Getting the Civil War Right and Wrong, A Reply to Jeff Schweitzer

By Alexander Marriott

As we approach the sesquicentennials of the Battle of Antietam (17 September), Lincoln’s provisional emancipation proclamation (22 September), and the Emancipation Proclamation (1 January), people are taking time to consider what the American Civil War was all about, it’s outcome and immediate (unfulfilled) legacy, and the continuing relevance it has in American life and politics today. One such person, scientist and former White House advisor to Bill Clinton, Jeff Schweitzer, recently penned a short essay for the Huffington Post entitled “Slavery and the Civil War: Not What You Think.” In the essay, Schweitzer (without one quote or appeal to supporting primary source evidence) tells us that “what we are all taught in school,” that “slavery was of course the central point of contention” is not accurate and is, at best, fundamentally misleading. While slavery was, indeed, a prime example of what motivated Southern anger and morally destroyed any and all sympathy one could reasonably have for the Confederacy then and now, it was not, argues Schweitzer, “the issue...per se.”

Then what was the war all about? “The war was fought over state’s rights and the limits of federal power in a union of states,” says Schweitzer, “The perceived threat to state autonomy became an existential one through the specific dispute over slavery.” Of course, historians and Americans hear this argument all the time—it is neither new nor original. What makes this particular appeal odd is that we usually hear this argument in a delimited and obvious number of places. First, many of the Confederate leaders—Jefferson Davis for instance—downplayed slavery as only a point of conflict in a larger more principled disagreement: “The right solemnly proclaimed at the birth of the States, and which has been affirmed and reaffirmed in the bills of rights of States subsequently admitted into the Union of 1789, undeniably recognize in the people the power to resume the authority delegated for the purposes of government. Thus the sovereign States here represented proceeded to form this Confederacy, and it is by abuse of language that their act has been denominated a revolution. They formed a new alliance, but within each State its government has remained, the rights of person and property have not been disturbed. The agent through whom they communicated with foreign nations is changed, but this does not necessarily interrupt their international relations.”[1] You would almost think there was no slavery.

Why did they do this if they were not sincerely correct (as most credible historians, myself included, maintain)? The first and most obvious reason had to do with foreign relations. The Confederacy’s surest path to independence was recognition and assistance from Great Britain—something that would have been quite out of the question had the chief public claim to the world for why the Confederates should prevail been the exaltation of human slavery. This is one of the reasons why historians focus so much on the contemporaneously embarrassing and revealing extemporaneous speech delivered by the Confederacy’s Vice President, Alexander H. Stephens of Georgia in Savannah on 21 March 1861. At the end of explaining all the ways in which the new Confederate Constitution had allegedly remedied the errors of the Constitution of 1787 they had so recently abandoned, Stephens ended his elaboration in a remarkable indictment of Thomas Jefferson and full-throated defense of the Confederacy’s truly great innovation (it is a long speech, this is a long excerpt, but every utterance of it is absolutely essential):

But not to be tedious in enumerating the numerous changes for the better, allow me to allude to one other though last, not least. The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the "rock upon which the old Union would split." He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the "storm came and the wind blew."

Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner- stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.

This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. This truth has been slow in the process of its development, like all other truths in the various departments of science. It has been so even amongst us. Many who hear me, perhaps, can recollect well, that this truth was not generally admitted, even within their day. The errors of the past generation still clung to many as late as twenty years ago. Those at the North, who still cling to these errors, with a zeal above knowledge, we justly denominate fanatics. All fanaticism springs from an aberration of the mind from a defect in reasoning. It is a species of insanity. One of the most striking characteristics of insanity, in many instances, is forming correct conclusions from fancied or erroneous premises; so with the anti-slavery fanatics. Their conclusions are right if their premises were. They assume that the negro is equal, and hence conclude that he is entitled to equal privileges and rights with the white man. If their premises were correct, their conclusions would be logical and just but their premise being wrong, their whole argument fails. I recollect once of having heard a gentleman from one of the northern States, of great power and ability, announce in the House of Representatives, with imposing effect, that we of the South would be compelled, ultimately, to yield upon this subject of slavery, that it was as impossible to war successfully against a principle in politics, as it was in physics or mechanics. That the principle would ultimately prevail. That we, in maintaining slavery as it exists with us, were warring against a principle, a principle founded in nature, the principle of the equality of men. The reply I made to him was, that upon his own grounds, we should, ultimately, succeed, and that he and his associates, in this crusade against our institutions, would ultimately fail. The truth announced, that it was as impossible to war successfully against a principle in politics as it was in physics and mechanics, I admitted; but told him that it was he, and those acting with him, who were warring against a principle. They were attempting to make things equal which the Creator had made unequal.

In the conflict thus far, success has been on our side, complete throughout the length and breadth of the Confederate States. It is upon this, as I have stated, our social fabric is firmly planted; and I cannot permit myself to doubt the ultimate success of a full recognition of this principle throughout the civilized and enlightened world.

As I have stated, the truth of this principle may be slow in development, as all truths are and ever have been, in the various branches of science. It was so with the principles announced by Galileo it was so with Adam Smith and his principles of political economy. It was so with Harvey, and his theory of the circulation of the blood. It is stated that not a single one of the medical profession, living at the time of the announcement of the truths made by him, admitted them. Now, they are universally acknowledged. May we not, therefore, look with confidence to the ultimate universal acknowledgment of the truths upon which our system rests? It is the first government ever instituted upon the principles in strict conformity to nature, and the ordination of Providence, in furnishing the materials of human society. Many governments have been founded upon the principle of the subordination and serfdom of certain classes of the same race; such were and are in violation of the laws of nature. Our system commits no such violation of nature's laws. With us, all of the white race, however high or low, rich or poor, are equal in the eye of the law. Not so with the negro. Subordination is his place. He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system. The architect, in the construction of buildings, lays the foundation with the proper material-the granite; then comes the brick or the marble. The substratum of our society is made of the material fitted by nature for it, and by experience we know that it is best, not only for the superior, but for the inferior race, that it should be so. It is, indeed, in conformity with the ordinance of the Creator. It is not for us to inquire into the wisdom of His ordinances, or to question them. For His own purposes, He has made one race to differ from another, as He has made "one star to differ from another star in glory."

The great objects of humanity are best attained when there is conformity to His laws and decrees, in the formation of governments as well as in all things else. Our confederacy is founded upon principles in strict conformity with these laws. This stone which was rejected by the first builders "is become the chief of the corner" the real "corner-stone" in our new edifice.

I have been asked, what of the future? It has been apprehended by some that we would have arrayed against us the civilized world. I care not who or how many they may be against us, when we stand upon the eternal principles of truth, if we are true to ourselves and the principles for which we contend, we are obliged to, and must triumph.[2]

Stephens’s elaborate and euphoric exaltation of the new era his government heralded was a public relations nightmare internationally. Great Britain, the world’s leading power and arch-foe of international slavery could hardly make any moves against Lincoln on behalf of a power that purported to be ushering in a new millennium of chattel slavery.

Of course, after the war was over and lost, Confederates for the most part began to clean up their historical legacies. Stephens went so far as to claim that his famous speech was not actually his at all. Jefferson Davis, till the end, pretended the whole effort had a larger more grandiose purpose and sympathetic historians have, ever since, taken him at his word.

The next group, outside of bona fide Confederates, one usually sees this argument from are late 19^th century reconciliation historians whose ideas—Civil War a tragedy with heroes on both sides, Reconstruction a horrible social experiment that did not end soon enough—lingered well into the 20^th century (they are still with us in a marginalized, angry, and perniciously belligerent form). Why such people would endorse the notion that slavery was not the actual motivator behind the Confederacy and the Civil War is rather obvious given the aftermath of the war. While the North remained surprisingly committed to policing the South with an occupying army and guaranteeing the citizenship and voting rights of the freedmen, that effort eventually collapsed and white Northerners were all too willing to quickly slide back into a racially indifferent hands-off policy toward the Southern States—all of which were quickly “redeemed” by former Confederates completely uninterested in the civil rights of their poor black neighbors. Since whites nationally where not sufficiently outraged by this development to exercise federal power to do anything to stop it, the temptation to reconcile with Southern whites and share a common heritage that downplayed the festering problem of Black civil rights proved too good to resist. Slavery moved to the background—the war, indeed, was fought over States’ rights (right to do what precisely was left to the murky libraries that professional historians were content to ignore for decades).

The only people today that one usually sees this argument from are modern Southerners who, contrary to Schweitzer’s claim, are not taught the notion in schools that the war was all about slavery. One also sees it in “Politically Incorrect” histories published by hack historians looking to cash in on prejudice rather than scholarship and facts. It’s odd to see a modern Democrat on the Huffington Post repeating these tired lines from those whose motivations are typically soaked or tinged in racial animus.

I do not believe Jeff Schweitzer is a dupe or a racist. Instead, I think his essay has a very obvious contemporary political purpose that is revealed quite plainly to anyone familiar with the primary sources surrounding the Confederate theory of the Union and Constitution, as well as the intellectual justifications for nullification and secession. According to Schweitzer (and this is rather original, though it has been repeated by many on the Left, like Chris Matthews and Michael Lind), what was actually motivating the South was not some long gone moral crime like chattel slavery but something eerily familiar: “Specifically, eleven southern states seceded from the Union in protest against federal legislation that limited the expansion of slavery claiming that such legislation violated the tenth amendment, which they argued trumped the Supremacy Clause. The war was indeed about protecting the institution of slavery, but only as a specific case of a state’s right to declare a federal law null and void.” Now here is a claim that, surprise!, links a modern political agenda—the affinity of modern Conservatives, from Clarence Thomas to Ronald Reagan, for the tenth amendment as a tool to put the breaks on the federal government—to a cause that “was unjust, ... unseemly,” and “treasonous.”

But, since Schweitzer provides absolutely no evidence for this claim, what—if any—evidence is there that the Confederates believed the tenth amendment trumped the Constitution’s supremacy clause and allowed them to secede, and that this is why the war came? According to Schweitzer, the war could just as easily resulted from the Federal government passing a law to do anything that Southern states decided was beyond the pale (in the case of the war, of course, they seceded largely before Lincoln was even inaugurated into office, the rest after he called for volunteers after Sumter). This is a very large claim. Now, I, of course, believe that it is quite plain, historically, that the doctrines of secession and nullification were inventions of political expediency, first to try to scare off interference with slavery within the Union and finally as a way of getting out of the Union “legally.” That is, without a war that Southerners had known for nearly a century would destroy slavery entirely. I have covered this development broadly in a post entitled “The History of Nullification: Origins, Context, and Dangers (Part One)” and which will be completed shortly in a concluding essay.

As Mr. Schweitzer has provided no evidence to substantiate his claims, he is somewhat at my mercy, so I will be brief. First, let us consider the South Carolina declaration of why they were seceding. There is one, non-specified mention of the tenth amendment but that was not the linchpin of the South Carolinian argument. In fact, mention of the tenth amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) was quite unessential for Confederates. They grounded their theory of secession on the nature of the Union as a compact between co-equal states. Much of the South Carolinian declaration thus hinged on the notion that if any of the parties violated the compact—in this case, Northern States hampering enforcement of the constitutionally legitimate Fugitive Slave law of 1850—the offended parties were free to exit: “We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assumed the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted the open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.”[3] Yet, Schweitzer claims that us reading these documents is simply tunnel vision: “We understandably focus on this specific while ignoring the broader issue in contest. But a subset of a set is not the set. An example of an issue in not the issue. Slavery was a specific issue of a perceived violation of a state’s rights, over which the country went to war. Claiming the Civil War was about slavery alone is like saying that the recent revolution in Egypt was about unseating Mubarek and nothing else.”

I will come back to this central claim about slavery in relation to the constitutional arguments that Confederates came up with to try to save it within the system and then from war outside the system in a moment. First let’s take a look at another state’s formal declaration of what it was doing and why: Mississippi. “Our position,” said the seceding delegates, “is thoroughly identified with the institution of slavery—the greatest material interest of the world.” Here there is not one iota of tenth amendment talk—the entire salvo is slavery top to bottom. Mississippi purported to leave the Union as a harried fox pursued by ruthless dogs: “Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England.”[4]

So, slavery was merely a “specific issue”? Did those in the North reject the tenth amendment or believe that the Constitution’s supremacy clause was in conflict with it? If we take Lincoln’s first inaugural address as evidence, that seems entirely unlikely: “One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended. This is the only substantial dispute. The fugitive slave clause of the Constitution, and the law for the suppression of the foreign slave trade, are each as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This, I think, cannot be perfectly cured; and it would be worse in both cases after the separation of the sections, than before.”[5] The only substantial dispute. Either Schweitzer believes Lincoln improperly diagnosed the problems of the Union—his perspicacity is one of the things for which he was and is most famous—or decided to gloss over the “real” issue at stake in the most important speech he had ever given in his life up to that point.

The constitutional filibustering of the Confederates, before and after the war, as well as their historical apologists, should not blind us to the plain truth that slavery—and its feared death through restriction to the States where it already existed, perpetually under real and moral assaults from the North—was what agitated Calhoun, Toombs, Stephens, Davis, Ruffin, Hammond, and all the rest of the intellectual leaders of the Old South. The Constitution first served Calhoun as an aegis through which he might carve out a space for slavery’s perpetual protection. In the decade after Calhoun’s death, most of his legatees gradually abandoned that notion and instead embraced an alleged Constitutional corollary of nullification that would allow them to legally break up the government while—hopefully—avoiding a war that was sure to destroy slavery. It was a long shot, but after Lincoln’s election provided evidence that the South could be forever dominated by a more dynamic, wealthier, and more populous North whose inhabitants had no interest in the peculiar institutions of the South, many Southern leaders felt it was a gamble they could no longer afford to ignore. And the war came. But the issue was—and always was, from Missouri, through the Nullification fight, and the crisis of 1850—slavery, slavery, and slavery. The rest was nefarious and obscuring subterfuge, and still is to this day.

---

[1] Speech in Montgomery, Alabama (Inaugural Address as Provisional President), 18 February 1861, Jefferson Davis: The Essential Writings, ed. William J. Cooper, Jr. (New York: Modern Library, 2004), 199.

[2] Alexander Stephens, “Corner-Stone” Speech, Savannah, Georgia, 21 March 1861, American Speeches: Political Oratory from the Revolution to the Civil War (New York: Library of America, 2006), 721-724.

[3] South Carolina Declaration of the Causes of Secession, Charleston, 24 December 1860, The Civil War: The First Year Told By Those Who Lived It, eds. Brooks D. Simpson, Stephen W. Sears, and Aaron Sheehan-Dean (New York: Library of America, 2011), 153-154.

[4] Mississippi Declaration of the Causes of Secession, Jackson, 9 January 1861, The Civil War: The First Year, 183-185.

[5] Abraham Lincoln: First Inaugural Address, Washington D.C., 4 March 1861, The Civil War: The First Year, 216.

History Guys

Check out the radio show I am doing with Daniel Roberts (M.A. History) loosely known as the History Guys. We chat mostly about History and Politics/Current Events, but we have call-in guests, humor, book recommendations, etc. We have a new show every Sunday at 5 PM Eastern / 2 PM Pacific -- beginning on September 1 we are switching to Saturday at 5 PM Eastern / 2 PM Pacific. Join us with questions on Facebook (History Guys with Alex and Dan) or Twitter (@AVM_Historian & @thelostclam) & on the show's blogtalkradio page. You can also listen live and ask questions and make comments in a live chat room. We welcome all input and interactions.

This Sunday we will be discussing Niall Ferguson's recent Newsweek op-ed about President Obama and the broader role Historians play in society and politics. We are also devoting the lionshare of our time to discussing the continuing legacy of the American Civil War.

http://www.blogtalkradio.com/history-guys

Historical Apples and Oranges Served Over Vacuous Argumentum ad Misericordiam

Historical Apples and Oranges Served Over Vacuous Argumentum ad Misericordiam

Now that presumptive Republican Presidential nominee Mitt Romney has named his choice for the Vice-Presidential nomination—seven-term Wisconsin Congressman Paul Ryan—the long knives are out all across the punditry class, competing to see who first pierces the armor of the shiny new knight entering the lists. Some of these efforts are extremely silly. Take, for example, Katrina Vanden Heuvel’s Washington Post op-ed from August 14, where she condemns the “audacity” of announcing Ryan “on a ship named for the birthplace of progressivism, to Aaron Copland’s ‘Fanfare for the Common Man.’” Of course, the battleship USS Wisconsin was apropos for Congressman Ryan because he is from Wisconsin (duh) and the Republican Party was founded there well before the intellectual poison known as Progressivism sprung from the land of badgers. As for Aaron Copland’s ‘Fanfare for the Common Man,’ since when has that piece of now classic American music from, perhaps, America’s greatest composer been owned by one group of partisans? Only Democrats can play it and appreciate it? Balderdash! Talk about small ball. Vanden Heuval has always been petty, but this is sad even by her sorry standards (which are few and far between).

But then there is Amy Davidson’s attempt in The New Yorker to make an odd historical comparison between the circumstances of a young Al Smith when his father died and the young Paul Ryan, similarly circumstanced, nearly a century later. The comparison, one is led to believe, illustrates how far the country has come because Al Smith had to drop out of school to support his family while Paul Ryan received Social Security survivor benefits that he saved and used to finance his education, support his family, and launch his political career. Also, Ryan’s great-grandfather founded a construction business that built roads, railroads, and airports, thus achieving success, says Davidson, due “to a multi-generation commitment, on the part of this country, to investment in infrastructure.” The differences between Smith’s situation when his father died and Ryan’s, suggests Davidson, shows just how great have been the results of the hard work of the New Dealers—results that Ryan may or may not now be threatening in some way. Obviously this suggestion is meant as tragic irony. But her historical evidence is shallow—based only on the Pulitzer Prize winning historical tour de force The Power Broker: Robert Moses and the Fall of New York by Robert A. Caro—and misleading. While Caro’s book is important and excellent, its focus is not Al Smith, but Robert Moses—and his influence on and implementation of the supposed “multi-generation commitment...to investment in infrastructure” (more on this in a moment). But even her attempt to turn Caro’s description of Smith’s biography into an ad misericordiam justification of the New Deal is flawed at best. For instance, Davidson falsely claims, and pretends that it is based on Caro’s work, that Smith’s family was “destroyed financially by uninsured medical costs,” and that Smith’s childhood was lost to having to support his family. This is not only dishonest and misleading, it’s pure anachronism.

Our current exaltation of suspended adolescence lasting into the twenties certainly was not shared by the Americans of Smith’s era (or those of any era for that matter). Children going to work to supplement or provide family incomes was not unusual in rural or urban settings for many centuries. Alexander Hamilton, for instance, himself an industrious and useful worker from an early age, tried to sell the promotion of manufacturing to the congress on the grounds that it would provide useful employment for women and children: “It is worthy of particular remark, that, in general, women and Children are rendered more useful and the latter more early useful by manufacturing establishments, than they would otherwise be. Of the number of persons employed in the Cotton Manufactories of Great Britain, it is computed that 4/7 nearly are women and children; of whom the greatest proportion are children and many of them of a very tender age.”[1] As Davidson humorously points out while trying attack former Speaker of the House Newt Gingrich, even if Ryan had not received Social Security insurance payments, child labor laws would have prevented a young fatherless adolescent from being economically valuable and supportive of his family. The fact that Smith’s story led to a greater amount of political success than Ryan’s has so far (whose father undoubtedly paid far more in taxes generally and social security in particular than his son ever saw—thus if the government had merely left the man alone, he could have used that money to protect himself and his family against accidental hardships) Davidson brushes off since, allegedly and without any attempt to prove the statement, “the attrition rate in such circumstances [Smith’s situation in the late 19^th century] is a whole lot higher.” Smith was the Governor of New York and twice the Democratic nominee for the Presidency in 1924 and 1928. But, Davidson assures us, Smith’s situation was truly very desperate and, despite his great success, we should take this 19^th century example as if it were the opposite of what it actually is; that is, a great and inspiring story of hard work and perseverance in a time and economic climate of easy mobility and opportunity. We are, instead, supposed to treat it as a heart-breaking tragic failure of a society too callous for a proper “social compact.”

But how desperate was it really? There is no doubt that after Smith’s father died, according to Caro, the family was in a real financial pickle. But let’s travel through the story—the entire story—as Caro tells it, and keep in mind the economic realities of today. As many historians, such as David Beito, remind us, mutual aid was the norm in the 19^th and early 20^th centuries. Voluntary association and civic cooperation had a long pedigree in the United States and American lore. Benjamin Franklin’s Autobiography, for instance, inspired countless volunteer fire brigades, libraries, hospitals, colleges, reading clubs, mutual aid societies, and innumerable other civic and charitable organizations. Al Smith’s family, it turns out, is unexceptionable in this regard.

We are also all at least vaguely familiar with the fact that the economy of the late 19^th century and early 20^th century was not hampered by onerous and encyclopedic regulations and taxes—thus creating a far freer market for every commodity, including labor. Smith and his family were, again, no exceptions in this regard. Their friends generously made sure “that funeral expenses were paid.” Then, the very night of the funeral, Smith’s widowed mother marched “to an umbrella factory and got a job that she could start the next morning.” When she found her earnings were not enough to support her family “she asked for piecework that she could do at home” which she received. She performed these jobs until her own health began to wane and then, with “the help of friends, she opened a tiny grocery and candy store in the basement of the building in which the Smiths lived, but it quickly became obvious that the store would never provide enough to support the family.”[2]

At this point, Al Smith, a few months past 13 and few more shy of completing the eighth grade at the catholic school he attended, went to work. First he worked at a trucking firm for two years at $3 a week. Next he became a shipping clerk for two years at $8 a week. Next he found employ at the Fulton Fish Market for $12 a week. After four years at the Fish Market, he found a job “carrying heavy pipes at a pump works,” for $15 a week. Soon thereafter Smith was noticed as a potential recruit by New York’s Democratic Tammany machine and the rest, as they say, is history. Given the nearly non-existent inflation of the period (in fact the late 1890s were a deflationary period in most respects, and contrary to goofball Keynesian economics of the 21^st century, deflation was not perceived as a big problem—and, indeed, it was not a problem), Smith’s rise through the ranks of unskilled laborers—not to mention his meteoric rise to the very top levels of political power and prestige in the State of New York and the country—is remarkable, but hardly unique. Others may not have made it to the top of a major party’s national ticket, but getting ahead was not an impossible task for people in dire straits like Al Smith. In the span of eight years, from the age of thirteen to twenty-one, he increased his earnings 500% and was able to support his family on his own through hard work and an ease of entry into new jobs that the modern economy sorely lacks—and that was before he became a Tammany man and began developing connections to advance his economic fortunes. He did not complete a college education. And what of it? That had no impact on his fortune anymore than it did any number of other American success stories before or after. Davidson’s choice of Smith is bizarre. Conceivably the only reason he was chosen was that his father died before he reached the age of maturity, as did Mr. Ryan’s father. But Smith did better without Social Security than Ryan has done with it, so far anyway.

Unable to merely leave it at an extremely inapt and dis-analogous comparison, Davidson then makes this dubious argument: “It is possible that Ryan’s father, who was fifty-five and a high earner, paid more in than his son got out; but the point is that the social insurance—the social compact—was there whether he did or not.” So it’s morally justifiable to expropriate Paul Ryan’s father for three or more decades, hampering his ability to provide for his family in good times and bad, in order so that, should a tragic accident occur, his son can collect a fraction of the money his father lost over the years? Had Ryan’s father not died, his money would have been entirely lost and of no use to the people he valued most in his own life. Instead, at the point of a gun, it would have gone to complete strangers, both those in duress and the bureaucrats collecting and distributing the money. The “social compact,” aside from being philosophically dubious, is morally perverse. It also has nothing whatever to do with any American principles and ideals at the time of the Revolution or the Founding. In fact, it’s quite antithetical to them.

The other dig at Ryan in Davidson’s piece is that his family helped build roads and other civic engineering projects, like O’Hare Airport—part of the “multi-generation commitment, on the part of this country, to investment in infrastructure.” Supposedly this is meant to function as a mild jab at Ryan’s “hypocrisy;” since he allegedly is hostile to funding the very projects his family sought to build as a livelihood for generations. Here, curiously, Davidson decides that Robert Caro’s book is no longer useful. That’s odd given the subject matter of The Power Broker—New York’s sickeningly powerful unelected emperor of public works projects, Robert Moses. For instance, had Davidson read Chapters 37 & 38, carefully, it would be almost unfathomable that she could so glibly and foolishly pretend that the “investment in infrastructure” was some unalloyed venture in greatness.

In those two Chapters, Caro examines the wreckage unleashed on the residents in the way of just one mile of Moses’s 627 miles of roads in and around New York City. Moses’s Cross-Bronx Expressway inexplicably veered through a successful and vibrant neighborhood of more than 1,500 apartments and over 5,000 residents when it could easily have been routed two blocks south through an adjoining park. Despite efforts to publicize their situation, get engineers to examine and defend an alternate route, and exact promises from elected officials, Moses successfully threatened and cajoled anyone who got in his way (usually by promising to turn off the spigots of New York State and Federal highway funds).[3] He eventually succeeded in getting the city of New York to condemn the offending neighborhood, force out its residents one by one, and then demolish it and build his bizarrely uncharacteristic mile of curved expressway. Caro explains:

Moses angrily charge that the borough president was raising objections now only because it was an election year and there was “local opposition.” Any local hardship will be “mitigated,” if not entirely removed, “by the elaborate steps which we have taken to move tenants in an orderly way into public, quasi-public and other housing,” and should be disregarded anyway, he said. “This route will be the backbone of traffic for centuries after a few objecting tenants have disappeared from the scene.... You have from time to time remarked that I do not have to be elected to office. Perhaps that is why I am in a position to protect the really long-range public interest.” He used his old threat—“Only recently you lost a substantial amount of ... money in the Bronx” by “blocking the Bruckner Expressway”; the Cross-Bronx “will cost more than thirty million dollars additional.... Would you like to see the project, now half completed, abandoned and remaining state and federal monies spent elsewhere?”—and then escalated it by threatening to resign as Construction Coordinator (“I should not care to carry this responsibility any further if borough politics are to be injected into it”)[4]

The housing Moses pledged to help the evicted and homeless tenants move into was almost entirely non-existent. The contract from the city to assist the residents find these new homes, however, was not. It does not take much imagination to guess who was behind the company in charge of “distributing” the money:

The men who owned stock in Nassau Management [the company that won the contract to relocate residents evicted for expressway construction] thus made fortunes without risking more than a token investment. The ostensible key men behind the company—its founders of record—were two low-echelon City Housing Authority employees who quit the Authority to form the firm. But they were only front men. The key figures behind Nassau Management, men who would profit from the relocation of the East Tremont tenants, were William S. Lebwohl, counsel of the Triborough Bridge and Tunnel Authority; Samuel Brooks, assistant director of the Mayor’s Slum Clearance Committee; and Housing Authority chairman Philip J. Cruise—three of Moses’ key aides.[5]

On top of the clear cronyism and conflicts of interest was the scandalous and corrupt way this organization performed the job for which it was paid millions of taxpayer dollars:

It must have been an accident that the “East Tremont” office opened by the “highly efficient” Nassau Management Company was located not in East Tremont but in West Farms, another neighborhood, inconveniently far away for the 1,530 families the office was supposed to serve. It must have been an accident that the office was open only a few hours a day, that those hours were constantly changing, that no notice was ever given of what those hours were going to be, and that inquiring about them by telephone was almost impossible since the single phone number listed for the office seemed to be always busy—so that often East Tremont housewives, having made the long trek over to West Farms, found waiting for them only a locked door. It must have been an accident that there were never enough company representatives in the office, so that the housewives waiting for help had to wait on long lines.[6]

Robert Caro is certainly no right-winger, but his honest recount of the facts for which he found evidence presents a tale of horrors that only the most callous of statist goons would ignore to propagate the myth that without government action and control we did not and would not have roads, airports, universities, or social support organizations and networks. History not only firmly and completely refutes this sophistry, it also shines the light on the horrific waste and corruption of every government usurpation of these previously private and competitive sectors of the economy.

Davidson’s use of historical analogy is not only quixotic, it is quite simply and utterly inaccurate. It disproves her point—assuming she has one—that Al Smith’s situation was worse than Paul Ryan’s; that social security insurance payments extracted from the savings, insurance, and retirements of others are the only, or best, or most ethical manner for people to confront the adversity of losing a father. Furthermore, she ignores the only evidence she presents—Robert Caro’s brilliant book, The Power Broker—when it has inconvenient things to say that undercut her public works hagiography or even Al Smith’s meteoric rise from adversity through his own hard work. Engaging in anachronism—that is, pretending that 21^st century American squeamishness about child labor was a common thing a century ago anywhere on earth, and then pretending it was some manner of unusual or bad thing that a thirteen year old boy would work to supplement or support the family income. It was not. Dropping historical context may cut it at The New Yorker, but it’s a clear sign that partisan hackery is afoot.

---

[1] Report on the Subject of Manufactures, 5 December 1791, Alexander Hamilton: Writings, ed. Joanne B. Freeman (New York: Library of America, 2001), 661-662.

[2] Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Vintage, 1974), 114-116.

[3] Ibid, 850-894.

[4] Ibid, 866.

[5] Ibid, 878-879.

[6] Ibid, 879.

More bad news from the “Maddow” Dam

Yuma, Arizona

Friday, 16 July 2021

It’s more bad news at the Rachel Maddow Memorial Dam. Already the most expensive and elaborate government engineering project ever undertaken, the “Maddow” Dam, as most refer to it, has suffered another setback due to concerns for the fate of the endangered Bufo punctatus, or red-spotted toad. This is the third endangered species that has threatened the project in as many years.

Work has been called to a halt indefinitely as a new team of on-site evaluators are flown in from the Environmental Protection Agency to assess whether or not the taxpayer’s $105 billion has been for naught. As the agricultural hinterland surrounding the Colorado River Valley in the Sonoran Desert eagerly awaits the expected flood of irrigating water created by the reservoir behind the Dam, some ponder if the project will ever be finished.

“I just don’t know,” said local Yuman, Charlene Stevens, “We’ve seen this happen several times now and they haven’t even started pouring concrete yet.” But at least one resident, Bradley George—chairman of the Local Yuma Occupy Auxiliary 202—thinks the stoppage is a good thing. “We never wanted this here anyway,” George said in a phone interview with reporters, “it’s just another giveaway to the private contractors and agri-businesses that make money off of growing non-organic, non-local food. It’s for damn sure they didn’t get the toad’s permission.”

Undertaken at the end of President Barack Obama’s second term in 2016, the “Maddow” Dam memorializes the noted advocate of government engineering projects and former MSNBC show host who tragically died in 2015 while shooting an ill-fated commercial at the Hoover Dam. Many will remember the wave of support that swept over the country for a second, bigger, Hoover Dam project in the weeks that followed as the nation watched the recovery operation for the anchor’s remains—a three month endeavor that shut down most of the Dam’s power operations as the turbines were individually removed and cleaned.

That was over six years ago. While the Hoover Dam was built in little more than four years at $50 million ($800 million in 2016 dollars), the “Maddow” Dam is already well over it’s modestly ambitious original $2 billion outlay. The chief culprits for the cost and time overruns, so far, have been the repetitive and expensive environmental surveys, the first of which prevented groundbreaking for three years.

It also has not helped that while Hoover Dam was built two years ahead of schedule with cheap and eager labor from among the First Great Depression’s unemployed, the “Maddow” Dam project managers have been forced to pay “prevailing union wages” to everyone associated with the project. The most recent project manager for the Dam’s construction (he resigned when notified of the stoppage due to concerns over the red-spotted toad), Carlton Wellock III, told the Associate Press that managing the project was akin to “waiting in line at the DMV while slowly moving backwards as the song ‘My Sharona’ plays louder and louder, over and over again.” While some fans of The Knack have puzzled over the meaning of this, most have interpreted the statement as evidence of Wellock’s intense frustration.

As the workers take their most recent paid leaves of absence to await the findings of the EPA’s investigation of the “Maddow” Dam’s impact on the habitat of the red-spotted toad, many around the country wonder if this project will ever really get underway, let alone finished. The optimism associated with the project’s namesake about the ease with which these grandiose projects could be undertaken and completed seems largely absent six years and tens of billions of dollars later.

“Well, we can’t just give up,” President Palin said to reporters at her Press Conference on Wednesday, “the ‘Maddow’ Dam represents good old-fashioned American get-up-and-go.” When pressed about whether or not she plans to press Congress for more funds for a project already 52 times more expensive than originally planned, given her pledge to reduce the nation’s $24 trillion debt, the President replied: “You betcha!”

The Red Tape Horrors of the Bureaucratically Unemployed

By Alexander Marriott, 9-29-2010

As I stared at the passing scenery, I realized I hadn’t stood a chance. The cards were dealt years ago and I didn’t know it until the very moment I had anticipated success. The let down was tremendous. For those of us fighting for work in Las Vegas, there is nothing quite like the mountain of red tape and paperwork surrounding seemingly every job—particularly in the public sector. According to a recent Las Vegas Review Journal piece [http://www.lvrj.com/news/reid--angle-to-answer-queries-on-economy-103510139.html], the unemployment rate in the city is 14.4%, nearly ten points beyond the 5% rate economists traditionally associate with “full employment.” The following is perhaps an idiosyncratic tale of the failed pursuit of one of those jobs. Some of the principles one might draw from it have greater relevance for not only our local economy, but for the national economy more broadly.

Over five years ago, before I left Las Vegas to pursue a graduate degree in American history, I was a substitute teacher with the Clark County School District (CCSD). It was a brief, but enjoyable experience. It was my first time in the classroom and it was very valuable in my later collegiate teaching. I left after the school year ended, fully expecting that I would probably never live in Las Vegas on any sort of permanent basis again. Life is always full of surprises.

After returning in May 2010 to finish writing my dissertation and perhaps save some money, I sat down and evaluated my employment prospects. My mind immediately returned to my old manner of employment, but to my dismay, the school year was ending and CCSD was not accepting substitute teacher applications. Several months and interviews later, early August brought a reopening of the process and I immediately submitted an application. The first part of the process was relatively quick, I was interviewed by August 16, and shortly thereafter all of my references had reported. It all went, in light of what happened later, far too easily. My previous experience was seen as the advantage that it is, and my interviewer was sufficiently impressed with my enhanced credentials (I had taught my own college level courses since leaving) that I seemed on the fast track to getting back in the classroom.

Day after day passed as I continued to look for other jobs—any jobs—and on nearly every day I checked my status with the CCSD employment website. Finally, after a month, I was informed via that website that my application had been approved as of September 20, when they mailed me their pre-employment packet. The website actually said “Pre-employment packet was mailed 9/20.” I live in Las Vegas; care to take a guess as to when it arrived? If you guessed within a week, you’d be wrong. It did not arrive until September 28—I received my transcripts from my graduate school in Massachusetts two days after my request, yet it takes over a week to receive mail within the city?

So I open the packet to begin what I know from prior experience is a small pile of additional paperwork. I also need to begin planning to purchase money orders ($60 to pay CCSD for my background check, $161 to pay the Nevada Department of Education for a new license) and other trips into various parts of the city—for a Tuberculosis test, for fingerprinting, to search for the peculiarly hidden Nevada Department of Education (NDE).

And so it begins. Oh, by the way, the letter telling me the various things I needed to do and pay to complete my application tells me that I need to finish it all within thirty days or my file will be destroyed. The letter that was mailed on September 20 and received on September 28 is dated September 17. So I have either until October 17 or October 20 to complete these tasks—the letter does not say which. On top of this, I have a previously scheduled trip to Massachusetts for dissertation business October 4-10.

Of course, the tuberculosis testing at CCSD headquarters only occurs on Tuesday mornings (I received the letter on a Tuesday afternoon, it being the second Tuesday after the issuance of the letter under either dating system, making October 12 somewhat important). So I take care of the fingerprinting/background check portion of the process first. This is rather easy. Pay your $60, waive your objections to the check, let them digitally fingerprint you and you’re done.

Now I’m off to the NDE to pay for a new license—they also need my college transcripts (I have a BA in history from UNLV and have an ABD status in the American history PhD program at Clark University), $161 money order, a completed license application, and two fingerprint cards received during the previous step. I have all of that ready to go, and after reaching the reception room (which is empty) I bound over to the receptionists to get this part of the task over with as quickly as possible.

After signing some of the materials I have brought with me pursuant to the helpful attendant’s instructions she begins to look me up in the files, noting that I had a Substitute Teaching license in the state once upon a time. Laughing, I confirm this, indicating that I had been a substitute teacher once upon a time. Then she asks me, “So, have you done your Nevada School Law and Praxis One?” I stare blankly, racking my brain for what she is referring to, this being the first time I have heard of either of these during the two months I’d been in application limbo. I respond: “I have no idea what you’re talking about, what are those?”

Now, at this point of the process, I am informed (even the woman at the NDE was surprised that no one at CCSD had bothered to mention this) that since I once had a license and it expired in 2008, there are holds that I have to clear before I can ever get another license. Praxis I is a reading, writing, and arithmetic competency examination that if taken electronically costs $80, but $90 if by the paper-based method. The Nevada School Law test is given three times a year for $25-35, while also given ad hoc the rest of the year to poor saps like me who need results quickly for $100.

Bear in mind that five years ago, when I was fresh out of UNLV, and had no experience at all, no exams were required before being turned loose on unsuspecting Vegas youths (I was 21 at the time), but now my competency needed confirmation—after five years of graduate school and college-level teaching experience. I was informed that the Praxis I exam can be waived if one has a Masters Degree. When I point out that being ABD (which means I have completed all but the dissertation) means that should I ever drop out of my PhD program they will award me a Masters degree—this is what allows me to apply for and receive University level jobs—she laments that it needs to be indicated on the transcript. Oy vey!

On top of all that, I am running out of time and money. Because in addition to everything else, I will also need to fork over $15 for an online training course before I can submit the rest of my application materials. But it is all a moot point. The Nevada School Law test, which is administered twice a month at the $100 rate, was last given on—you guessed it—September 28, the day I received the packet and the day before I found out the test existed. The next two tests are October 6 & 20—one day I will not be in town, the other is the very last day to finish all of the tasks.

This story began with the Las Vegas unemployment rate—14.4%—a rate that may very well cost all manner of politician their jobs. But, aside from the broader national and global economies, Nevadans are not helping themselves by piling on fees, tests, and endless layers of paperwork to the simple act of applying for work. If it could potentially cost me $421 just to get to the orientation (maybe!) of the process, how much must it be costing the State to pay everyone involved with processing all of my paperwork and test results and tuberculosis tests? There are many public sector jobs like this. Try applying to work with the TSA. I’ve been stuck on the airport assessment phase (step 5 out of 12) for months. When I inquired into the matter, the TSA informed me that this was normal and to just wait for an email. That was July. Still waiting. Not that I actually want to work for the TSA, it was more a curiosity application that anything else. Imagine if I were someone who really wanted a shot at that job, however.

Any politician who promises change based in adding to this unnatural and immovable leviathan—or more terrifying—applying its perversions to other even more vital parts of the economy, healthcare for instance, should be immediately hissed away from whatever lectern or podium he is hiding behind. Change in this situation, in Las Vegas, in Carson City, in Washington, can only come through getting rid of these miles upon miles of red tape. Bureaucratic regulations are grinding everything to a halt at precisely the moment we need more than ever to get back to work and be productive promptly. When we need dynamism, we are met with stifling stagnation.

The private sector can hire more quickly, but that is changing for the worse. Not only are job applications in the private sector becoming similar to their public counterparts as paperwork nightmares, but government policies have finally caught up with us. Having our cake and eating it too, all on the backs of those who could and would pay, was never tenable and certainly never moral. For those worried about the pain and scariness that will accompany the dismantling of our mixed economy—it’s too late, the pain is already here. And if you’re looking for work in Las Vegas, then you’re already scared. This Halloween, when you contemplate the future of employment in Las Vegas, you should be afraid, very afraid.

The History of Nullification: Origins, Context, and Dangers (Part One)

The Setting

Ron Paul recently stated that we needed to "revisit" the long lost—and allegedly understood by the Founders—principle of state nullification of Federal law. In so doing, he laid just the latest foundation in a long line of statements, utterances and arguments he has made over the years—in conjunction with a well known and rather notorious coterie of intellectuals and historians—that clearly indicate his card carrying status in the quixotic and dangerous push to have the Confederate interpretation of American constitutional history revitalized. Indeed, he is the most public face of a movement to have the Neo-Confederate interpretation of American history mainstreamed. The principle problem with this is that the Confederate interpretation of the Constitution was invented due to the perceived necessity for some mechanism to defend one—and only one—institution: chattel slavery.

Ron Paul has laid out his agreement with this "interpretation" of Lincoln and the Civil War here, here, and here. An interview with Thomas J. DiLorenzo, author of such popular books as “The Real Lincoln,” and “Lincoln: Unmasked,” can be found here. Thomas Woods, Jr.'s website provides links to interviews, and his magnum opus on the supposed right to nullification can be found here. Watch Ralph Nader and Andrew Napolitano bash Lincoln here. Regnery has been doing a grave disservice to the dissemination of historical information by publishing a pernicious series of books by the likes of nullification propagandists Tom Woods, Kevin Gutzman, H.W. Crocker III, Clint Johnson, and Brion McClanahan. Clyde Wilson, another of these "revisionists," is so obsessed with defending the old south and John C. Calhoun that he's actually wormed his way into being the lead editor of Calhoun's papers. The Southern Poverty Law Center has been doing yeomen service tracking this circle of intellectuals and their write-up can be found here.

In what follows, I shall examine at some length the history behind nullification as a doctrine elucidated in its full form in the 1830s by John C. Calhoun. The historical context for this intellectual invention is long and somewhat complex, but I will explain it with as much reference to actual documentation as possible in this not-book-length piece from the launch of the Federal Government until the confrontation over nullification at the end of Andrew Jackson’s first term of office as President. This historical background is largely lost today, making it all too easy for nullification peddlers to foist a dangerous and compromised doctrine that did lead to disunion and civil war onto unsuspecting and generally well-meaning defenders of true individual liberty. It is for them that I dedicate the following.

The Old South Confronts a Problem

When the government officially launched in 1789, Southern representation in Congress—due in part to the three-fifths apportionment granted for enslaved Africans—seemed to guarantee those states where the institution was dominant an almost perfect equality in the House of Representatives. Of course, it did not take terribly long to see, by 1810—certainly by 1820—that the states which abandoned slavery, located in the North, were fast outpacing the slave states in population and economic diversification. Even with the advantage of additional representation for humans that were in many ways treated as anything but, Southern slave states quickly lost any hope of controlling the House of Representatives. They quickly lost any hope of even presenting an effectual block of any sort if the issue before that body transcended partisan differences and became “geographical.” This is why new state admission and the balance of the U.S. Senate quickly became such a potentially dangerous topic and why, after the Missouri Compromises in 1819-1821, States came into the Union mostly in pairs, one slave and one free. But the Missouri Compromise guaranteed—until the Treaty of Guadalupe-Hidalgo ended the Mexican-American War with a large addition of land—that the future for the Senate was largely going to replicate the House of Representatives’ past. More land above the parallel of 36° 30’ meant more free states which in turn meant more Senators who had no particular stake in defending the “peculiar institution” of the Southern states either politically or morally.

To illustrate this briefly with numbers, in 1790, 48 of the 105 Representatives hailed from the states which would still maintain slavery in 1860. That translates to 46% of the Representatives in 1790—and one needs to keep in mind that big states with Slavery remained North of Maryland in this early period, New York and New Jersey most prominently (slavery was not officially ended in those states until 1841 and 1804 respectively—though most slaves were freed in New York under a statute in 1817 that ended slavery by birth). By 1860, only 85 of the 241 Representatives came from Slave states—or 35%. The number of Representatives in Congress from the States which ended up a part of the rebellion was 61, or 25%. By contrast, the Senate had 32 Senators in 1800—16 from the slave states and 16 from the free states. By the election of 1860, there were 66 Senators—30 from the slave states and 36 from the free states. The attrition rate in the Senate was much less (50% to 45%) than in the House, but even in the bastion of state equality the slave states were finally losing their grip on power. Those who had a grasp on the economic developments in the country at large and the effects of slavery on the societies where it took hold were able to foresee these developments. And, if they were wedded to slavery as an institution either in theory and/or in practice, they were quick to sound the alarm bells for their section of the Union. In some cases, they were quick to offer possible “defensive” solutions that would assure that their shrinking minority retained trump cards against potentially aggressive actions by a Congress controlled entirely by non-slaveholding Senators and Representatives.

The man who personified this political and intellectual “movement” in the Old South was—and for the most part still is—John C. Calhoun (1782-1850) of South Carolina. Let there be no mistake, while I and a great many of his contemporaries believe Calhoun to have been a wild-eyed misguided fanatic who allowed himself to become so morally debased that he seriously argued on the floor of the Senate that slavery, “instead of an evil,” was “a good—a positive good,” there is still no doubt that his intellectual energy commanded attention and is the only thing that accounts for his continual office holding from 1811-1850.[1] Unfortunately, after the Missouri Crisis, Calhoun increasingly applied his intellectual gifts to the problem of creating a constitutional mechanism to protect the slaveholders in the South against an already obvious decline in the people’s House and a foreseeable decline in the Senate.

The opportunity for this arrived in 1828 when, during the scrambling and cantankerous election between incumbent John Quincy Adams and the avenging victim of an alleged “corrupt bargain” Andrew Jackson, the supporters of the latter passed a revision of the tariff that resulted in an election year bag of protectionist goodies for the sectors of the electorate where Jackson most needed votes—Pennsylvania, Louisiana, and the old Northwestern states now tied to international trade through the Erie Canal. Of course, this “tariff of abominations,” as free-traders came to call it, greatly antagonized the sections of the country most dependent on open markets and unrestrained commerce—the shipping portions of New England (Adams country) and the agrarian South where Jackson had little to fear of a defection to the hated man from Massachusetts. Jackson, of course, won the election and upon taking office immediately began calling for Congressional reconsideration of tariff rates downward to allay growing outrage.

Calhoun, who was Vice-President under Adams only to rather quickly join the opposition, remained Vice-President under Jackson and immediately found himself in an intense battle of wills with Jackson over two issues—one trivial, one not so trivial (though in Jackson’s mind, both were indicative of Calhoun’s utter unfitness as a man and a public official). The rather less serious issue involved the social ostracism of Peggy Eaton, the Secretary of War’s wife, about whom there were whispers of infidelity to her previous husband (the object of her illicit affections was her current husband, John Eaton, the Secretary of War). Calhoun’s wife led many other women in the upper crust of Washington society in shunning Peggy Eaton. Why does any of this matter? Andrew Jackson liked John and Peggy Eaton. In fact, Jackson’s wife Rachel, who died in the midst of the tumultuous and brutal 1828 election season, had been similarly tarred with her husband as immoral for having lived together openly as a couple before her first marriage was officially ended in legal divorce. When both Rachel and Andrew had been notified (improperly as it turned out) that the divorce was finalized, they were married—thus putting the future President’s wife in the uncomfortable and unintentional role of bigamist. The charge, long played out in Tennessee where Jackson had buried his “youthful indiscretions” in glory, reappeared in 1828. Many have speculated then and since that Jackson blamed the stress induced from this election year muckraking for Rachel’s demise. So, when Mrs. Calhoun—and by extension her husband—took the lead in blacklisting Peggy and John from social functions, Jackson made it clear that he would have none of it and invited the two of them to all official functions that he attended, thus letting the snobby holdouts exclude themselves from official Washington.

The more serious rupture involved Calhoun’s secret and then quite open orchestration of South Carolina’s vociferous, heated, and eventually warlike opposition to the Tariff of 1828. President Jackson also publicly opposed the tariff but he simply asked Congress to revise it to be less discriminatory and more in line with a simple revenue tariff of ad valorem rates. Calhoun staked out much more radical ground. Rather than simply have Congress lower the tariff rates, Calhoun argued, the whole concept of protective tariff rates that favored one section of the Union over any other was unconstitutional. Had that been the extent of Calhoun’s claims, the issue might have offered the country an opportunity to discuss the Federal Government’s legitimate scope in the regulation of foreign commerce, but Calhoun went further than this, advocating a unique and potentially catastrophic “constitutional” solution to the problem of unconstitutional laws that managed to get by both Congress and the President.

The Origins

Before moving onto what that solution was, we must first step back three decades to the war crisis with France in the wake of the publication of the diplomatic dispatches detailing what became known as the “XYZ Affair.” Simply, the French Revolutionary government responded to John Jay’s Treaty with Great Britain (ratified 1795) with outrage as a breach of faith and repudiation of the treaty of alliance Louis XVI made with the rebelling colonies in 1778. As the diplomatic crisis grew, American and French ships in the contested Caribbean merchant lanes began engaging in isolated skirmishes—which eventually erupted into a constrained but rather serious naval war between the two republics in those seas. President Adams sent a bi-partisan three-man team to Paris to try resolve the dispute and when they arrived they were informed that in order to even speak to the French Foreign Minister they would have to pay bribes to the three interlocutors they were forced to parley with—the subsequently infamous “X, Y, and Z” (whose names were replaced with the letters to avoid further embarrassments during ongoing negotiations). When two of the American diplomats returned to inform President Adams privately that the mission had failed and of the French outrage, Vice President Jefferson and his Republican allies immediately began calling for a release of diplomatic papers—they had become convinced that Adams and the Federalists were maliciously encouraging unfounded war against the French as an excuse to stay in power and were not making legitimate moves for peace.

This demand was eventually acceded to and promptly detonated in the hands of the Republicans. Revelation of the XYZ Affair enraged public opinion against France and those who were seen as sympathetic to France—namely, the Republicans. The wave of public opinion in 1798 emboldened the Federalists—who generally struggled to maintain any sort of excited national following in the wake of George Washington’s retirement—like nothing ever had or would again. In response they increased the size of the army many times over—bringing Washington out of retirement a final time as Commander-in-Chief of the new force. They created a Department of the Navy and expanded the size of the American fleet. And, of course, they passed a series of domestic laws that would eventually bring them down and mire nearly all of them in historical ignominy—the Alien and Sedition Acts. The former laws extended the period of residence required for citizenship and allowed the President to unilaterally arrest and expel Aliens he considered to be dangerous—this way largely aimed at French refugees from the Revolution and the former French colony of St. Domingue. The Sedition Act criminalized speech designed to bring the President, the Government generally, or the officers of the executive branch into disrepute and contempt (though the act famously allowed for truth as a defense, this was hardly a comforting feature to most Republicans).

In response to these acts—the latter of which was clearly at odds with the First Amendment—Vice President Jefferson and his retired colleague James Madison penned draft resolutions for the Kentucky and Virginia Legislatures. This is important to get correct now because the events of 1798 later became critical for Calhoun’s entire theory of state nullification and the subsequent Confederate theory of the constitution propounded by Jefferson Davis and others. Neither the Kentucky nor Virginia Legislatures “nullified” the Alien and Sedition Acts—nor did either of the respective resolutions of those Legislatures call upon the other states to “nullify” those laws. What, then, did they say and call for?

First of all, let us remember the context here. In the midst of a war buildup—not a war as yet, though naval engagements were occurring in the Caribbean—the party that controlled Congress and the Presidency had passed legislation that targeted not only aliens from enemy countries—i.e. those from countries with whom the United States were formally at war—but aliens from friendly countries as well (many Irish and French immigrants quickly joined the Republicans—so many assumed that the bill had more to do with partisan advantage than war preparation). In addition, the Federalists had passed a law that seemed to directly attack an individual right which the Constitution itself explicitly stated was beyond the power of Congress. While a very small number of blustering Republican editors were prosecuted under the Sedition Act and sentenced to jail time but these were important opposition editors and it had an inevitable chilling effect on political writing.[2] Jefferson put the problem to Madison this way on 7 June 1798: “They have brought into the lower house a sedition bill, which among other enormities, undertakes to make printing certain matters criminal, tho’ one of the amendments to the constitution has so expressly taken religion, printing presses &c. out of their coercion. Indeed this bill and the Alien bill both are so palpably in the teeth of the constitution as to shew they mean to pay no respect to it.”[3]

The Republicans, under the House leadership of Albert Gallatin, had put up a stout defense but were simply outvoted. As Jefferson, the Vice-President at the time, and James Madison, retired to his Montpelier estate, contemplated a scene where journalistic opposition was liable to earn one a prosecution they contemplated an alternative strategy—one that might be more effective that a campaign in the press. Simply, they drafted a set of resolutions to be presented in the legislatures of the States of Kentucky (Jefferson) and Virginia (Madison) which made the case that the Alien and Sedition Acts were unconstitutional and that other states should join in denouncing them as such ahead of the next elections. From the Virginia Resolutions, one can see the power of this indictment: “the other of which acts, exercises in like manner a power not delegated by the constitution, but on the contrary expressly and positively forbidden by one of the amendments thereto; a power which more than any other ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”[4] Now the truly controversial portion of these resolutions came from two sources; first in their characterization of the origins of the Union and, second, their recommendations to the other states.

The chief problem, historically for Madison in the 1830s anyway, was Jefferson’s draft of the Kentucky Resolutions—they were subsequently modified and toned done by the Kentucky legislature before passage. Subsequent followers of the “Principle of ‘98” would take their direction from Jefferson’s more strident document. Jefferson—a man not present for either the drafting or the debate over the Constitution, and who as late as 21 March 1798 still believed that that document required a two-thirds majority for declarations of war—declared that: “the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government fro special purposes,--delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”[5]

As if this statement has not gone far enough, Jefferson elaborated further: “that is cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, were powers are assumed which have not been delegated, a nullification of the act is the rightful remedy [this portion was excised by the Kentucky legislature]: that every State has a natural right in cases not within the compact, (casus non fœderis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”[6]

Madison’s much more circumspect appeal, adopted by the Virginia legislature on 21 December 1798, had characterized the Union and the nature of the remedy proposed this way: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorised by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” Furthermore, Madison wrote: “That the good people of this Commonwealth having ever felt and continuing to feel the most sincere affection for their brethren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each, for cooperating with this State in maintaining unimpaired the authorities, rights, and liberties, reserved to the States respectively, or to the people.”[7]

And so the resolutions went out to the other states. The replies of the other legislatures (10 out of 14 responded), in the words of historian Lance Banning, “in every case condemn[ed] state interference in the federal sphere,” a reaction that would be repeated during the nullification crisis. New Hampshire’s response (and all the responses ran in a similar vein) stated bluntly: “That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department. That if the legislature of New Hampshire, for mere speculative purposes, were to express an opinion on the acts of the general government commonly called “the Alien and Sedition Bills,” that opinion would unreservedly be that those acts are constitutional and, in the present critical situation of our country, highly expedient. That the constitutionalist and expediency of the acts aforesaid have been very ably advocated and clearly demonstrated by many citizens of the United States, more especially by the minority of the General Assembly of Virginia. The legislature of New Hampshire, therefore, deem it unnecessary, by any train of arguments, to attempt further illustration of the propositions, the truth of which, it is confidently believed, at this day, is very generally seen and acknowledged.”[8]

Madison was playing damage control almost from the beginning—the resolutions put the opposition to John Adams in a poor, almost treasonous, light in the midst of a national war-time crisis. With the overwhelming condemnation from the other states, Madison (now back in the Virginia Legislature) chaired a committee of reply where he drafted his forever famous “Report on the Alien and Sedition Acts,” where he dialed back the implications of the resolutions by elaborating at some length precisely what had been meant by words like “interpose” and “the compact to which the states are parties.” In terms of the latter, Madison quickly retreated firmly into the embrace of the understanding the Federalists had settled upon during the ratification debates, that the ratification of the Constitution had been the act of “the people composing those political societies [the States], in their highest sovereign capacity.”[9] The Constitution gained its power, not as a league of states—that had been the nature of the Government under the Articles of Confederation Madison had worked so hard to destroy—but from a more fundamental source, the only source of sovereign power: “the true character in which it issued from the sovereign authority of the people.”[10] Furthermore, Madison delineated the line of authority by which all the American governments were established and, ultimately, ruled: “The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.”[11]

As for what the Virginia legislature meant by its ability to “to interpose for arresting the progress of the evil,” Madison insisted that the entire point of the efforts in Kentucky and Virginia was for alerting the people to what had happened in Congress so that they might respond constitutionally, i.e. through elections. The lion’s share of the criticism revolved around the perceived usurpation of Virginia and Kentucky of a role that had already been understood to belong to the Supreme Court of the United States, namely decided the constitutional fidelity of federal laws. In Federalist No. 80, Hamilton had already explained this role in some detail, writing: “Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed.” The reason to appoint one body—constitutionally the weakest and most passive—as the final arbiter of constitutional disputes was obvious and deadly serious. Hamilton appealed to the familiar history of Pufendorf for an illustration of the practical results of having as many arbiters as there were states: “History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the imperial chamber by Maximilian towards the close of the fifteenth century, and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquility of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body.”[12]

Madison retreated here as well, simply stating that a “declaration that proceedings of the Federal Government are not warranted by the constitution, is a novelty neither among the citizens nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.” These legislative opinions were, Madison maintained: “unaccompanied with any other effect, than what they may produce on opinion, by exciting reflection.”[13] Madison, in his “celebrated report,” never—not once—attempted to explain, invoke, or defend any alleged right of a state to “nullify” a federal law that was constitutionally enacted (as the Alien and Sedition Acts were, even if both or either were themselves unconstitutional, though the offending laws expired without ever being declared so by the courts).

The Interlude, Part One: Jeffersonians in Power

Adams and his divided Federalist cohorts were booted from the Presidency and the Congressional majority in what Jefferson later described as the “Revolution of 1800.” Now that they were the governing party, the Jeffersonian Republicans quickly set about transforming the goals and priorities of the government. The most important reform of Jefferson’s first term and a half was the dismantling of the Federalist war program from the expansion of the Army and Navy to the elimination of the direct taxes the Federalists had imposed to pay for them. But no matter how much any early American statesman tried to run away from war in the early decades of the government’s operations, they all realized sooner or later that they inhabited a world at war whose affairs were well beyond their ability to control.

In the summer of 1807, a British warship fired upon an American naval frigate just outside the Chesapeake Bay. When the American ship surrendered, the British boarded and impressed several seamen whom they claimed were deserters from the Royal Navy. The news was electric, calls for was immediate and universal. Jefferson and his cabinet were well aware of the dangers of going to war, completely unprepared, with the world’s foremost naval power. In addition to that obvious concern, Jefferson and Madison had long been devoted to the idea that Americans held true power in their commercial ties with the British—the United States was one of Britain’s biggest markets for manufactured goods—and that if the British were made to feel the economic pain of losing those ties, they would quickly succumb to American demands. The fact that American demands simply consisted of not boarding and impressing men from American vessels and keeping clear of free trade in non-contraband goods made Jefferson and Madison sure that the international community and the British people (particularly in the Midlands, Britain’s great manufacturing region) would soon see the folly of Whitehall’s actions.

This is what led to the imposition of the famous Embargo of 1807 (though it went into effect in 1808 and expired in March 1809), a scheme of impounding all outgoing American merchant trade both in ports and overland into British Canada. The resistance to this measure, and the subsequent enforcement acts passed in 1808 was intense, particularly in New England. Albert Gallatin, the President’s Treasury Secretary, who was largely in charge of carrying out these laws, told Jefferson: “I also think that an embargo for a limited time will at this moment be preferable in itself, and less objectionable in Congress. In every point of view, privations, sufferings, revenue, effect on the enemy, politics at home, &c., I prefer war to a permanent embargo.... Governmental prohibitions do always more mischief than had been calculated; and it is not without much hesitation that a statesman should hazard to regulate the concerns of individuals as if he could do it better than themselves.”[14] Jefferson, determined to avoid war almost at any price, and frustrated to the point of mental collapse by the successful evasion of the embargo laws in the Northeast—a back and forth between smugglers and Treasury officials that eventually led to jury nullifications and the executive declaration of the collapse of civil law along with the authorization of congress to enforce the laws with the Army and Navy of the United States—eventually declared: “I do not wish a single citizen to be deprived of a meal of bread...but I set down the exercise of commerce, merely for profit, as nothing when it carries with it the danger of defeating the objects of the embargo.”[15] The administration, it ought to be noted, was bolstered in its efforts by a Federalist judge in Massachusetts who upheld the constitutionality of the embargo under Federalist legal challenge from New Englanders.

The embargo collapsed, however, due to Republicans withering under the political pressure from their constituents and the lack of results in the position of Great Britain after a year of the experiment. Eventually, of course, the attempt to remain neutral during the later phases of the Napoleonic Wars failed, and while the United States had ample reasons for war with both Britain and France, it was only Great Britain that had an active capability of disrupting American trade internationally and only Great Britain that had a proclivity for snatching naturalized and native born Americans off of American ships for the depleted crews of the Royal Navy’s 1000 ships. Up to 6,000 Americans had been abducted during the resumption of war in Europe in 1803 until the declaration of war against Britain in 1812. During that war, when New England states—not just disgruntled majorities of the people within those states—attempting to thwart constitutionally enacted federal war measures, Jefferson of all people was among those encouraging his successor James Madison that what was needed was: “A barrel of tar to each state South of the Potomac will keep all in order, and that will be freely contributed without troubling government. To the North they will give you more trouble. You may there have to apply the rougher drastics of Govr. Wright, hemp and confiscation.”[16] This latter part was, of course, a reference to the actions of the Maryland militia against Loyalists during the revolutionary war—including hanging and property expropriation. Fortunately, Madison ignored these missives from Jefferson and others, instead relying mostly on public opinion and time to undermine the resistance to the war. But when Federalists convened a regional convention in Hartford, Connecticut at the end of 1814, Madison did not hesitate to transfer all manner of military units from the Canadian frontier to positions in and around New England to wipe out any secessionary movement that might appear.

That such a movement did not appear should not blind us to the fact that except for one intemperate document written in the midst of a war crisis and Federal suppression of the free press, Jefferson and Madison had done everything consistent with those who believed in Federal supremacy and emphatically accepted Jefferson’s dismissal of secession: “Be this as it may, in every free & deliberating society there must, from the nature of man, be opposite parties & violent dissensions & discords; and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch & delate to the people the proceedings of the other. But if on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusetts & Connecticut we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina, immediately the conflict will be established between the representatives of these two States, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others.... A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to it’s true principles. It is true that in the mean time we are suffering deeply in spirit, and incurring the horrors of a war & long oppressions of enormous public debt. But who can say what would be the evils of a scission, and when & where they would end? Better keep together as we are, hawl off from Europe as soon as we can, & from all attachments to any portions of it.”[17]

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[1] John C. Calhoun, “Speech on the Reception of Abolition Petitions, Delivered in the Senate, February 6^th, 1837,” in Paul Finkelman, ed., Defending Slavery: Proslavery Thought in the Old South, A Brief History with Documents (Boston: Bedford/St. Martin’s, 2003), 59.

[2] Geoffrey R. Stone, War and Liberty: An American Dilemma: 1790 to the Present (New York: W.W. Norton, 2007), 7-18.

[3] Thomas Jefferson to James Madison, Philadelphia, 7 June 1798, The Papers of James Madison, Vol. XII, eds. David B. Mattern, J.C.A. Stagg, et al (Charlottesville: University Press of Virginia, 1991), 143.

[4] Virginia Resolutions Against the Alien and Sedition Acts, 21 December 1798, James Madison: Writings, ed. Jack N. Rakove (New York: Liberty Fund, 1999), 590.

[5] Draft of the Kentucky Resolutions, October 1798, Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 449.

[6] Ibid, 453.

[7] Virginia Resolutions, Madison: Writings, 589-591.

[8] New Hampshire Resolutions of the Virginia and Kentucky Resolutions, 15 June 1799, Liberty and Order: The First American Party Struggle, ed. Lance Banning (Indianapolis: Liberty Fund, 2004), 237-238.

[9] Report on the Alien and Sedition Acts, 7 January 1800, Madison: Writings, 610.

[10] Ibid, 632.

[11] Ibid, 614.

[12] Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. Isaac Kramnick (New York: Penguin, 1987), 446-447.

[13] Report on the Alien and Sedition Acts, Madison: Writings, 659.

[14] Albert Gallatin to Thomas Jefferson, Treasury Department, 18 December 1807, The Writings of Albert Gallatin, Vol. I, ed. Henry Adams (New York: Antiquarian Press, 1960 [reprint]), 368.

[15] Jefferson quoted in Merrill D. Peterson, Thomas Jefferson and the New Nation: A Biography (New York: Oxford University Press, 1970), 889-890.

[16] Thomas Jefferson to James Madison, Monticello, 29 June 1812, The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826, Vol. III, ed. James Morton Smith (New York: W.W. Norton, 1995), 1699.

[17] Thomas Jefferson to John Taylor, Philadelphia, 4 June 1798, Jefferson: Writings, 1049-1050.