NARRATOR: Some of the Founding generation lived to witness the uneasy alliance between the “free” states and slave states becoming more strained as the years progressed. In 1820, Congress passed the “Missouri Compromise” which allowed Missouri to enter the union as a slave state while also allowing Maine to enter as a free state, thus preserving the delicate balance of power. In 1820, Thomas Jefferson wrote a letter that described the Missouri slavery question as “a fire bell in the night” - a warning of the demise of the union. He advocated for a plan of gradual emancipation of the slaves although he knew that the states would never reach a peaceable agreement on the issue. Jefferson closes the letter by saying “the useless sacrifice of themselves by the generation of 1776, to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be, that I live not to weep over it.” The sacrifices of the 1776 generation were not in vain. As Lincoln famously said, “our fathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal.” However, the nation conceived in liberty and dedicated to equality still had to make good on its promises. The existence of slavery couldn’t be ignored any longer. As the United States grew in territory and population, the Antebellum generation was forced to confront changing circumstances that finally brought slavery to the front of the national stage. My guests for today are: Randy Barnett. the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. John Harrison, the James Madison Distinguished Professor of Law at the University of Virginia School of Law. Lucas Morel, Head of the Politics Department at Washington and Lee University. PUBLIUS: Professor Morel, I want to start this discussion by getting a better sense of the basic historical circumstances. Why were people in the founding generation able to hope that slavery might die out by itself without intervention? Was that delusional or did something change that actually caused the expansion of slavery instead of its atrophy? LUCAS MOREL: If you read the correspondence of the founders, you'll see that some of them mentioned that they don't expect slavery to last very long in the United States. When the use of slaves becomes more and more devoted to the production of cotton, tobacco, it actually burns up the soil. It ruins the soil over time. Because cotton production using labor was not going to last very long, they thought that slavery was actually essentially going to wither on the vine. They were essentially going to wait it out as it were. Well, that was before you could harvest cotton much more rapidly by having people pick it at a rate where you could actually have machines to separate the seed from the raw wool. Without those machines, it wouldn't be profitable to employ that many people to raise a crop that's labor intensive like cotton. Well, unfortunately with the introduction of the cotton gin in 1792, cotton now becomes, if you will, king. It becomes extremely lucrative in those places where the soil can bear it for a while. That's what you see happening in the next decade or so. The growth of cotton and the devotion of vast tracks of land to that labor intensive product grows exponentially and we become one of the leading exporters of raw cotton. One thing people don't mention when they say, "Well, how did England emancipate so soon and it took a war and many more decades for the United States to do it?" Well, when England passes their law in 1833 banning slavery throughout the kingdom, throughout their empire, I think it's a great thing. William Wilberforce should be champion for all his decades labor and doing it. But, the fact of the matter was they were able to do that knowing that their principal source of raw cotton would still be produced by slavery in the United States. Because of that, slavery is perpetuating the United States because it's a bumper crop for Southern slaveholders. PUBLIUS: People in the Northern states also must have purchased cotton and other goods produced in the South, despite having outlawed slavery in their own states in the first decades of the 19th century. They had no power to force the Southern states to outlaw slavery, but they must have exerted pressure of some kind on this issue. Professor Harrison, what did that dynamic look like? Was it effective? JOHN HARRISON: It's impossible to tell any important story in American constitutionalism without federalism, and without understanding the variation among American states, and the variation of attitudes regionally, if you count that as federalism, and I think one should. Some of the story of the 19th century, the Antebellum developments having to do with slavery, are stories about variation among the states, and in particular, variation among northern states. Part of what happened in the run-up to the Civil War was that a lot of the northern states, and these are phenomena at the state level, a lot of the northern states became less hospitable to slavery. Now you may wonder, well, how can a state that is in the process of abolishing slavery still be to some extent hospitable to slavery, but the answer is they could be, and to some extent they were. For example, a number of states made it harder for slave-owners to reside there temporarily while keeping their slaves. This is the sort of thing that is governed by a body of law that even by the standards of law is highly recondite, conflict of laws, that is to say the principles that have to do with the application of one jurisdiction's legal rules in the courts or more generally in another. But Dred Scott was a conflicts case. Dred Scott was about the consequences in particular of Dred Scott having moved around geographically, and a central question in Dred Scott was whether by residence in what Congress had made free territory, he had become free. That's a conflict of laws question. One of the things, and scholars have done important work about this, one of the things that happened, and again, that's a manifestation of American federalism, in the northern states during the period up to the Civil War, as inter-regional relations became more and more hostile, was that they made it harder for the Southerners, again, for example, to bring a slave there temporarily. They made it much easier for a slave automatically to become free, if the slave were brought there. If the slave escaped, the slave couldn't be free, that's the fugitive slave clause, but if the slave were brought there, the northern states made it much more likely that they would, as they said in Antebellum conflicts terminology, operate on the status of slavery and operate on it so as to eliminate it. One response to that, of course, well, any time something is happening that one American interest group doesn't like at the state level, one response of the American interest group is try to get the federal level to operate in its favor. And so part of the story of the hardening of the opposition between the North and the South in the Antebellum period is about the southerners seeing that a lot of northern states were becoming more hostile to slavery, not just in symbolic ways, but in ways that actually mattered, like making it harder for a slave-holder to come there, do business for a while, and retain slaves. As the southerners saw that happening at the state level, well, this is American federalism, they became even more interested than they already had been in making sure that the national government would protect them. One manifestation of that that I think a lot of Americans in the 21st century don't know about is the Judiciary Act of 1837, which increased the size of the Supreme Court to nine, which restructured the circuits into which the federal judicial system was divided, and which is often described, and I think with some accuracy, it packed the court. That is to day, set up the circuit structure so that there would be a majority of circuits made up entirely of slave-holding states. This was at a time where there was a very strong political norm that justices were appointed from a circuit. That was a matter of patronage, which of course was the master principle of American politics in the 19th century and, indeed, in the 21st century. That patronage-backed way of structuring the circuit system then fed into the Supreme Court, created what was to some extent designed to be a pro-slavery Supreme Court, and so produced Dred Scott. But the larger principle of which that's a manifestation is, again, a political movement that is powerful that can't win in the states is often going to turn to the national government. That in turn, well, for every action, there is a reaction in politics, especially American politics. That sort of thing by the South, trying to take control of the apparatus of the national government, in particular the Supreme Court of the United States, was a greater spur to northern opponents not only of slavery, but of what they called the Slave Power. And for them the Slave Power was not just slavery, it was domination of the national government by an interest group that was, they thought, not only opposed to human rights but also in favor of oligarchy. It's not an accident that the Republicans called themselves Republicans, that is to say, they thought they saw in the Slave Power an oligarchic threat to popular government, and an oligarchy that was determined to take over and indefinitely control the national government. PUBLIUS: That’s an interesting perspective that I think is missing in a lot of discussions about this era. We usually think about the Southern states in terms of the battle for predominant state rights, which is how they themselves described the causes of the Civil War. But, in fact, prior to the War the Southern states were trying to consolidate federal power in both the legislative and judicial branches by ensuring that they had a majority of Southern sympathizers in Congress and on the federal courts. “Freedom national, slavery local” was the operational principle for the first half of the 19th century but that was unsustainable. When the Supreme Court began to aggressively interpret the Constitution in favor of one side, conflict was imminent. Professor Morel, can you tell us more about the role of the Court and the notorious cases of that era? LUCAS MOREL: Freedom National, slavery local was essentially the principle that had driven American history up until 1857. People sometimes are shocked or claimed that they're shocked that Roger Taney said this in 1857 thinking he was going to settle things in terms of the slavery controversy. But, the fact of the matter is Chief Justice Taney in an early opinion when he wrote a concurrence in Prigg v. Pennsylvania, a case dealing with the enforcement of the Fugitive Slave Act. In that case, he made it clear that insofar as States produced laws regarding the rights of black people and a particular slaves that State's rights superseded the United States constitution, which is an odd thing for Chief Justice to say about a document that includes the Supremacy Clause. This in fact becomes the leading complaint of seceding citizens in 1860 and '61 when they decided to separate and attempt to form a Southern Nation, an independent nation of the United States. Their complaint was that Northern States through the passage of what they called Personal-liberty laws, laws that were passed to ensure the rights, the legal rights of free blacks, they wanted to make sure that the Fugitive Slave Act, the federal Fugitive Slave Act of 1850 didn't end up producing the enslavement of free black people. Right? Somebody claiming that a black person they apprehended in some Northern free state was actually an escaped slave. We have to remind ourselves that in 1850 when it revised, Congress revised the Fugitive Slave Act of 1796, I think, it said that the accused could not speak in his own behalf, had no benefit of counsel, and in fact the attorney, excuse me, the federal commissioner who tried the case would be paid $5 if he says, "No, this isn't the guy." And he'd get paid double that, $10 if he said, "Yeah, good enough for government work." Literally, sure. That's an alleged, not an alleged, that is an escaped slave. If you were rounded up to be part of the posse to apprehend an alleged fugitive slave, you couldn't say, no, it's against my religion. I've got other things to do. You would be jailed or fined if you didn't cooperate with the apprehension of an alleged fugitive slave. This had been an issue that had been percolating in throughout the States, throughout the early decades of the 19th century, which eventually led to, again, a revision of the Fugitive Slave Act. Then, it led to citizens of the Southern slaveholding states leaving because they didn't think their rights under the federal Constitution were being protected. Taney in '57 brought all these things to a head, but we can look earlier in the 1840s to see the Taney had long held the view of a state's rights superseding the federal Constitution when it came to what everybody else thought was a State matter, namely the institution of slavery. He said essentially that blacks couldn't sue in federal court because they were never considered citizens of this country. Notice blacks, not even slaves, those who descended from African slaves. He quotes and notoriously said, "Black man had no rights that the white man was bound to respect." And then he went on to say that the Congress in 1820 did not have the authority to ban slavery in any of the federal territories because of a fifth Amendment protection of property. He essentially read into the federal Constitution a national right to own slaves and that was a legal marvel in the sense that no one was expecting that. It had always been treated as a local, a domestic, a state institution. PUBLIUS: Let’s turn now to the legislative branch. What was going on in this era? What political parties shaped the priorities for Congress? Professor Barnett, can you talk about how the tension between the states played out on the federal level? RANDY BARNETT: There grew up a strong ideological movement on behalf of slavery in the South. There became a very strong and increasingly strident anti-slavery movement in the North. Most people in the North were indifferent to slavery. They may have thought it was objectionable, but they also might have thought it's none of our business. In a federal system, which is hard to remember that we once had, the Northern states didn't think that what was going on in the Southern states was necessarily their business, and so the abolitionists and the anti-slavery Constitutionalists had a hard time getting Northern constituents active on this subject. Neither of the two political parties that were then in existence, the Whigs and the Democrats, were all that interested in slavery. The Democrats were strongly interested in preserving slavery. The Whigs were more interested in economic development programs and their own political agenda, and they weren't all that interested in slavery. What happened was the anti-slavery forces started organizing politically. First they organized the Liberty Party, then they organized, when that didn't work out so well, they organized the Free Soil Party, which was less radical than the Liberty Party, and finally, they organized the Anti-slavery Republican Party. What is it that gave those parties political traction in the 1850s? That was, it started to become clear that while the Northern states were prepared to tolerate slavery in the South, the Southern states were actually on the move to, in a sense, impose slavery on the North, which was a violation of this bargain that we're not going to bother you, but you're not going to bother us. How was that going to come about? It was going to come about in part because as slave-holders took their slaves into the Territories, and then those Territories became states. If those Territories became slave states, then the slave states were going to start to outnumber the non-slave states. The slave states did not have any compunctions about using federal power to protect slavery as they did in Congress by the enactment of two Fugitive Slave Laws, including the Draconian Slave Law of 1850. This is the period we're talking about. The Missouri Compromise was put in place to try to preserve the balance between the slave states and the Northern states, but basically said for every slave state that was admitted, a free state had to be admitted, and that would preserve the current balance. Once the Supreme Court said that that was unconstitutional, and every state, essentially, got to decide whether they'd be a free state or a slave state. Then, the Supreme Court also decided that it was unconstitutional to deprive slave holders of their slaves when they went into a Territory, now you have Territories all occupied by slave holders, who are prepared to use violence if necessary to ensure that when a state was made, they would be a slave state. This posed a grave threat to the North, and this is what got the middle off the middle. This is what got the middle out of their chairs, and they now started to be concerned that slavery was going to be imposed on them. There were other cases that were working their way through the system in which slavey holders were taking their slaves through Northern states. The issue is whether they could be deprived of their slave property if they took them into a Northern state, not into a Territory but into a state. Initially, it was well, as long as they're just sojourning through the state, then they maintain their power over the slaves. You know, travel in those days were not very fast, so to sojourn through a state, it took some time. How fast did you have to go through the state before you lose your power over your slaves? There were cases that were pending that would suggest that it would violate, in a sense, the Fifth Amendment for a slave holder to be deprived of his slave when that slave holder took him into a Northern state. The Northerners could see the handwriting on the wall here. The handwriting on the wall here is that Territories are going to become slave states, which would outnumber us, and slave holders, the Supreme Court is going to say that slave holders can bring their slaves into free states, and hold them there. Pretty soon there wouldn't be any free states, and that's when the Republican Party was formed, and that's when the Republican Party started to win the election, eventually culminating in Republicans winning in Congress in 1858, and finally with Republican President Abraham Lincoln winning by the votes of only Northern states. What caused the Civil War was essentially the South overplaying their hand, and arguing that no, we're going to be a Slaveocracy, or at least that's what the Northerners feared. That ended the reciprocal bargain, the Federalism bargain, between the Northern states and the Southern states. When the Republicans took office, they took office on a political platform of what? Abolishing slavery in the District of Columbia, abolishing slavery in the Territories, abolishing slavery in federal project, in federal construction projects. It was that program alone that was thought to be so threatening to the slave power that as soon as they won the election, slave states started to secede because they could see that just implementing those anti-slavery measures at the federal level would be enough to undermine their grip on slavery in their states, and they decided we're getting out while the getting is good. What this shows, what this shows is that the Civil War was in fact about slavery. It was later on claimed that the Civil War was not about slavery, it was about tariffs, it was about state's rights, but it was really about slavery all along. When Lincoln, as President, denied that it was about slavery, when he said it's about union, and it's not about slavery, he was constrained to do that because he had no power as President of the United States, and Congress had no power, to abolish slavery. They couldn't persecute a war to abolish slavery because they had no Constitutional power to do this. They had to pursue the war on the expressed grounds that it was about union, but it was about slavery from day one. Why? Because the Republican Party was an anti-slavery party, and it was their success in the election of 1860 that caused the Southerners to secede. That would not have happened if we did not have an anti-slavery party, and we would not have had an anti-slavery party if slavery had not become a threat to the free states of the North. PUBLIUS: The Missouri Compromise kept the peace for 30 years but pleased no one - the Southerners disliked the implication that Congress could make rules about slavery for the states, and the Northerners were unhappy that slavery had spread into new territory. It was only a matter of time before the compromise collapsed. When the Dred Scott decision ruled that the Compromise was unconstitutional, the nation was inevitably headed towards open conflict. The American people had to ask themselves what price they were willing to pay to preserve the union that the Founders had forged at great cost. Did the union still matter? What did the union stand for? In our next episode, we’ll discuss how a new generation of leaders relied on the Constitution to finally uproot slavery and fulfill the vision of liberty proclaimed in the Declaration of Independence. NARRATOR: Thank you for listening to this conversion from the No 86 Audio Series. The spirit of debate animating the Federalist Papers in the Founding Era inspires all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!