrase, "a whole deluded society." See text accompanying infra note 95. 1989] SLAVER Y AND THE CONSTITUTION turning-point in his career was his resignation as Vice-President (in December 1832) to become a Senator from South Carolina. Calhoun had by that time developed for his State the doctrine of Nullification (or, as he preferred to call it, Interposition). Only one refinement was needed to complete the intellectual armory of Southern extremists, and that was an insistence upon the "positive good" of slavery. This proposition Calhoun set forth in 1848, three decades before his death (at age 68).

ii. The collection of which this volume is a part represents an impressive effort to publish everything reduced to writing by Cal- houn. It is supplemented by many of the letters written to him, as well as by other materials such as transcripts of congressional exchanges involving Calhoun. This particular volume is so edited and annotated as to permit the reader easily to keep track of the hundreds of documents laid before him. Anyone with the dimmest recollection of the history of the period should be able, from this volume alone, to get a reliable introduction to what happened at that critical stage in the life of the Republic. The quality of this collection is fairly indicated by the appraisal of an early volume by the Times Literary Supplement (as reproduced on the dust jacket of this volume): "The great enterprise of pub- lishing the Calhoun papers moves majestically on and the standards of near perfection achieved in the first three volumes . . . are maintained in the current installment." This work, except for sup- plementary volumes in the event new materials are discovered, should "never" have to be done again. My principal reservation here is with the liberal use by the editors of the designations, "sic," "canceled," and "interlined." Calhoun's quite erratic spelling could have been noticed at the beginning of each volume. Thereupon we (like his original readers) could have been left (without the benefit of sics) to sift for ourselves. That is, I prefer to see almost all his letters presented as he allowed them to leave his hand. If cancellations and interlineations "must" be preserved for posterity, and in the text rather than indicated in an appendix, this could have been better done by the use of discrete symbols placed immediately before or after the words to be removed or inserted. TEXAS TECH LA W REVIEW [Vol. 20:677

In this way, the practiced reader could read straight through, incorporating whatever is necessary to correct or complete each sentence. As it is now, many passages are exasperatingly difficult to read.

Ill. Calhoun has been called "surely one of the most intelligent men who ever lived." '8 4 The more one reads of this driven man, however, the more his drive (or passion) becomes evident and the less his intelligence. His passion was enlisted in the most extreme advocacy of the cause of States' Rights, but only after he had been tripped up on his way to the Presidency. Calhoun's political enemies (including, it seems, Martin Van Buren) were able to take advantage of his (and President Andrew Jackson's) sometimes exaggerated sense of honor to divert Calhoun from the Succession.85 Having lost the Presidency, for which he (as a prominent national figure since the War of 1812) had earned the right to be seriously considered, Calhoun became the foremost theoretician of South Carolinian fanaticism. It was either this, he came to feel, or reconcile his beloved state to the eventual repudiation of a way of life grounded in slavery. In this rationalization of one's own as "sacred," Calhoun (as a modern) can be understood to have been 86 a forerunner of Martin Heidegger, the Macbeth of philosophy.

84. H. JAFFA, How To THntK ABOUT THE AMERICAN REVOLUTION 18 (1978); see also Lerner, Calhoun's New Science of Politics, 57 AM. POL. Sci. REv. 918 (1963). Mr. Jaffa's sequel to his remarkable treatise, TtE CISIS OF THE HOUSE DriVED: AN INTERPRETATION OF THE ISSUES IN THE LincoLN-Dou-.As DEBATES (1959) should provide a valuable restatement of Calhoun's arguments. See, on Mr. Jaffa's always challenging work, Essay No. V., Liberty and Equality, in ESSAYS, supra note 1, at 61-73; ARTIST, supra note 1,at 476-79; Anastaplo, Prophets and Heretics, 23 MOD. AGE, 314 (1979). See also supra notes 4, 79, and text accompanying infra notes 99-100. 85. This is how the Seminole War controversy and the Peggy Eaton affair, dealt with at length in this volume of Calhoun papers, can be understood. Former President James Monroe gave Calhoun advice of moderation which was not acted upon. XI THE PAPERS OF JOHN C. CALHOUN 167 (C. Wilson ed. 1978). See, on prudence, supra note 79, and infra notes 86 and 88. 86. See Anastaplo, Jacob Klein of St. John's College, Newsletter, Politics Department, The University of Dallas, Spring 1979, at 1, 5-6; CONSTITUTIONALIST, supra note 1, at 738-39. The decline of the South in pre-Civil War America may be seen in the subservience of Virginian prudence to South Carolinian hotheadedness. It is not insignificant that Calhoun's last speech was read for him in the Senate by one of the Senators from Virginia. Is it not devotion to one's own as "sacred" which contributes to the insistence that so deeply- rooted an affliction as slavery is really a "positive good?" See 3 COLLECTED WORKS OF LiNcOLN, supra note 15, at 549 n.38. 19891 SLA VERY AND THE CONSTITUTION

The public arguments (at least in these critical years, 1829- 1832, when the final direction of Calhoun's career was set) were put in terms of constitutional rights, not in terms of a defense of slavery. The Tariff Acts provided the occasion for the position taken by South Carolina: a protective tariff was seen to place burdens upon the exporting staple states (of the South) primarily for the benefit of the eventually more prosperous manufacturing states (of the North). The oppressiveness and even despotism of majority rule were condemned; repeated invocations of the minority's right to liberty were heard.87 And yet there is hardly an argument (whether social, moral- political or economic) made by Calhoun and his associates on behalf of Southern grievances that did not apply with even greater force to what had been done for decades, if not for centuries, to the African minority in the South. Should not these eloquent, often self-righteous if not obsessed, Southern whites have seen that the principles they paraded to justify their resistance to Congressional "tyranny" made shambles of any justification for their own continued domination of slaves who could no longer be considered simply uncivilized? Many of John Calhoun's protestations could have easily been adapted to antislavery purposes by the gifted Frederick Douglass- and this, as much as anything else, suggests the ultimate futility of Calhoun's position. Abraham Lincoln, for one, recognized well before the Civil War the profound inconsistency upon which the defense of slavery in the United States rested, just as he recognized the dangerous irresponsibility of demands for immediate abolition.

iv. American slavery, it can be said, was doomed at least from the time of the national dedication in 1776 to the "self-evident" truth

87. Former President John Quincy Adams evidently recognized the merits of Southern grievances with respect to the tariff. XI TwE PAPERS OF JoHN C. CALHOUN 543-44 (C. Wilson ed. 1978). But a Georgian (Tomlinson Fort) wrote Calhoun, in 1831, We feel but one evil; the low price of cotton. This some may attribute to the tariff of 1828. By far the greater [number believe] it arises from the competition of half the world in the production of this article. How the consumption has so far kept pace with the enormous production is the standing wonder of our times. Id. at 411; see infra note 93. Even so, may not free trade and a market economy, if properly approached, minimize recourse to, and the effects of, selfish politics? TEXAS TECH LAW RE VIEW [Vol. 20:677

that "all Men are created equal." But did slavery have to be destroyed by means of war? Certainly, that had not been the expectation of the men of 1776 or of 1787. But mistakes were made. One of these mistakes was by Presi- dent Jackson in not having arranged for Calhoun to succeed him. This particularly gifted South Carolinian should have been obliged, as he would have been as a national leader, to moderate his sectional passions and "principles." He should not have been left available to provide the cause of slavery the legitimation he did. Or, as the Athenians were advised about Alcibiades, "Best it is never to rear a lion in the city; but if he has been reared, it is best to humor him." 88 A related mistake was made by Presidents and Congresses in exploiting protective tariffs without much regard for the pocket- books and sensibilities of the South. Southerners again and again voiced the grievance that the interests of one section of the country were being cynically sacrificed to those of another. Once the public debt had been virtually discharged, it seemed to many in the South obvious bad faith for Congress to continue exacting a tariff which would produce so much revenue that it would become a critical question how to dispose of the surplus. A generation of complaints about a discriminatory tariff accustomed the South (except in the face of a foreign enemy) to consider its interests distinct from those of the country at large. Should not Calhoun, as perhaps the most intelligent politician of his generation, have recognized the limitations of President Jackson as well as of various spokesmen for sectional interests?

88. ARissoPHANEs, THE FROGS, 1432-33; see also Lincoln's Perpetuation Speech (Jan. 27, 1838). Senator John L. McClellan (of Arkansas) once had occasion to say to his former Senatorial ally, Lyndon B. Johnson, "I appreciate your calling me and I know you have problems and you're going to do a lot of things I wouldn't do-unless I was President." D. KARsS, LYtNoN JOHNSON AND =imAmERicAN DREAM 184 (1976). Consider, also, Governor George C. Wallace's observation, upon leaving office (only to return later), that he felt it is good that Southern racial segregation is gone: "It will be best if things are never back the way they were in the good old days. It's better like it is now." Chicago Sun-Times, Dec. 8, 1978, at 25. I have long thought that the excesses of the McCarthy Period, with their destructive effects on foreign policy (for example, in Indochina) would have been avoided if the Republican Party could have recovered the Presidency in 1948. See, for a South Carolinian contemporary with John C. Calhoun who was less of a "lion" and much more prudent than Calhoun about the slavery question and States' Rights, J. CARSON, LIFE, LETTERS AND SPEECES OF JAMEs Louis PETIGRU (1920). See also G. ANAsTAPLo, We the People: The Rulers and the Ruled, in GREAT IDEAS TODAY 71-72 n.13 (1987). 1989] SLAVERY AND THE CONSTITUTION

This would have meant, among other things, both different responses by him to the challenges to his honor and different approaches to the tariff grievances, to what stood behind those grievances, and to what lay ahead.

V. That the slavery issue was indeed what stood behind the tariff grievances, giving them the staying power and the corrosiveness they had, can be discerned here and there even in this volume of Calhoun's papers. Articulate Southerners, in celebrating their way of life, "naturally" resorted to euphemisms (at least in this period) whenever they were obliged to refer to the institution upon which that way of life so much depended. Is it not likely that this reticence reflected a commendable uneasiness (rooted perhaps in a residual sense of natural right) about the institution they were saddled with? 9 In only one of the documents in this volume-in a letter of September 11, 1830, to a political intimate in Maryland-did Cal- houn devote a few sentences to the underlying slavery issue of the period: The eye of the State [South Carolina] has thus been turned for relief [with respect to the Tariff] from the general to the State Government, and to the call of a [State] convention, as the best means, of devising a remedy, & which from present appearance, will be called by a large majority. If I really believed, that civil discord, revolution, or disunion would follow from the measures contemplated, I would not

89. Thus, Calhoun could refer to slavery as "our peculiar domestick institution," "their great and peculiar agricultural capital," "the peculiar nature of the labor and production of this, and the other suffering States." XI Tm PAPERS OF JOHN C. CALHouN, 270, 429, 676 (C. Wilson ed. 1978). Compare Lincoln's understanding of why slavery is not explicitly spoken of in the Constitution: We have no idea of interfering with [slavery] in any manner. I am standing up to our bargain for its maintenance where it lawfully exists. Our fathers restricted its spread and stopped the importation of negroes, with the hope that it would remain in a dormant condition till the people saw fit to emancipate the negroes. There is no allusion to slavery in the constitution-and Madison says it was omitted that future generations might not know such a thing ever existed-and that the constitution might yet be a "national charter of freedom." And [Congressman Laurence M.] Keitt of [South Carolina] once admitted that nobody ever thought it would exist to this day. 3 Cou.EcTD WORKS OF LiNcoLN, supra note 15, at 77-78 (August 31, 1858); see infra the text accompanying note 110. TEXAS TECH LAW REVIEW [Vol. 20:677

hesitate, devoted to our system of government as I am, to throw myself in the current with the view to arrest it at any hazard, but believing that the State, while she is struggling to preserve her reserved powers, is acting with devoted loyalty to the Union, no earthly consideration would induce me to do an act, or utter a sentiment, which would cast an imputation on her motives. Should the State ever look beyond her present object, to prevent a consolidation of all power in the General Government & thereby the loss of our liberty and Union, I trust no good citizen would better understand his duty to the Union or be more prompt to perform it, than myself; but of this there is not the least fear, unless the genl. government should undertake to oppose force to Constitutional and peaceful remedies. I consider the Tariff act as the occasion, rather than the real cause of the present unhappy state of things. The truth can no longer be disguised, that the peculiar domestick institution of the Southern States, and the consequent direction, which that and her soil and climate have given to her industry, has placed them in regard to taxation and appropriations in opposite relation to the majority of the Union, against the danger of which, if there be no protective power in the reserved rights of the States, they must in the end be forced to rebel, or submit it to have their paramount interests sacraficed, their domestic institutions subordinated by Colonization and other schemes, and themselves & children reduced to wretchedness. Thus situated, the denial of the right of the State to interpose constitutionally in the last resort, more alarms the thinking, than all other causes; and however strange it may appear, the more universally the State is condemned, and her right denied, the more resolute she is to assert her constitutional powers lest the neglect to assert should be considered a practical abandonment of them, under such circumstances. I have written you fully, trusting to your discretion and tried friendship. 90

vi. On slavery itself, Calhoun simply did not think clearly enough, if he was truly able to think at all. He confined himself to protecting

90. XI Tus PAPERS OF JoHN C. CALHOUN 228-29 (C. Wilson ed. 1978) (a letter to Virgil Maxcy). It should be noticed that I try to preserve Calhoun's spelling throughout, and this without the use of "sic" "canceled," and "interlined." 1989] SLA VER Y AND THE CONSTITUTION interests which not only resulted from the use of slaves but which also were dedicated to the indefinite continuation (if not even extension) of slavery. Unless slavery could be shown to have been justified, if not even a continuing "positive good," he was clearly wrong. This is not to deny that there were serious difficulties in the say of outright abolition of slavery during his lifetime, difficulties which many today are not likely to appreciate. 9' But difficult as it no doubt was to eliminate slavery immediately, it should have been evident that it would be even more difficult (if not monstroud) to plan to continue it indefinitely. For one thing, the South would have become hopelessly callous on this issue. The somewhat "op- portunistic" Henry Clay, with his compromises and reforms, may have had the sounder approach. Vital to any serious attempt to deal properly with American slavery had to be the common-sensical recognition that it was truly evil. It was this recognition that Calhoun, unlike Clay, seems never to have been willing to make publicly-and, however intelligent Calhoun was, his course was not thoughtful. He thereby blinded himself to moral judgments that were obvious to a steadily growing number of decent men in his own time-and had been obvious as well to the leading Southerners of earlier generations whom he invoked for other purposes. Whatever white Southerners were obliged to do about the Negro race among them after 1865, could not they have done those things better before the devastation and bitterness of war-if they had been properly led? This, and the recognition that something had to be done, should have been apparent to Calhoun. If it should be said that he would have destroyed himself politically and would have been ineffectual as well, if he had tried to moderate the Southern passion for the indefinite perpetuation (and indeed expansion) of slavery, it should be replied that what he did do can hardly be respected as "effective." If Calhoun was truly incapable of changing the opinion of his countrymen, or of arresting their destructive course, then he would

91. See, e.g., Alexis de Tocqueville's sympathetic recognition of the problems confronting the South, I A. TOCQUEViLLE, DEMOCRACY IN AMERICA 394 (1954); see also Essay No. XV, Race, Law and Civilization, in EssAys, supra note 1, at 175-99. Were Southerners trapped in slavery somewhat as we are trapped in preparations for nuclear war? See infra note 96. TEXAS TECH LA W REVIEW [Vol. 20:677 have been wiser to perceive the futility of politics in his time and to devote himself to other pursuits. 92 Instead, he betrayed his trust by permitting his considerable skills to be enlisted in support of a terrible injustice that his impassioned countrymen were encouraged by him to believe they need never face up to. He brought them to the brink of Secession for the sake of slavery, in the name of States' Rights, all the time protesting attachment to the Union and its Constitution. However much one appreciates the contribution that States' Rights have made, and continue to make, to the common good in this country, it is difficult to find merit in Calhoun's Interposition. This doctrine, which treats the Constitution as if it were no more than a solemn treaty, permits any determined state to exercise, with respect to anything it happens to take seriously, a constitutional veto power over the legislative power of the majority. Thus, South Carolina in 1832 voted to suspend the operations of the tariff laws within that state (unless overruled by three-fourths of the States)- but President Jackson would have none of that! Does not the Interposition doctrine assume that the unjust is necessarily unconstitutional? This would mean, as a practical matter, that government has no legitimate power to do either good or bad. In this and in other respects, Calhoun's Interposition doctrine is to be distinguished, on the one hand, from the freedom of speech guaranteed by the first amendment and, on the other hand, from the right of revolution invoked by the Declaration of Independence. The Southern recourse in 1861 to Secession made more sense than Calhoun's Interposition, even though that recourse was rendered dubious by the cause to which it was ultimately dedicated.93

92. See, e.g., T. WEST, PLATO'S APOLOGY OF SOCRATES 18If (1979). See, on Henry Clay, LORD CHARNWOOD, ABRAH.Am LINcoLN 41-42, 99-102, 122-23 (1917). 93. It does not seem to me that it was States' Rights that Calhoun really argued for but rather sectional interests (with the sections to be defined by chance passions from time to time?). Sections (unlike states), it should be remembered, are not recognized by the Constitution. Calhoun purported to draw, for his Interposition doctrines, upon the Virginia and Kentucky Resolutions (of 1798- 1800). See, for indications of Daniel Webster's response to such use of the Founders, CoNsTrru- TIONAUST, supra note 1, at 728; American Constitutionalism and the Virtue of Prudence, supra note 1, at Part III. Tomlinson Fort pointed out (continuing the passage in the letter to Calhoun quoted supra note 87): None know better than we do the unjust operation of the tariff of '28. To frame laws operating equally on a vast empire, with interests so diversified as ours is impossible. To 19891 SLAVER Y AND THE CONSTITUTION

Vi. Magnanimity is vital in these matters. This virtue is consistent with sound moral judgment, as may be seen in General U.S. Grant's appraisal of his defeated enemy: "I felt like anything rather than rejoicing at the downfall of a foe who had fought so long and valiantly, and had suffered so much for a cause, though that cause was, I believe, one of the worst for which a people ever fought, and one for which there was the least excuse." 94 Still another magnanimous, and yet just, assessment of Calhoun and his colleagues has been made in Lord Charnwood's life of Lincoln: In no other contest of history are those elements in human affairs on which tragic dramatists are prone to dwell so clearly marked as in the American Civil War. No unsophisticated person now, except in ignorance as to the cause of the war, can hesitate as to which side enlists his sympathy, or can regard the victory of the North otherwise than as the costly and imperfect triumph of the right .... The responsibility for the actual secession does not rest in an especial degree on any individual [Southern] leader. Secession began rather with the spontaneous movement of the whole community of South Carolina, and in the States which followed, leading politicians expressed rather than inspired the

object to a majority passing laws to favor their own interests is to object to our system altogether. An improvement allowing the minority to govern, would last only long enough for the promulgation of laws enacted by them. XI THt PAPERS OF JoHN C. CALotN 411 (C. Wilson ed. 1978). In any event, Calhoun observed, evidently in a letter of 1831 (which does not seem to be extant in its original form), Nullification is not my word. I never use it. I always say 'State interposition.' My purpose is a suspensive veto to compel the installing, the highest tribunal, provided by the Constitution, to decide on the point in dispute. I do not wish to destroy the Union! I only wish to make it honest! The Union is too strong to break! Nothing can break it- but the Slavery question, if that can! If a Convention of the States were called, and it should decide, that the protective policy is constitutional, what then? Then give it up! Id. at 533. But is there any indication in the Constitution that whenever any state chooses to insist upon a serious question, "the point in dispute" must be decided by calling "a Convention of the States?" Is this "honesty"-or is it the original "Polish joke?" See Lerner, Calhoun'sNew Science of Politics, 57 AM. PoL. Sc. REV. 918, 928 n.39 (1963) (on Calhoun's endorsement of the Polish liberum veto). See on Calhoun, State Interposition, and the right of revolution, COMMENTARY, supra note 1, Lecture No. 17. 94. U. GRANT, PERSONAL MEMOIRS OF ULYSSES S. GRANT 629-30 (1894). See for a useful account of the sacrifices that should be made on behalf of a truly oppressed people, M. GILBERT, ExIn AND RETuRN: TIH STRUOosE FOR A JEWISH HOMELAND (1978). See also Essay No. XIII, The Case for Supporting Israel, in EssAYs, supra note 1, at 155-74. TEXAS TECH LA W REVIEW [Vol. 20:677

general will. The guilt which any of us can venture to attribute for this action of a whole deluded society must rest on men like Calhoun, who in a previous generation, while opinion in the South was still to some extent unformed, stifled all thought of reform and gave the semblance of moral and intellectual justification to a system only susceptible of a historical excuse. 9 An appropriate magnanimity may be seen as well in the remarks of Alan Paton, upon reviewing a recent novel which predicts the grim life that white South Africans will be obliged to endure if their harsh regime should continue to resist reform and therefore "have" to be overthrown: "Could cataclysm have been avoided by deeds of love and generosity and courage and wisdom? Or is it ' 96 beyond reason to expect rulers to do such deeds?" It is a prudent magnanimity-quite different from "governmental insanity"-that John C. Calhoun seems to have been incapable of. And, partly because of him, so were the proud, often generous but yet crippled people he "led" to the brink of disaster.

97 VI. DRED SCOTT AND THE LINCOLN-DOUGLAS DEBATES The first and most necessary topic in philosophy is the practical application of principles, such as, We ought not to lie;

95. LORD CHARNwOOD, ABRAHAM LiNcoLu 182-83 (1938) (emphasis added). 96. The Paton review is quoted on the dust jacket of K. SCHOEMAN, PRoMISED LAND (1978). Other cataclysms, closer to home, require our attention. One is the virtually unlimited "abortion on demand" available in this country since 1973. See infra note 25. Another is the callousness of many Americans and Russians toward the prospect of large-scale nuclear war. Still another is the general unconcern about what we are permitting to be done to the national character (and to the rearing of future "ions") by television and much of the press. See, e.g., Essay No. IV, Natural Right and the American Lawyer, Essay No. VI, Law and Morality, Essay No. X, Obscenity and Common Sense, in EssAYs, supra note 1; G. ANASTAPLO, Self-Government and the Mass Media: A Practical Man's Guide, in Tim MAss MEDIA AND MODERN DasocRAR 161 (H. Clor ed. 1974); Anastaplo, Getting Set for the End, Chicago Sun-Times, Book Week, June 26, 1977, at 8, in which I include this counsel: Proliferation of nuclear arms among the smaller nations should be sternly discouraged. Also to be discouraged, with an almost religious fervor, is any use in battle of any nuclear weapons by anybody in the foreseeable future. Such recourse should be regarded much as we do the cannibalism to which people have resorted in desperate circumstances. Symptomatic, perhaps, of the dubious opinions in which such cataclysmic developments among us are rooted, is the casual display in public of irreverence. See, for example, the cartoon in the NEw YORKER, July 16, 1979, at 33 (which is even worse, in some ways, than the aggressively offensive covers of magazines for "men" routinely exposed these days in public places for all to see and to be corrupted by). Compare, for example, Exodus 20:7. See infra Part IX of this article. 97. This talk, originally entitled "Liberal Education and Legal Education: Some Lessons from 1989] SLAVER Y AND THE CONSTITUTION

the second is that of demonstrations, such as, Why it is that we ought not to lie; the third, that which gives strength and logical connection to the other two, such as, Why this is a demonstration. For what is demonstration? What is a consequence? What a contradiction? What truth? What falsehood? The third point is then necessary on account of the second; and the second on account of the first. But the most necessary, and that whereon we ought to rest, is the first. But we do just the contrary. For we spend all our time on the third point and employ all our diligence about that, and entirely neglect the first. Therefore, at the same time that we lie, we are very ready to show how it is demonstrated that lying is wrong. -Epictetus 9s

The Lincoln-Douglas Debates in 1858 were not so long ago as they may seem-as I was reminded recently upon talking to a lady in one of my adult education classes at the Downtown Center of the University of Chicago. This lady, who is now in her sixties, recalls hearing, as a girl of twelve, her grandmother's telling how she as a girl of twelve, had been taken by her grandmother in the family carriage into Ottawa to attend one of the series of Lincoln- Douglas debates. (Immediately at issue between these two debaters was a seat in the Senate of the United States; eventually at issue was the Presidency and the fate of the nation.) It was, the grandmother reported, a large and festive crowd in their best summer clothing which gathered, with picnic meals, for the three hours of speeches on that occasion. And, the grandmother also reported, "Nobody who was anybody was for Lincoln"-and by "anybody" the grandmother had meant especially those who owned property. These recollections remind us that the country is not so old that what the great men of its past said, and did, need be regarded as too distant to matter. In fact, the grandmother who took the twelve-year-old to the debates had an uncle who signed the Decla- ration of Independence.

the Lincoln-Douglas Debates," was given at a meeting of the University of Chicago chapter of the Intercollegiate Studies Institute, January 30, 1984 (at International House, The University of Chicago). See, on liberal education, L. STRAuss, LIBERALISM ANCIENT AND MODERN 3-25 (1968); What Is A Classic?, in ARTIST, supra note 1, at 284; Seven Questions, supra note 1, at Appendix A. See also infra note 125. 98. EpicTETUs, THE ENCIRIDION, Section 51. TEXAS TECH LA W REVIEW [Vol. 20:677

The best introduction to the Lincoln-Douglas debates, aside from the text of the debates themselves, is Harry V. Jaffa's The Crisis of the House Divided. Two quotations from his book are particularly useful for us on this occasion. The first is Professor Jaffa's observation: "The moral sense which condemned slavery naturally demanded a law preventing its extension and the demand for the law was simultaneously a demand for the preservation of that moral sense." 99 My second quotation from Mr. Jaffa's book is this: "Keeping slavery out, as Lincoln said repeatedly, was a thousand times easier than getting it out."' ° Whether slavery could be kept out of the territories (and hence out of future states) of the United States was one of the questions that the now notorious Dred Scott case of 1857 spoke to. 0 1 It was there held that Congress could not constitutionally forbid the keeping of slaves in the territories. Opposition to this Dred Scott doctrine was a major plank in the platform of the then newly-constituted Republican Party. I hope that what I have to say on this occasion will provide sufficient details about the history of the period to permit you to follow my account. I also hope that what the two debaters are displayed as having said will make apparent not only the quality of these Illinois debaters but also the quality of audiences capable of attentively following their speeches for hours at a time. One cannot help but wonder, upon encountering such political discourse, what if anything can be done amongst us (in an age of supposed great communication) to begin to restore both our public speakers and their audiences to a level both worthy of our constitutional heritage and necessary for our political health.

ii. At the heart of the longstanding constitutional and political controversy, of which the Lincoln-Douglas Debates of 1858 were a remarkable part, may have been a moral question which Stephen

99. H. JAFFA, TME CRiss oF THE HousE DVIDED 296 (1959); see supra note 84. 100. H. JAFFA, supra note 99, at 299. 101. Dred Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857). An eminently useful study of this litigation is D. FEmHENcCIIER, THE DRED ScoTrT CAsE: ITS SIGNIFICANCE IN AMERICAN LAW AN) PoLrTcs (1978). See also Seven Questions, supra note 1, at 513-15; THE CENTER MAGAZINE, Dec. 1986, at 15. 19891 SLAVER Y AND THE CONSTITUTION

A. Douglas, both on principle and as a matter of expediency, resolutely refused to address. That question, Abraham Lincoln again and again insisted, was whether the institution of African slavery in the United States was just. All the provocative issues of the day-as to the status of the Fugitive Slave Act, or as to whether people of African descent could ever invoke the rights and privileges of citizens of the United States, or as to whether slavery could lawfully be excluded from the territories of the Union (as the recently-abrogated Missouri Compromise had partially done), or as to the role of the Supreme Court in settling these disputes, or as to what the basis was of the national association of states, and hence of the option of their disassociation-all such issues, Lincoln argued, depended for their repeated agitation and for their proper resolution upon a determination of how the institution of slavery was to be regarded. And, Lincoln further argued, that determination in turn depended upon how the Declaration of Independence, and especially its dramatic insistence that all men are created equal, should be understood. That the Declaration of Independence was authoritative in this country, Douglas and his supporters were not prepared to deny. But they did make less, as well as more, of the "all men are created equal" language than did Lincoln and his supporters: more, in that Douglas insisted that no one who was entitled to the rights an- nounced by the Declaration of Independence could conceivably be held in slavery; less, in that Douglas insisted that Africans were never intended to be among those entitled to those rights. This more is intrinsically related to this less: since, in Douglas's opinion, no one covered by the Declaration of Independence could properly be enslaved, and since various signers of the Declaration obviously had continued to hold slaves, it was therefore evident that Africans were not considered to be among the "all men" spoken of in the Declaration. It was decisive for Douglas that the authors of the Declaration had continued, after 1776, to conduct themselves as they had theretofore as owners of slaves. It was taken for granted by Douglas, as it was by Lincoln and by the vast audiences for these 1858 debates, that the signers of the Declaration were above reproach in their public life-and if so, Douglas argued, for them to have understood the Africans to be entitled to "Life, Liberty and the Pursuit of Happiness," even as they continued to hold them in slavery, would have been rank hypocrisy, unworthy TEXAS TECH LAW REVIEW [Vol. 20:677 of the great and honorable men that patriotic Americans generally acclaimed the Founding Fathers to have been. 12 How, then, was the Fathers' conduct to be justified? Only by a sensible reading of the Declaration of Independence, Douglas argued, a reading which recognized that when its authors said "all men," they meant no more than men of European descent. Such a reading further recognized that the government under the Consti- tution was "founded on the white basis"-that is, by and for the benefit of white men, with Africans and Asians possessing there- under no rights that the white man was obliged to respect.103 This argument was made again and again by Douglas-and it was on this basis that the territories of the United States were to be developed, leaving it to the people of European descent who settled there to determine whether they would have slavery among themselves and on what terms. It is evident from the Lincoln-Douglas debates that Douglas himself preferred to live in a State that did not permit slavery. It is also evident that he wanted to see the Africans treated fairly. Thus, Douglas could say during the first of the debates: I do not hold that because the negro is our inferior that therefore he ought to be a slave. By no means can such a conclusion be drawn from what I have said. On the contrary, I hold that humanity and christianity both require that the negro shall have and enjoy every right, every privilege, and every immunity consistent with the safety of the society in which he lies .... On that point, I presume, there can be no diversity of opinion. You and I are bound to extend to our inferior and dependent beings every right, every privilege, every facility and immunity consistent with the public good.' °4 But precisely how slaves and emancipated slaves should be treated were for him, on principle, matters of local option alone. 10 5 It was not for the government of the United States, or for the Union as a whole, to take a position on slavery itself. It was neither right nor sensible for the United States to do so-not right, in that (among other things) it would repudiate the constitutional bargain

102. See, e.g., 3 COUECTD WORs OF LiNcoLN, supra note 15, at 9, 216, 296-97. 103. See THE LwcoLN -DouGLAs DEmBAs oF 1858 33, 34 (R. Johannsen ed. 1965); see also 3 COLLECTED WoRKs OF LiNcoLu, supra note 15, at 9. 104. 3 CouEcTED WoRKs OF LINcoLN, supra note 15, at 10; see also id. at 216-17, 296-97. 105. See, e.g., id. at 10-12. 19891 SLA VERY AND THE CONSTITUTION struck at Philadelphia in 1787 which left each state free to go its own way in such matters; nor sensible, in that it would endanger domestic tranquillity and the Constitution of the Union itself to allow slavery to be exploited as a national issue. So concerned was Douglas to be identified with a policy of calming down this issue that he did not dare state openly, no matter how often he was pressed to do so, what may well have been his fond expectation, that leaving these matters to unrestricted immigration by Europeans, local initiatives, and economic forces would eventually doom slavery in most of the territories of the United States, if not even in the Old South as well. Critical to Douglas's position, it seems, was his opinion that a moral condemnation of slavery was highly offensive to conscientious Southerners, provoking them to doubt the good faith and the good will of the free states which were then in the ascendancy in the Union. This meant disunion, if not even war. So, Douglas believed, even the slavery-hating statesman was bound, if only as a matter of expediency, to take no public position on the morality of slavery. But Douglas's position went even further than this, in that he (as we have seen) presented himself as defending the honor of the Framers of the Declaration of Independence (and especially of Thomas Jefferson) from the insult he saw in any interpretation of the Declaration which left the Framers exposed as "hypocrites." Rather, he insisted, the Framers (like Douglas himself, in emulation of them) made no public moral judgment about slavery. They (also like Douglas himself) left it to each state, if not even to each citizen, to deal with slavery as was thought best in the circumstances.

W'. Lincoln, too, was prepared to concede that no interpretation of the Declaration of Independence was sound which required that the Framers be dishonored. He considered himself obliged to show that intelligent Americans who intended "all men" to include Af- ricans could nevertheless conscientiously continue to permit slavery, even to own slaves themselves. Lincoln returned to this problem several times during the seven debates with Douglas and in the many other speeches he gave in the course of the 1858 campaign for the Senate in Illinois. (That campaign was directed at the election of the state legislature, which in turn would elect a Senator.) He refined the formulation of his TEXAS TECH LAW REVIEW [Vol. 20:677 position during these months, culminating perhaps in the following statement made in the sixth debate, which was held at Quincy on October 13th: We have in this nation this element of domestic slavery. It is a matter of absolute certainty that it is a disturbing element. It is the opinion of all the great men who have expressed an opinion upon it, that it is a dangerous element. We keep up a controversy in regard to it. That controversy necessarily springs from difference of opinion, and if we can learn exactly-can reduce to the lowest elements-what the difference of opinion is, we perhaps shall be better prepared for discussing the different systems of policy that we would propose in regard to that disturbing element. I suggest that the difference of opinion, reduced to its lowest terms, is no other than the difference between the men who think slavery a wrong and those who do not think it wrong. The Republican party think it wrong-we think it a moral, a social and a political wrong. We think it is a wrong not confining itself merely to the persons of the States where it exists, but that it is a wrong in its tendency, to say the least, that extends itself to the existence of the whole nation. Because we think it wrong, we propose a course of policy that shall deal with it as a wrong. We deal with it as with any other wrong, in so far as we can prevent its growing any larger, and so deal with it that in the run of time there may be some promise 1 of an end to it. 06 Lincoln made it clear that the proper national policy with respect to slavery looked to its eventual elimination as something intrinsically bad. That must be understood, he seems to say, if the necessary compromises and sacrifices are to be identified and justified. Lest this solid reaffirmation of principle be misunderstood as an immediate declaration of war upon the South-a declaration which would alarm Union men North and South as provocative of secessionist sentiment-Lincoln went on to say: We have a due regard to the actual presence of [slavery] amongst us and the difficulties of getting rid of it in any satisfactory way, and all the constitutional obligations thrown about it. I suppose that in reference both to its actual existence in the nation, and to our constitutional obligations, we have no right at all to disturb it in the States where it exists, and we profess

106. Id. at 254. 19891 SLAVER Y AND THE CONSTITUTION

that we have no more inclination to disturb it than we have the right to do it. We go further than that; we don't propose to disturb it where, in one instance, we think the Constitution would permit us. We think the Constitution would permit us to disturb it in the District of Columbia. Still, we do not propose to do that, unless it should be in terms which I don't suppose the nation is very likely soon to agree to-the terms of making the emancipation gradual and compensating the unwilling owners. Where we suppose we have the constitutional right, we restrain ourselves in reference to the actual existence of the ° institution and the difficulties thrown about it. 7 Lincoln, having assured his audiences (which were not, by any means, limited to those in Quincy that day)-having thus assured them (including those much concerned about property rights generally) that he proposed nothing abrupt or peremptory, he once again affirmed the principle which guided the policy of his party with respect to the institution of slavery in the United States: We also oppose [slavery] as an evil so far as it seeks to spread itself. We insist on the policy that shall restrict it to its present limits. We don't suppose that in doing this we violate anything due to the actual presence of the institution, or anything due to the constitutional guarantees thrown around it.08 This has been a rather long passage (broken up into three parts) that I have taken from Lincoln's Quincy speech. Critical to the Lincoln approach was the assumption that an institution as important as slavery in shaping the moral tone and the social prospects, as well as to the worldwide standing, of the United States, was something that the people of the entire country should have a decisive say about-an authoritative say as to the terms of slavery's continued existence and of its eventual disposition. Perhaps it would be useful, as a summing up of Republican policy before I go on with my own discussion of what was being advanced by Lincoln with respect to slavery, to recall a succinct statement on the very points discussed at length in the Quincy speech from which I have just quoted-a beautifully succinct statement by Lincoln from the Fifth Debate, which had been held in Galesburg, just one week before Quincy:

107. Id. at 254-55. Did not Dred Scott tacitly call into question Congress's power to abolish slavery even in the District of Columbia? 108. 3 COLLECTED WoRKs OF LiNcoLN, supra note 15, at 255. TEXAS TECH LA W REVIEW [Vol. 20:677

Now, I confess myself as belonging to that class in the country who contemplate slavery as a moral, social and political evil, having due regard for its actual existence amongst us and the difficulties of getting rid of it in any satisfactory way, and to all the constitutional obligations which have been thrown about it; but, nevertheless, desire a policy that looks to the prevention of it as a wrong, and looks hopefully to the time when as a wrong it may come to an end. 109 I know of no statement by an American politician which compresses so well, in less than a hundred words, a complex policy requiring both determination and tact in its formulation and exe- cution. There are two aspects of Lincoln's general argument on this subject of immediate interest to us. First, Lincoln had to indicate that the Framers were in fact opposed to slavery, an institution which presented them with a detestable necessity that they had to live with but which they looked forward to the elimination of. Their sentiments on slavery were repeatedly quoted by him; critical (sometimes even anguished) sentiments which were reinforced by various measures designed to limit slavery in this country-such measures as the Congressional legislation of 1787 (and reaffirmed in 1789) prohibiting the introduction of slavery into the Northwest Territory and the provision in the 1787 Constitution recognizing the power in Congress to prohibit altogether the international slave-trade from 1808 on (which trade Congress did prohibit as early as it could). Lincoln also made much of the fact that the words "slave" and "slavery" were never used in the Constitution, reflecting (he said) the Framers' expectation that the institution would some day be eliminated, leaving behind no trace of its legitimacy in the Constitution itself.'10 All this Lincoln took to reflect the fundamentally antislavery policy of the Founders. Certainly, he considered it useful for Americans to suppose that this had indeed been the Founders' policy, a supposition which did eighteenth century statesmen the honor of regarding them as having had at least as sound a moral sense as nineteenth century abolitionists. In these ways, then, Lin- coln indicated that the Founding Fathers were in fact opposed to slavery.

109. Id. at 266. 110. See, e.g., id. at 306-08; see also id. at 18, 180-81. See as well supra note 89. 1989] SLAVERY AND THE CONSTITUTION

Second, Lincoln himself defended a policy with respect to slavery (the policy of the Republican Party) which was in conformity with the better opinion in the country since its foundation, a policy which had to contend with economic and other developments (including the invention of the cotton gin and the social consequences of such scares as the fierce 1791 Santo Domingo slave uprising)- developments which had come to make slavery more attractive or its elimination more threatening than had appeared in 1787. Simply stated, this policy permitted slavery to continue in the states where it was then established by law even while it was resolutely forbidden any further expansion into the territories of the United States. This policy, if carried out, meant that the national government would be controlled in due time by the people of the states where slavery was not permitted, thereby liberating the government to take measures to complete that elimination of slavery which its confinement (and consequent economic and political difficulties) had set in motion and which the moral sense of this longstanding policy clearly called for. All this would mean a gradual elimination of slavery on the best possible terms (in the circumstances of this country) for both the subjugated and the dominant races. This, Lincoln indicated, was truly the most just and the most practical, and hence the most moral, way of proceeding. I know of no other opponent of slavery of that period who could be as firm as Lincoln was in insisting upon slavery's eventual elimination even while he recognized the dilemmas faced by conscientious Southerners, of whom he could say that they were trapped by their circumstances. He could point out that if Northerners had slavery as pervasively established among them, they would be similarly trapped, and that if Southerners did not already have slavery, they certainly would not permit its introduction among them.

iv. What we see in all this is an indication of what (in Lincoln's judgment) prudence called for in the circumstances in which he found himself. Similarly, he had indicated (in a speech made the month before the debates began) what prudence had called for in the circumstances in which the statesmen of the Constitutional Period had found themselves: It may be argued that there are certain conditions that make necessities and impose them upon us, and to the extent that a TEXAS TECH LA W REVIEW [Vol. 20:677

necessity is imposed upon a man he must submit to it. I think that was the condition in which we found ourselves when we established this government. We had slavery among us, we could not get our constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more, and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties [the Declaration of Independence]. Let that charter stand as our standard.1 Notice here his uses of "we," including in "We had slaves among us . . . Then there is Lincoln's interpretation of the Declaration of Independence itself, made more than a year earlier, in which is exhibited further that high-minded combination of principle and practicality which we know as prudence: I think the authors of that notable instrument intended to include all men, but they did not mean to declare all men equal in all respects. They did not mean to say all men were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what they did consider all men created equal-equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.1 2 In these ways, then, Lincoln vindicated the prudence of the founding statesmen who were troubled by that institution of slavery which they considered to have been forced upon them by Great Britain. Does it not take a deep prudence to recognize and to appreciate prudence for what it is? But, someone might ask, what was there about Lincoln's policy, to say nothing of the policy of the Founding Fathers, which was truly prudent? That policy, it can be answered, was prudent in that it guided accommodations and

111. 2 Cou.EcTED WoRKS OF LncoLN, supra note 15, at 501 (a speech in Chicago, July 10, 1858); see also 3 id. at 300. 112. 2 id. at 501 (a speech at Springfield, June 26, 1857) (the emphasis is Lincoln's); see also 3 id. at 301. See, on prudence, supra note 79. 19891 SLAVER Y AND THE CONSTITUTION

national -actions generally, always keeping in view the political objective desired, the eventual elimination of slavery; and it did so in such a way as to ratify, and thereby continually encourage dedication to, property rights, constitutional government, and the moral standards of the country. That is, to pursue such an objective covertly (as, it can be granted, Douglas was perhaps doing) is to sacrifice something of what one may achieve, in that the objective itself may be lost sight of and, by some, even depreciated, along with the moral standards one should be guided by. So, it can be said, Lincoln stated here a deeply prudential policy-and he stated it in a sensible manner. Prudence applies also to the mode of saying things, not only to what is done and why. Among the considerations prudently taken into account in the Republican policy of the 1850s were both the "contract" entered into by the North and the disabilities labored under by the South. One's mode of explaining oneself can be vital in such matters. To speak prudently testifies to several facts-to the fact that language does matter, to the fact that judgment must be employed in dealing with the passions as well as with the reasoning of mankind, and to the fact that the sensibilities and aspirations of one's opponents are usually entitled to respect. Prudence testifies as well to the recognition that in public life a "universal feeling, whether well or ill founded, cannot be safely disregarded.""' This Lincoln observed in the first of the Debates (at Ottawa). And he further observed, on that occasion: "In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed."" ' 4 It is no accident then that rhetoric was traditionally recognized as essential to liberal education for public life. Lincoln's care in speech is reflected in the repeated complaint by Douglas that Lincoln was not a candid man. Thus Douglas could several times ask, as he did in the second of the Debates (at Freeport): "Why cannot he speak out and say what he is for and what he will do?""' 5 By the time of the sixth of the Debates (at

113. 3 id. at 15 (quoting from a speech at Peoria, Oct. 16, 1854); 2 id.at 256). Lincoln's recognition here is at the heart of the prudential policies he developed both as candidate and as President. 114. 3 id.at 27. 115. Id. at 66; see also id.at 66-67, 106-07, 215-16; cf. id.at 71, 179-80. TEXAS TECH LA W REVIEW [Vol. 20:677

Quincy), a frustrated Douglas could suggest that Lincoln had "a fertile genius in devising language to conceal his thoughts.", 6 The context of this suggestion is illuminating: it was in the course of Douglas's effort to get Lincoln to say whether he, if elected to the Senate, would admit to the Union as a new state any territory in which the people had voted to permit slavery. Lincoln had, in the course of the debates, replied in a most guarded manner to this question."' It was obvious that he and his most ardent supporters did not want to admit any new slave states-but simply to say so would have gratuitously offended both those who believed in playing by what they considered "the rules of the game" and those who very much wanted a continent-wide republic, on whatever terms. Douglas himself could also be politic, of course: he would not have prospered as long as he did in Illinois and national politics if he could not be careful. He had the problem in 1858 not only of retaining his Illinois seat in the Senate of the United States, but of doing so on terms which would not make it impossible for him to secure enough Southern votes to be elected President in 1860. He did succeed in returning to the Senate, of course, but in order to do so he had to take positions which widened the already considerable split between Northern and Southern Democrats, thereby permitting the Republican Party to secure the Presidency in 1861. Douglas was a man of great talent and, in the final analysis, a man with a genuine concern for the interests of his country. But it is sadly indicative of the remarkable limitations of this remarkable man that despite considerable contact with Lincoln during a quarter of a century, he never seemed to appreciate how much more thoughtful Lincoln could be than anyone else he knew. All that Douglas could see, in the thoughtfulness of Lincoln, were the elements of ambition and wiliness-both of which elements were there and in good measure. Did not Douglas, in noticing only what he did in Lincoln, reveal what mattered most to him, what he could notice? Are we not all tested by the responses we make, and fail to make, to manifestations around us of excellence?

V. Of course, the true greatness of Lincoln did not become fully manifest until he became President. Still, consider the sorts of

116. Id. at 261. 117. See, e.g., id. at 5, 32, 36, 40-42, 260-62, 288-89, 323-24. 19891 SLA VER Y AND THE CONSTITUTION things Douglas did hear from him, even during that late summer and early fall of 1858 in Illinois. Consider, for example, how Lincoln could (in the first of the Debates at Ottawa) accommodate himself to the considerable racial prejudice of his audience, thereby taking some of the sting out of the plausible insistence by Douglas that Lincoln really believed "that the negro was born his equal and yours, and that he was endowed with equality by the Almighty, and that no human law can deprive him of these rights which were guaranteed to him by the Supreme ruler of the Universe." "1' 8 Lincoln could accommodate himself to the racial prejudices of his audience even as he struck a blow for simple justice: [A]nything that argues me into [Judge Douglas's] idea of perfect social and political equality with the negro, is but a specious and fantastic arrangement of words, by which a man can prove a horse chestnut to be a chestnut horse. [laughter.] I will say here, while upon this subject, that I have no purpose directly or indirectly to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so. I have no purpose to introduce political and socidl equality between the white and the black races. There is a physical difference between the two, which in my judgment will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong, having the superior position. I have never said anything to the contrary, but I hold that notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. [Loud cheers.] I hold that he is as much entitled to these as the white man. I agree with Judge Douglas he is not my equal in many respects-certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without the leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man. [Great applause.]" 9 We should not be surprised, then, that Frederick Douglass, the former slave who was one of the most eloquent speakers of his

118. Id. at 10. 119. Id. at 16 (the emphasis is Lincoln's). 746 TEXAS TECH LAW REVIEW [Vol. 20:677 day, could later say of Lincoln: "He was the first great man in the United States with whom I talked freely ... who in no single instance reminded me of the difference between himself and myself, ' 120 of the difference of color." I continue with my inventory of the sorts of things Douglas did hear from Lincoln, in 1858, which should have helped him to take a sounder measure of the man than he evidently did. Among the things Douglas heard was something Lincoln quoted from an 1854 speech of his, an observation by Lincoln which commented upon Douglas's insistence that he would not express any preference about the status of slavery in any territory of the United States: This declared indifference, but as I must think, covert real zeal for the spread of slavery, I can not but hate. I hate it because of the monstrous injustice of slavery itself. I hate it because it deprives our republican example of its just influence in the world-enables the enemies of free institutions, with plausibility, to taunt us as hypocrites-causes the real friends of freedom to doubt our sincerity, and especially because it forces so many really good men amongst ourselves into an open war with the very fundamental principles of civil liberty-criticizing the Dec- laration of Independence, and insisting that there is no right 2 principle of action but self-interest.11 Consider also the Socratic touches in the following argument, an argument which draws upon the fact that the much-better-known Douglas had (at the beginning of the Joint Debates) tried to get into Lincoln's and the audience's good graces by calling Lincoln a "kind, amiable, intelligent gentleman": If, in arraying [certain] evidence, I had stated anything which was false or erroneous, it needed but that Judge Douglas should point it out, and I would have taken it back with all the kindness in the world. I do not deal in that way. If I have brought forward anything not a fact, if he will point it out, it will not even ruffle me to take it back. But if he will not point out anything erroneous in the evidence is it not rather for him to show, by a comparison of the evidence, that I have reasoned falsely, than to call the "kind, amiable, intelligent gentleman" a liar? [Cheers and laughter.] If I have reasoned to a false

120. Quoted by T. G. Hayden, Pmt.nps EXETER BuLLEaiN, Winter 1983, at 75. 121. 3 Cou.EcTED WoRKs OF LNcou4, supra note 15, at 14 (quoting from Lincoln's Peoria speech of Oct. 16, 1854 at 2 id. at 225). 19891 SLAVER Y AND THE CONSTITUTION

conclusion, it is the vocation of an able debater to show by argument that I have wandered to an erroneous conclusion. 22 Consider, as well, Lincoln's insistence in the final debate, before an audience at Alton which had Southern sympathies: ... You may turn over everything in the Democractic [Party] policy from beginning to end, whether in the shape it takes on the statute book, in the shape it takes in the Dred Scott decision, in the shape it takes in conversation or the shape it takes in short maxim-like arguments-it everywhere carefully excludes the idea that there is anything wrong in [slavery]. That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles-right and wrong-throughout the world. They are the two principles that have stood face to face from the beginning of time; and will ever continue to struggle. 23 Finally, in this inventory of the sorts of things Lincoln had said which should have helped Douglas assess Lincoln properly, there is the opening paragraphs of Lincoln's speech to the Repub- lican State Convention in Springfield, June 16, 1858, a speech in which Lincoln examined (among other things) the consequences of a national policy (pushed by Douglas) opening up all the territories to slavery. Lincoln had said: If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it. We are now far into the fifth year, since a policy was initiated with the avowed object, and confident promise, of putting an end to slavery agitation. Under the operation of that policy, that agitation has not only not ceased, but has constantly augmented. In my opinion, it will not cease, until a crisis shall have been reached and passed. "A house divided against itself cannot stand." I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved-I do not expect the house to fall-but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery, will arrest the further spread

122. 3 id. at 22-23; see also id. at 251-52. 123. Id. at 315. TEXAS TECH LAW REVIEW [Vol. 20:677

of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the 24 States, old as well as new-North as well as South. It is further indicative of the limitations of Douglas that he not only should not have appreciated the quality of this speech-a speech which anticipates (in these opening paragraphs) the political poet we see in the Gettysburg Address and in the Second Inaugural- but that he so misjudged it that he disdainfully quoted from these paragraphs in every one of the seven Debates with Lincoln in 1858. That is, he evidently believed that this remarkable statement exposed Lincoln as pretentious, reckless and hence vulnerable to refutation and ridicule. In this, perhaps, Douglas may have revealed one considerable risk that a lawyer can run, the risk of becoming so adroit a technician that he is unable to be a master craftsman. There can be too much of the opportunist in such a man. (This is evident in the arguments Douglas resorts to, for the first time, in his final speech of the last debate, when he knows Lincoln has no further reply available.) So much then, at least for the moment, for the judgment of Douglas-and for the judgment of men of influence, then as well as now, who cannot recognize excellence in their midst.

vi.

The judgment displayed by Lincoln with respect to both the formulation of policy and the use of rhetoric depended upon a sound understanding-that is, upon a proper education for political purposes. (Whether someone may have that judgment as a result either of nature or of inspiration alone, not as a result of education, is a question we can leave for another occasion, noticing as we have that there was about Lincoln something of the political poet.) A proper political education (under which is subsumed legal education) presupposes, among other things, that there are enduring standards by which one may be guided even as one is being "practical. " One consequence of a proper education is that the doings of the community (in the form, say, of legislative enactments, consti-

124. 2 id. at 461-62 (the emphases are Lincoln's). 1989i SLAVERY AND THE CONSTITUTION tutional declarations and judicial decisions) can be reliably assessed. These assessments by the educated man depend upon a natural- right teaching (or, if one prefers to consider these directives as critically influenced by revelation, a natural-law teaching). Indeed, one can say, the question of the status of natural right is today the key issue in legal education and in jurisprudence (at least in this 25 country). 1 Most legal scholars, I dare say, reject old-fashioned natural- right teachings "in theory," whatever they may do "in practice." This tends to lead, among their students if not among themselves, to either ruthlessness or sentimentality, sometimes even to both together. On the other hand, a moralistic approach which neglects prudence tends to encourage recklessness and hence its own kind of injustice (as in the case perhaps of many of the radical abolitionists in Lincoln's time). The principal alternative to a natural right-natural law approach is, especially among "practical" men who consider themselves "real- ists," something we now know as "positivism." For such men, the just and the unjust for a community depend, primarily, on what law-givers have ordained. In short, the just is the legal. This is substantially what Douglas stood for. It is appropriate that his last words in the memorable debates with Lincoln (during which debates he several times accused Lincoln of making war on the United States Supreme Court because of the Dred Scott decision)-Doug- las's very last words (at Alton, October 15, 1858) were: "The only remedy and safety is that we shall stand by the constitution as our fathers made it, obey the laws as they are passed, while they stand the proper test and sustain the decisions of the Supreme Court and the constituted authorities." 26 Of course, if one cannot properly look beyond the law in assessing the legal, there is the question of what it is that legislators, judges and constitution-founders can themselves look to in determining what the law should be. Related to this is the question of

125. See, e.g., id. at 255-56 (where Lincoln speaks of "the monstrous injustice of slavery itself."); see also 3 id. at 312-16. See Essay No. IV, Natural Right and the American Lawyer, ESSAY No. VI, Law and Morality, in ESSAYS, supra note 1; see also Anastaplo, Justice Brennan, Natural Right, and ConstitutionalInterpretation, 10 CARDozo L. REV. 201 (1988). 126. 3 CoLLEcTE WoRKs OF LiNcoLN, supra note 15, at 325; cf 2 id. at 400-03; see infra note 148. TEXAS TECH LAW REVIEW [Vol. 20:677 who the "constituted authorities" are, or should be, in various circumstances.

vii. It is well to be reminded here of the right of revolution, perhaps for our time the most critical self-evident truth in the Declaration of Independence. To insist upon the right of revolution is implicitly to insist upon standards and ends, grounded in nature, which take precedence over what happens to be regarded at any particular moment as the law of the land. For one to deny that there are such enduring standards is to condemn oneself to an ultimately empty existence guided all too often by little more than self-interest keyed to personal gratification. It is such a set of standards that one (almost instinctively?) resorts to in condemning both Hitler's Ger- many and Stalin's Russia. Lincoln, we have noticed, was obliged to make much of the Declaration of Independence. In this, too, there can be positivistic elements, unless one is careful to make more of the teachings of the instrument than of the fact that it embodies those teachings. That something more than even that instrument usually guided Lincoln is suggested by his reliance upon such teachers as the Bible, Shakespeare, and Euclid. He can be regarded as our best-educated President, as well as the finest lawyer who ever practiced in the State of Illinois. The positivist depends more on deeds than on words-more, that is, on what chances to have been done by and to the community than on the ideas by which deeds are guided and justified. It is difficult, with such an approach, to avoid reliance upon material self-interest. Consider, for example, how Douglas accounted for the absence of slavery in Illinois: "We in Illinois tried slavery when a territory, and found it was not good for us in this climate, and ' 1 with our surroundings, and hence we abolished it. 127 Douglas never referred in this context to such an influence as the Northwest Ordinance of 1787, which Lincoln even went so far as to see as an expression of Jefferson's interest in putting all American slavery in the course of ultimate extinction. Nor did Douglas ever say publicly

127. 3 id. at 274. 19891 SLAVER Y AND THE CONSTITUTION that freedom had been preferred to slavery in Illinois because it was simply better. It is difficult, if material self-esteem is made much of, to regard the law as more than a neutral umpire, regulating conflicts between individuals and thereby leaving them free to pursue their private interests as they happen .to please. (This does make for a certain efficiency in the use of material resources.) Such an approach (of regarding the law as an umpire) usually means, among other things, that morality cannot be legislated-and that even if it could be legislated, it should not be. This position, which too is critical to the opinions of most legal scholars today, may also be found in Douglas's arguments. The community, he believes, should not be telling citizens what is good and bad; certainly, he insists, the Government of the United States should not be doing this for the state governments. Douglas goes so far as to say that it would be despotic of the Government of the United States to force the states without their consent to give up slavery, including the right of slave-holders to take their slaves with them into the territories of the United States. Douglas could invoke the cause of liberty even as he justified allowing some people (that is, slave-holders) to impose upon other people (that is, men and women of African descent) a far more severe despotism than anything which threatened the would-be slave owner who should be kept from continuing to enjoy property in human beings. It is hard to believe that Douglas listened to what he himself was saying here. Of course, he evidently assumed that Africans simply did not "count" in any balancing of equities in this matter. This is consistent with his reading of the Declaration of Independ- ence, a reading which evidently regarded the Africans as not fully human. I notice in passing that his denunciation of the former slave Frederick Douglass, in the course of six of the seven Joint Debates with Lincoln, was a tacit acknowledgement that Africans were indeed capable of being regarded as human beings worthy of one's serious attention. Here, too, he did not really listen to what he was saying-and this can mean a kind of lying in the soul. On the other hand, Jefferson had, long before, recognized that the grievances that white Americans had had against the British government were modest compared to those suffered by their slaves. And so Lincoln could say in the fifth of the Debates (at Galesburg): TEXAS TECH LAW REVIEW [Vol. 20:677

And I will remind Judge Douglas and this audience, that while Mr. Jefferson was the owner of slaves, as undoubtedly he was, in speaking upon this very subject, he used the strong language that "he trembled for his country when he remembered that God was just;" and I will offer the highest premium in my power to Judge Douglas if he will show that he, in all his life, ever uttered a sentiment at all akin to that of Jefferson. 28 Consider, also, how Lincoln put this juxtaposition in his Second Inaugural Address (in 1865): Fondly do we hope-fervently do we pray-that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether." 2 9 This is a far cry, indeed, from what Douglas had considered "despotism." How far should one have gone-in the 1850s, say-in recognizing the rights due to the African slaves in this country? Suppose one went as far as Lincoln did, including as he did the Africans among "all men." Does it not follow, then, that the slaves themselves were entitled, in the words of the Declaration of Independ- ence, "to alter or abolish"-that is, to resist and replace-any form of government which denied them their "unalienable Rights" to "Life, Liberty, and the Pursuit of Happiness?" The answer to this question by a John Brown is clear: not only were the slaves entitled to revolt, but white sympathizers were entitled (if not even obliged) to help them do so. And so Brown led his dramatic raid upon Harper's Ferry. But this was not the kind of effort that a Lincoln could countenance. Indeed, it would have been political suicide for Lincoln to have acknowledged that rebellious slaves were merely attempting on that occasion to redeem the rights due them as human beings. Neither the sometimes virulent race prejudice of the day nor the desperate concern of Unionists for law and order would permit such an acknowledgement. Con- sider, in this connection, how even the statesmen today who are

128. Id. at 220; see also supra text accompanying notes 10 and 14. 129. 8 CouacTED WoRKs oF Lncou., supra note 15, at 333. 19891 SLAVER Y AND THE CONSTITUTION most deeply opposed to the Soviet Union and its tyranny must, in implementing that opposition, routinely take into account the prospect of a nuclear holocaust in the event of all-out war. We return to the question of the slaves' right of revolution in mid-nineteenth century America. Here, too, prudence was called for-not only in what could be said by a politician to a Northern constituency very much concerned about domestic tranquility, about property rights, and about respect for the Constitution, but also in what might well have been said by any citizen to rebellious slaves and their sympathizers (and especially to the abolitionists). Did not the best hope for the African slaves, once they found themselves permanently in the United States, lie in a gradual political resolution of the slavery issue, one that permitted both the slaves and their masters to prepare for general emancipation and eventual citizenship? (Individual slaves, who could make their way to freedom in the North or in Canada, were special cases-and it was truly in everyone's interest that efforts be made to keep out of the sight of any sworn officer of the law those slaves able to make a run for freedom.) The Republican policy, as Lincoln understood it, called for a determined national purpose, looking to the eventual extinction of slavery in this country-a purpose that should be firm and evident enough to induce even the Southern States to begin to plan sensibly for that eventuality. It was a policy guided by the moral and political principles enshrined in the Declaration of Independence-a policy that was intended to forestall the emergence several decades later of a regime much like that of South Africa today. For better and for worse, that is, a full recognition of the rights of the African slaves depended upon a healthy political community in the United States, a community which was both moral and secure. Douglas insisted upon the right of white Amer- icans to permanent safety; the abolitionists insisted upon the right of African slaves to immediate justice. It takes someone who understands the limits of law-whether the law be an act of Congress, a decree by a court, or a Consti- tutional provision-as well as the uses of law to deal sensibly with the perennial (and not unnatural) conflict between self-interest and altruism. The law, to be effective, must take due account of the prosaic as well as of the exalted conditions for morality and for the common good. TEXAS TECH LA W REVIEW [Vol. 20:677

3 ° VII. SECESSION AND THE RULE OF LAW I take the official oath [as President] to-day, with no mental reservations, and with no purpose to construe the Constitution or laws, by any hypercritical rules. And while I do not choose now to specify particular acts of Congress as proper to be enforced, I do suggest, that it will be much safer for all, both in official and private actions, to conform to, and abide by, all those acts which stand unrepealed, than to violate any of them, trusting to find impunity in having them held to be unconstitutional. 13 -Abraham Lincoln '

It is often said that Americans are ruled by a government of laws, not a government of men. Is this so? Can it be so? Or do men as well as laws have a vital part in the proper rule of a community? Certainly men do shape the laws which in turn shape the men who are to apply and, from time to time, change the laws. It is obvious that laws do not make, execute or repeal themselves. It can be useful in examining what the rule of law means among us to consider that American understanding of the rule of law to be gathered from two great crises in this country: the understanding manifested in the summer of 1787 at the Federal Convention in Philadelphia and the understanding manifested in the winter of 1860-1861 at the seat of government in Washington. The men at Philadelphia in 1787 could draw upon almost two centuries of North American experience with the rule of law: They and their fathers had long been ruled by law; the laws they lived by both were brought over from Great Britain and developed by themselves; but whether imported or homemade, the laws had had for the most part to be interpreted and applied by themselves. Delegates to the Federal Convention referred again and again in

130. This talk, originally entitled "The Rule of Law, Summer and Winter: 1787 and 1860- 1861," was given at the State University of New York, Oswego, New York, April 12, 1985. See supra Part III of this article. 131. 4 COLLECTED WORKS OF LNco., supra note 15, at 264. See, on the secession winter, JAFFA, Abraham Lincoln, in 3 ENCYCLOPEDa OF THE AmEsucAN CONSTrUTION 1163 (L. Levy, K. Karst and D. Mahoney eds. 1986). Does not this advice by Lincoln suggest how the Reagan Administration should have responded to the Boland Amendment? 19891 SLAVER Y AND THE CONSTITUTION

1787 to what had happened in one State or Colony at one time or another. Thus one could speak of a particular mode of selecting judges as having been "ratified by the experience of 140 years in Massachusetts."' The common law, which very much depended upon local judges for interpretation and application, was repeatedly referred to as something taken for granted.' The delegates' reliance upon parliamentary practices is evident from the very first day of the Convention; their remarkable familiarity with rules and protocol permitted them to make the most efficient use of their time and talents. Thus, the rule of law was very much deferred to throughout, the law of deliberative bodies, and this was obviously done in order to permit the best that these men had to offer to be brought to bear upon the issues both of the day and of the centuries to follow. Without the rule of law-without the discipline provided by rules of order and the like- these delegates simply could not have done what they did. But if they had not been, and been known to be, the kind of men they were, there would have been no Convention at all, certainly not a Convention of such a stature as would induce and oblige the country at large to take seriously whatever came out of it. ii. We turn now from the rule of law deferred to by the delegates in the Convention itself, and from the experience of generations of law-abidingness that had helped shape these delegates, to what they themselves had to say in the course of the Convention about the rule of law. It was taken for granted throughout the summer's proceedings that the rule of law would govern what citizens would do, whether citizens in private life or citizens in public office, including how the latter would be selected by, from, and on behalf of the former. The law of laws, it was also taken for granted, would be whatever constitution the delegates came up with, provided that it was duly (that is, lawfully) ratified by the people in an appropriate fashion. Although it seems to have been taken for granted that Amer- icans would be ruled by law that is, (that they would continue to

132. 2 Farrand, supra note 23, at 44. 133. See, e.g., id. at 89, 608 ("The law knows no fractions of days"). See, on the common law and the Constitution, Co maErARY, supra note 1, at Lectures No. 10 and No. 11. TEXAS TECH LAW REVIEW [Vol. 20:677 be ruled by law just as they had long been accustomed to be), there is surprisingly little extended discussion in the Convention records we have, of which James Madison's Notes are the most extensive, about the powers of the government the delegates were establishing. Much more time was allocated to determinations of who was to exercise the powers of government: how the various offices would be made up (for example, one man or three, for the Executive), how long various officers would serve, and how they would be selected. The records we do have of Convention proceedings are far from complete. One need only consider the variety of powers listed in section 8 of article I of the Constitution to recognize how limited even Madison's records are: there is very little discussion recorded anywhere about most of those powers. But suddenly, there they are in a draft of the Constitution. 314 Much of the detailed discussion of the powers of the Government may have been done in commit- tees, the deliberations of which do not appear in any of the records available to us. It was several times said in the course of discussions of how officers were to be selected that the Convention should first decide what the powers of the Government were.'35 Certain powers of officers were changed as changes were made in the mode of selection or in the terms of various offices. Thus the veto power of the President, as well as his liability to impeachment, changed when the mode of selecting the President changed in the course of the summer's deliberations. It was to the modes of selection that the delegates thought it appropriate to allocate most of their time, or so James Madison's Notes indicate. Hence, James Wilson (of Penn- sylvania) could observe late in the Convention that the mode of selecting the President had been "in truth the most difficult of all '1 3 6 on which [they had had] to decide. It seemed (so far as records of discussions are revealing) more important for the delegates to determine who and how the lawmak- ers would be than precisely what powers would be exercised by the new government. It may perhaps have been understood from the beginning of the Convention that the powers of the government,

134. See 2 Farrand, supra note 23, at 181-82. 135. See, e.g., 1 id. at 470; 2 id. at 25. 136. 2 id. at 501; see also infra the text accompanying note 149. 19891 SLAVERY AND THE CONSTITUTION unless explicitly curtailed, would be quite broad; this would have made it even more critical to be sure about who would exercise those powers. Indeed, there are indications of fairly broad powers having been contemplated from the outset. Even so, the provision and extent of the Congressional power over commerce, and whatever differences there may have been in the Convention about these matters, are not discussed at length in the records we happen to have. 117 It seems to me reasonable to suggest that it was assumed by the delegates who guided the deliberations of the Convention that the government being contemplated would be a national government with fairly broad powers over "War, Commerce, [and] Revenue."'3 Certainly the decisive commerce power could well have been considered extensive, as indicated by Madison's observation at the next- to-last session of the Convention that "he was more [and] more convinced that the regulation of Commerce was in its nature indi- visible and aught to be wholly under one authority."'3 9 On various occasions, reservations were expressed about putting shackles on the legislature; this led to, among other things, a refusal by the Convention to propose a Bill of Rights along with the Constitution. On other occasions, the British Constitution was held up as the best then available anywhere in the world. What made that constitution so admirable was not the powers that that government had, for its powers were those that governments usually have, but rather how those powers were allocated, how they were to be used, and perhaps how various offices were to be filled. in short, it was understood by the 1787 Convention that a national government with a genuine legislature was being established, not a league (or congress) of sovereign-seeming states. Leg- islatures as legislatures are generally (even naturally?) considered to have broad or even unlimited powers, subject to whatever restraints are placed upon them. Indeed, the Articles of Confederation, de-

137. See, on the limitations of the available records, W. CROSS.EY, PoLIMcs AND TH CONSn- TMrION (1953). See also Mr. Crosskey, supra note 1, at 181. It is said that a few members of the Federal Convention refused to sign the final draft of the Constitution because they believed too much power over commerce had been given to Congress. See S. LYND, CLASS CONFLICT, SLAVERY ATHE UNrrED STATES CoNsTTUoN 168 (1967). Does not this suggest the considerable extent of the commerce power? See CommENrARY, supra note 1, Lecture No. 5. 138. 2 Farrand, supra note 23, at 275. 139. Id. at 625; see also supra note 75. TEXAS TECH LAW REVIEW [Vol. 20:677 fining the relations of a permanent league of states, represented something of an aberration by limiting the national power otherwise taken for granted both in the Declaration of Independence and in nature. 140 This is not to deny that the states would continue to be vital in the new arrangement, but that is consistent with a broad national power. How that national power would be exercised (and how much would be left to the states to do) would depend upon everchanging conditions. Circumstances and interests would determine what laws would be made and who would be chosen for various offices. Thus, most of the discussion in the Convention was about the men who would fill the offices, how they would be selected, and how long they would serve.

iii.

The Constitution of 1787 does have a good deal to say about the selection of officers and about their terms. Where it does not spell out these matters, it at least indicates who should do so. It is often left to Congress to do this. For example, Congress can determine the date Congress itself is to meet or how many judges there will be or what officers the President or anyone else may appoint without Senate approval. It is taken for granted that the people will generally obey and be guided by the laws that are made, interpreted and executed by their governments. Now and then, the delegates remind themselves that is is useless, or worse than useless, to try to impose certain limitations, such as with respect to civil ex post facto laws upon legislatures. But by and large, it was expected that the people would respect the law, and so it became critical to be certain in designating those who would be responsible for laws. So respectful of law was this people that even the legitimacy of the Convention itself, as well as the mode of ratification of the proposed Constitution, could be called into question by some delegates. It was several times argued that what the Convention was proposing to do was itself unconstitutional or that it would take a

140. Is a national government implicit for Americans in the Declaration of Independence from the beginning, just as a chosen people is implicit in the Genesis account of God's creation from the beginning? See ComlNrARY, supra note 1, at 21-22. 19891 SLAVER Y AND THE CONSTITUTION unanimous agreement by the thirteen states to establish a new constitution, instead of the nine states provided for in the proposed constitution.' 4' These arguments were based upon respect for the Articles of Confederation, the then-governing constitution. Al- though these arguments could be met, it is significant that they could be made again and again. The fact that government under the Articles was considered to have virtually broken down did not mean that that law could be cavalierly swept aside. The need to satisfy the most reluctant members of the Con- vention even led on the last day to what Madison called an "am- biguous form" according to which the delegates signed, not as necessarily approving the Constitution, but rather as witnessing to the fact that the Constitution had been approved "by unanimous 42 consent of the States present" on the day of the signing. Thus, in various ways efforts were made to minister to and to take advantage of the inclination of the American people to respond to authoritative direction. It is this inclination that the rule of law depends upon.

iv. But, of course, the law which is to rule depends upon human beings for its establishment, interpretation, and application. It was always recognized by the delegates to the Convention that the people would be the final authority. 43 In a sense, therefore, all of the arrangements that were developed for selecting various officers were designed with a view to permitting the enduring interests and sentiments of the people to be ascertained-with a view, that is, to bringing out the best in the people. Now and then there were indications by delegates that if the people were to be as good as a people could be, or if the people were to be able to use the constitution being prepared for them, they would have to remain, or if need be become, a people of a certain quality. There was an awareness, that is, that certain kinds

141. See, e.g., 1 Farrand, supra note 23, at 336-38; 2 id. at 469; see also TiB FEDERAUST No. 38; Co TAerly, supra note 1, Lecture No. 16. 142. See 2 Farrand, supra note 23, at 643; see also Com ETARY, supra note 1, Lecture No. 16. 143. See, e.g., 2 Farrand, supra note 23, at 476. TEXAS TECH LAW REVIEW [Vol. 20:677 of citizens would be needed. After all, it was observed, they would 4 be ruled by men, not by a piece of paper. 4 It was all well and good to provide for the best possible mode of selection for each officer; it was also sensible to recognize that the mode of selection might favor one interest as against others. But whatever the merits and motivations for various modes of selection, it was understood that those doing the selecting would still be obliged to assess the quality of the men considered for selection. This meant, among other things, that critical traits were necessary both among the officers of government and among those selecting such officers. Or, as Oliver Ellsworth (of Connecticut) put it on one occasion, reliance must be placed upon "the wisdom of ' 1 4 the Legislature and the virtue of the Citizens. 1 Wisdom depends upon capacity, but a capacity which must be recognized and policed (or kept honest) by the people at large, who (naturally?) tend to be civic-minded. Little is said about provisions which might make citizens be of a desired character. Perhaps that is because it was taken for granted that the States, continuing to be primarily responsible both for education and for enforcement of the criminal law, would remain the principal governmental shapers of citizens. Even so, there were occasional concerns expressed about an impending deterioration in citizen virtue, especially when the patriotic impulses of the then-recent Revolution had been dissipated. Already it could be said, as did Pierce Butler (of South Carolina) early in the Convention, "We must follow the example of Solon who gave the Athenians not the best [Government] he could devise; but the best they [would) receive."' 46 No matter how much reliance there would be upon the rule of law, there had to be a concern both for the kind of men to be ruled and for the kind of men who would do the ruling.

V. We thus return to a different form of our question on this occasion by asking which comes first, law of a certain kind or

144. Id. at 289. 145. Id. at 126. 146. 1 id. at 125; see also id. at 401-02, 491. 19891 SLA VERY AND THE CONSTITUTION people of a caliber both to make and to respond to certain kinds of laws. The Federal Convention had a particular people in view, however that people had gotten to be the way it was. The Conven- tion had considerable leeway in providing laws, especially the Master Law (or Constitution), for this people. This was because of the exalted reputation of many members of the Convention. Madison could predict that although at first many people would accept the Constitution because of their esteem for the Convention delegates, yet finally all would judge the Convention itself by the Constitution 47 it produced. 1 However exalted the members of the Convention were in their time, they probably would not be remembered today as Convention delegates if the Constitution they offered the country had not been as successful as it has been. Although the already-famous Conven- tion delegates had considerable political credit to draw upon in 1787, that credit was not inexhaustible. Put another way, the willingness of the people to try, and to somehow make work, whatever this convention produced could have, in time, resulted in a markedly defective regime which did just barely work. Or, put still another way, there are limits to what the rule of law will do: the kind of men ruling and being ruled can eventually affect the kind of law relied upon. Reciprocity, then, is vital to the formula evident here: a reciprocity which depends upon shrewdness in the people, or at least in their leaders, but not a worldly shrewdness alone. Highminded- ness is also needed, but a highmindedness tempered in turn by an awareness of limitations in one's circumstances. The circumstances included, in the case of the Federal Convention, the long-established institution of slavery. That many things have to come together, and in the right way, to produce something remarkable should be obvious. Also obvious is why the most fortunate political foundings should naturally come to be regarded as providential.

Vi. Various features of American life then and since have tended to make the rule of law as vigorous and yet as sensible and as

147. See id. at 528. The Convention was, as Thomas Jefferson called it from afar, "an assembly of demi-gods." TEXAS TECH LAW REVIEW [Vol. 20:677 humane as it has generally tended to be among us. The deep-rooted dedication to equality has naturally elevated "the people," acting in its collective capacity, as the principal political authority. No one is entitled by birth or other such privilege to speak or to act for the community independent of the will of the people. Reinforcing this respect for rules by which all are bound is the recognition that no one can safely provide special privileges for himself, since there are no fixed classes, not even any region of the country where a family is sure to remain. It was several times pointed out in the Convention that one cannot know where one will some day be living, to say nothing of one's descendants. The consequences of equality may be seen as well in the general understanding that new states should be placed on the same footing as old (even original) states once they enter the Union. The inability to assure special advantages for oneself or for one's own may lend a certain dispassionate character to the rule of law. The desire for self-preservation can even lead in such circumstances to a highminded practicality. It was also recognized in the Convention that if an arrangement is not just, it cannot be expected to endure. (This may be related to the fact that an unjust arrangement is apt to affect and hence to alienate everybody at one time or another in an egalitarian community.) 48 Perhaps Americans sense as well that if the rule of law is respected, the "rules of the game" will be reliable enough to permit all to compete and the best to prevail, thereby securing for the community the most salutary effects of the exercise of liberty. Among the "rules of the game," it would seem, is the principle that bargains should be kept. That is why it was important to determine precisely how various things would be done under the Constitution, for this would determine which States (large or small, North or South) and which interests (old or new, agricultural or manufacturing) would have an advantage in shaping the government from time to time. And then there was the concern about permitting those who would choose to be able to do so in the most sensible way, something which could be seen in the respected debates on over precisely how the Executive should be selected. 49

148. See, for an indication that the legal should be the just, 2 id. at 268. See also supra text accompanying note 69. 149. See, e.g., 2 Farrand, supra note 23, at 29-30; see also supra text accompanying note 136. 1989] SLAVER Y AND THE CONSTITUTION

The rule of law means as well that those who rule, even those who make the laws, are likely to be restrained by their own regulations. This is reflected in what Vice-President Thomas Jeffer- son said about "The Importance of Adhering to Rules" in his preface to the Manual of Parliamentary Practice that he prepared in 1800 for the Senate of the United States: Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, "It was a maxim he had often heard when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of administration and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our an- cestors, operated as a check, and control, on the actions of the majority; and that they were, in many instances, a shelter and protection to the minority, against the attempts of power." So far the maxim is certainly true, and is founded in good sense, that as it is always in the power of the majority, by their numbers, to stop any improper measures proposed on the part of their opponents, the only weapons by which the minority can defend themselves against similar attempts from those in power, are the forms and rules of proceeding, which have been adopted as they were found necessary from time to time, and are become the law of the house; by a strict adherence to which, the weaker party can only be protected from those irregularities and abuses which these forms were intended to check, and which the wan- tonness of power is but too often apt to suggest to large and successful majorities. ... And whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body .... 150 The rule of law means, then, that there in fact is "a dignified public body," an association which has an integrity of its own and which will rarely presume to do openly what it cannot explain and

150. See CoNSTtro= NALJST, supra note 1, at 14-15 (citing THE CoMPLETm JEFFERSON 699-701 (S. Padover ed. 1943)). TEXAS TECH LA W REVIEW [Vol. 20:677 justify. It can be, thus, an association which is somehow better than the sum of all its parts.

vii. Underlying much of what I have said here is the assumption that there is a certain majesty to the law itself, so long as the law is not simply brutal or cynical. Whoever can plausibly speak in the name of the law does have a considerable advantage in addressing and guiding a law-abiding people. This is especially so when it is recognized that there are various defensible ways of doing things and that there is much to be said for the way that has somehow been settled upon for the time being in the name of the community. This too is what the rule of law means. We have seen what this meant in 1787, when the great constitutional bargain was made in behalf of the American people. We are now prepared to notice how that bargain was both abused and relied upon some seven decades later. The second great crisis we anticipated, that encountered in the winter of 1860-1861 in Washington, D.C., put to a severe test the proposition that constitutional bargains must be kept. It became evident then, and even more in the Civil War that followed, that it very much mattered how things were described and what the people had agreed to: all kinds of things, including one's allegiances, depended on that. The constitutional bargain was manifested in various rather mundane details, including an all-important detail, determined some time before by Congressional legislation which rested in turn upon a constitutional provision, the detail that the newly-elected President would not take office before March 4, 1861. The vital question became whether the General Government and the country could be held together long enough to permit the new President to take over something still viable when he did take office. The outgoing Pres- ident was weak and vacillating; the Secessionists were hard at work to wreck, or at least to disarm, the army, perhaps even to seize the City of Washington itself, and to win the critical Middle States to their cause before March 4th; the Republicans in Congress with the aid of other loyal Congressmen and of loyalists in the retiring Administration fought a rearguard action, trying to maintain the status quo. 1989] SLAVERY AND THE CONSTITUTION

Everyone knew that when the critical March 4th date came, but only then, there was likely to be a remarkable transformation in the Presidency: orders could then be given on behalf of the Union, and the law would be clearly on the side of the Unionists. In fact, hundreds of thousands of volunteers did leap to arms upon the President's call shortly after he entered upon his office. Both the efforts of the Secessionists to break up the Union before March 4th and the recognition by the Unionists of the limited means they had to stave them off testified to the importance of the rule of law, at least for the American people. Of course, it can be said, the Unionists should not have been so scrupulous in the methods used to counteract the Secessionist efforts; but to have met illegality with mere illegality would have been to surrender the great principle which President Lincoln was to insist upon with great effect throughout the war, the principle that the Unionists stood for the solemn constitutional bargain as made by the Founding Fathers. It was the necessity of standing by, and of seeming to stand by, that sometimes uncomfortable but still crucial bargain which obliged the President to head off premature efforts to emancipate the slaves held in the South. But that is another story. It suffices to say that the strongest Unionist appeal at the beginning of the war was and long continued to be to the rule of law: to the maintenance of the Constitution of 1787, which did include compromises with slavery interests. The willingness of Republicans to wait until March 4th, even if it meant subjecting the country to the most severe trials during the Great Secession Winter, confirmed and strengthened the Republican resolve to be bound by and hence to take advantage of the rule of law. We should be reminded once again of the workings here of that reciprocity to which I have already referred: if too much should be made of mere rules in adhering to the rule of law, a people is apt to lose sight of that at which law aims and by which law should be guided and in the light of which it should be changed and even, on rare occasion, set aside. The moral ascendancy that accompanies principled law-abidingness is reinforced by the recognition that the right of revolution is available when law degenerates into tyranny. Technicalities can be useful, and in any event they are unavoidable in any established system of law. But if too much is made of technicalities, prudence is apt to be neglected and the law will tend TEXAS TECH LAW REVIEW [Vol. 20:677 to become an empty form by which no sensible man will long want to be ruled.

VIII. NEITHER BLACK NOR WHITE: THE NEGRO IN AMERICA' 51 All the people that came out of Egypt that were males, even all the men of war, died in the wilderness by the way, after they came out of Egypt. 51 2 -Moses

A few weeks ago, while buses, trains, and automobiles were converging on Washington with men and women who would be marching the following day for civil rights, I happened to be riding a train from the East Coast to Chicago. The principal topic of conversation among the coach passengers revolved around what immediately concerned them, the nationwide railroad strike expected the following morning. Many of my fellow-passengers wondered whether they would be able to continue after midnight to their destinations. We had been reading about the rail dispute for months. But I had not appreciated the one-sidedness of the presentation in the press until a few of us began to discuss the issues with a trainman in a lounge. What he had to say made it evident that the popular issue of "feather-bedding" was not as simple as we had been led to believe. We were reminded, for instance, of the general insecurity of the worker in the face of industrial changes and of the peculiar attitude of both love and suspicion, if not even hate, that railroad families hold toward "the Company."

151. This talk, delivered October 1, 1963, at Rosary College for Women, was a contribution to a conference on the relation of political theory to practice. The conference was dedicated to the memory of Jason M. Aronson, 1929-1961, a fellow-teacher of mine for several years in the Basic Program of Liberal Education for Adults, The University of Chicago. This talk was one of the seventeen "Lectures on Constitutional Government" appended to my doctoral dissertation, Notes on the First Amendment to the Constitution of the United States 753-70 (University of Chicago 1964). The notes below come for the most part from the Dissertation version of the talk. Much of what is said in the notes is as "dated," but instructively so, as are the observations and argument in the text. Citations to and quotations from a few recent publications bearing on the matters discussed here have been added. A few bracketed explanations have been added as well in these notes. 152. Joshua 5:4; see supra text accompanying note 44. 19891 SLAVER Y AND THE CONSTITUTION

We were thus reminded that there is something about the press account of any controversy, particularly an account prepared for a large audience, that may require a simplification that can not only ignore many facts but may even distort the rights and wrongs of a situation. Even when it does not mislead the reader to this extent, it can so poorly equip him to counter what there is plausible to the other side as to weaken his critical judgment. We must, that is, insist upon seeing problems not simply from the perspective of partisans.

ii.

We have heard much in recent months about American race relations, particularly in the South. The accounts I have read, in Northern newspapers and even more (this summer of 1963) in European papers, have brought to the attention of the world the struggles of the American Negro. The accounts we have heard would make one suspect that the activities of American whites, particularly those in the South, have been almost willfully evil. This is far too easy an explanation. Those of you who know the South-who know it as white people-know it as, in some ways, the most humane part of the country: the tempo of life, the traditions of family and hospitality that have survived, and the stability of the people conspire to make a community possible. One can find graciousness, fellowship, and even a meaning to life that are lost in the more feverish, mobile, commercial regions of the country.'5 3 Indeed, there is here something of America as she once was: we can even be reminded of the gentlemen who made the Revolution and the Constitution. When the Southerner resists, in the name of "States' Rights," the intervention of federal power, he rallies to a cause that is old and honored. To a significant extent the cause of American liberty is linked to that of States' Rights. To the extent that the cause is

153. There shines through Harper Lee's sensitive novel, To Kill a Mockingbird (1960)-if only between the lines of her account of the treatment of the Negro by the white community-a way of life that has many attractive features. I am reminded of the Southern Illinois small town in which I was fortunate enough to grow up. See, e.g., G. ANASTAPLO, Law, Lawyers, and Property: The Open Society and its Limitations, in ORDER, FREEDOM, AND THE PoITY: CRITICAL ESSAYS ON THE OPEN SociaTy 35, 43-44, 47-48 (G. Carey ed. (1986)); cf Still Wrong, supra note 70, at 567- 78, 579-80. TEXAS TECH LA W REVIEW [Vol. 20:677 completely identified with that of segregation, to that extent are American institutions undermined. This identification is not arbi- trary, however: for almost a century after the establishment of the United States, the identification was plausible enough. It remains to be seen what the nullification of the rights and powers of states with respect to race relations by the thirteenth, fourteenth, and fifteenth amendments does to the states as the somehow "sovereign" bodies they were once thought to be. There cannot be much serious doubt that these amendments were intended to restrict state power with respect to race relations. In fact, the national government is given even more power here than it has ever exercised. For example, Congress is empowered by the fourteenth amendment to cut down the representation of a state in Congress to the extent to which that state improperly denies the vote to Negroes and others. Whatever plausibility the "separate but equal" approach may once have had-in education, transportation, or any other public services provided or regulated by the state-it has long been evident that segregation has in fact meant both the relegation of the Negro to a markedly deprived share of the community's resources and the denial to him of "the equal protection of the law." Perhaps this is inevitable in any community which is characterized as much as ours is by the influence of popular opinion upon government decisions. So long as whites have been able to rule without having to take heed of Negro voters, they have tended to neglect or even to be unaware of the interests of their Negro constituents and to favor instead ("naturally" enough) their voting constituents-especially so in those sectors of the country where poverty is critical and where it makes all the difference in the world 51 4 who gets what from government. The attractive features of Southern life-features which are likely to disappear before the march of "progress"' 5 -are easy to

154. Here in Illinois [in 19631 our largest contingent of nonvoting and hence much-neglected adult citizens may consist of the inmates of our mental institutions. One can imagine what the effect would be if our State legislators were obliged to spend even a small fraction of the time in our mental institutions that they spend on the state's highways. They would soon discover, for instance, that the gasoline tax is but another source of revenue, not something that has to be allocated to automotive purposes alone. Arguments would not be wanting to justify diversion of funds from highway uses, such as the observation that the automobile has so disrupted our way of life that the problems that arise (in education and mental health) are partly the responsibility of motorists. 155. An important but generally overlooked book on this subject is by J. RANsoM, I'LL TAKE 1989] SLAVERY AND THE CONSTITUTION lose sight of. The Southern Negro helps block the view. The attempt by the Southern white to put the Negro back into his place-for the public expression by the Negro of egalitarian sentiments means that he is no longer "in his place"-this attempt by the white man has helped obscure the merits of a way of life that had already suffered the repudiation that comes from the modern reliance upon industrialization. The attempt by the white man has not been conducted with the dignity and generosity of which the South is capable. In fact, one is tempted to suspect that the Southern virtues have been taken over by the Southern Negro-the men, women, and children who have met violence with self-restraint, insult with principle. The day that kindergarten children dare to walk through vicious mobs an irreversible revolution began. Whatever the shortcomings of the Negro community-and to these I must turn directly-they are outweighed in these circumstances by the noteworthy dignity and courage that have been nourished in their children. The day that kindergarten children have to walk through ugly mobs the Southern gentleman admitted he had lost his ascendancy. Not that the better element of the community makes up such mobs: but the better element, the men who know and feel better, seem to have surrendered their control. At the moment of crisis they may have no power to stop mobs and popular passion-but they have had the power for years to foresee and forestall the coming of such moments, and for their refusal to act, by word and deed, they are culpable. No doubt careers would have been jeopardized and family standing may have been undermined: but this kind of consideration makes too much of self-preservation. The alternative has been, as we have seen and as they should have foreseen, a slower and more disreputable form of suicide. Had the better element stood firm, they might have had a chance. Not much time remains for them to recover what has been lost. What has been lost-what is being lost-is something that the country as a whole cannot afford to lose. In addition, one important condition for American liberty is being repudiated, the institution of local self-government. The problem has been posed in these terms by a Negro author: "It frightens

MY STAND: THE Soumr AND THE AGRARLN TRADITION (1930). See supra note 16 and accompanying text; see also G. GRANT, TECHNOLOGY AND EMpImE: PERSPECTIWES ON NORTH AMERICA (1969). TEXAS TECH LA W REVIEW [Vol. 20:677 me that a big government must pass laws so that a Negro can get into a hamburger stand. It gives the government such strong control. And when the government must control everything, then tyranny takes over."'15 6 But, this author was moved to declare, if that is the only way Negroes can secure their civil rights, then that is the way it will have to be.

Ill.

The thoughtful Southern white man should be able to take some comfort from the observation that the best of the Southern tradition-such as the display of dignity and even gallantry in the face of severe trials-is reflected in, and even preserved by, the handfuls of Negro children who brave the mobs. But this should not make us lose sight of certain disabilities that Negroes will labor under for generations to come, especially in urban settings. One must have reservations about various aspects of their style of life, their language, and their notions about what is better and worse. We should recognize the validity there may be in such sentiments as those found in a letter to a Chicago newspaper published this last weekend: "As a white Southern parent, I merely endeavor to keep our children from associating with persons who are lacking in social morals, manners, and acceptable behavior in 1 7 public, and I will continue doing so.'

156. Louis E. Lomax, Chicago Tribune, June 27, 1963. 157. Chicago Tribune, Sept. 28, 1963, at 14. That this comment by "a white Southern parent" should not be simply dismissed as "racist" is suggested by the following even more vigorous denunciation of unacceptable behavior, a quarter of a century later, by someone who identifies himself in this letter to the editor as "a concerned brother who 'is' Black and proud:" Brother, sister, are we still losing? In the '70s, we raised our fist in protest to have equal rights, decent housing, be treated human and to show we were Black and proud. In the '80s, I sometimes wonder if we take the time to understand what Black and proud really meant. When I see young men and women standing on the comer "holding up a light post or a building," talking loud but drawing "no" crowd, throwing trash and bottles in the street to watch the sparkle of broken glass and broken dreams, having to use a curse word for every other word in a conversation (even though the conversation is about nothing) and playing "follow the leader" behind someone who has to beg just to follow, I begin to ask what they are proud of? Black and proud loses its honor and charm when the only reality behind it is loud, drunken, doped, sloppy-dressed dreamers without a bed to dream in. The so-called "Next Generation" became the present generation so fast that we neither had the time nor patience to school them about "how" to live or "why." They feel they know it all 19891 SLA VERY AND THE CONSTITUTION

No doubt there is something to the rejoinder that the Negro is the way he is because of the way he has been treated by the white man. The reputed sexual mores of the Negro community, which are reflected in the incidence of teenage pregnancies and illegitimate births, can be seen as the only way left for asserting one's adulthood, especially among a people whose men have had to depend so much on their women for financial support.' Crime and delinquency are no doubt in large part the result of poverty, a correlation familiar among other peoples. Language is to a large extent the product of education-and, in the case of the Negro, a system of education which must often seem not only inadequate but, even when adequate, a delusion, in that no appropriate employment seems to follow from it. It is in the language, as the white man can know it from casual contact and from novels written by Negroes, that one senses the quality of the barracks, and it often has the underlying innocence of such rough conversation. I suggest that this language reflects the status of the Negro: he must often feel that he mans a military outpost under siege, perhaps even in enemy territory.

because that is all they know. The terrible part is that they are completely satisfied with what they have or what they get. Young girls have "younger" girls and the young boys who are now "fathers" are hardly able to spell the word. When they become older in years, their minds don't keep up and the quest for youth goes backwards. So instead of strong healthy responsible men and women, we have weak-minded shells of adulthood being led by a child's mind. Buildings will crumble and unless the Black and proud mental, physical and psycho- logical realism is restored in our youth, they will also crumble. Now is the only time you have, later does not exist. If the road they are traveling is not changed now, later "they" won't exist either. This is a letter from a concerned brother who "is" Black and proud. Again I say brother, sister, are we still losing? If so, how do we win? Chicago Defender, Sept. 19, 1987, at 15 (under the title, "Racial Progress?"); see also infra the text accompanying note 168. Consider as well this recent report, "A black publisher said Wednesday that 'a tragically large number' of black males are dealing drugs and causing 'havor in their communities.' . . . There are more black men in prison than there are in college today, [he] said. 'We must shudder at this knowledge.' 'A tragically large number are essentially doing nothing,' he said. 'They are not in school. They are not working. They are not looking for work. They, are at best, living lives of quiet desperation. At worst, they are smoking or selling crack, . . . stealing and mugging, . . . creating havor in their communities.' " Chicago Sun-Times, May 11, 1989, at 37. 158. Another form of questionable self-assertion may be seen in the vigorous and sometimes even Machiavellian contests among academic folk, especially when spirited men try to find in faculty combat a substitute for political and military service. Thus, disabilities and compensations vary from community to community. TEXAS TECH LA W REVIEW [Vol. 20:677

To some extent, the Negro remains the prisoner of a Southern myth, that of the love between master and slave, between superior and inferior. One can read in even the most extreme statements of the Negro position-such as those found in James Baldwin's books- this overwhelming emphasis upon the role of love and, of course, hate. With this obsession with love-of which it should be said that it is most meaningful when it is not the most important thing in life-there is seen a tendency to obliterate all distinctions: black and white, male and female, perhaps even right and wrong. This obliteration of distinctions is reflected, I believe, in the occasional Negro complaint that the North is as bad as the South. I myself find this hard to believe, having lived for fifteen years only a few blocks from the 63rd Street stop of the Illinois Central, the "freedom train" from the South. But there is a sense, I suppose, in which this complaint is sound: one finds in the North an adherence to forms which are hypocritically accepted; the Southern white man is more open in his attitude about the Negro, and his legal forms do not attempt to disguise this. But Northern hypocrisy is not without its advantages: the Northern white man must go through the motions, and from "the motions" can emerge not love but justice. The Negro should become less concerned about what the white man thinks about him or whether the white man "really cares" for him-and much more about what the white man does to him. Only then will he be liberated from the dependence upon the white man that has helped to make him what he is.

iv. We, of the North, have advantages from which certain civic duties flow. We are, as Southern whites claim, ignorant of the problems of race relations, at least ignorant of what they know from long and intimate experience with Negroes-but that also means that we are to some degree untainted by what Southern whites have all too often done to Negroes and thereby to themselves. We are, as Negroes (North and South) insist, unable to appreciate fully the Negro's problem: we cannot get inside his skin; we ac- quiesce in many ways, perhaps even profit from, the system as it now exists-but that means, also, that we have not been crippled as generations of Negroes have been by abuse and bitter frustration. That is to say, we of the North still are more of a free people who possess an ability to form calm judgments and to act upon them. 19891 SLAVERY AND THE CONSTITUTION

One can, at any particular moment, appreciate the basis of discrimination against the Negro. To discriminate is, in a sense, to make judgments: we can praise a man "of a nice discrimination." It is certainly understandable that the Negro, fresh from slavery if not from the influences of primitive Africa, should have been consigned upon emancipation to an inferior position in the American community. Even today, much can be found to explain such a status: after all, the struggle against segregation and its institutions rests in part on the calculation that the Negro is being deprived by the present arrangements. We recognize that the Negro today is inferior in many respects-and we assume that our institutions contribute to this, which is one very good reason for changing those institutions. The problem is that of striking a balanee between the rate at which that inferiority can be eliminated and the bad effects that the integration of inferior elements into the life of a community can have. This problem was faced, for instance, in the development of immigration laws in the 1920s. It is unfortunate that Southern statesmen did not address themselves honestly to this problem when they could still control the initiative to guide a gradual transition. The forfeiture of their right to control is reflected in the necessity and extent of current federal intervention in their affairs. But one unintended effect of their policy has been to share their problem with the country as a whole-and something can be said for that.

V. What is to be done? Permit me to sketch a few practical suggestions which you will want to test against the principles I have drawn upon. We must, first of all, insist upon both the validity and good sense of the law as it now stands, as it- has been interpreted by the United States Supreme Court. This requires, in effect, the support of the Court in the face of the abuse and skepticism that it is now encountering. We should recognize that morality can be "legislated" and that it is important, therefore, what government does and is supported in doing. One has only to consider the effects during the last decade of the 1954 decision of the Supreme Court in the school-segregation cases. Many citizens who had been neutral theretofore, or even hostile to the cause of the Negro, have had their opinions changed- TEXAS TECH LA W REVIEW [Vol. 20:677

and, even more important, the Negroes' supporters have had the incalculable advantage of invoking "the law of the land." The culmination of this development, which has seen the armed forces used to implement the law of the land, has been reached in the President's speech of June l1th, for the first time unequivocally dedicating a national administration to an integrated community. A Negro on the Supreme Court, which we will surely see within the next decade, will serve as a symbolic representation of this dedication. Some will say that it has not been the law-not the word, but the deed-that has been decisive so far, and they will point to the demonstrations and sit-ins and even street battles as really responsible for developments favorable to the Negro. But, it seems to me, all these manifestations would have been crushed but for the fact that public opinion, North and South, has been affected in a critical respect by a recognition of what the law, the best thought of the community, has declared. The public as public, takes its lead on issues of right and wrong from such declarations. The politician who ignores this fact, and tries to take advantage of the prejudice that no doubt remains, will make temporary gains at the expense of the long-run integrity of his party. It is also said that integration thus far, especially in the South, has been merely token. But, in these matters, tokens are important. Those who bitterly resist token integration appreciate the significance of such first steps, especially when the opinions and experiences of children brought together in such circumstances are thus affected. That is to say, those who want to see the right thing done should not disparage the first steps; they should not depreciate the significance of words and hence the role of the law. There is also the need to indicate to the Southern Negro that there are an appreciable number of white men who are sympathetic to his cause. This, it seems, was one important effect of the visit to Birmingham last spring of a contingent of Jewish rabbis during the demonstrations there. Such indications cannot but encourage also the minority of Southern whites who have fought the good fight and the large majority who would go along with them if they could be assured of the respectability of such a position. Shining through all that is said and done must be our idea of what decent men will stand for and what they find intolerable. We are reminded again of the spectacle of kindergarten children braving mobs. 19891 SLA VER Y AND THE CONSTITUTION

But what, someone might well ask, can we do here in the North? One thing we do, and have done for some time, is to provide a refuge for both Negroes and whites who can no longer endure what is happening in their native states. To some extent, the disabilities of the Negro in our large cities come not simply from the fact of race but from the fact of poverty and from the nature of urban life itself. But one critical disability keyed to racial distinctions comes from the difficulty experienced by the Negro who is able and willing to move out of slum areas and out of crowded quarters. To this concentration of Negroes into one area can be traced many of the deprivations of which the Northern Negro complains. Public housing construction seems to be only a makeshift solution, at least in this country-and sometimes even makes matters worse. What is needed is an arrangement that exposes the poor "immigrant," white and Negro alike, who is often still very much under the influence of a rural way of life, to the manner in which longtime urban dwellers must conduct their affairs. 15 9 Most Negroes will, for a long time, want to live in solidly Negro communities. But should not those who want to live elsewhere-perhaps near their work, or in more expensive neighborhoods, or in choice school districts, or closer to certain white friends, or away from the worst trials of urban life-should not they be permitted to do so? If all neighborhoods are at once opened up, with proper enforcement of zoning and housing-inspection laws, there is less likely to be the deterioration that follows as an over- crowded and poorly educated people flows into newly-opened blocks adjacent to their section of the city. 160 Most important, as an

159. Public housing subsidy vouchers, which would permit individual families to afford housing in established neighborhoods, with a limit of two or three such families to a block, should be experimented with on a grand scale. Public housing [it was already evident in 1963] runs the risk of developing a permanent depressed class, made up of people who are exposed only to people like themselves and hence know no other way of life. 160. I had occasion, in a letter to the University of Chicago Maroon, January 18, 1962, to touch upon this problem in a comment upon the protests of students upon learning that Negro quotas had been utilized in University-owned rental property in the University community (Hyde Park): Would not the cause of racial integration in the United States be nobly served by establishing around the University of Chicago a stable integrated community? And, considering the marked tendency generally in this city toward segregated communities (either Negro or white), must not special efforts be made to preserve Hyde Park as both TEXAS TECH LA W REVIEW [Vol. 20:677 assurance to a people of a decent status in the community, is the understanding that a family can move into neighborhoods appropriate to its income and tastes. But it is to education that we must look for decisive changes. I find much of merit in neighborhood schools. I would be reluctant, for instance, to send my children many miles from home each day in order to find for them a better grade school, unless the nearby schools were simply worthless. Children need easy access not only to their schools but also to the homes of their schoolmates. But should not the better students in the largely Negro schools be permitted to move into those white schools which, for a number of reasons, are much better? As for the largely Negro schools that we will have for some time, considering the residential patterns of the city, the obvious need there is for a greater share, per capita, of the resources available for education. 16 Indeed, Negroes should be given more education than many of them, perhaps most of them, think they want or can use. The Negro's opinion about what is useful for him depends in part on the job opportunities he believes to be available. The measures that have to be taken, with unions and employers, should become evident for any community intent upon doing justice. Some preferences in government employment, at least for several decades, seem to be called for.

vi. The college student also wonders what she can do. Often, out of a sense of adventure and justice, she is tempted to act where she is least qualified to know what really needs to be done. But the

Negro and white? If the answers to these questions should be in the affirmative, the University's housing policy may not be as absurd, shocking or immoral as some students have made it out to be. This is not to suggest that the administration is best able to explain and defend its policy. Nor do I suggest that the University's policy should not be carefully examined periodically to reassure us that its objective remains just and its means decent. See, on prudence, supra note 79. 161. This will mean an increase in the total resources devoted to education, since the entire community will be crippled if our most talented students are given anything but the best. See, on the proper use of resources available for education in this country, Anastaplo, The Babylonian Captivity of the Chicago Public School System, CmCAGO PuciuiALS REPORTER, Spring 1975, at 7; Anastaplo, The Religion Clauses of the First Amendment, 11 IME. ST. U.L. REV. 151 (1981). 19891 SLAVER Y AND THE CONSTITUTION college student as college student, presumably knows the importance and conditions of education. I submit this proposal for your consideration as college women. Can you not arrange among yourselves to "adopt" the deprived Negro high schools in this country? Thus, for example, Rosary College could take responsibility for the Negro high schools in a designated Alabama county. For every one hundred students at Rosary, there would be one high school girl from that county brought here on a full tuition and maintenance scholarship. Ar- rangements could be made with the appropriate high school to take the highest-ranking graduating youngster willing to come-and the usual bureaucratic restrictions (including test scores) could be waived or at least moderated for this purpose. This is something students can do, either within one college alone or in cooperation with other colleges. The college itself could help by cutting assessments, wherever feasible, and instituting special probation and serious remedial programs for such students. The cost to each participating student would be an increase of no more than one percent of what it now costs her to go to school. In fact, white high schools in some regions of the country could be included in this program. It does the Southern white youngster good to go to school where Negroes are seen as freely accepted. Of course, some of the youngsters involved, Negro and white, would never return to live in the South. But the more young people that are trained in this way, the greater the proportion that will return home-and, in the meantime, their families and communities will be affected and encouraged by the interest and efforts of Northern white college students. I should like to emphasize student initiative for such a project. I believe it is so simple that it can be made to work. If it should work well at one school, it would be readily imitated at others. It has the advantage of permitting you, as concerned citizens, to make a contribution to the solution of a national problem, but in such a way as to make it least likely that you will be either diverted from your own work or thrust into situations that you are likely to be ignorant about. Such an approach, providing a channel for the flow of the generosity and energy of which youth is capable, could help build during the next generation an effective community among the sensitive and intelligent youngsters of the nation and thereby help them rise above the experiences and limitations of their elders. TEXAS TECH LAW REVIEW [Vol. 20:677

The Negroes' role will be to take advantage of such opportunities as are made available to them. But there is reason to believe that they, too, want the best for their children and recognize the decisive role education plays in this country. Indeed, the Negro is, among us, the most open to "the Amer- ican way." That is both a defect and an advantage. He has no significant heritage from another land upon which he can rely- and to that extent he is poorer. But, on the other hand, he can take more seriously than many others the most elevating expressions of the American heritage, such as those found in the Declaration of Independence and the Gettysburg Address-and this heritage has been reflected in the noble rhetoric of some Negro spokesmen. It is the lack of a significant ethnic heritage, other than that of slavery, that has contributed to the subjugation and desperation of many Negroes. This desperation comes in part from that lack of self-respect which can follow from a pervasive second-class status. It is this lack of self-respect that the Black Muslims are concerned with. I am inclined to see that movement as .bringing more good than bad. Not only has it frightened some whites into recognizing the plight of Negroes, but the very program of the Black Muslims has much to commend it: an emphasis is placed upon clean living, financial responsibility, self-discipline, and, consequently, self-respect. If the Black Muslims succeed in that part of their program, I for one am willing to take my chances with the rest of it. For the rest of their program will then constitute a threat to constitutional government in this country only if opportunities in the 62 community at large remain closed to the trained Negro.1 Those of us who are privileged to do so should bear witness, for the benefit of those whites still moved by a fear bred in ignorance, to the possibility of a decent coexistence among the races. I realize there have been special conditions for integration in

162. I take for my text here the sentiments expressed by President Lincoln in a letter to General Joseph Hooker upon placing him at the head of the Army of the Potomac: I have heard, in such a way as to believe it, of your recently saying that both the Army and the Government needed a Dictator. Of course it was not for this, but in spite of it, that I have given you the command. Only those generals who gain successes, can set up dictators. What I now ask of you is military success, and I will risk the dictatorship. 6 COLLECTED WoRKs OF LNcoLN, supra note 15, at 78-79. See, on developments since 1963 in the Black Muslim movement, Merv Block Elijah Muhammad-Black Paradox, Chicago Sun-Times, Mar. 26, 1972, § 2, at 3 (Associated Press Newsfeatures). 19891 SLAVER Y AND THE CONSTITUTION

Chicago's Hyde Park-but the experience there has been significant and should not be depreciated. The vitality which is evident even to the casual pedestrian in the Negro areas of a city suggests the contribution the Negro can make to American society if he is only permitted to do so. I say "permitted," for Negroes remain a minority and could be effectively denied their rightful place among us if the community at large is willing to repudiate its principles. The threat one sometimes hears of a resort to organized violence on the part of deprived Negroes overlooks their considerable vulnerability. But I say "permitted" for still another reason: after all his "rights" are won by the Negro, he will still need the goodwill and the generosity of the white man to make up for lost time. vii. I have put this problem in terms appropriate for a Northern white audience, especially one made up of female students who will be returning to live and raise their families in the suburbs from which they have come. You will be in the enviable position of having the opportunity to do the most good with the least risk to yourselves. In order to know what the good is, you have to examine the issues and the underlying principles that must be invoked. It is these that I have attempted to suggest. These are matters to be discussed now, while we still have time to make choices among genuine alternatives. By adequately discussing them in advance, we will be better able to judge wisely and to act properly as unpredictable crises erupt. We should not be surprised, for instance, if matters seem to get worse after they have begun to get better. An adequate discussion includes the necessity of facing up, with a clear head and a good heart, to what can be said on all sides of this controversy. Thus, how you judge and act will depend on what you know and the kind of people you are. This in turn depends upon something even more critical than the problem of the Negro in America, and that is what can be known and done about that critical concern of political philosophy, the proper relation of 163 the citizen to the human being.

163. See Essay No. II, Human Being and Citizen: A Beginning to the Study of Plato's Apology TEXAS TECH LA W REVIEW [Vol. 20:677

IX. DEMOCRACY AND RACIAL DIVERSITY' 64 ...Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama today [1963] all types of conniving methods are used to prevent Negroes from becoming registered voters and there are some counties without a single Negro registered to vote despite the fact that the Negro constitutes the majority of the population. 165 -Martin Luther King, Jr. An American sociologist teaching in Canada has written what must be one of the most challenging books available today on African politics. He draws, for what can be applied to this subject in 1977, upon Abraham Lincoln's thought more than a century ago which in turn was grounded in the Declaration of Independence. Perhaps decisive to what is happening, and to what is likely to happen, in Africa is that African statesmen have nothing comparable to the Declaration of Independence to rely upon. Howard Brotz's small book, a distillation of almost twenty years of intensive study of the Republic of South Africa, should be on every desk in the United Nations General Assembly. It helps readers, as few contemporary studies do, to recognize the critical issues of race relations and constitutional government today-and thereupon to begin to think sensibly about such issues around the world. We are reminded by Professor Brotz that self-government and majority rule are merely means (albeit very attractive means today) toward the achievement of such enduring goals as good government,

of Socrates, in EssAys, supra note 1, at 8-29. I observed in the opening note of my Constitutionalist: The tension evident in this study may be inevitable for anyone who tries to "live with" both the Apology of Socrates and the Declaration of Independence-for anyone, that is, who finds himself drawn to two public declarations which are, despite their superficial compatibility, radically divergent in their presuppositions and implications. Thus, an attempt is made herein to see American constitutional law and political thought from the perspective of our ancient teachers. CoNsTrrrtroNAUSr, supra note 1, at 420 n.l; see also supra note 21. 164. This book review originally appeared, in an edited form, in the Chicago Sun-Times, Book Week, Aug. 14, 1977, and thereafter in the University of Chicago Maroon, Apr. 11, 1978. The book reviewed is H. BRoTz, Tms PoLmcs OF SoTrrH AFRICA: DEMoCRAcY AND RAciAL DwERSmIY (1977). 165. Martin Luther King, Jr., Letter from Birmingham City Jail (April 1963); see Anastaplo, Martin Luther King and the Soul of America, in The Public Interest in Privacy: On Becoming and Being Human, 26 DE PAuL L. REv. 767, 802 n.51 (1977). 1989l SLA VERY AND THE CONSTITUTION justice, and an assurance of civilized endeavor. The stories we hear about the deliberate use of torture in South Africa, as well as about the official obsession there with Communism, suggest how vulnerable the white minority must feel. This sense of vulnerability helps account for the questionable, and probably self-defeating, racial policies being pursued by the government which has been in power since 1948. An observation by a South African Zulu Chief (Albert John Luthuli), upon receiving the Nobel Peace Prize in 1961, suggests how decent men can respond to the current South African regime: "To remain neutral in a situation where the laws of the land virtually criticized God for having created men of colour was the sort of thing I could not, as a Christian, tolerate." This leader, who had been thoroughly silenced in South Africa, was anticipated in the spirit of his remarks, by the warning against slavery by an inspired Quaker abolitionist (John Woolman) in 1762: "Forced subjection, on innocent persons of full age, is inconsistent with right reason: on one side, the human mind is not naturally fortified with that firmness in wisdom and goodness necessary to an independent ruler; on the other side, to be subject to the uncontrollable will of a man liable to err, is most painful and afflicting to a conscientious creature." Even so, South Africa is not merely a tyranny imposed by a minority of European colonialists upon an indigenous native population. The standards of living, for whites and nonwhites alike, are higher than elsewhere on the continent (with that of the whites markedly higher, of course). Mr. Brotz's instructive tables indicate, among other things, what has been happening to wage-rates and to the entry by nonwhites into various occupations still nominally closed to them. Is it not significant that hundreds of thousands of people from neighboring countries continue to find South Africa attractive enough to work in? Until the whites (who are [in 1977] one-fifth of a total population of twenty millions) become fully desperate, South Africa will probably continue to exhibit a higher level of civil liberties, of the rule of law, and of physical safety (for even its nonwhite peoples) than do most of the countries that routinely condemn her in the United Nations. Thus, there has been in South Africa in recent decades nothing comparable to the intertribal massacres of tens, if not hundreds, of thousands in other African states, to say nothing TEXAS TECH LA W REVIEW [Vol. 20:677 of the slaughter of millions we have heard about in Cambodia, in China and (earlier) in Russia. The overriding concern of the Afrikaans-speaking white minority seems to be for their survival as a yolk. They have been there three hundred years; they believe themselves to have occupied an empty land; they do not consider themselves to have anyplace else to go. Besides, they believe their persistence, talents, and sacrifices to be largely responsible, second only to God's Providence, for the remarkable progress of their country. This is, they insist, their land. And yet they are morally troubled, as well as otherwise insecure. All this raises the enduring question, first addressed systemat- ically by Aristotle, Who is properly a citizen of a regime? The dominant South African whites do not really face up to this old question. Of course, they rule out mere majority-rule as suicidal doctrinairism, considering too many of the nonwhites to be still in a primitive condition. But they also rule out franchise-qualification by property, by education, or by some other form of merit: they are fearful that any "concession" will put them on the "slippery slope" to uninhibited (and hence anarchic) majority rule. They seem to rely ultimately upon a "principle," mere force in the service of self-righteousness, which can someday be ruthlessly turned back against the whites by the nonwhites they are thus "educating." Only (and all) white adults are eligible for full citizenship and the franchise: nonwhites are assigned what must seem to most of them fictitious tribal and other nonurban "permanent residences." Mr. Brotz, as a scholar who is aware of the limitations of worried white opinion in that beleaguered country, does not advo- cate immediate extension of the franchise to many, if any, of the nonwhites. But he does insist, and in this he echoes a South African chief justice (Henry Allan Fagan) writing in 1948, that genuine consultations with nonwhites should be engaged in by the ruling whites. Such consultations decades ago might well have moderated the deep resentments found in South Africa today, especially among the young. Have things gone too far for anyone to be able to make good use now [in 1977] of what might have been salutary a generation ago? We all know what it means to miss one's chance, to say too late what should have been said at the appropriate time. Mr. Brotz himself points up the importance of chance in political affairs when he shows that the now seemingly inevitable and often callous apart- 1989] SLAVER Y AND THE CONSTITUTION heid (or separateness) policy need never have been resorted to in 1948. Calculated sobriety might then have saved the day and the country if certain key men had been younger or bolder. It is evident from the Brotz book how uninformed, and hence irresponsible, international agitation (sometimes known as "world opinion") about South Africa can be. Certainly, those abroad who are now putting pressure upon South African whites to surrender their virtual monopoly of political power will not be able (or inclined?) to protect those whites if the racial and tribal passions evident in much of the rest of Africa should sweep down to the Cape. This is not to say, however, that the ruling whites have used prudently the time they have had to prepare nonwhites for a competent and good-natured sharing of power. But these rulers are not the first to fail to take advantage of temporary opportunities- as can be seen by reflecting upon the sometimes arrogant conduct of the English-speaking in Quebec before the current troubles began in 1970 and of the Greek-speaking in Cyprus before the disastrous Turkish occupation began in 1974. What should South African whites have done in the face of what they considered a comprehensive threat to their hard-won progress? What, if anything, can they do, now that the urbanization of millions of nonwhites must be acknowledged to be irreversible? It would be presumptuous to prescribe particular measures from a distance. But one cannot help noticing, upon studying the accounts of both friends and adversaries of the South African regime, the absence there of an equitable spirit in "negotiations" by whites with nonwhites in settling upon a race-relations policy. Such a spirit is evident in what Abraham said to Lot when strife was threatened between them, "Is not the whole land before thee? Separate thyself, I pray thee, from me: if thou wilt take the left hand, then I will go to the right: or if thou depart to the right hand, then I will go to the left." A peaceful settlement, for which sacrifices in standard of living and in self-esteem might have had to have been made by the whites, was not attempted in South Africa. Is it sensible to attempt it now that nonwhite opinion has been inflamed by a quarter-century of daily suppression, intermittent strife, and world-wide agitation? One is reminded of an observation by Lincoln Steffens, commenting upon the failures of the peace conferences after the First World War: "We do not want war; nobody in the world wants war; but TEXAS TECH LA W REVIEW [Vol. 20:677 some of us do want the things we can't have without war.' 1 66

CONCLUSION The situation today with respect to American race relations seems to me far better than the situation addressed in the 1963 talk set forth in Part VIII of this article. To refuse to acknowledge such improvement may be in effect to deny that there are standards by which better and worse may be determined. One's temperament can make considerable difference in how one approaches "the impossible." Thus, I had occasion last year to say, in the course of an interview which found me quite critical of what passes for education these days: I tend to be of a hopeful temperament. I always figure that there are ways to solve even seemingly impossible problems. I remember, for example, sitting on a front porch of the home of some people I was visiting in the South when I was in the Air Corps in the Second World War, how shocked I was to see the blatant segregation in the South, how insuperable that problem seemed. I thought then that segregation would never disappear in my lifetime. But much has happened since then that could 67 not have been predicted then. One consequence of the much healthier state of affairs in race relations in this country is to make more apparent the problems and obligations that the entire community faces because of the longstanding separateness which has shaped racial or ethnic groups in distinctive ways. Once we are brought together more, the worst 6 as well as the best of others must be confronted.

166. See, on South Africa, CoNsrrrnmoNALsIr, supra note 1, at 644, 736, 740; supra text accompanying note 96. Discussions of other countries can also be illuminating here. See, on Canada, Essay No. XI, Canada and Quebec Separatism, in EssAYs, supra note 1, at 139-50. See, on Greece, Essay No. I, Dissent in Athens: An Invocation of First Principles, in EssAys, supra note 1, at 3- 7; ARTLsT, supra note 1, at Appendix G. See, on Israel, Essay No. XIII, The Case for Supporting Israel, in EssAs, supra note 1, at 155-59. See, on the Soviet Union, CoNsrrrtrnoNALIsr, supra note 1,at 552, 557, 565, 626, 742; EssAys, supra note 1, at 226 n.4. I return to these discussions in my forthcoming volume, The American Moralist: Informed Opinions on Law, Ethics and Government (to be published by Swallow Press/Ohio University Press, Athens, Ohio). 167. An Interview with George Anastaplo: Education, Television, and Political Discourse in America, THE CENTER MAGAZINE, July/August 1986, at 20, 26. See, for an extended argument for the abolition of television in this country, ANASrAPLo, Self-Government and the Mass Media: A Practical Man's Guide, in THE MAss MEDIA AND MoDERN DEMOCRACy 161 (H. Clor ed. 1974). See also Collins, TV Subverts the First Amendment, New York Times, Sept. 19, 1987, at 31. 168. See supra note 157; cf. supra note 88. 19891 SLA VERY AND THE CONSTITUTION

I, for one, do not find myself as disturbed as many of my friends obviously are by any recourse to "reverse discrimination" as part of a program to integrate long-deprived groups into the community. "Affirmative action" does not seem to be as fiercely resisted, but I am not as certain as some are that it is in principle distinguishable from "reverse discrimination." The supposed constitutional barriers to preferential treatment of deprived groups should be reexamined. Such barriers seem to me far less troublesome than many seem to believe. It is prudent, in any event, to insist upon the proposition that the remedial efforts to be considered by us should be at least as much for the benefit of the community at large as for the benefit of any deprived group. We need to decide, in approaching these matters today, what the best attainable result would be, and what the best things to do would be to achieve that result, putting aside questions of constitutionality. Of course, constitutionality concerns may well reflect moral judgments drawing upon a general sense of fairness-and one would not want that disregarded in determining either "the best attainable result" or the appropriate means toward that end. Experimentation is called for, as well as a willingness to assess experiments honestly and to modify or abandon them as experience dictates and circumstances change. One thing which appears at this time to stand in the way of imaginative remedial efforts by the community is the spirit of selfishness, if not even mean-spiritedness, which has become fash- ionable in high circles. For that, too, there should be a sensible remedy. Or as Gouverneur Morris put it in the Federal Convention of 1787, "A change of men is ever followed by a change of measures." 169

169. 2 Farrand, supra note 23, at 112. See, for a partisan account of the meanspiritedness abroad in the land, T. O'NEaL, MAN OF TmE House: The LIwE AND PUBuc MEMOIRS OF SPEAKER Tip O'NEIL (1987) (with William Novak). See, on affirmative action, AB.RmA, I ENCYCLOPEDIA OF THE AMBmucAN CoNsTrrmoN 33 (L. Levy, K. Karst, and D. Mahoney eds. 1986); R. Rossum, REVERSE DISCRIlNATION: THE CONSTrTuONAL DEaATE (1980). See also N. AMAKER, CrviL R HTS AND THE REAGAN ADMINISMhATON (1988); Mansfield, The Underhandednessof Affirmative Action, National Review, May 4, 1984, at 26; Davidson & Watkins, Quotas in Hiring are Anathema to President Despite Minority Gains, Wall Street J.,Oct. 24, 1985, at 1; Beer, Real-Life Costs of Affirmative Action, Wall Street J., Aug. 7, 1986, at 18; Petersilia, Blacks in Prison: It's Not Racism, Chicago Tribune, July 6, 1987, at 13; The NAACP's New Course, Wall Street J., July 9, 1987, at 28; McQueen, Dream Deferred: Despite Their Wider Influence, Black Leaders Find Goals 786 TEXAS TECH LAW REVIEW [Vol. 20:677

for Black Poor Elusive, Wall Street J.,July 30, 1987, at 44; Jaschik, College Outlook Grim for Blacks 25 Years After Barriers Fell, Chron. of Higher Ed., Sept. 2, 1987, at A88; Suro, Pope John Paul Assails Economic Plight of Blacks in U.S., N. Y. Times, Sept. 17, 1987, at 1. Compare The New Whiz Kids: Why Asian Americans are doing so well, and what it costs them, Time, Aug. 31, 1987, at 42. Consider as well, the seven items listed by the Chicago Defender in its "Defender Platform Since 1905:" 1. American race prejudice must be destroyed. 2. Racially unrestricted membership in all unions. 3. Equal employment opportunities on all jobs public and private. 4. True representation in all United States police forces. 5. Complete cessation of all school segregation. 6. Establishment of open occupancy in all American housing. 7. Federal intervention to protect civil rights in all instances where civil rights compliance at the state level breaks down. Chicago Defender, Sept. 19, 1987, at 15. I touch upon affirmative action concerns in this article in, among other places, Part III, Section i; Part VI, Section vi; and Part VIII, Sections iv-vi. See also Still Wrong, supra note 70, at 627; G. ANAnSra'I, Allan Bloom and Race Relations in the United States, in EssAYS ON Tim CLOSING OF Tim AmgIucA MinD (R.L. Stone ed. 1989); Essay No. XV., Race, Law, and Civilization, in EssAys, supra note 1, at 175-99.