Thursday, May 9, 2013 – Essay #59 – Seventh Lincoln-Douglas Debate – Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

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The State of Nature has a Law of Nature to govern it, which obliges everyone: And Reason, which is the Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions

John Locke, Second Treatise of Government. 1690

        “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 those are Life, Liberty and the pursuit of Happiness — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed — That whenever any Form of government becomes destructive of these ends, it is the Right of  the People to alter or to abolish it, and to institute new Government”

The Declaration of Independence July 4, 1776

Well those two statements, if accepted at face value, identify Abraham Lincoln as a clear moral victor over Stephen Douglas in the nine debates over the future of slavery in the United States, held in the nine congressional districts of the State of Illinois.  The final debate in that series, held in Alton, and labeled the Seventh Debate because two of the debates — in Chicago and Springfield – had already occurred before the debate formula was approved, is the subject matter of this essay.  I do not intend to restate the debate itself — the two speakers are clear and unambiguous in what they have to say.  Suffice it to say that Stephen Douglas won the political battle, which took him to the United States Senate, but lost the political war, which took Abraham Lincoln to the United States Presidency, and that took the United States to the Thirteenth Amendment, that abolished slavery across the United States.

Let me begin this discussion by noting certain ironies relating to the two statements cited above.  John Locke was a protégé of Ashley Cooper, Earl of Shaftsbury, who owned the territory then known as the Carolinas.  John Locke drafted the Constitution for the Carolinas — a constitution that allowed for slavery.  The author of The Declaration of Independence, Thomas Jefferson was a significant slave owner in the Commonwealth of Virginia.  He was a significant breeder of slaves for profitable sale to the Deep South.  He also contributed personally to the slave population by exercising the ‘privilege of slave row’ to engage in a long-term sexual relationship – whether by force or by consent we do not know — with one of his female slaves, by the name of Sally Hemings.

So there must be more to the Lincoln-Douglas debates than the seemingly unequivocal messages conveyed by John Locke and Thomas Jefferson, two important intellectual sources of the Constitution of the United States of America.  I suggest that the missing elements are to be recovered from philosophy and economic interest.

First let us explore a crucial philosophical issue.  Both John Locke and Thomas Jefferson refer to human beings. The Constitution itself refers exclusively to persons.  Primitive and disgusting though this now appears, many white people during the seventeenth and even the eighteenth centuries refused to recognize Africans as true human beings endowed with souls.  Surely many American slave-owners reconciled their consciences by adopting this convenient fiction, even as they instructed their slaves in Christianity, which would be a pointless exercise for creatures without a soul.  The Constitution itself, inexcusably, adopted such a fiction by counting a slave as three-quarters of a non-slave for purposes of electoral representation.

Interestingly, Abraham Lincoln veered dangerously in this direction during his debates with Stephen Douglas: ‘I agree with Judge Douglas he (a slave) is not my equal in many respects — certainly not in color, perhaps not in moral or intellectual endowment. But in the right to eat the bread, without the leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every living man.’ (Debate at Ottawa, Illinois, August 21, 1858)

Lincoln himself was unsure about how emancipation might proceed. His preference was to colonize all slaves outside the United States, perhaps on the continent of Africa, but he admitted that this solution was impracticable.  Only when the South looked like it might force partition in 1883, was Lincoln moved by political opportunism to emancipate all slaves in the Confederacy, while retaining slavery where it existed in the North.  Of course, a presidential decree has no constitutional or legislative force in the United States, always assuming that the constitution is upheld by the federal courts.

Economic interest is always of immense importance in understanding specific events such as the debate over slavery in 1858.  In 1787, at the founding of the United States, the Union was composed of thirteen states, twelve of which were slaveholding and one free.  So any notion of emancipating the slaves across the new nation was never seriously on the negotiating table.  However the issue of abolition of the slave trade was on the table.  And the convention divided essentially on lines of economic interest in eventually endorsing a continuation of slave importation into the United States at least until 1808 (when many of the delegates would have passed on).

The major proponents of prohibiting slave importation were members of the Virginia delegation.  The Maryland delegation was also strongly supportive.  The North Carolina delegates were less enthusiastically supportive.  All three of these states had large slave populations.  The delegates of New York, Pennsylvania and Delaware were also advocates of an immediate prohibition.  These states had relatively small slave populations and a few years later actually passed laws providing for gradual emancipation.  The primary opposition to prohibiting slave importations came from delegations from South Carolina and Georgia, both of which had large slave populations.  Allied to these states were the New England colonies, led by Connecticut, all of which had relatively small slave populations, and which provided for gradual emancipation during the nineteenth century.  So the opposing coalitions were not aligned along any obvious North-South or pro-slavery/pro-abolition spectra.

The coalition alignments were precisely along the lines of economic interest.  Over the course of the eighteenth century, slave imports into Virginia and Maryland had declined sharply, and after 1790, they fell to a negligible level.  Over the same period, slave imports into the Deep South from outside the colonies had steadily increased.  Some historians have attributed this relative increase to the harsh climate and prevalence of disease — especially malaria — in that region, leading to high death rates among the slave population.  Others argue that the relative increase reflected an increased demand for slave labor because of the shift towards labor-intensive agricultural production, specifically in rice and cotton.

In any event, by the time of the Philadelphia convention, Virginia and Maryland were net exporters of slaves whereas Georgia and South Carolina were net importers within the colonies themselves.  Because of this differential, slave-owners were sharply at variance with respect to prohibiting slave imports from outside the colonies.  Those in Virginia and Maryland stood to make significant capital gains from prohibition which would significantly increase the value of their slave-holdings in trading with the Deep South.  Conversely, those in the Deep South confronted significant capital losses as the price of slave-labor increased as a consequence of declining supply.

The New England states entered into a winning coalition with the Deep South, not because they were significant slave-users, but because of their shipping interests.  Most slaves, upon arrival to the colonies, were shipped south in hulls owned by New England firms and individuals. In addition, the New England states desired to restrict the competitive entry of foreign shipping into American markets.  So they entered into a logrolling deal with the Deep South, agreeing to vote in favor of continuing slave importation in return for the Deep South voting with them against the proposed requirement for a two-thirds majority in the Congress to pass navigation laws.

Over the twenty year interlude between ratification of the Constitution and the guaranteed period of grace for slave importation, the economic interest in the Deep South became more complex as a consequence of the changing pattern of agricultural production. Planters in the low-country area of South Carolina and the planters in the back country of that state, (as well as the frontier of Georgia and Kentucky) developed opposed interests regarding slave importation,  The immediate cause was a decline in the labor-intensive production of rice in favor of the less labor-intensive production of short-staple cotton.  The large plantations in the lowlands achieved significant economies of scale. The climate was healthier so the slave death-rate fell sharply. Between 1800 and 1810 some 81 per cent of imported slaves were destined for the labor-intensive backlands.  The Deep South now split internally on the issue of prohibiting slave imports, although at the federal level they continued to oppose it.

Thomas Jefferson, as a major slave-owner and slave seller to the Deep South was president of the United States when the opportunity arose to ban slave imports. He jumped at the opportunity, not least with a view to restoring his declining business fortunes. A prohibition bill was ready in early 1807.  The final bill passed with a vote of sixty-three to forty-nine, reflecting a clear North-South split. The South Carolina and the Georgia delegations voted against, this time with the support of Virginia, because the bill prohibited the transportation of their slaves south by their own coastal-water ships. New England now supported the bill because the restriction did not apply to their ocean-going vessels. President Jefferson was pressured by Virginia colleagues to veto the bill, but his own self-interest prevailed. He signed it into law and raised the price of his marketable slave cohort. Jefferson was a notoriously incompetent manager of his estate.

The passage of this bill indicates that a little bit of rent-seeking, especially by a U.S. president, sometimes is good for individual liberty and individual well-being.  Banning the importation of slaves, surely improved the liberty of Africans who otherwise might have been entrapped into slavery. By raising the value of slaves, owners invested more in maintaining the value of their capital asset, treating and feeding them better, not necessarily out of altruism, bur rather out of self-interest.  In Brazil, where no such restrictions applied, slave-owners brutally worked their slaves to early deaths replacing them with low-cost substitutes.

Gold and the gold-rush effectively changed the political composition of the United States during the half century between abolition of the slave trade and the Lincoln-Douglas debates. Manifest Destiny and the railroad weakened the vote power of the South both in presidential and in Congressional elections.  The South generously had not pushed for a pro-slavery clause in the original constitution, when they had the vote power to succeed, preferring to leave the issue to individual states.  By the time of the debates, Lincoln was well aware of his political advantage over Douglas who advocated state rights over the issue although his own state was free.

Lincoln, as we now know, was no advocate of state rights.  He won the 1860 presidential election as a Republican Party candidate without a single southern electoral-college vote, his victory achieved only because the Democratic Party split over slavery and ran competing candidates, one of whom was Stephen Douglas.  He then bulldozed state rights, using armed force to put down secessions that were in no way barred by the original constitution. With the South banned from Congress, as a consequence of secession, the Thirteenth Amendment was driven through Congress, only with extraordinary presidential arm-twisting and bribery that had no place in the amendment process.

The outcome was morally good in the sense that liberty was extended to those who were not free. But the result was achieved at an enormous cost to life and property, the other important inalienable rights advanced by John Locke. With the benefit of hindsight, Abraham Lincoln should have proceeded to emancipation once he achieved high office by working through Congress to raise revenues sufficient to pay slave-owners the full market price for the property that was being taken from them. The Fifth Amendment should have been the route to pursue, enabling the federal government to exercise a taking while paying just compensation.  Rightly or wrongly, the slave-owners had purchased slaves under the ruling legal system. Those rights should not have been expropriated by force without compensation.

Abraham Lincoln was an Illinois politician trained in the law, not in economics. Such politicians often do great harm to the people they represent by ignoring gains-from-trade deals in favor of brutal confiscation by force.

References

Fogel, R.W. and Engerman, S.L. Time on the Cross. Little, Brown 1974.

Anderson, G.M. Rowley, C.K., and Tollison, R.D. ‘Rent Seeking and the Restriction of Human Exchange’, The Journal of Legal Studies, January 1988, pp. 83-100.

Read the “Seventh Lincoln-Douglas Debate”  http://constitutingamerica.org/?p=4311

Charles K. Rowley is Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia (www.the lockeinstitute.org). He has written extensively in the fields of classical liberalism, economics, public choice, law-and-economics, and political history. He publishes a daily blog at www.charlesrowley.com

8 replies
  1. yguy
    yguy says:

    Surely many American slave-owners reconciled their consciences by adopting this convenient fiction, even as they instructed their slaves in Christianity, which would be a pointless exercise for creatures without a soul. The Constitution itself, inexcusably, adopted such a fiction by counting a slave as three-[fifths] of a non-slave for purposes of electoral representation.

    Are you seriously suggesting, Professor, that the 3/5 clause was adopted with the perpetuation of such a fiction in mind, or that it would have been better for the slaves to give slave states more political power by omitting that clause?

    [Lincoln] then bulldozed state rights, using armed force to put down secessions that were in no way barred by the original constitution.

    Disagree there entirely. Ironically enough, I’d say 10A implicitly forbids unilateral secession by its affirmation of powers reserved to the United States which a seceding state must necessarily disavow. Moreover, any state which has ceded property pursuant to the enclave clause cannot secede unilaterally unless it is prepared, at the very least, to allow the federal government unfettered access to said property.

    Reply
    • Ralph Howarth
      Ralph Howarth says:

      Hanging the issue of secession on the Enclave Clause certainly is not anything contemplated by the Founders, and continued to be so in the early decades of the country. Eventually, that very little oversight became the crux of what set off the Civil War: the blockade and seizure of a federal fort, or an enclave, in a secession state.
      In consideration of a federal enclave, something intended to be only dockyards and other needful buildings for strictly only the common defense and general welfare of the whole nation, not the expansive plethora of federal building we have today over a myriad of what are internal, domestic affairs, we have to consider the question: just what is property of the United States? The property is by proxy of the federal government from the principal of equity derived from the compact of states. All states are, therefore, co-owners of federal enclaves as taxes for the federal treasury originally was raised by the states. Upon secession, it can be said that a state is a rough proportional owner of the federal enclaves within the state. As there are fifty states, it can be approximated that each state is a 2% stakeholder in all federal property. A secession state could very well forfeit its 2% interest in the remaining 49 states in exchange for 98% interest of the same 49 states for any federal enclaves within its borders. In a very gross sense, a secession state ought to break even. Of course, actual stakeholder interest will vary by the size of enclave within as state versus the amount of taxes raised in a state.
      When the People of Missouri pointed the question to President Thomas Jefferson what would become of the state IF Congress did not accept the petition to join the union, Jefferson replied that they would simply be an independent state despite the fact that the entire land of Missouri arose from what was the Louisiana Purchase from the federal treasury. William Rawle who wrote the 1825 Treatise on the US Constitution adopted by the military academy of West Point stated that the ratification of the Constitution was of itself an act of succession from an old union into a new one, and within the space of two years two states effectively were orphaned, individual countries that had delayed ratifying the new constitution, namely, North Carolina and Rhode Island Plantations regardless of enclaves. Sir George Tucker in his Blackstone Commentaries noted since the states seceded from the Article of Confederation, of which included an open invitation to Canada, and subsequent invitation to Quebec, “Their obligation…to preserve the present constitution, is not greater than their former obligations were…each state possessing the same right of withdrawing itself from the confederacy without the consent of the rest…” Last, the ultimate secession was the states breaking away from England, which had a great number of British enclaves within the states addressed by terms of peace.

      Reply
      • yguy
        yguy says:

        A secession state could very well forfeit its 2% interest in the remaining 49 states in exchange for 98% interest of the same 49 states for any federal enclaves within its borders.

        Sure it could, if it were part of a 3/4 majority of states which agreed to such an exchange, but otherwise it would have no constitutional authority to repossess the property.

        When the People of Missouri pointed the question to President Thomas Jefferson what would become of the state IF Congress did not accept the petition to join the union, Jefferson replied that they would simply be an independent state despite the fact that the entire land of Missouri arose from what was the Louisiana Purchase from the federal treasury.

        I have no idea what Jefferson actually said on the matter, but nothing in the Constitution implies that rejection of such a petition automatically gives that result; and while I suppose by the letter of the A4 disposal clause Congress may indeed give away US territory, I would point out that the only time I know of anything like that happening was in the halcyon days of Jimmy Carter.

        the ratification of the Constitution was of itself an act of succession from an old union into a new one,

        Not sure what this is supposed to mean, but I would point out that according to the ratifiers of the Constitution, the Union was in its twelfth year at the conclusion of the PA convention, and that treaties made under the AoC remained in force under the Constitution.

        Sir George Tucker in his Blackstone Commentaries noted since the states seceded from the Article of Confederation, of which included an open invitation to Canada, and subsequent invitation to Quebec, “Their obligation…to preserve the present constitution, is not greater than their former obligations were…each state possessing the same right of withdrawing itself from the confederacy without the consent of the rest…”

        The AoC said otherwise, by virtue of its declaration that the Union was perpetual.

        Last, the ultimate secession was the states breaking away from England, which had a great number of British enclaves within the states addressed by terms of peace.

        Sure it was; but remembering that the subject is unilateral secession, it behooves us to note that the DoI was innocent of any justification of secession based on British law – just as the Declarations of Secession published by four seceding states circa 1860 were innocent of any justification of secession based on the Constitution, AFAIK.

        Reply
    • Ralph Howarth
      Ralph Howarth says:

      Sure it could, if it were part of a 3/4 majority of states which agreed to such an exchange, but otherwise it would have no constitutional authority to repossess the property.

      True. The Constitution makes for no such arrangement. But an amicable arrangement can always be reached in the disposal clause noted below.

      …and while I suppose by the letter of the A4 disposal clause Congress may indeed give away US territory, I would point out that the only time I know of anything like that happening was in the halcyon days of Jimmy Carter.

      There are a few other discrete cases where we acquired the Philippines and Cuba from the Spanish-American War of 1898. These were colonial states much like the Americas were and had some civil government structures rather than being a nebulous, undeveloped territory. They simply were passed from one colonial power to another one. For a time all Philippinos where declared US citizens by Congress and we operated military bases there. Eventually the Philippinos petitioned self-government and independence from the US to be its own, foreign independent state. Part of the negotiations was that we secede our military bases and other enclaves over to them. Cuba ran a different course as Cubans were never (to my knowledge) declared US citizens. As Cuba become its own foreign country, we continued to operate there, namely, Guantanamo Bay. Again, federal enclaves can either be disposed of peacefully by some agreement, or simply continue to operate no different than how US military bases operate in forward depolyed locations within NATO allied countries.

      Not sure what this is supposed to mean, but I would point out that according to the ratifiers of the Constitution, the Union was in its twelfth year at the conclusion of the PA convention, and that treaties made under the AoC remained in force under the Constitution.

      Indeed, and presumed all the debts incurred on the old untion so that the international community would continue to recognize the US government as the legitamate government and trust of the US.

      Reply
    • Ralph Howarth
      Ralph Howarth says:

      The AoC said otherwise, by virtue of its declaration that the Union was perpetual.

      I do not know of any ratifying convention, townhall debate, newspaper article, or scholarly catalog of that era that ever suggested any interpretation of “perpetual union” to mean anything other than a union that has no term limit. This is no different that any other federated or trade-federated union of independent states may make. If the NAFTA had a term placed on that treaty for twenty years, then it would expire after twenty years. Otherwise, NAFTA is another perpetual union. And like statutory law, if a new treaty or federation is drawn to replace an old one, then the new agreement superseded the old where some members might withdraw from the union now not agreeable to their terms. Some may charge that the old treaty is now broken, and so it is, but a signatory of the old treaty who refuses to sign the new treaty has at least agreed to the estoppel of the old treaty members who have ALSO left the old regime behind in favor of a new one.

      Sure it was; but remembering that the subject is unilateral secession, it behooves us to note that the DoI was innocent of any justification of secession based on British law – just as the Declarations of Secession published by four seceding states circa 1860 were innocent of any justification of secession based on the Constitution, AFAIK.

      Sure, and that same DoI declared the principal that freemen have the just right to dissolve their government and form a new one as a declaration from 13 states, not one state. And that same DoI was stipulated in the First Congress Organic Law resolution that declared the DoI, AoC, BoR, and the new constitution as the Organic Law of the land. That means that the US Code started off with secession expressly advocated. Add the fact that three states ratified the new constitution with a stipulation that they would secede if no BoR was added, and that two states delayed in ratifying, then there was a potential of 8 states joining the new regime, while five states remained in the old one creating two separate unions. If secession was never an option, then why did the founders explicitly include it in the Organic Law and some states went into joining the new regime with an opt-out contingency?

      Reply
      • yguy
        yguy says:

        I do not know of any ratifying convention, townhall debate, newspaper article, or scholarly catalog of that era that ever suggested any interpretation of “perpetual union” to mean anything other than a union that has no term limit.

        Then I guess we’re even, because I don’t know why I should consider the distinction between a “perpetual union” and a “union with no term limit” of any moment.

        This is no different that any other federated or trade-federated union of independent states may make. If the NAFTA had a term placed on that treaty for twenty years, then it would expire after twenty years. Otherwise, NAFTA is another perpetual union.

        Treaties are agreements between sovereign nations; and while indeed the AoC paid lip service to the idea of state sovereignty, it prohibited states from doing not a few things, including making treaties.

        Sure, and that same DoI declared the principal that freemen have the just right to dissolve their government and form a new one

        Sure they do, but unilateral secession additionally implies backing out of a contract whether the other parties like it or not – which at that point in history would have implied, inter alia, the right of a seceding state to accommodate a British regiment or two. Do “freemen” have the “just right” to do that?

        as a declaration from 13 states, not one state. And that same DoI was stipulated in the First Congress Organic Law resolution that declared the DoI, AoC, BoR, and the new constitution as the Organic Law of the land. That means that the US Code started off with secession expressly advocated.

        I have no idea which resolution you refer to, but none of those documents countenances unilateral secession other than on a natural law basis, AFAIK, and obviously Congress has no authority to do so either.

        Add the fact that three states ratified the new constitution with a stipulation that they would secede if no BoR was added,

        Then secession would not be in violation the contract they agreed to.

        If secession was never an option, then why did the founders explicitly include it in the Organic Law

        Substantiate, please.

        Reply
  2. Ralph Howarth
    Ralph Howarth says:

    I like having Prof. Rowley contributing here and bringing poignant views that challenges the canned, popular education, or the lack thereof; but on the issue of Sally Hemings first, I happened to have just read another source who happens to also be a contributor here on Constituting America:

    Brion McClanahan, Ph.D., The Politically Incorrect Guide to The Founding Fathers, “Myth: Thomas Jefferson kept a concubine slave and fathered children with her!” Regenery Publishing, Washington D.C., 2009, pps. 21-24

    McClanahan recounts that the original charge of the Hemings controversy is from a former Jefferson pamphleteer associate James T. Callender, whom used to act as a proxy for Jefferson’s political attacks against Federalist adversaries. But Callender had too much of a penchant for being a venal shill for hire to dig up mud on any political opponent for a price. When Callender’s scandalous writings got him in hot water where he was fined and jailed under the Sedition Acts in 1800, Jefferson pardoned his associate when he became the federal president in 1801. But Callender, the scoundrel that he was, kept pushing his luck and soon blackmailed Jefferson to give him a federal Postmaster job. Jefferson did not budge and Callender made good on his promise. Callender then issued three political hit salvos on Jefferson in the anti-Jefferson paper, The Recorder. The first revealed that he and Jefferson were bedfellows in previous anti-Federalist hit pieces. Another revealed an affair Jefferson had with a married woman. In those cases Jefferson confessed having done so. But on the Third charge of the Hemings accusation, Jefferson never publicly acknowledged or addressed the issue, and denied it in private. Soon Callender’s many enemies that he made caught up to him, clogged him, and drowned him in a river. Callender’s scandalous writings then precipitously dropped from public view and was about forgotten when Jefferson died in 1826.

    The Hemings story then revived in an 1873 Ohio abolitionist newspaper in an interview with the son of Hemings, Madison Hemings, claiming Jefferson to be his father. The report published word-for-word of Callender’s accusations including the misspelled words. The story died.

    The story revived again in 1974 by Fawn Brodie speculating on the story of Madison Hemings as Jefferson fathered all the other Hemings children. DNA testing in 1996 found only an approximate familial match to Madison Hemings. A retest in 2000 brought only the same findings but with the looming supposition again that Jefferson may have fathered the other Hemings children. This was refuted in 2001 by the Thomas Jefferson Heritage Society finding the inconsistencies of the evidence in the indictments, political intrigue, and historical ill-will between the Jefferson and Hemings families. Ultimately Jefferson’s overseer Edmund Bacon witnessed a fancier among a number of slaves that scholars named as Randolph Jefferson, Thomas’ brother.

    Reply
  3. Ralph Howarth
    Ralph Howarth says:

    Secondly, the 3/5ths clause actually was a hold over from the AoC as a crude property tax assessment. Originally under the AoC the tax assessment was to be by raw population; but states with heavy slave populations objected. The tax assessment was then deferred to that of a tax on property where population was used as a crude approximation of developed property. The 3/5ths persons then was first used to represent developed land under slave labor rather than land of free holders. It was generally assumed that the amount of land in slave population would be relatively smaller than that of free holders for a concentration of a larger population working a more concentrated crop fields of plantations. The 3/5ths compromise segue right into the new federal constitution by not only tax apportionment; but representation by that same measure of apportionment, if Congress were to levy any direct taxes by apportionment.

    If it were not for the 3/5ths compromise, there would not have been a new union to replace the old. The states would simply not allow other states with heavy slave population who cannot vote to in turn have greater representation. Without that compromise, the old union would have remained at the peril of being too weak to hang together from the encroachment s of the warring European powers. It were as I believe Benjamin Franklin said: “We must all hang together or else we will all hang separately.”

    Reply

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