Seven Events That Made America America (8 page)

This was a chilling prophecy of gag laws in modern-day Europe and Canada, where religious criticisms of homosexuals or Muslims even on a purely theoretical basis are muted on the grounds that they abridge the rights of people who engage in homosexual behavior or subscribe to Islam.

Once again, though, Calhoun raised the ugly hand of the whip: if a free man dared criticize slavery, he would be punished for his opinion that it was wrong. To repeat, acceptance of the institution was not enough: approval was the goal. As James Huston put it, “southerners hoped to control the actions of the federal government and never lose.”
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Democratic republics can only endure as long as the losers agree to go along peacefully with the will of the majority and so long as private rights are protected. But Southerners felt that if property rights of slaves were endangered in any way—even by restrictions on movement into the territories—then property rights of slaves in the states themselves would soon be up for grabs. Hence, the battle increasingly involved forcing a national acceptance of the southern definitions of property. Jefferson Davis, in 1850, asked, “What is there in the character of that property [slaves] which excludes it from the general benefit of the principles applied to all other property?”
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All of the debate over property, of course, also obscured the fact that
Dred Scott
was bad law. The decision cut the ground out from under the logic used in
Lemmon v. People
, a New York Superior Court case in which a slave owner who stayed in New York with his eight slaves on a steamship was sued under habeas corpus laws and Justice Elijah Paine cited “the law of nature [that] all men are free, and where slavery is not established and upheld by the law of the state there can be no slaves.”
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The ruling was appealed, reached the New York Supreme Court on a writ of certiorari, and the original decision was upheld. It was then appealed to the New York Court of Appeals, where it was upheld yet again. By that time—1860—the New York court was fully aware of the
Dred Scott
decision but ignored it. Judge William Wright took a dig at Taney’s Court when he wrote:

War broke out before the case could come to the United States Supreme Court, where it almost certainly would have met the same fate as Scott’s. As Don Fehrenbacher wrote, the decision “legitimized and encouraged an expansion of slavery that never took place; it denied freedom to a slave who was then quickly manumitted.”
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Of course, the central reason the “expansion never took place” was because the South seceded rather than risk the results of the democratic process that it knew was sure to come.

But the most obvious unstated fact was that Taney’s Court did not acknowledge the evil or basic injustice of slavery, and Lincoln did. Modern angry black writers, such as Lerone Bennett, have claimed Abraham Lincoln was a racist, a notion accepted by a handful of otherwise sensible thinkers on the right.
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Lincoln’s dream, “like Jefferson’s dream,” Bennett wrote, “was a dream of a lily-white America without Negroes, Native Americans, and Martin Luther Kings.”
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Those are cockamamie comments about a man who said, “I can not but hate [slavery]. I hate it because of the monstrous injustice of slavery itself.”
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More important, for those who cite Lincoln’s comments about black inequality, a remarkable exposition exists that proved just the opposite—that in freedom equality was assumed:

In the short term, Abraham Lincoln used the
Dred Scott
decision as a sledgehammer to pound Senator Stephen Douglas during the famous Lincoln-Douglas debates of 1858. Douglas, running for reelection, already had his eyes on the presidency. As noted in the previous chapter, until 1860 virtually every American president after Monroe had been a “northern man of southern principles” or a Westerner who acquiesced in the existence of slavery, and Douglas, from Illinois, certainly fit that mold. Under the structure of Van Buren’s party system, the national parties had to run candidates who had appeal in both Albany and Richmond.

Douglas, however, had already antagonized many Southerners. First, he helped orchestrate the Compromise of 1850, which admitted California as a free state and the New Mexico and Utah territories under the new concept of popular sovereignty. This idea, originally elaborated by Michigan senator Lewis Cass, embodied a solution to slavery wrapped in the guise of democracy, namely, that the people of a territory could choose whether or not to have slavery within their borders. As Harry Jaffa, the most insightful critic of the Lincoln-Douglas debates, has argued, it elevated the concept of moral relativism above that of natural law for the first time in the young Republic’s history.
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Douglas earned the further antipathy of the South when he introduced a bill for Nebraska statehood in 1854 into the Senate, employing popular sovereignty to organize two new states, Nebraska and Kansas. Already the sectional balance was off, with Minnesota set to come into the Union, and according to one Southerner, the idea that Kansas alone would compensate for Minnesota’s admission was “vile hypocrisy” and “flimsy twaddle.”
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Over the short run, slave owners flooded into Kansas, setting up a pro-slave capital at Lecompton and drafting a constitution that protected slavery. But the principle that slavery could be excluded by a mere vote of the population did not sit well with those in the South who could read a map, and who knew that even if they won a new slave state in Kansas, future states carved out of the old Louisiana Purchase territories and the new Mexican Cession territories were more likely to be free soil than slave lands. Thus, in their minds, Douglas had consorted with the enemy, handing the anti-slave forces a means to deny Southerners their constitutional rights. The breakup of the Democrats as a national party had begun.

Lincoln, representing the new Republican Party, ran against Douglas in the Illinois senate election of 1858 with little hope of winning. His party had been founded specifically on the principle of opposing the expansion of slavery into the territories, and now the
Dred Scott
case gave Lincoln his opportunity. He could make Douglas choose between supporting a bad
Dred Scott
decision or the fundamentally unconstitutional position of popular sovereignty—or, even better, Lincoln could weaken him on both issues simultaneously, making him vulnerable for some other Republican candidate in 1860. Douglas walked into the trap at the debate in Freeport, Illinois, by stating:

While simply restating the maxim that an unpopular law is difficult to enforce, Douglas’s statement had the effect of nullifying the
Dred Scott
ruling in virtually every free territory.

Besides the obvious moral problem, in which any issue is subject to a majority vote without any constitutional rights superseding it, popular sovereignty also contained a practical issue. By turning the problem of slavery over to the states, Congress withheld its authority (or, perhaps more accurately, transferred it). However, the same inaction could be read by pro-slave forces to mean Congress lacked such authority to act on slavery. Yet if that was the case, how could Congress then
delegate
such authority that it lacked to a subordinate state power? Douglas and most leading Democrats of both sections had already reached the conclusion that in fact Congress possessed no such authority to restrict slavery, and had arrived at that point almost a full year before the
Dred Scott
decision.

Already the country had divided into pro-slave and free-soil sections. The last southern abolition societies had vanished by 1837, and most southern states had laws that punished the public advocacy of abolition. Itinerant peddlers and northern travelers were viewed with increasing suspicion. Local “vigilance” committees “ferreted out subversives, administering whippings or other chastisements.”
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Northern states, meanwhile, may not have whipped pro-slave advocates, but they had eliminated slavery throughout the North, refused to comply with the federal Fugitive Slave Law derived from the Compromise of 1850, and even engaged in anti-slavery mob violence from time to time.
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Virtually every major sectional event of the decade seemed to symbolically capture the evils of slavery: Preston Brooks’s caning of Senator Charles Sumner on the floor of the Senate was reminiscent of the slave-master whipping his chattel; the gag rule seemed a metaphor for the owner’s silencing of dissent by slaves; then finally the
Dred Scott
decision constituted the ultimate expression of the “slave power conspiracy’s” grip on the levers of power.

Kansas statehood spelled disaster for northern Democrats, costing them over 70 percent of their seats in free states in subsequent elections. Yet those were not gained by Whigs, who for all intents and purposes were “me-too Democrats,” refusing to take a position on slavery. Thus, Democratic losses did not translate into Whig gains—quite the contrary, the Whigs vanished, replaced by the new Republican Party whose platform elevated slavery to the top of the national debate. Nor was the narrower issue of Kansas resolved. Thousands of pro-slave settlers had poured in and established Lecompton as the territorial capital, only to be offset belatedly by an influx of free-soilers who created their own capital at Topeka. There were two legislatures, two territorial governors, and two state constitutions sent to the U.S. Senate for ratification. All attempts at compromise failed: “An angel from heaven could not write a bill to restore peace in Kansas that would be acceptable to the Abolition Republican party,” Douglas intoned.
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Worse, the bloody factional skirmishes throughout the state started to escalate. One thousand pro-slave men, led by Sheriff Samuel Jones, converged on Lawrence, Kansas, a bastion of the free-soil New England Emigrant Aid Company, in May 1856, burning a printing office and ransacking the local hotel. No one was killed, but the “Sack of Lawrence” immediately made headlines in northern papers as an example of pro-slavery lawlessness. Just a few days later, abolitionist John Brown, who had come to Kansas with his sons to “make it a Free state,” marched to Pottawatomie Creek and executed five pro-slavery “ruffians” who had arrived to make Kansas a slave state. Both sides had volunteer armies; weapons flowed in, most memorably the “Beecher’s Bibles”—rifles delivered by Henry Ward Beecher in boxes labeled “Bibles.” Between 1856 and 1858, some fifty-five people were killed, and, while less in the news, vigilantes in Iowa had taken that many lives as well.

Murders constituted the worst, but not the only slave-related escalating violence in the territories. Mobs in Missouri burned out 50 families and expelled 150 more in 1856. Free-soilers drove out 300 settlers from Linn and Bourbon counties.
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Arguing that “most settlers came [westward] with the usual frontier motive: the desire for new opportunities and better land,” David Grimsted was partially correct.
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At the same time, the ideology of “free soil” had so embedded itself in northern settlers that separating opportunity from slavery became impossible. To many new immigrants in Kansas, Nebraska, and other territories, there could be no opportunity so long as slavery threatened to undercut wages and large slave-based plantations loomed as a dominant competitor to small, free farms.

Meanwhile, the young Republican Party had profited from the Kansas-Nebraska Act, which created two new territories, Kansas and Nebraska, each of whose status regarding slavery would be decided by a vote of that territory’s legislature under Douglas’s popular sovereignty concept. Nevertheless, both parties struggled to process the most expedient use of the
Dred Scott
case while remaining within their ideological grid. Lincoln and the Republicans attempted to remain locked in on the issue of slavery in the territories, but after
Dred Scott
they had another troubling political issue to raise, that of judicial activism and the tyranny of the Supreme Court. To disregard the decision would be rebellion, Lincoln argued, and added that he thought it possible to persuade the Court to reverse itself. In any event, the Taney Court was hideously wrong on both its history and the law. Lincoln cited numerous instances of free blacks who had citizenship rights prior to the Constitution, and de facto were included in the phrase “We the people.” Moreover, he argued, the Declaration should be correctly interpreted to mean that all men were equal in their inalienable right to life, liberty, and the pursuit of happiness, and while all men did not enjoy such rights, the Founders nevertheless had declared that such rights existed and that when circumstances permitted they should be made real to all.
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