Tag Archives: roger taney

“One after another they have closed the heavy doors upon him…” The Dred Scott Decision

Friends of Padre Steve’s World,

Another article from one of my Civil War texts, this one dealing with the infamous Dred Scott decision. That decision, made by a Southern dominated, Supreme Court, members of whom included number of slave owners, done in collusion with President Elect James Buchanan, declared that African Americans had no right to citizenship, thus no protection under the law, no-matter where they lived. It would not be overturned until after the Civil War when Congress passed the 14th Amendment, an amendment that is vital for all of our liberties.

Again, for those in denial about how we got to this point in our history, this is not a comfortable subject.

Have a great day,

Peace

Padre Steve+

dred scott

Dred Scott

The Deepening Divide

As the 1850s wore on, the divisions over slavery became deeper and voices of moderation retreated. The trigger for the worsening of the division was the political battle regarding the expansion of slavery; even the status of free blacks in the north that were previously slaves, over whom their owners asserted their ownership. Southerners considered the network to help fugitive slaves escape to non-slave states, called the Underground Railroad “an affront to the slaveholders pride” and “anyone who helped a man or woman escape bondage was simply a thief” who had robbed them of their property and livelihood, as an “adult field hand could cost as much as $2000, the equivalent of a substantial house.” [1]

In 1856 the Supreme Court, dominated by southern Democrats ruled in favor of southern views in the Dred Scott decision, one pillar of which gave slavery the right to expand by denying to Congress the power to prohibit slavery in Federal territories. Taney’s ruling in the case insisted “Neither the Declaration of Independence nor the Constitution had been intended to apply to blacks he said. Blacks were “so far inferior that they had no rights which the white man was bound to respect.” Taney did not stop with this but he declared the Missouri Compromise itself unconstitutional for “Congress had exceeded its authority when it forbade slavery in the territories by such legislation as the Missouri Compromise, for slaves were private property protected by the Constitution.” [2]

ROGER B. TANEY (1777-1864).  Roger Taney, Chief Justice of the U.S. Supreme Court, handing down his decision on the Dred Scott case, 1857. American illustration.

Dred Scott Decison

The decision was momentous, but the judicial fiat of Taney and his court majority was a disaster for the American people. It solved nothing and further divided the nation:

“In the South, for instance, it encouraged southern rights advocates to believe that their utmost demands were legitimatized by constitutional sanction and, therefore, to stiffen their insistence upon their “rights.” In the North, on the other hand, it strengthened a conviction that an aggressive slavocracy was conspiring to impose slavery upon the nation, and that any effort to reach an accommodation with such aggressors was futile. While strengthening the extremists, it cut the ground from under the moderates.” [3]

The decision in the case is frightening when one looks upon its tenor and implications. The majority opinion, which was written by Chief Justice Roger Taney, was chilling, not only in its views of race, but the fact that blacks were perpetually property without the rights of citizens. Taney wrote:

“Can a negro, whose ancestors were imported into this country, sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?…It is absolutely certain that the African race were not included under the name of citizens of a state…and that they were not included, and were not intended to be included, under the word “citizens” in the Constitution, and therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remain subject to their authority, and had no rights or privileges but those who held the power and the Government might choose to grant them” [4]

The effect of the ruling on individuals and the states was far reaching. “No territorial government in any federally administered territory had the authority to alter the status of a white citizen’s property, much less to take that property out of a citizen’s hands, without due process of law or as punishment for some crime.” [5] Free slaves were no longer safe, even in Free States, from the possibility of being returned to slavery, because they were considered property. The tens of thousands of free blacks in the South were effectively stripped of citizenship, and became vulnerable to either expulsion or re-enslavement, something that the legislatures in Virginia, North Carolina and Missouri debated in 1858. Likewise the decision cast doubt on the free status of every African American regardless of residence.” [6]

roger-b-taney-1-sized

Chief Justice Roger B. Taney

But the decision had been influenced by President-Elect James Buchanan’s secret intervention in the Supreme Court deliberations two weeks before his inauguration. Buchanan hoped by working with the Justices that he would save the Union from breaking apart by appeasing slave owners and catering to their agenda. “The president-elect wanted to know not only when, but if the Court would save the new administration and the Union from the issue of slavery in the territories. Would the judges thankfully declare the explosive subject out of bounds, for everyone who exerted federal power? The shattering question need never bother President Buchanan.” [7] In his inaugural address he attempted to camouflage his intervention and “declared that the Court’s decision, whatever it turned out to be, would settle the slavery issue forever.” [8]

But Buchanan attempt at appeasement was mistaken. The case made the national political situation even more volatile because it destroyed the political middle in Congress which had previously found compromise.  Taney’s decision impaired “the power of Congress – a power which had remained intact to this time – to occupy the middle ground.” [9] The Dred Scott decision was far reaching in its implications and Taney declared that Congress “never had the right to limit slavery’s expansion, and that the Missouri Compromise had been null and void on the day of its formulation.” [10] Taney’s ruling fulfilled what Thomas Jefferson wrote when he noted that the Missouri Compromise was merely a reprieve from the broader ideological and economic issues involved regarding slavery, and Taney destroyed that reprieve with the stroke of his pen.

The Court’s decision “that a free negro was not a citizen and the decision that Congress could not exclude slavery from the territories were intensely repugnant to many people in the free states” [11] and it ignited a firestorm in the north where Republicans now led by Abraham Lincoln, decried the decision and southerners basked in their judicial victory. Southerners were exultant, the Richmond Enquirer wrote that the Court had destroyed “the foundation of the theory upon which their warfare has been waged against the institutions of the South.” [12] Northerners now quite rightly feared that an activist court would rule to deny their states the right to forbid slavery. As early as 1854 Lincoln posed the idea that the Declaration of Independence was the standard maxim of free society …constantly spreading and deepening its influence,” ultimately applicable “to peoples of all colors everywhere.” [13]

After the Dred Scott decision Lincoln warned that the Declaration was being cheapened and diluted, he remained insistent on this point, he noted:

“Our Declaration of Independence was held sacred by all, and thought to include all” Lincoln declared, “but now, to aid in making the bondage of the Negro universal and eternal, it is assaulted, and sneered at, and construed, and hawked at, and torn, till, its framers could ride from their graves, they could not recognize it at all.” [14]

Lincoln attacked the decision noting that Taney “insists at great length that negroes were no part of the people who made, or for whom made, the declaration of Independence or the Constitution.” But as Doris Kearns Goodwin notes “in at least five states, black voters action on the ratification of the Constitution and were among the “We the People” by whom the Constitution was ordained and established.” Lincoln acknowledged that the founders “did not declare all men equal in all respects. They did not mean to say that all were equal in color, size, intellect, moral developments, or social capacity.” But they dis declare all men “equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’…They meant simply to declare the right, so the enforcement of it might follow as circumstances permit.” [15]

Not only that, Lincoln asked the logical question regarding Taney’s judicial activism. Lincoln and other Republican leaders “noted that all slavery needed was one more Dred Scott decision that a state could not bar slavery and the objective of Slave Power to nationalize slavery would be accomplished.” [16] How long would it be, asked Abraham Lincoln, before the Court took the next logical step and ruled explicitly that the:

“Constitution of the United States does not permit a state to exclude slavery from its limits?” How far off was the day when “we shall lie down pleasantly thinking that the people of Missouri are on the verge of making their State free; and shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State?” [17]

Lincoln discussed the ramification of the ruling for blacks; both slave and free:

“to aid in making the bondage of the Negro universal and eternal….All the powers of the earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the theology of the day is fast joining the cry. They have him in his prison house;…One after another they have closed the heavy doors upon him…and they stand musing as to what invention, in all the dominions of mind and matter, can be produced the impossibility of his escape more complete than it is.” [18]

Frederick Douglass noted that “Judge Taney can do many things…but he cannot…change the essential nature of things – making evil good, and good, evil.” [19]

Lincoln was not wrong in his assessment of the potential effects of the Dred Scott decision on Free States.  State courts in free-states made decisions on the basis of Dred Scott that bode ill for blacks and cheered slave owners.  In newly admitted California the state supreme court ominously “upheld a slaveowner’s right to retain his property contrary to the state’s constitution.” [20]

A similar decision made by a New York Court was being used by slave-states to bring that issue to the Taney Court following Dred Scott. “In 1852 a New York judge upheld the freedom of eight slaves who had left their Virginia owner while in New York City on their way to Texas.” [21] The Dred Scott decision brought that case, Lemon v. The People back to the fore and “Virginia decided to take the case to the highest New York court (which upheld the law in 1860) and would have undoubtedly appealed it to Taney’s Supreme Court had not secession intervened.” [22] Even non-Republican parties such as the democrats could see the writing on the wall. The national publication of the Democratic Party, the Washington Union “announced that the clear implication of the Dred Scott decision was that all state laws prohibiting a citizen from another state, either permanently or temporarily, were unconstitutional.” [23]

Notes

[1] Goodheart, Adam. Moses’ Last Exodus in The New York Times: Disunion, 106 Articles from the New York Times Opinionator: Modern Historians Revisit and Reconsider the Civil War from Lincoln’s Election to the Emancipation Proclamation Edited by Ted Widmer, Black Dog and Leventhal Publishers, New York 2013 p.15

[2] Ibid. Goodwin Team of Rivals p. 189

[3] Ibid. Potter The Impending Crisis p.291

[4] Ibid. Guelzo Fateful Lightning: A New History of the Civil War Era and Reconstruction p.91

[5] Ibid. Guelzo Fateful Lightning pp.91-92

[6] Ibid. Goldfield America Aflame p.142

[7] Ibid. Freehling The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 p.115

[8] Ibid. Freehling The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 p.109

[9] Ibid. Potter The Impending Crisis p.291

[10] Ibid. Levine Half Slave and Half Free p.210

[11] Ibid. Potter The Impending Crisis p.279

[12] Ibid. Goodwin Team of Rivals p. 190

[13] Ibid. Catton Two Roads to Sumter p.139

[14] Ibid. Guelzo Fateful Lightning p.93

[15] Ibid. Goodwin Team of Rivals p. 190

[16] Gienapp, William E. The Republican Party and Slave Power in The Civil War and Reconstruction Documents and Essays Third Edition edited by Michael Perman and Amy Murrell Taylor Wadsworth Cengage Learning Boston MA 2011 p.81

[17] Ibid. Levine Half Slave and Half Free p.211

[18] Ibid. Catton Two Roads to Sumter p.139

[19] Ibid. Goodwin Team of Rivals p. 190

[20] Ibid. Gienapp The Republican Party and Slave Power p.81

[21]  Ibid. McPherson The Battle Cry of Freedom p.181

[22] Ibid. McPherson The Battle Cry of Freedom p.181

[23] Ibid. Gienapp The Republican Party and Slave Power p.82

Advertisements

1 Comment

Filed under civil rights, civil war, History, laws and legislation, Political Commentary

From All-Volunteer Forces to Conscription: The Draft in the Civil War

Enrollment-Poster-in-New-York-June-23-1863

Friends of Padre Steve’s World,

Today I am posting another heavily revised section of my Civil War and Gettysburg text, this dealing on the conscription efforts of both sides. It is an inte4resting subject as it brings up many issues that we still face in society, racial and religious prejudice, economic disparity, and social division.  Of course as always I will probably add more to this and revise it again, but you are probably getting used to that. I hope that you enjoy and have a great day.

Peace

Padre Steve+

The Changing Character of the Armies and Society

Gettysburg was the last battle where the original armies, composed of volunteers predominated.  As the war progressed the nature of both armies was changed. Initially both sides sought to fight the war with volunteers. However, the increasingly costly battles which consumed vast numbers of men necessitated new measures to fill the ranks, and this need led to the conscription, or draft of soldiers and the creation of draft laws and bureaus in the South and later the North.

fig17

Confederate Conscription

The in April 1862 Confederate Congress passed the Conscription Act of 1862 which stated that “all persons residing in the Confederate States, between the ages of 18 and 35 years, and rightfully subject to military duty, shall be held to be in the military service of the Confederate States, and that a plain and simple method be adopted for their prompt enrollment and organization.” [1] The act was highly controversial, often resisted and the Confederate Congress issued a large number of class exemptions. Despite the exemptions “many Southerners resisted the draft or assisted evasion by others” [2] The main purpose of the conscription act was “to stimulate volunteering rather than by its actual use” [3] and while it did help increase the number of soldiers in Confederate service by the end of 1862 it was decidedly unpopular among soldiers, chafing at an exemption for “owners or overseers of twenty or more slaves” [4] who referred to the war as a “rich man’s war but a poor man’s fight.” [5]

Some governors who espoused state’s rights viewpoints “utilized their state forces to challenge Richmond’s centralized authority, hindering efficient manpower mobilization.” [6] Some, most notably Georgia’s governor Joseph Brown “denounced the draft as “a most dangerous usurpation by Congress of the rights of the States…at war with all principles for which Georgia entered the revolution.” [7]  Governor Brown and a number of other governors, including Zebulon Vance of North Carolina fought the law in the courts but when overruled resisted it through the many exemption loopholes, especially that which they could grant to civil servants.

In Georgia, Governor Brown “insisted that militia officers were included in this category, and proceeded to appoint hundreds of new officers.” [8] Due to the problems with the Conscription Act of 1862 and the abuses by the governors, Jefferson Davis lobbied Congress to pass the Conscription Act of 1864. This act was designed to correct problems related to exemptions and “severely limited the number of draft exemption categories and expanded military age limits from eighteen to forty-five and seventeen to fifty. The most significant feature of the new act, however, was the vast prerogatives it gave to the President and War Department to control the South’s labor pool.” [9] Despite these problems the Confederacy eventually “mobilized 75 to 80 percent of its available draft age military population.” [10]

recruit poster

The Enrollment Act: The Federal Draft

In the spring of 1863 a manpower crunch began to hit the Union Army as vast numbers of the nine-month militia regiments which were called out by Lincoln in accordance with the Militia Act of May 25th 1792 were to disband. Facing the reality that the all-volunteer system which had sustained the war effort the first two years of the war could no longer meet the need for adequate numbers of soldiers the Congress of the United States passed the “An Act for the enrolling and calling out the National Forces, and for other Purposes,” commonly known as the enrollment act of 1863” on March 3rd 1863. [11] The length of the war and the massive number of causalities were wearing on the population and the Union Army had reached an impasse as in terms of the vast number of men motivated to serve “for patriotic reasons or peer group pressure were already in the army.” Likewise, “War weariness and the grim realities of army life discouraged further volunteering” and “the booming war economy had shrunk the number of unemployed men to the vanishing point.” [12]

The Enrollment Act was controversial. Based on the power of Congress given by the Constitution in Article One, Section Eight, to raise and support armies. It was “the first direct Federal conscription statute in U.S. history, providing the first Federal compulsion upon individuals to enter directly into the military service of the United States, without intermediate employment in the militia systems of the states.” [13] In doing so the act “bypassed the state governments entirely and created a series of federal enrollment boards that would take responsibility for satisfying the federally assigned state quotas.” [14] In effect it was an act the nationalized military service and eventual became the basis for a truly national army which would be supported by state forces embodied in the National Guard as well as a Federal Army Reserve. Though Chief Justice of the Supreme Court Roger Taney believed that act of be unconstitutional it was never challenged during his lifetime, but “the Court eventually upheld the constitutionality of the similar Selective Service Act of May 18th, 1917 in a unanimous decision.” [15] The act made some exemptions, those who were physically or mentally unfit, certain high federal government officials and governors, only sons of dependent widows and infirm parents, or those convicted of a felony.

Like the Confederate legislation, this act was also tremendously unpopular and was ridden with exemptions which were frequently abused. All congressional districts were issued a quota for volunteers. Those districts that were able to fulfill their quotas were not subject to conscription, thus the districts that “could provide sufficient volunteers, or bounties high enough to lure volunteers, would not need to draft anyone, and in the end only seven Northern States would be subject to all four of the draft calls issued under the Enrollment Act.” [16]

The Federal draft was conducted by lottery in each congressional district with each district being assigned a quota to meet by the War Department. Under one third of the men drafted actually were inducted into the army, “more than one-fifth (161,000 of 776,000) “failed to report” and about 300,000 “were exempted for physical or mental disability or because they convinced the inducting officer that they were the sole means of support for a widow, an orphan sibling, a motherless child, or an indigent parent.” [17]

To ensure that the enrollment boards had teeth Congress “authorized a Provost Marshall Bureau in the War Department to enforce conscription.” [18] It was the task of the Provost Marshalls to enroll every male citizen, as well as immigrants who had applied for citizenship between the ages of twenty to forty-five.

There was also a provision in the Federal draft law that allowed well off men to purchase a substitute who they would pay other men to take their place. Some 26,000 men paid for this privilege, including future President Grover Cleveland. Another “50,000 Northerners escaped service by another provision in the Enrollment Act known as “commutation,” which allowed draftees to bay $300 as an exemption fee to escape the draft.” [19] Many people found the notion that the rich could buy their way out of war found the provision repulsive to the point that violence ensued in a number of large cities.  Congress had good intentions in setting the price at $300 because they did not want the price to soar beyond the reach of many draftees, however, this was far more than most of the working poor could afford. Of course well off and influential people could pay for a substitute, but “the working poor, for whom three hundred dollars was a half a year’s wages, were especially outraged, and many saw the exemption as another indicator that the war no longer focused on their interests….” [20] Many were afraid that newly emancipated African Americans would be new competition for their already low paying jobs and that the notion of equality would upset their society and their lives. The financial wall was insurmountable for many, and the fact that many found it repulsive that “in a democracy someone could hire a substitute to take his place, was calculated to provoke the bloodiest sort of response among the poor.” [21]

Fraud was rampant and the boards often had little means to check the documentation of those who filed for exemptions. “Surgeons could be bribed, false affidavits claiming dependent support could be filed, and other kinds of under-the-table influence could be exerted. Some draftees feigned insanity or disease. Others practiced self-mutilation. Some naturalized citizens claimed to be aliens.” [22] All of this seemed to indicate to the poor, and to recent immigrants that the system was unfair. Some soldiers such as Irish-American soldier John England were not against the draft itself, but the inequity of the system. The law, English wrote, “was framed for the benefit of the rich and the disadvantage of the poor. For instance – a rich conscript can commute for$300! Now, it is a fact well known to all that there are some rich animals in the northern cities that can afford to lose $300, as much as some poor people can afford to lose one cent.” [23]

To make matters worse for the Army, many of the substitutes themselves were worthless to the Army, veteran soldiers distrusted them, often with good reason. “Of 186 such men assigned to a Massachusetts regiment, 115 deserted, 6 were discharged for disability, 26 were transferred to the navy, and 1 was killed in action.” Additionally the medically unfit, including men in the final stages of incurable disease were present in large numbers, of “57 recruits for the 6th New York Heavy Artillery, seventeen could not muster. In March of 1864, one-third of the replacements sent to a cavalry divisions were already on the sick list.” [24]

The Union draft law provoked great resentment, not because people were unwilling to serve, but from the way that it was administered, for it “brought the naked power of military government into play on the home front and went much against the national grain.[25] The resentment of the act grew, especially in large cities such as New York was fed by false rumors and lack of understanding as much as fact. The ensuing draft riots “were based upon ignorance, misery, fear, and the inability of one class of men to understand another class; upon the fact that there were “classes of men” in a classless American society.” [26]

New_York_Draft_Riots_-_fighting

The Draft Riots

Barely a week after the Battle of Gettysburg, clashes and violence erupted in several cities. The riots became so violent that local police forces were incapable of controlling them. As a result President Lincoln was forced to use Union Soldiers, recently victorious at Gettysburg to end the rioting and violence. New York where protestors involved in a three day riot, many of whom were Irish immigrants urged on by Democratic Tammany Hall politicians, “soon degenerated into violence for its own sake” [27] wrecking the draft office, then seizing the Second Avenue armory while attacking police and soldiers on the streets. Soon “the mob had undisputed control of the city.” [28]

These rioters also took out their anger on blacks, and during their rampage the rioters “had lynched black people and burned the Colored Orphan Asylum.” [29] A witness described the scene:

“The furious, bareheaded & coatless men assembled under our windows & shouted for Jeff Davis!… Towards evening the mob, furious as demons, went yelling over to the Colored-Orphan Asylum in 5th Avenue… & rolling a barrel of kerosene in it, the whole structure was soon ablaze, & is now a smoking ruin. What has become of the 300 innocent orphans I could not learn…. Before this fire was extinguished, or rather burnt out, for the wicked wretches who caused it would not permit the engines to be used, the northern sky was brilliantly illuminated, probably by the burning of the Aged Colored-Women’s Home in 65th Street…. A friend…had seen a poor negro hung an hour or two before. The man in a frenzy, had shot an Irish fireman and they immediately strung up the unhappy African…. A person who called at our house this afternoon saw three of them hanging together.” [30]

hith-drafft-riots-E

Many of the rioters, but certainly not all of them were Irish, especially Catholics, who were also angry at the religious prejudice that the experienced at the hand of many Protestants. Rioters “targeted African-Americans, Republicans, abolitionists, and anyone associated with them…. Policemen and soldiers trying to suppress the riots also became targets, even if these men were Irish-Americans and Catholics.” [31] Many high profile Irish Catholics including Archbishop John Hughes refused to condemn the rioters or even call them by the term, earning the condemnation of the editors of the New York Times who wrote, “If the mob had burned the Catholic Orphan Asylum next door to the Bishop’s Cathedral… somebody besides “the papers” probably would have called them rioters.” [32]

The riots showed that the concept of racial or religious equality was difficult for many Americans, and not just those in the South. Prejudice, against African Americans, immigrants including the Irish, and Roman Catholics still burned in the hearts of many who had just a few years before had supported the Know Nothing Party and movement. Bruce Catton wrote, the “rioters had malignant prejudice, and those rioted against had another prejudice, equally malignant; if the lynchings and the burnings and the pitched battles in city streets meant anything they meant that this notion of equality was going to be hard to live with.” [33]

The violence did not abate until newly arrived veteran Union troops who had just fought at Gettysburg quickly and violently put down the insurrection. These soldiers, fresh from the battlefield and having experienced the loss of so many of their comrades “poured volleys into the ranks of protestors with the same deadly effect they had produced against the rebels at Gettysburg two weeks earlier.” [34] Republican newspapers which supported abolition and emancipation were quick to point out the moral of the riots; “that black men who fought for the Union deserved more respect than white men who fought against it.” [35]

In the end, the Enrollment Act contributed little to the Union war effort. Though it was called conscription it was not really conscription, it was “but a clumsy carrot and stick device to stimulate volunteering. The threat was being drafted and the carrot a bounty for volunteering.” [36] The organization of its machinery was so inefficient and the Act’s intentions so diluted “that the effort netted only 35,883 men – albeit along with $15,686,400 in commutation fees.” [37]

While an additional 74,000 men served as substitutes, the number pales in comparison to the nearly 800,000 who volunteered or reenlisted to serve while the act was in force. Only some six percent of the 2.7 million men who served in the Union Army were directly conscripted. Congress repealed the commutation provision in July 1864 and tightened requirements for exemptions.

The Federal government got into the bounty business as well with a $300 bounty for new enlistment and reenlistment, all paid for by the commutation fees collected by through the enrollment Act. To meet the demand “Bounty brokers” went into business to enlist men into the service, getting the best deal possible while themselves taking part of the profit. Some enterprising recruits “could pyramid local, regional, and national bounties into grants of $1000 or more,” [38] and some even took the chance to change their names, move to another and enlist again to collect more bounty money and many deserted before they ever saw combat. “They were so unreliable that any regiment that had them in large numbers was bound to be decidedly weaker than it would have been without them.” [39]

8th_Ohio_At_Gettysburg

The men who had been fighting since 1861 and 1862 who had served without bounties and had reenlisted anyway; the veterans of Shiloh, Vicksburg, Antietam, Gettysburg and so many other hard fought battles in the West and the East, despised the substitutes and bounty men of 1864, and the poor qualities of such men made the good soldiers look even better. These men were proud of their service, their regiments, and what they had achieved. One soldier from Illinois wrote to his sister: “It is hard for a person to imagine how much a man sacrifices in the way of pleasure and enjoyment by going into the ‘Army,’ but I never think I shall regret being in the ‘Army’ if I get out alive & well.” He did.” [40]

Notes

[1] Ibid. Thomas, The Confederate Nation p.152

[2] Ibid. Thomas, The Confederate Nation p.152

[3] Ibid. McPherson. The Battle Cry of Freedom p. 432

[4] Ibid. Thomas, The Confederate Nation p.154

[5] Ibid. McPherson. The Battle Cry of Freedom p.431

[6] Millet, Allan R. and Maslowski, Peter, For the Common Defense: A Military History of the United States The Free Press a Division of Macmillan Inc. New York, 1984 p.166

[7] Ibid. McPherson. The Battle Cry of Freedom p.433

[8] Ibid. McPherson. The Battle Cry of Freedom p.431

[9] Ibid. Thomas, The Confederate Nation p.261

[10] Ibid. Gallagher The Confederate War p.28

[11] Ibid. Weigley A Great Civil War p.233

[12] Ibid. McPherson. The Battle Cry of Freedom p.600

[13] Ibid. Weigley A Great Civil War pp.233-234

[14] Ibid. Guelzo Fateful Lightening p.459

[15] Ibid. Weigley A Great Civil War p.234

[16] Ibid. Guelzo Fateful Lightening p.459

[17] Ibid. McPherson. The Battle Cry of Freedom p.601

[18] Ibid. McPherson. The Battle Cry of Freedom p.600

[19] Ibid. Guelzo Fateful Lightening p.460

[20] Bruce, Susannah Ural The Harp and the Flag: Irish American Volunteers and the Union Army, 1861-1865 New York University Press, New York and London 2006 p.173

[21] Ibid. Guelzo Fateful Lightening p.460

[22] Ibid. McPherson. The Battle Cry of Freedom p.601

[23] Ibid. Bruce The Harp and the Flag p.173

[24] Ibid. Robertson Soldiers Blue and Gray p.38

[25] Ibid. Foote. The Civil War, A Narrative Volume Two p.635

[26] Catton, Bruce. Never Call Retreat, Pocket Books a division of Simon and Schuster, New York 1965 p.205

[27] Ibid. Foote. The Civil War, A Narrative Volume Two p.636

[28] Ibid. Foote. The Civil War, A Narrative Volume Two p.637

[29] Ibid. McPherson. The Battle Cry of Freedom p.687

[30] Ibid. Guelzo Fateful Lightening p.461

[31] Ibid. Bruce The Harp and the Flag p.180

[32] Ibid. Bruce The Harp and the Flag p.180

[33] Ibid. Catton Never Call Retreat p.205

[34] Ibid. McPherson. The Battle Cry of Freedom p.610

[35] Ibid. McPherson. The Battle Cry of Freedom p.687

[36] Ibid. McPherson. The Battle Cry of Freedom p.605

[37] Ibid. Weigley A Great Civil War p.236

[38] Ibid. McPherson. The Battle Cry of Freedom p.606

[39] Ibid. Robertson Soldiers Blue and Gray p.40

[40] Ibid. Robertson Soldiers Blue and Gray p.40

Leave a comment

Filed under civil war, History

Atticus v. Antonin: Farewell Harper Lee

mock

Friends of Padre Steve’s World,

Last week we lost a number of people who made a real difference. One of them never held elective office, and she remained a part and parcel of the town that she was born and raised in, that was Harper Lee, the author of the classic novel To Kill a Mockingbird.

In that book she wrote these words:

“We know all men are not created equal in the sense some people would have us believe- some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others- some people are born gifted beyond the normal scope of men. But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court.”

A few days before she died, Supreme Court Justice Antonin Scalia passed away, alone, while at an exclusive hunting lodge in Texas. In a way he too was a prophet, but not of equality before the law, his judicial opinions almost always favored the rich, the elites, those of white European ancestry, as well as those who shared his religious views on the limited rights of women and gays. In fact, Scalia believed in the inherent inequity of people, and his opinions for the most part echoed that idea, for Scalia, law remained fixed in time and could not change, except when he wanted to change it.

I do not read a lot of novels, but this is one that I did, of course after I saw the film by the same name. Harper Lee was an amazing writer as well as a gifted prophet, if you will. She was able to see through the cultural, religious, and racial prejudices of her times and write a novel that echoes though the decades, and will probably remain a classic of literature for centuries to come.

Harper Lee demonstrated something that Scalia, a legal giant by all measure never understood. She actually believed that all people should be equal before the law. Scalia, for all of his brilliance, never really understood that. He held to an interpretation of law and the Constitution that existed before the 13th, 14th and 15th Amendments.

Scalia called himself an “Originalist” in his understanding of the Constitution. He viewed the Constitution in the same way as Roger Taney, the author of the Dred Scott decision, and the Court members who wrote the majority opinion in Plessy v. Fergusson that enshrined Jim Crow as law. Scalia, for all of his oratory, and legal brilliance, honestly believed that not everyone was equal in the eyes of the law, and it showed in opinion after opinion that he wrote from the bench. He never understood the words of Thomas Jefferson who wrote, “I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” 

Admittedly there are a lot of people who share the opinions of the late Justice Scalia, but I am not one of them. To use the idea of Jefferson that we cannot “as a civilized society remain under the regimen of our barbarous ancestors.” That is the essence of Scalia’s “Originalism,” it is an argument that assumes, much like Fundamentalist religion that there is a point when law is fixed in time and thus immutable, even when the proponents of such views have no problem changing law or religious doctrine to suit their needs, so long as it is done in the name of some kind of faux conservatism.

Presence-To-Kill-a-Mockingbird-Harper-Lee-631.jpg__800x600_q85_crop

I would agree with the words spoke by Atticus Finch in To Kill a Mockingbird in regard to the opinions of others like the late Justice Scalia and his disciples, “They’re certainly entitled to think that, and they’re entitled to full respect for their opinions… but before I can live with other folks I’ve got to live with myself. The one thing that doesn’t abide by majority rule is a person’s conscience.”

I am glad that I encountered the work of Harper Lee, and I mourn her passing. I do hope that many others, inspired by her writing will be the prophets of a new era.

Have a great Monday.

Peace

Padre Steve+

2 Comments

Filed under History, laws and legislation, News and current events

We Hold These Truths

Declaration_of_Independence_by_JoeSnuffy

Last night I re-read the Declaration of Independence as I do about this time of year and as I do so I reflect upon the profoundly revolutionary nature of that document. It is not a long read, but quite profound and as I said revolutionary. As I read again I reflected on the beginning of the second sentence of that document.

“We hold these truths to be self-evident, that all men are created equal…” This statement is really the heart of the document and something that when penned by Thomas Jefferson and ratified by the Continental Congress in July 1776 overturned the political philosophy of the day. These words, which begin the second sentence of the Declaration of Independence announced something unimaginable to the people around the world, most of which labored under the rule of ensconced monarchies, nobilities and state religions. In the world where they were written a person’s family pedigree, ownership of property or even religious affiliation counted more than anything else. In that world few commoners had any hope of social advancement, no matter what their talent, ability or genius.

The words of the Declaration were a clarion call of equality and were revolutionary in their impact, not only in the American colonies but around the world. In the coming years people around the world would look to those words as they sought to free themselves from oppressive governments and systems where the vast majority of people had few rights, and in fact no equality existed.

But the liberty and equality stated in the Declaration of Independence did not extend to all in the United States, or in its territories as it expanded westward, and the inequity eventually brought on a great civil war.

Eighty-seven years after those words were published the nation was divided, in the midst of a great civil war, a climactic battle having just been fought at Gettysburg. A few months later President Abraham Lincoln penned one of the most insightful and influential documents ever written, the Gettysburg Address.

One thing that our founders overlooked was that even while proclaiming equality, they later enshrined that one group of people, African slaves were not equal, in fact they only counted as three fifths of a person. Eventually, many states on their own abolished slavery, but because of the invention of the Cotton Gin slavery became even more fully entrenched in the American South, when an oligarchy of land and slave owners held immense power, where nearly half of the population was enslaved and where even poor whites had few rights and little recourse to justice.

After the Dred Scott decision of 1857 which declared that African Americans, no matter if they were slave or free could be American Citizens and had no standing to sue in Federal courts. Scott had sued to gain his family’s freedom after his owner refused to allow him to purchase it, because they were in a territory where slavery was but even more importantly held that the Missouri Compromise of 1824 which had prohibited the introduction of Slavery into Federal territories was unconstitutional and that the Federal government had no right to limit slavery in territories acquired after the creation of the United States. Chief Justice Roger Taney writing for the majority wrote that the authors of the Constitution as viewed all African Americans:

“beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

Taney held that Article V of the Constitution barred any law that would deprive a slave owner of his “property” on entrance into free states or territories and he enunciated a string of negative effects, or “parade of horribles” that would derive if Scott’s petition for freedom was granted. His declaration is amazing in its ignorance and prejudice. Taney wrote:

“It would give to persons of the negro race, …the right to enter every other State whenever they pleased, …to sojourn there as long as they pleased, to go where they pleased …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

The two dissenting Justices, Curtis and McLain disagreed with the proposition that the writers of the Constitution believed as Taney and the majority believed, noting that at the time of the ratification of the Constitution that blacks could vote in five of the thirteen states, making them citizens, not just of those states but the United States. Referring to the Declaration of Independence in 1854 Lincoln wrote: “the standard maxim of free society …constantly spreading and deepening its influence,” ultimately applicable “to peoples of all colors everywhere.”

However, much to the concern of slave holders and the South, the decision energized the abolitionist movement who believed that now no black, even those with a long history of being Freed Men living in non-slave states could be claimed as property by those claiming to be former owners, and that state laws which gave blacks equal rights and citizenship could be overturned. Lincoln again referring to the Declaration wrote of the Dred Scott decision:

“to aid in making the bondage of the Negro universal and eternal….All the powers of the earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the theology of the day is fast joining the cry. They have him in his prison house;…One after another they have closed the heavy doors upon him…and they stand musing as to what invention, in all the dominions of mind and matter, can be produced the impossibility of his escape more complete than it is.”

Eventually the tensions led to the election of Lincoln along sectional lines and the immediate secession of seven southern states and the establishment of the Confederacy. British military historian and theorist Major General J.F.C. Fuller wrote that the war was “not between two antagonistic political parties, but a struggle to the death between two societies, each championing a different civilization…”

The Confederate Vice President, Alexander Stephens openly proclaimed that the inequity of African Americans was foundational to the Confederacy in his Cornerstone speech of 1861, if there are any doubters about the “rights” the leaders of the Southern States longed to preserve in their secession from the Union, Stephen’s words are all to clear in their intent:

“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. [Applause.] This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

Lincoln, in his Second Inaugural Address acknowledged what everyone had known, but few, him included in the North were willing to say in 1861:

“One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it….”

Even so it took time for the abolition of slavery to be acknowledged as a major concern by the Federal government, it was not until 1862 after Lee’s failed invasion of Maryland and the Battle of Antietam that Lincoln published the Emancipation Proclamation, and that only applied to Confederate occupied areas.

But in 1863 after Gettysburg Lincoln was asked to speak a “few words” at the dedication of the Soldiers’ cemetery. Lincoln’s words focused the issue of the war in relation to those first words of the second sentence of the Declaration of Independence, the understanding that all men are created equal.

“Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate — we can not consecrate — we can not hallow — this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

Unfortunately, the issue of equality has languished in our political debates. Equality is the sister of and the guarantor of the individual liberties enunciated in the Declaration. However because of human nature always more vulnerable to those that would attempt to enshrine their personal liberty over others, or attempt to use the courts and Constitution to deprive others of the rights that they themselves enjoy, or to enshrine their place in society above others. In some cases this is about race, sometimes religion, sometimes about gender and even sexual orientation. Likewise there are those that would try to roll back the rights of others, as those who seek to disenfranchise the poor and minorities, particularly African Americans at the ballot box.

That is why it is important, even as we celebrate and protect individual liberties that we also seek to fight for the equality of all citizens, irrespective of race, religion, gender or sexual orientation. The Declaration of Independence is our guide for this as Jefferson so eloquently wrote: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men…”

I wish all of my readers a happy Independence Day. I also ask that all of us please remember that unless liberty is liberty for all then it is really only liberty for some; those of great economic power and influence; or who happen to be the right race, religion, gender or sexual preference.I don’t believe that such was the intent of Jefferson and those who ratified the Declaration, and I know that it was not the case for Abraham Lincoln, who eighty-seven years later called Americans to embrace a new birth of freedom.

Peace

Padre Steve+

9 Comments

Filed under civil rights, History, Political Commentary

Dred Scott & Obergfell v. Hodges

ROGER B. TANEY (1777-1864).  Roger Taney, Chief Justice of the U.S. Supreme Court, handing down his decision on the Dred Scott case, 1857. American illustration.

ROGER B. TANEY (1777-1864).
Roger Taney, Chief Justice of the U.S. Supreme Court, handing down his decision on the Dred Scott case, 1857. American illustration.

Friends of Padre Steve’s World

Court decisions on Civil Rights matter and sometime soon we will get the Supreme Court decision on the Case of Obergfell v. Hodges, the case that will determine if Marriage Equity will become the law of the land or not. Such cases are important. As I mentioned yesterday freedom for all matters and I completely agree with he words of Abraham Lincoln in regard to liberty that the words of the Declaration of Independence that “all men are created equal” is a universal standard. That it is the “the standard maxim of free society …constantly spreading and deepening its influence,” ultimately applicable “to peoples of all colors everywhere.” This should be true for all, people including the LGBTQ community. 

Supporters of same-sex marriages gather outside the US Supreme Court waiting for its decision on April 28, 2014 in Washington, DC. The US Supreme Court is hearing arguments on whether gay couples have a constitutional right to wed -- a potentially historic decision that could see same-sex marriage recognized nationwide.  AFP PHOTO / MLADEN ANTONOV        (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)

Supporters of same-sex marriages gather outside the US Supreme Court waiting for its decision on April 28, 2014 in Washington, DC. The US Supreme Court is hearing arguments on whether gay couples have a constitutional right to wed — a potentially historic decision that could see same-sex marriage recognized nationwide. AFP PHOTO / MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images)

Since it matters so much I am posting a section from my Civil War and Gettysburg Staff Ride text on the Dred Scott decision. If you read it you will find just how chilling and similar the arguments of the Chief Justice of the Supreme Court Roger Taney are to those who oppose Marriage Equity and other rights being extended to Gay people. 

Peace

Padre Steve+

As the 1850s wore on, the divisions over slavery became deeper and voices of moderation retreated. The trigger for the worsening of the division was the political battle regarding the expansion of slavery; even the status of free blacks in the north who were previously slaves, over whom their owners asserted their ownership. Southerners considered the network to help fugitive slaves escape to non-slave states, called the Underground Railroad “an affront to the slaveholders pride” and “anyone who helped a man or woman escape bondage was simply a thief” who had robbed them of their property and livelihood, as an “adult field hand could cost as much as $2000, the equivalent of a substantial house.” [1]

In 1856 the Supreme Court, dominated by southern Democrats ruled in favor of southern views in the Dred Scott decision, one pillar of which gave slavery the right to expand by denying to Congress the power to prohibit slavery in Federal territories. Taney’s ruling in the case insisted that “Neither the Declaration of Independence nor the Constitution had been intended to apply to blacks he said. Blacks were “so far inferior that they had no rights which the white man was bound to respect.” Taney did not stop with this but he declared the Missouri Compromise itself unconstitutional for “Congress had exceeded its authority when it forbade slavery in the territories by such legislation as the Missouri Compromise, for slaves were private property protected by the Constitution.” [2]

The decision was momentous, but the judicial fiat of Taney and his court majority was a disaster for the American people. It solved nothing and further divided the nation:

“In the South, for instance, it encouraged southern rights advocates to believe that their utmost demands were legitimatized by constitutional sanction and, therefore, to stiffen their insistence upon their “rights.” In the North, on the other hand, it strengthened a conviction that an aggressive slavocracy was conspiring to impose slavery upon the nation, and that any effort to reach an accommodation with such aggressors was futile. While strengthening the extremists, it cut the ground from under the moderates.” [3]

The decision in the case is frightening when one looks upon its tenor and implications. The majority opinion which was written by Chief Justice Roger Taney was chilling, not only in its views of race, but the fact that blacks were perpetually property without the rights of citizens. Taney wrote:

“Can a negro, whose ancestors were imported into this country, sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?…It is absolutely certain that the African race were not included under the name of citizens of a state…and that they were not included, and were not intended to be included, under the word “citizens” in the Constitution, and therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remain subject to their authority, and had no rights or privileges but those who held the power and the Government might choose to grant them” [4]

The effect of the ruling on individuals and the states was far reaching. “No territorial government in any federally administered territory had the authority to alter the status of a white citizen’s property, much less to take that property out of a citizen’s hands, without due process of law or as punishment for some crime.” [5] Free slaves were no longer safe, even in Free States, from the possibility of being returned to slavery, because they were considered property. The tens of thousands of free blacks in the South were effectively stripped of citizenship, and became vulnerable to either expulsion or re-enslavement, something that the legislatures in Virginia, North Carolina and Missouri debated in 1858. Likewise the decision cast doubt on the free status of every African American regardless of residence.” [6]

But the decision had been influenced by President-Elect James Buchanan’s secret intervention in the Supreme Court deliberations two weeks before his inauguration. Buchanan hoped by working with the Justices that he would save the Union from breaking apart by appeasing slave owners and catering to their agenda. “The president-elect wanted to know not only when, but if the Court would save the new administration and the Union from the issue of slavery in the territories. Would the judges thankfully declare the explosive subject out of bounds, for everyone who exerted federal power? The shattering question need never bother President Buchanan.” [7] In his inaugural address he attempted to camouflage his intervention and “declared that the Court’s decision, whatever it turned out to be, would settle the slavery issue forever.” [8]

But Buchanan was mistaken. The case made the situation even more volatile as it impaired “the power of Congress- a power which had remained intact to this time- to occupy the middle ground.” [9] Taney’s decision held that Congress “never had the right to limit slavery’s expansion, and that the Missouri Compromise had been null and void on the day of its formulation.” [10]

The Court’s decision “that a free negro was not a citizen and the decision that Congress could not exclude slavery from the territories were intensely repugnant to many people in the free states” [11] and it ignited a firestorm in the north where Republicans now led by Abraham Lincoln, decried the decision and southerners basked in their judicial victory. Southerners were exultant, the Richmond Enquirer wrote that the Court had destroyed “the foundation of the theory upon which their warfare has been waged against the institutions of the South.” [12] Northerners now quite rightly feared that an activist court would rule to deny their states the right to forbid slavery. As early as 1854 Lincoln posed the idea that the Declaration of Independence was the standard maxim of free society …constantly spreading and deepening its influence,” ultimately applicable “to peoples of all colors everywhere.” [13]

After the Dred Scott decision Lincoln warned that the Declaration was being cheapened and diluted, he remained insistent on this point, he noted:

“Our Declaration of Independence was held sacred by all, and thought to include all” Lincoln declared, “but now, to aid in making the bondage of the Negro universal and eternal, it is assaulted, and sneered at, and construed, and hawked at, and torn, till, its framers could ride from their graves, they could not recognize it at all.” [14]

Lincoln attacked the decision noting that Taney “insists at great length that negroes were no part of the people who made, or for whom made, the declaration of Independence or the Constitution.” But as Doris Kearns Goodwin notes “in at least five states, black voters action on the ratification of the Constitution and were among the “We the People” by whom the Constitution was ordained and established.” Lincoln acknowledged that the founders “did not declare all men equal in all respects. They did not mean to say that all were equal in color, size, intellect, moral developments, or social capacity.” But they dis declare all men “equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’…They meant simply to declare the right, so the enforcement of it might follow as circumstances permit.” [15]

Not only that, Lincoln asked the logical question regarding Taney’s judicial activism. Lincoln and other Republican leaders “noted that all slavery needed was one more Dred Scott decision that a state could not bar slavery and the objective of Slave Power to nationalize slavery would be accomplished.” [16] How long would it be, asked Abraham Lincoln, before the Court took the next logical step and ruled explicitly that the:

“Constitution of the United States does not permit a state to exclude slavery from its limits?” How far off was the day when “we shall lie down pleasantly thinking that the people of Missouri are on the verge of making their State free; and shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State?” [17]

Lincoln discussed the ramification of the ruling for blacks, both slave and free:

“to aid in making the bondage of the Negro universal and eternal….All the powers of the earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the theology of the day is fast joining the cry. They have him in his prison house;…One after another they have closed the heavy doors upon him…and they stand musing as to what invention, in all the dominions of mind and matter, can be produced the impossibility of his escape more complete than it is.” [18]

Frederick Douglass noted that “Judge Taney can do many things…but he cannot…change the essential nature of things – making evil good, and good, evil.” [19]

Lincoln was not wrong in his assessment of the potential effects of the Dred Scott decision on Free States. State courts in free-states made decisions on the basis of Dred Scott that bode ill for blacks and cheered slave owners. In newly admitted California the state supreme court ominously “upheld a slaveowner’s right to retain his property contrary to the state’s constitution.” [20]

A similar decision by a New York Court was being used by slave-states to bring that issue to the Taney Court following Dred Scott. “In 1852 a New York judge upheld the freedom of eight slaves who had left their Virginia owner while in New York City on their way to Texas.” [21] The Dred Scott decision brought that case, Lemon v. The People back to the fore and “Virginia decided to take the case to the highest New York court (which upheld the law in 1860) and would have undoubtedly appealed it to Taney’s Supreme Court had not secession intervened.” [22] Even non-Republican parties such as the democrats could see the writing on the wall. The national publication of the Democratic Party, the Washington Union “announced that the clear implication of the Dred Scott decision was that all state laws prohibiting a citizen from another state, either permanently or temporarily, were unconstitutional.” [23]

Notes

[1] Goodheart, Adam. Moses’ Last Exodus in The New York Times: Disunion, 106 Articles from the New York Times Opinionator: Modern Historians Revisit and Reconsider the Civil War from Lincoln’s Election to the Emancipation Proclamation Edited by Ted Widmer, Black Dog and Leventhal Publishers, New York 2013 p.15

[2] Ibid. Goodwin Team of Rivals p. 189

[3] Ibid. Potter The Impending Crisis p.291

[4] Guelzo Allen C. Fateful Lightening: A New History of the Civil War Era and Reconstruction Oxford University Press, Oxford and New York 2012 p.91

[5] Ibid. Guelzo Fateful Lightening pp.91-92

[6] Ibid. Goldfield America Aflame p.142

[7] Freehling, William. The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 Oxford University Press, Oxford and New York 2007 p.115

[8] Ibid. Freehling, The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 p.109

[9] Ibid. Potter The Impending Crisis p.291

[10] Ibid. Levine Half Slave and Half Free p.210

[11] Ibid. Potter The Impending Crisis p.279

[12] Ibid. Goodwin Team of Rivals p. 190

[13] Ibid. Catton Two Roads to Sumter p.139

[14] Ibid. Guelzo Fateful Lightening p.93

[15] Ibid. Goodwin Team of Rivals p. 190

[16] Gienapp, William The Republican Party and Slave Power in The Civil War and Reconstruction Documents and Essays Third Edition edited by Michael Perman and Amy Murrell Taylor Wadsworth Cengage Learning Boston MA 2011 p.81

[17] Ibid. Levine Half Slave and Half Free p.211

[18] Ibid. Catton Two Roads to Sumter p.139

[19] Ibid. Goodwin Team of Rivals p. 190

[20] Ibid. Gienapp The Republican Party and Slave Power p.81

[21] Ibid. McPherson The Battle Cry of Freedom p.181

[22] Ibid. McPherson The Battle Cry of Freedom p.181

[23] Ibid. Gienapp The Republican Party and Slave Power p.82

1 Comment

Filed under civil rights, History, laws and legislation, LGBT issues, News and current events

Dred Scott: A Warning for Today

Friends of Padre Steve’s World

I am a historian, and as such I look to history to understand people and current events. As such I am looking at the upcoming Supreme Court hearing in the case of Obergefell v. Hodges and thinking about it in relation to the Dred Scott Ruling of 1856.

This case deals with Gay marriage and the attempts of mainly Christian Conservatives to roll back the rights of those in the LBGTQ community to marry. Not only does they seek to prevent Gay marriage where it is not permitted but they seek to roll back those rights in states where the majority of voters through their legislators have passed those laws, and negate the traditional understanding of reciprocity between states concerning recognition of marriages performed in other states. As such it is a major case with big ramifications. 

On one hand if the justices rule in favor of those challenging the laws which allow gays to marry it will strike at the very heart of the meaning of the Declaration of Independence’s  central message that “all men are created equal.” Likewise such a ruling will return LBGTQ citizens to a second class status in which though they pay taxes and serve their country in many ways, and contribute to the positive good of all Americans, they will not enjoy the liberties of other citizens and can be denied basic services, or even the right to be at the bedside of a dying spouse. 

Though Gay marriage harms no one its opponents have announced that it will have apocalyptic consequences and will result in a massive persecution of Christians who oppose it. The legal arguments espoused by the opponents of Gay marriage are similar to those who supported the both the protection and expansion of slavery in the 1850s, and those who after emancipation and the Thirteenth Amendment enacted “Black” or “Jim Crow” laws. Sadly, if Gay marriage is upheld by the Court, a number of States are pledging to enact similar laws regarding Gays, and some states are already doing so. 

From more recent Court rulings it appears that the Gay marriage will be upheld, but you never know with the Roberts Court. Several members, Justices Thomas, Alito and Scalia have long histories of opposing and ruling against the rights of gays.  

Today I am looking at the effects of the Dred Scott decision of the Supreme Court. The decision was one of the worst, if not the worst ever enacted by the Supreme Court. The consequences were chilling as it proclaimed that Blacks were a “subordinate and inferior class of beings” who had no rights. It also in combination with the Compromise of 1850 opened territories to slavery and put Blacks in Free States at jeopardy of being re-enslaved.

I ask my readers to imagine what it will be like for Gays if the Supreme Court rules against Gay marriage. I will probably post something tomorrow about the use of the “Black laws” and “Jim Crow” and relate that to the “Gay laws” that are being enacted in many states and locales, laws which serve no purpose than to deprive citizens of basic rights, services and freedoms enjoyed by other citizens. 

This article is an edited part of one of the chapters of my Gettysburg/ Civil War text. I have worked it so that here it is a stand alone article. So please read this and share, it is important and none of us can be complacent.

Peace,

Padre Steve+

the-dred-scott-case-1846-1857-402x618

As the 1850s wore on, the divisions over slavery became deeper and voices of moderation retreated. The trigger for the worsening of the division was the political battle regarding the expansion of slavery; even the status of free blacks in the north who were previously slaves, over whom their owners asserted their ownership. Southerners considered the network to help fugitive slaves escape to non-slave states, called the Underground Railroad “an affront to the slaveholders pride” and “anyone who helped a man or woman escape bondage was simply a thief” who had robbed them of their property and livelihood, as an “adult field hand could cost as much as $2000, the equivalent of a substantial house.” (1)

In 1856 the Supreme Court, dominated by southern Democrats ruled in favor of southern views in the Dred Scott decision, one pillar of which gave slavery the right to expand by denying to Congress the power to prohibit slavery in Federal territories. Taney’s ruling in the case insisted that “Neither the Declaration of Independence nor the Constitution had been intended to apply to blacks he said. Blacks were “so far inferior that they had no rights which the white man was bound to respect.” Taney did not stop with this but he declared the Missouri Compromise itself unconstitutional for “Congress had exceeded its authority when it forbade slavery in the territories by such legislation as the Missouri Compromise, for slaves were private property protected by the Constitution.” (2)

The decision was momentous, but the judicial fiat of Taney and his court majority was a disaster for the American people. It solved nothing and further divided the nation:

“In the South, for instance, it encouraged southern rights advocates to believe that their utmost demands were legitimatized by constitutional sanction and, therefore, to stiffen their insistence upon their “rights.” In the North, on the other hand, it strengthened a conviction that an aggressive slavocracy was conspiring to impose slavery upon the nation, and that any effort to reach an accommodation with such aggressors was futile. While strengthening the extremists, it cut the ground from under the moderates.” (3)

The decision in the case is frightening when one looks upon its tenor and implications. The majority opinion which was written by Chief Justice Roger Taney was chilling, not only in its views of race, but the fact that blacks were perpetually property without the rights of citizens. Taney wrote:

“Can a negro, whose ancestors were imported into this country, sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?…It is absolutely certain that the African race were not included under the name of citizens of a state…and that they were not included, and were not intended to be included, under the word “citizens” in the Constitution, and therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remain subject to their authority, and had no rights or privileges but those who held the power and the Government might choose to grant them” (4)

The effect of the ruling on individuals and the states was far reaching. “No territorial government in any federally administered territory had the authority to alter the status of a white citizen’s property, much less to take that property out of a citizen’s hands, without due process of law or as punishment for some crime.” (5) Free slaves were no longer safe, even in Free States, from the possibility of being returned to slavery, because they were considered property. The tens of thousands of free blacks in the South were effectively stripped of citizenship, and became vulnerable to either expulsion or re-enslavement, something that the legislatures in Virginia, North Carolina and Missouri debated in 1858. Likewise the decision “cast doubt on the free status of every African American regardless of residence.” (6) 

But the decision had been influenced by President-Elect James Buchanan’s secret intervention in the Supreme Court deliberations two weeks before his inauguration. Buchanan hoped by working with the Justices that he would save the Union from breaking apart by appeasing slave owners and catering to their agenda. “The president-elect wanted to know not only when, but if the Court would save the new administration and the Union from the issue of slavery in the territories. Would the judges thankfully declare the explosive subject out of bounds, for everyone who exerted federal power? The shattering question need never bother President Buchanan.” (7) In his inaugural address he attempted to camouflage his intervention and “declared that the Court’s decision, whatever it turned out to be, would settle the slavery issue forever.” (8) 

But Buchanan was mistaken. The case made the situation even more volatile as it impaired “the power of Congress- a power which had remained intact to this time- to occupy the middle ground.” (9)  Taney’s decision held that Congress “never had the right to limit slavery’s expansion, and that the Missouri Compromise had been null and void on the day of its formulation.” (10)

The Court’s decision “that a free negro was not a citizen and the decision that Congress could not exclude slavery from the territories were intensely repugnant to many people in the free states” (11)  and it ignited a firestorm in the north where Republicans now led by Abraham Lincoln, decried the decision and southerners basked in their judicial victory. Southerners were exultant, the Richmond Enquirer wrote that the Court had destroyed “the foundation of the theory upon which their warfare has been waged against the institutions of the South.” (12) Northerners now quite rightly feared that an activist court would rule to deny their states the right to forbid slavery. As early as 1854 Lincoln posed the idea that the Declaration of Independence was “the standard maxim of free society …constantly spreading and deepening its influence,” ultimately applicable “to peoples of all colors everywhere.” (13) 

After the Dred Scott decision Lincoln warned that the Declaration was being cheapened and diluted, he remained insistent on this point, he noted:

“Our Declaration of Independence was held sacred by all, and thought to include all” Lincoln declared, “but now, to aid in making the bondage of the Negro universal and eternal, it is assaulted, and sneered at, and construed, and hawked at, and torn, till, its framers could ride from their graves, they could not recognize it at all.” (14)

Lincoln attacked the decision noting that Taney “insists at great length that negroes were no part of the people who made, or for whom made, the declaration of Independence or the Constitution.” But as Doris Kearns Goodwin notes “in at least five states, black voters action on the ratification of the Constitution and were among the “We the People” by whom the Constitution was ordained and established.” Lincoln acknowledged that the founders “did not declare all men equal in all respects. They did not mean to say that all were equal in color, size, intellect, moral developments, or social capacity.” But they dis declare all men “equal in ‘certain inalienable rights, among which are life, liberty, and the pursuit of happiness.’…They meant simply to declare the right, so the enforcement of it might follow as circumstances permit.” (15)

Not only that, Lincoln asked the logical question regarding Taney’s judicial activism. Lincoln and other Republican leaders “noted that all slavery needed was one more Dred Scott decision that a state could not bar slavery and the objective of Slave Power to nationalize slavery would be accomplished.” (16) How long would it be, asked Abraham Lincoln, before the Court took the next logical step and ruled explicitly that the:

“Constitution of the United States does not permit a state to exclude slavery from its limits?” How far off was the day when “we shall lie down pleasantly thinking that the people of Missouri are on the verge of making their State free; and shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State?” (17)

Lincoln discussed the ramification of the ruling for blacks, both slave and free:

“to aid in making the bondage of the Negro universal and eternal….All the powers of the earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the theology of the day is fast joining the cry. They have him in his prison house;…One after another they have closed the heavy doors upon him…and they stand musing as to what invention, in all the dominions of mind and matter, can be produced the impossibility of his escape more complete than it is.” (18)

Frederick Douglass noted that “Judge Taney can do many things…but he cannot…change the essential nature of things – making evil good, and good, evil.” (19)

Lincoln was not wrong in his assessment of the potential effects of the Dred Scott decision on Free States. State courts in free-states made decisions on the basis of Dred Scott that bode ill for blacks and cheered slave owners. In newly admitted California the state supreme court ominously “upheld a slaveowner’s right to retain his property contrary to the state’s constitution.” (20)

A similar decision by a New York Court was being used by slave-states to bring that issue to the Taney Court following Dred Scott. “In 1852 a New York judge upheld the freedom of eight slaves who had left their Virginia owner while in New York City on their way to Texas.” (21) The Dred Scott decision brought that case, Lemon v. The People back to the fore and “Virginia decided to take the case to the highest New York court (which upheld the law in 1860) and would have undoubtedly appealed it to Taney’s Supreme Court had not secession intervened.” (22) Even non-Republican parties such as the Democrats could see the writing on the wall. The national publication of the Democratic Party, the Washington Union “announced that the clear implication of the Dred Scott decision was that all state laws prohibiting a citizen from another state, either permanently or temporarily, were unconstitutional.” (23)

Notes

1. Goodheart, Adam. Moses’ Last Exodus in The New York Times: Disunion, 106 Articles from the New York Times Opinionator: Modern Historians Revisit and Reconsider the Civil War from Lincoln’s Election to the Emancipation Proclamation Edited by Ted Widmer, Black Dog and Leventhal Publishers, New York 2013 p.15

2.  Goodwin, Doris Kearns Team of Rivals: The Political Genius of Abraham Lincoln Simon and Schuster, New York 2005 p. 189

3.  Potter, David M. The Impending Crisis: America before the Civil War 1848-1861 completed and edited by Don E. Fehrenbacher Harper Collins Publishers, New York 1976Ibid. Potter The Impending Crisis p.291

4. Guelzo Allen C. Fateful Lightening: A New History of the Civil War Era and Reconstruction Oxford University Press, Oxford and New York 2012 p.91

5. Ibid. Guelzo Fateful Lightening pp.91-92

6. Goldfield, David America Aflame: How the Civil War Created a Nation Bloomsbury Press, New York, London New Delhi and Sidney 2011p.142

7. Freehling, William. The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 Oxford University Press, Oxford and New York 2007 p.115

8. Ibid. Freehling, The Road to Disunion Volume II: Secessionists Triumphant 1854-1861 p.109

9. Ibid. Potter The Impending Crisis p.291

10. Levine, Bruce Half Slave and Half Free: The Roots of the Civil War Revised Edition, Hill and Wang, a division of Farrar, Strauss and Giroux, New York 1992 and 1995   p.210

11. Ibid. Potter The Impending Crisis p.279

12. Ibid. Goodwin Team of Rivals p. 190

13.  Catton, William and Bruce, Two Roads to Sumter: Abraham Lincoln, Jefferson Davis and the March to Civil War McGraw Hill Book Company New York 1963, Phoenix Press edition London p.139

14. Ibid. Guelzo Fateful Lightening p.93

15. Ibid. Goodwin Team of Rivals p. 190

16. Gienapp, William The Republican Party and Slave Power in The Civil War and Reconstruction Documents and Essays Third Edition edited by Michael Perman and Amy Murrell Taylor Wadsworth Cengage Learning Boston MA 2011 p.81

17. Ibid. Levine Half Slave and Half Free p.211

18. Ibid. Catton Two Roads to Sumter p.139

19. Ibid. Goodwin Team of Rivals p. 190

20. Ibid. Gienapp The Republican Party and Slave Power p.81

21. McPherson, James. The Battle Cry of Freedom: The Civil War Era Oxford University Press, Oxford and New York 1988 p.181

22. Ibid. McPherson The Battle Cry of Freedom p.181

23. Ibid. Gienapp The Republican Party and Slave Power p.82

2 Comments

Filed under civil rights, civil war, History, laws and legislation, LGBT issues, marriage and relationships, Political Commentary

Remembering: Lincoln’s 2nd Inaugural Address

abraham-lincoln-secondinauguration3

Today is President’s Day and instead of doing much I am simply going to post one of the most poignant and meaningful speeches ever given by a President,  Abraham Lincoln’s Second Inaugural Address.

The address was delivered on March 4th 1865 just over a month before Robert E. Lee’s Army surrendered at Appomattox, and just 41 days before Lincoln died at the hands of John Wilkes Booth. A man who the League of the South, a radical group bent on returning the whole country to their neo-Confederate ways plans to honor on April 14th for “executing” Lincoln who they call a criminal tyrant.

Lincoln’s words need to be remembered for what they are, a remarkable statement of reality as well as hope for the future. When he spoke them the war was all but over, but much blood was still being spilt on battlefields across the South. By the time the war, which began in 1861 was over, more than 600,000 Americans would be dead. It was the bloodiest conflict in American History.

To really understand what Lincoln was speaking of one has to remember that just nine years before the Supreme Court had seemed to demolish any hope at all for Blacks in the United States, and not just the enslaved Blacks of the South, in it’s notorious Dred Scott decision. Roger Taney, the Chief Justice writing for the majority, most of whom were Southerners said about Blacks when denying them any form of Constitutional Rights:

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

Before that there was the equally noxious Compromise of 1850 which included the Fugitive Slave Act which gave any Southerner claiming his human “property” not only the rights but a legal mechanism to hunt them down in the North and penalize anyone hindering them with weighty fines and jail terms.

One has to look at the words of Confederate Vice President Alexander Stephens in his Cornerstone Speech to understand the truth of what Lincoln spoke on that day in March 1865. Stephens, just four years before had declared in the starkest terms what the war was about and what the Confederacy’s foundation was:

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. [Applause.] This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

It took four years of bloody war, the first total war waged on American soil to end slavery, sadly within just a few years the Jim Crow laws had regulated Southern Blacks to a status not much better than their previous estate, and again became victims of often state sanctioned violence, discrimination, prejudice and death through lynching.

Southern leaders like Stephens and Jefferson Davis denied that slavery was the cause of the war and the foundation of the Confederacy in their revisionist histories after the war was over. They did so even though the litany of their letters, speeches and laws they supported, damned their words as the bold faced lies that they were. In the mean time many in the South sought to reclaim their pre-war glory in the myth of the Lost Cause which permeated much of the United States in the decades after the war, being glorified by Hollywood in Birth of a Nation, Gone with the Wind, and Walt Disney’s Song of the South. The unconscionable racism and white supremacy promoted by these masterpieces of cinema helped perpetuate racism across the country.

In the North, blacks faced discrimination and prejudice as well. another Supreme Court decision (Plessy v. Ferguson 1896) had legalized segregation and discrimination against Blacks in the form of “Separate but Equal” across the entire United States, something that would remain until a later Supreme Court would overturn Plessy in Brown v. Board of Education in 1954.

Despite all the reverses and the continued fight against the rights of Blacks, as well as women, other minorities and Gays, the struggle continues.

In August 1863, Lincoln was asked to speak at a gathering wrote in support of stronger war efforts and enlistments. Lincoln could not attend and wrote James Conkling a letter to be read on his behalf. That letter addressed those who disagreed with Lincoln on emancipation while still be claiming to be for the Union. Lincoln ended that letter with this:

“Peace does not appear so distant as it did. I hope it will come soon, and come to stay; and so come as to be worth the keeping in all future time. It will then have to be proved that among freemen that there can be no successful appeal from the ballot to to bullet, and that they who take such appeal are sure to lose their case and pay the cost. And there will be some black men who can remember that with silent tongue, and with clenched teeth, and steady eye, and well-poised bayonet, that they will have helped mankind on to this great consummation, while I fear there will be some white ones unable to forget that with malignant heart and deceitful speech they strove to hinder it….” 

Lincoln, unlike many even in the North recognized the heroic nature of African Americans fighting for their rights and how their struggle was beneficial for every American.

Lincoln died too soon, his death was a tragedy for the nation, but today, on President’s Day let us remember the words of the Lincoln’s Second Inaugural Address and the truth that they express. Lincoln’s concluding sentences which began with “With malice toward none, with charity for all…” should be at the heart of our dealings with all people so that we, as Lincoln said so eloquently “may achieve and cherish a just and lasting peace among ourselves and with all nations.”

It is a speech that always encourages me to fight for freedom and truth, even when that truth is less than popular and often uncomfortable. Lincoln’s words still inspire me, because he spoke the truth that many even today do not want to hear:

At this second appearing to take the oath of the Presidential office there is less occasion for an extended address than there was at the first. Then a statement somewhat in detail of a course to be pursued seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war–seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

Peace

Padre Steve+

1 Comment

Filed under civil war, History, leadership, Political Commentary