March 23, 1775: Patrick Henry Proclaims “Give Me Liberty or Give Me Death”

Patrick Henry’s famous remarks gave voice to the increasingly oppressive measures passed by the British parliament. I’ve reproduced his famous remarks here –

No man thinks more highly than I do of the patriotism, as well as abilities, of the very worthy gentlemen who have just addressed the House. But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do opinions of a character very opposite to theirs, I shall speak forth my sentiments freely and without reserve. This is no time for ceremony. The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free– if we mean to preserve inviolate those inestimable privileges for which we have been so long contending–if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained–we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable–and let it come! I repeat it, sir, let it come.

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

The 45th Anniversary of Congress Passing the Ill-Fated Equal Rights Amendment

On March 22, 1972, the Equal Rights Amendment is passed by Congress and sent to the states for ratification. The ERA reads –

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Equal Rights Amendment (ERA) was first drafted in 1923. It was viewed as the next step for guaranteeing equal rights to women following the passage of the 19th Amendment.

Previous versions of the ERA include:

(1) Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. (Known as the Lucretia Mott Amendment; proposed to Congress, 1923-1942)



(2) Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. (Known as the Alice Paul Amendment; proposed to Congress 1943-1972)

Some version of the ERA was introduced in every session of Congress from 1923 to 1970. Nearly every time it was introduced, the ERA languished in committee. In 1970, during the 91st session of Congress, Congresswoman Martha Griffiths (a democrat from Michigan) filed a successful discharge petition, which allowed for the ERA to be considered by the whole House of Representatives. The ERA passed the House. Because the Senate attempted to add provisions exempting women from the draft, the ERA failed to pass the Senate that session.

After making some changes to the wording of the amendment, Congresswoman Griffiths re-introduced the ERA in the 92nd Congress. This version of the ERA was approved by the House on October 12, 1971. The Senate then passed the amendment on March 22, 1972. To read the committee report on why Congress believed the the ERA was necessary, follow this link.

Article V of the U.S. Constitution requires that 3/4 of the states ratify an amendment before it becomes part of the Constitution. In addition to this constitutional requirement, Congress added a seven-year ratification deadline to the 18th, 20th, and all subsequent constitutional amendments. In the case of the ERA, the deadline was included in the preamble to the authorizing resolution, rather than in the text of the amendment itself.

As originally proposed, the amendment would have expired in 1979 if not ratified by the requisite 38 states. Although the proposed ERA was eventually approved by 35 states, opposition brought the ratification process to a halt as the ratification deadline approached. As a result, in 1978, Congress voted to extend the deadline until June 30, 1982. Opponents of this extension argued this violated the spirit, if not the letter, of the amendment process laid out for the ERA. Supporters insisted that because the deadline was placed in the preamble to the authorizing legislation and not in the body of the Amendment itself, this extension was permissible in order to allow more time for state ratification.

Despite Congress’s extension of the deadline, no additional states ratified the ERA in advance of the 1982 deadline. In fact, the legislatures of 5 states passed resolutions rescinding their earlier ratifications, process referred to as rescission. The Supreme Court had agreed to hear cases on the rescission question, but the ERA expires before the cases could be heard, and, therefore the cases were dismissed as moot. As today’s date, these 15 states have not yet ratified the ERA: Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. Note: that on March 20, 2017, the Nevada state assembly did vote in favor of ratifying the ERA.

Congressional proponents of the ERA have argued that Congress possess the authority to repeal the original ratification time limit, as well as the 1978 extension, in order to restart the current clock on ratification. They further argue that the prior ratification by 35 states should remain valid. Known as the “three state” strategy, this interpretation of the ERA ratification process would require only three additional states to ratify the amendment in order to amend the Constitution.

According to a Congressional Research Service report – the arguments in support and against this approach are –

In support of their arguments, ERA proponents claim that Article V of the Constitution gives Congress uniquely broad authority over the amendment process. They also point to Supreme Court decisions, Dillon v. Gloss and Coleman V. Miller, that they claim provide support for this assertion. In addition, they cite the example of the 27th Amendment, also known as the “Madison Amendment,” which was ratified in 1992, after having been pending for 203 years. This, they maintain, further supports their assertion that proposed amendments that do not include time The Proposed Equal Rights Amendment: Contemporary Ratification Issues Congressional Research Service limits within the body of the amendment text itself, remain viable and eligible for ratification indefinitely.

Opponents of further extension may argue that attempting to revive the amendment would be politically divisive, and that providing the proposed ERA with a “third bite of the apple” would be contrary to the spirit and perhaps the letter of Article V and the intentions of Congress in setting the earlier limits. They would arguably reject the example of the 27th Amendment, which, unlike the proposed ERA, never had a ratification time limit. Further, they might claim that efforts to revive the proposed Equal Rights Amendment ignore the possibility that state ratifications may have expired with the proposed ERA in 1982, and that proponents of the amendment do not address the issue of state rescission, which has never been specifically addressed by any U.S. court, but only dismissed by the Supreme Court because the cases accepted on appeal had become moot.

An alternative approach would be to start anew by introducing an identical but new Equal Rights Amendment, and then seeking the requisite state ratification.





A Primer on Supreme Court Confirmation Hearings

Confirmation hearings begin on Monday, March 20 for President Donald Trump’s nominee to fill Justice Scalia’s vacancy on the U.S. Supreme Court: Judge Neil Gorsuch. More information about Judge Gorsuch is available here.

I thought it might be useful to provide a brief primer on Supreme Court confirmation hearings.


The procedure for appointing a justice to the U.S. Supreme Court is provided in Article II, Section 2, Clause 2 of the U.S. Constitution, which states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme court.” The President must first select and nominate an individual before he or she is confirmed by the U.S. Senate.

The Senate has confirmed a total of 124 Supreme Court nominations out of a total of 161 received. Of those who were not confirmed, they were either outright rejected via roll call vote, were withdrawn, postponed, tabled or never voted upon due to significant committee or Senate opposition to the nominee or president.

The Process

(1) Pre-hearing investigations

Although not mentioned in the Constitution, the Senate Judiciary Committee plays a key role in Supreme Court confirmation hearings. The Judiciary Committee takes on the primary responsibility of investigating the background and qualifications of each Supreme Court nominee.

During this stage, the nominee responds to a detailed questionnaire, providing professional, biographical, and financial information to the committee. Note: The FBI also investigates the nominee and provides the committee with confidential reports related to its investigations.

The nominee also visits with members of the judiciary committee and other senators during what are called “courtesy calls.”

(2) Public hearings

During this stage, a nominee testifies in hearings before the committee.

Judiciary Committee members and their staffs closely study the public record and investigative information about the nominee before the hearings begin. The nominee also intensively prepares. The President’s staff assists the nominee by providing legal background materials and by conducting mock hearings. These sessions have come to be known as “murder boards” because of how grueling the sessions are on the nominee.

A confirmation hearing begins with a statement by the chair of the Judiciary Committee, and is followed by opening statements by other committee members. A panel of “presenters” then introduce the nominee to the committee, and then the nominee has an opportunity to offer an opening statement.

The chair of the committee will begin the questioning, followed by the ranking minority member and then the rest of the committee in descending order of seniority, alternating between members of the majority and minority party. There is a uniform time limit for each senator during each round of questioning. When the first round of questioning is complete, the committee begins a second round, which may be followed by more, if the committee chair permits additional questioning.

Questions tends to focus on legal qualifications, past judicial opinions or other public actions, private backgrounds. Questions may also be aimed at identifying the nominee’s views on social and political issues, the Constitution, and judicial philosophy. In some cases, a nominee may decline to answer a question for fear of appearing to comment on an issue that may later come before the U.S. Supreme Court.

(3) Public Witnesses

After the nominee’s hearing is complete, the committee will also hear testimony from public witnesses. These witnesses typically include the chair of the American Bar Association’s Standing Committee on the Federal Judiciary (who explains the ABA’s rating of a nominee), professional colleagues of the nominee and/or representatives of groups who support or oppose the nominee.

(4) Closed-Door Committee Session

Starting in 1992, the Judiciary Committee started conducting a closed-door session with the nominee in order to help address questions regarding that person’s background brought to the committee through confidential investigations. Then-Senator Joe Biden explained the procedure saying that they would be conducted “in all cases, even when there are no major investigative issues to be resolved so that the holding of such hearing cannot be taken to demonstrate that the committee has received adverse confidential information about the nomination.”

(5) Committee decision on what recommendation to make to the full senate

Usually within a week upon completion of the hearings, the Judiciary Committee meets in open session to determine what recommendation to report to the full Senate.

The committee may: (1) report favorably on the nomination; (2) report on it negatively; or (3) make no recommendation. In all three cases, the nomination will go forward.

After the Judiciary Committee has reported a nomination, it is placed on the “Executive Calendar” and assigned a calendar number. Business of the “Executive Calendar” is considered in executive session, which is open to the public.

(6) Bringing the Nomination to the Floor

Consideration of a nomination is scheduled by the majority leader (Senator Mitch McConnell), who typically consults with the minority leader (Senator Chuck Schumer) and all interested Senators. The chart below explains the contemporary practice for bringing a Supreme Court nomination to the floor.

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Once the Senate debate begins, it is typical for those Senators who choose to take the floor to state his or her reasons for voting in favor or against a nominee’s confirmation.

Filibusters and Motions to End Debate

Senate rules place no limits on how long floor consideration of a nomination may last. This allows for the possibility of a filibuster by the nominee’s opponents. Supporters may seek to limit debate by invoking cloture, which limits further consideration of the matter to 30 hours. Cloture requires 60 votes. Cloture ensures that a nominee will receive a vote and be decided on by a voting majority.

(7) The Vote

When floor debate on a nomination concludes, the presiding officer puts the following question to a vote: “Will the Senate advise and consent to the nomination of [nominee’s name] of [state of residence] to be an Associate Justice [or Chief Justice] on the Supreme Court?”

A roll-call vote to confirm requires a simple majority of Senators present and voting. Since 1967, every Senate vote on whether to confirm a Supreme Court nomination has been by roll call. Prior to 1967, fewer than half were by roll call, the rest were done by voice vote.

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Happy Birthday, James Madison!

James Madison was born on March 16, 1751. In honor of Madison’s 266th birthday, I thought I’d share some of my favorite Madison quotes.

(1) “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” – Federalist No. 51

(2) “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived[.]” – Federalist No. 49

(3) “What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following which though less essential than in other Governments, sufficiently recommend the precaution. 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho’ it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.” – James Madison to Thomas Jefferson, October 17, 1788

(4) “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.” – January 18, 1792

(5) “Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.” – March 29, 1792

(6) “[The Constitution] was not like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many hands & many heads.” -James Madison to William Cogswell, March 10, 1834

(7) “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” – James Madison to W.T. Barry, August 4, 1822

(8) “[I]t is universally admitted that a well-instructed people alone can be permanently a free people[.]” – December 5, 1810

(9) “Learned Institutions ought to be favorite objects with every free people. They throw that light over the public mind which is the best security against crafty & dangerous encroachments on the public liberty.” – James Madison to W.T. Barry, August 4, 1822


Book Recommendations: Biographies of Major Figures from America’s Founding

As a follow up to my post with recommended books about America’s Founding, and based on requests from several individuals, I am including below a list of recommended biographies about major figures from the Founding period. Note that, as with my last list, the book are listed in no particular order. I also welcome additional suggestions from folks who read this list. As with all lists, I am bound to miss some essential books, and am always more than happy to add to what I’ve come up with here.

(1) George Washington

  • The Papers of George Washington
  • Washington Irving, George Washington: A Biography
  • Ron Chernow, Washington: A Life
  • James Flexner, George Washington: The Indispensable Man
  • Joseph Ellis, His Excellency: George Washington
  • Douglas Southall Freeman, Washington
  • James Flexner, Washington and the New Nation, 1783 – 1793
  • Edward Larson, The Return of George Washington: 1783-1789
  • Susan Dunn and James MacGregor Burns, The George Washington (The American President Series)
  • Richard Norton Smith, Patriarch: George Washington and the New American Nation
  • Erica Armstrong Dunbar, Never Caught: The Washingtons’ Relentless Pursuit of Their Runaway Slave, Ona Judge
  • Jeffry Morrison, The Political Philosophy of George Washington
  • Edward Lengel, Inventing George Washington: America’s Founder, in Myth and Memory
  • Richard Brookhiser, Founding Father: Rediscovering George Washington
  • Don Higginbotham. George Washington: Uniting a Nation
  • John Rhodehamel, George Washington: The Wonder of the Age
  • Mary V. Thompson, “In the Hands of a Good Providence”: Religion in the Life of George Washington
  • David Hackett Fischer, Washington’s Crossing

(2) Thomas Jefferson

  • The Papers of Thomas Jefferson
  • Thomas Jefferson, The Autobiography of Thomas Jefferson
  • Dumas Malone, Jefferson and His Time
  • Richard B. Bernstein, Thomas Jefferson
  • Alan Pell Crawford, Twilight at Monticello
  • Merrill D. Peterson, Thomas Jefferson and the New Nation: A Biography
  • Annette Gordon-Reed, The Hemingses of Monticello
  • Jon Meacham, Thomas Jefferson: The Art of Power
  • Annette Gordon-Reed and Peter Onuf, Most Blessed of the Patriarchs: Thomas Jefferson and the Empire of the Imagination
  • Peter Onuf, The Mind of Thomas Jefferson
  • Peter Onuf, Jefferson’s Empire: The Language of American Nationhood
  • Joseph Ellis, American Sphinx

(3) James Madison

  • The Papers of James Madison
  • Robert Allen Rutland, James Madison: The Founding Father
  • Ralph Ketcham, James Madison: A Biography
  • Jack Rakove, James Madison and the Creation of the American Republic
  • Robert J. Morgan, James Madison on the Constitution and Bill of Rights
  • Richard Brookhiser, James Madison
  • David O. Stewart, Madison’s Gift: Five Partnerships that Built America
  • Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention
  • Drew McCoy, The Last of the Fathers: James Madison and the Republican Legacy
  • Lynne Cheney, James Madison: A Life Reconsidered

(4) Alexander Hamilton

  • The Papers of Alexander Hamilton
  • Ron Chernow, Alexander Hamilton
  • Joanne Freeman, editor, Alexander Hamilton: Writings
  • Richard Brookhiser, Alexander Hamilton: American
  • Thomas Fleming, Duel: Alexander Hamilton, Aaron Burr, and the Future of America
  • Forrest McDonald, Alexander Hamilton: A Biography
  • Michael Federici, The Political Philosophy of Alexander Hamilton
  • Stephen F. Knott and Tony Williams, Washington and Hamilton: The Alliance that Forged America
  • John Ferling, Jefferson and Hamilton: The Rivalry that Forged a Nation
  •  John Lamberton Harper American Machiavelli: Alexander Hamilton and the Origins of US Foreign Policy
  • Stephen F. Knott, Alexander Hamilton and the Persistence of Myth
  • Joanne Freeman, Affairs of Honor: National Politics in the New Republic
  • Michael E. Newton, Alexander Hamilton: The Formative Years
  • Willard Sterne Randall, Alexander Hamilton: A Life
  • John Sedgwick, War of Two: Alexander Hamilton, Aaron Burr, and the Duel That Stunned the Nation

(5) John Adams

  • The Adams Papers
  • John Adams, Diary and Autobiography of John Adams
  • Page Smith, John Adams
  • David McCullough, John Adams
  • John Ferling, John Adams: A Life
  • Joseph Ellis, Passionate Sage: The Character and Legacy of John Adams
  • Richard Alan Ryerson, John Adams’s Republic: The One, The Few, and the Many
  • Joseph Ellis, First Family: Abigail and John Adams
  • Lester Cappon, The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams
  • Luke Mayville, John Adams and the Fear of American Oligarchy
  • John A. Schutz and Douglass G. Adair, editors, The Spur of Fame: Dialogues of John Adams and Benjamin Rush, 1805-1813
  • C. Bradley Thompson, John Adams and the Spirit of Liberty
  • Richard B. Morris, The Peacemakers: The Great Powers and American Independence (also great for John Jay)
  • Phyllis Lee Evans, Abigail Adams: A Biography
  • Edith Gelles, Portia: The World of Abigail Adams
  • Woody Holton, Abigail Adams

(6) Benjamin Franklin

  • The Papers of Benjamin Franklin
  • Benjamin Franklin, The Autobiography of Benjamin Franklin
  • J. A. Leo Lemay, editor, Benjamin Franklin: Silence Dogood, the Busy-Body, and Early Writings
  • J.A. Leo Lemay, editor, Benjamin Franklin: Autobiography Poor Richard and Later Writings
  • Gordon Wood, The Americanization of Benjamin Franklin
  • Carl Van Doren, Benjamin Franklin
  • Edmund S. Morgan, Benjamin Franklin
  • Walter Isaacson, Benjamin Franklin: An American Life
  • Gerald Stourzh, Benjamin Franklin and American Foreign Policy
  • J.A. Leo Lemay, The Life of Benjamin Franklin
  • Jill Lepore, The Book of Ages: The Life and Opinions of Jane Franklin

(7) Books about Other Founders

  • Richard B. Morris, John Jay, the Nation, and the Court
  • Richard B. Morris, Seven Who Shaped Our Destiny: The Founding Fathers as Revolutionaries
  • Richard B. Morris, Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution
  • Richard B. Bernstein, A Very Short Introduction to the Founding Fathers
  • Walter Stahr, John Jay: Founding Father
  • Joyce Appleby, Inheriting the Revolution: The First Generation of Americans
  • Joseph Ellis, The Quartet: Orchestrating the Second American Revolution, 1783-1789
  • Jeff Broadwater, George Mason: Forgotten Founder
  • Mark Puls, Samuel Adams: Father of the American Revolution
  • Charles Page Smith, James Wilson: Founding Father, 1742 – 1798
  • Mark David Hall, The Political and Legal Philosophy of James Wilson: 1742 – 1798
  • William Murchison, The Cost of Liberty: The Life of John Dickinson
  • Richard Brookhiser, Gentleman Revolution: Gouverneur Morris, the Rake Whote Wrote the Constitution
  • William Howard Adams, Gouveneur Morris: An Independent Life
  • Alyn Brodsky, Benjamin Rush: Patriot and Physician
  • Rosemarie Zagarri, A Woman’s Dilemma: Mercy Otis Warren and the American Revolution

The 160th Anniversary of the Supreme Court’s Dred Scott Decision

In 1846 a slave named Dred Scott and his wife, Harriet, sued for their freedom in a St. Louis, Missouri, city court. Scott and his wife had resided with their master in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. The Scotts believed that the court would rule in their favor, as they had been held in bondage for extended periods in a free territory and were then returned to a slave slate. Courts had ruled this way in the past. After Scott lost in the Missouri courts, he brought a new suit in federal court. His master maintained that no “negro of African descent and the descendant of slaves could be a citizens in the sense of Article III of the Constitution.”

It would take 11 years for this legal battle to wind its way up to the United States Supreme Court. During this 11 year period, as slavery became the most explosive issue in American politics, the Dred Scott case became one with enormous political implications for the whole nation.

The Supreme Court in a 7-2 opinion written by Chief Justice Roger Taney held that a free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States. Some key excerpts from the Court’s opinion include –

We think they [people of African ancestry] are not [citizens], and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

. . . [T]he legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased…to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them 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. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.

The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under the laws of any one of the States.

There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character.

. . . [I]t may be safely assumed that citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose. The principle upon which our Governments rests is the union of States, sovereign and independent within their own limits in . . . their internal and domestic concerns, and bound together as one people by a General Government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States. . . .

But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it.

. . . [T]he rights of private property have been guarded with . . . care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.

But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States; and being so made free, he was not again reduced to a state of slavery by being brought back to Missouri.

. . . [I]n the case of Strader et al. v. Graham . . . the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition, as free or slave, depended upon the laws of Kentucky, when they were brought back into that State, and not of Ohio. . . .

So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois.

Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction.

Abraham Lincoln spoke at length about the Court’s decision in a June 26, 1857 speech  –

That decision declares two propositions-first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court-dividing differently on the different points. Judge Douglas does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney.

He denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?

Judicial decisions have two uses-first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this. We offer no resistance to it.

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country-But Judge Douglas considers this view awful. Hear him:

“The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine, expound and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government-a blow, which if successful would place all our rights and liberties at the mercy of passion, anarchy and violence. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States, in a matter like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitution, shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitution-the friends and the enemies of the supremacy of the laws.”

Why this same Supreme court once decided a national bank to be constitutional; but Gen. Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on constitutional ground, declaring that each public functionary must support the Constitution, “as he understands it .” But hear the General’s own words. Here they are, taken from his veto message:

“It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress in 1791, decided in favor of a bank; another in 1811, decided against it. One Congress in 1815 decided against a bank; another in 1816 decided in its favor. Prior to the present Congress, therefore the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial and executive opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which if its authority were admitted, ought to weigh in favor of the act before me.”

I drop the quotations merely to remark that all there ever was, in the way of precedent up to the Dred Scott decision, on the points therein decided, had been against that decision. But hear Gen. Jackson further-

“If the opinion of the Supreme court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this Government. The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others.”

Again and again have I heard Judge Douglas denounce that bank decision, and applaud Gen. Jackson for disregarding it. It would be interesting for him to look over his recent speech, and see how exactly his fierce philippics against us for resisting Supreme Court decisions, fall upon his own head. It will call to his mind a long and fierce political war in this country, upon an issue which, in his own language, and, of course, in his own changeless estimation, was “a distinct and naked issue between the friends and the enemies of the Constitution,” and in which war he fought in the ranks of the enemies of the Constitution.

I have said, in substance, that the Dred Scott decision was, in part, based on assumed historical facts which were not really true; and I ought not to leave the subject without giving some reasons for saying this; I therefore give an instance or two, which I think fully sustain me. Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States.

On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had. He shows this with so much particularity as to leave no doubt of its truth; and, as a sort of conclusion on that point, holds the following language:

“The Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon in behalf of themselves and all other citizens of the State. In some of the States, as we have seen, colored persons were among those qualified by law to act on the subject. These colored persons were not only included in the body of `the people of the United States,- by whom the Constitution was ordained and established; but in at least five of the States they had the power to act, and, doubtless, did act, by their suffrages, upon the question of its adoption.”

Again, Chief Justice Taney says: “It is difficult, at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted.” And again, after quoting from the Declaration, he says: “The general words above quoted would seem to include the whole human family, and if they were used in a similar instrument at this day, would be so understood.”

In these the Chief Justice does not directly assert, but plainly assumes, as a fact, that the public estimate of the black man is more favorable now than it was in the days of the Revolution. This assumption is a mistake. In some trifling particulars, the condition of that race has been ameliorated; but, as a whole, in this country, the change between then and now is decidedly the other way; and their ultimate destiny has never appeared so hopeless as in the last three or four years. In two of the five States-New Jersey and North Carolina-that then gave the free negro the right of voting, the right has since been taken away; and in a third-New York-it has been greatly abridged; while it has not been extended, so far as I know, to a single additional State, though the number of the States has more than doubled. In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man’s bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of 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; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.

It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government.

Three years and a half ago, Judge Douglas brought forward his famous Nebraska bill. The country was at once in a blaze. He scorned all opposition, and carried it through Congress. Since then he has seen himself superseded in a Presidential nomination, by one indorsing the general doctrine of his measure, but at the same time standing clear of the odium of its untimely agitation, and its gross breach of national faith; and he has seen that successful rival Constitutionally elected, not by the strength of friends, but by the division of adversaries, being in a popular minority of nearly four hundred thousand votes. He has seen his chief aids in his own State, Shields and Richardson, politically speaking, successively tried, convicted, and executed, for an offense not their own, but his. And now he sees his own case, standing next on the docket for trial.

There is a natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races; and Judge Douglas evidently is basing his chief hope, upon the chances of being able to appropriate the benefit of this disgust to himself. If he can, by much drumming and repeating, fasten the odium of that idea upon his adversaries, he thinks he can struggle through the storm. He therefore clings to this hope, as a drowning man to the last plank. He makes an occasion for lugging it in from the opposition to the Dred Scott decision. He finds the Republicans insisting that the Declaration of Independence includes ALL men, black as well as white; and forth-with he boldly denies that it includes negroes at all, and proceeds to argue gravely that all who contend it does, do so only because they want to vote, and eat, and sleep, and marry with negroes! He will have it that they cannot be consistent else. Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.

Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal-equal in “certain inalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that “all men are created equal” was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, nor for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.

I have now briefly expressed my view of the meaning and objects of that part of the Declaration of Independence which declares that “all men are created equal.”

Now let us hear Judge Douglas’ view of the same subject, as I find it in the printed report of his late speech. Here it is:

“No man can vindicate the character, motives and conduct of the signers of the Declaration of Independence except upon the hypothesis that they referred to the white race alone, and not to the African, when they declared all men to have been created equal-that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain-that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness. The Declaration was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country.”

My good friends, read that carefully over some leisure hour, and ponder well upon it-see what a mere wreck-mangled ruin-it makes of our once glorious Declaration.

“They were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain!” Why, according to this, not only negroes but white people outside of Great Britain and America are not spoken of in that instrument. The English, Irish and Scotch, along with white Americans, were included to be sure, but the French, Germans and other white people of the world are all gone to pot along with the Judge’s inferior races. I had thought the Declaration promised something better than the condition of British subjects; but no, it only meant that we should be equal to them in their own oppressed and unequal condition. According to that, it gave no promise that having kicked off the King and Lords of Great Britain, we should not at once be saddled with a King and Lords of our own.

I had thought the Declaration contemplated the progressive improvement in the condition of all men everywhere; but no, it merely “was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country.” Why, that object having been effected some eighty years ago, the Declaration is of no practical use now-mere rubbish-old wadding left to rot on the battle-field after the victory is won.

I understand you are preparing to celebrate the “Fourth,” tomorrow week. What for? The doings of that day had no reference to the present; and quite half of you are not even descendants of those who were referred to at that day. But I suppose you will celebrate; and will even go so far as to read the Declaration. Suppose after you read it once in the old fashioned way, you read it once more with Judge Douglas’ version. It will then run thus: “We hold these truths to be self-evident that all British subjects who were on this continent eighty-one years ago, were created equal to all British subjects born and then residing in Great Britain.”

And now I appeal to all-to Democrats as well as others,-are you really willing that the Declaration shall be thus frittered away?-thus left no more at most, than an interesting memorial of the dead past? thus shorn of its vitality, and practical value; and left without the germ or even the suggestion of the individual rights of man in it?

But Judge Douglas is especially horrified at the thought of the mixing blood by the white and black races: agreed for once-a thousand times agreed. There are white men enough to marry all the white women, and black men enough to marry all the black women; and so let them be married. On this point we fully agree with the Judge; and when he shall show that his policy is better adapted to prevent amalgamation than ours we shall drop ours, and adopt his. Let us see. In 1850 there were in the United States, 405,751, mulattoes. Very few of these are the offspring of whites and free blacks; nearly all have sprung from black slaves and white masters. A separation of the races is the only perfect preventive of amalgamation but as an immediate separation is impossible the next best thing is to keep them apart where they are not already together. If white and black people never get together in Kansas, they will never mix blood in Kansas. That is at least one self-evident truth. A few free colored persons may get into the free States, in any event; but their number is too insignificant to amount to much in the way of mixing blood. In 1850 there were in the free states, 56,649 mulattoes; but for the most part they were not born there-they came from the slave States, ready made up. In the same year the slave States had 348,874 mulattoes all of home production. The proportion of free mulattoes to free blacks-the only colored classes in the free states-is much greater in the slave than in the free states. It is worthy of note too, that among the free states those which make the colored man the nearest to equal the white, have, proportionably the fewest mulattoes the least of amalgamation. In New Hampshire, the State which goes farthest towards equality between the races, there are just 184 Mulattoes while there are in Virginia-how many do you think? 79,775, being 23,126 more than in all the free States together. These statistics show that slavery is the greatest source of amalgamation; and next to it, not the elevation, but the degeneration of the free blacks. Yet Judge Douglas dreads the slightest restraints on the spread of slavery, and the slightest human recognition of the negro, as tending horribly to amalgamation.

This very Dred Scott case affords a strong test as to which party most favors amalgamation, the Republicans or the dear Union-saving Democracy. Dred Scott, his wife and two daughters were all involved in the suit. We desired the court to have held that they were citizens so far at least as to entitle them to a hearing as to whether they were free or not; and then, also, that they were in fact and in law really free. Could we have had our way, the chances of these black girls, ever mixing their blood with that of white people, would have been diminished at least to the extent that it could not have been without their consent. But Judge Douglas is delighted to have them decided to be slaves, and not human enough to have a hearing, even if they were free, and thus left subject to the forced concubinage of their masters, and liable to become the mothers of mulattoes in spite of themselves-the very state of case that produces nine tenths of all the mulattoes-all the mixing of blood in the nation.

Of course, I state this case as an illustration only, not meaning to say or intimate that the master of Dred Scott and his family, or any more than a percentage of masters generally, are inclined to exercise this particular power which they hold over their female slaves.

I have said that the separation of the races is the only perfect preventive of amalgamation. I have no right to say all the members of the Republican party are in favor of this, nor to say that as a party they are in favor of it. There is nothing in their platform directly on the subject. But I can say a very large proportion of its members are for it, and that the chief plank in their platform-opposition to the spread of slavery-is most favorable to that separation.

Such separation, if ever effected at all, must be effected by colonization; and no political party, as such, is now doing anything directly for colonization. Party operations at present only favor or retard colonization incidentally. The enterprise is a difficult one; but “when there is a will there is a way;” and what colonization needs most is a hearty will. Will springs from the two elements of moral sense and self-interest. Let us be brought to believe it is morally right, and, at the same time, favorable to, or, at least, not against, our interest, to transfer the African to his native clime, and we shall find a way to do it, however great the task may be. The children of Israel, to such numbers as to include four hundred thousand fighting men, went out of Egyptian bondage in a body.

How differently the respective courses of the Democratic and Republican parties incidentally bear on the question of forming a will-a public sentiment-for colonization, is easy to see. The Republicans inculcate, with whatever of ability they can, that the negro is a man; that his bondage is cruelly wrong, and that the field of his oppression ought not to be enlarged. The Democrats deny his manhood; deny, or dwarf to insignificance, the wrong of his bondage; so far as possible, crush all sympathy for him, and cultivate and excite hatred and disgust against him; compliment themselves as Union-savers for doing so; and call the indefinite outspreading of his bondage “a sacred right of self-government.”

The plainest print cannot be read through a gold eagle; and it will be ever hard to find many men who will send a slave to Liberia, and pay his passage while they can send him to a new country, Kansas for instance, and sell him for fifteen hundred dollars, and the rise.

After the Civil War, the 13th Amendment and 14th Amendment effectively overturned the Dred Scott decision.

Recommended Books about the Founding of America

I put a note up on Twitter earlier today about how I think that the politics of this moment call for some reflection on our nation’s founding and offered to recommend books to those who are interested. The list below is a place to start. I will almost certainly fail to include some essential reading, and so may update this list as additional titles come to mind.

  1. The Federalist Papers (all available online FOR FREE here)
  2. James Madison’s Notes on the Constitutional Convention (also available in full online for FREE here). [For a critical analysis of Madison’s notes and note-taking, I recommend checking out Mary Sarah Bilder’s Madison’s Hand: Revising the Constitutional Convention]
  3. Alexis Tocqueville, Democracy in America
  4. Joseph Story, Commentaries on the Constitution of the United States
  5. Pauline Maier, American Scripture: Making the Declaration of Independence
  6. David McCullough, 1776
  7. Gordon Wood, The Idea of America: Reflections on the Birth of the United States
  8. Jack Rakove, Revolutionaries: a New History of the Invention of America
  9. Bernard Bailyn, The Ideological Origins of the American Revolution
  10. Gordon Wood, Creation of the American Republic, 1776 – 1787
  11. Joyce Appleby, Inheriting the Revolution: The First Generation of Americans
  12. David Armitage, The Declaration of Independence: A Global History
  13. Ira Berlin and Ronald Hoffman, Slavery & Freedom in the Age of the American Revolution.
  14. Carol Berkin, Revolutionary Mothers: Women and the Struggle for American Independence
  15. Richard B. Bernstein, The Founding Fathers Reconsidered
  16. Richard B. Bernstein, A Very Short Introduction to the Founding Fathers
  17. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution
  18. Richard Beeman, Plain, Honest Men: The Making of the American Constitution
  19. Rosemarie Zagarri, Revolutionary Backlash: Women and Politics in the Early American Republic
  20. Linda Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America
  21. Douglas Bradburn, The Citizenship Revolution: Politics and the Creation of the American Union, 1774-1804
  22. Douglas R. Egerton, Death or Liberty: African Americans and Revolutionary America  
  23. Alan Gibson, Interpreting the Founding: Guide to the enduring Debates Over the Origins and Foundations of the American Republic 
  24. Eliga H. Gould and Peter S. Onuf, Empire and Nation: The American Revolution in the Atlantic World.
  25. Willi Paul Adams: The First American Constitutions: Republican Ideology and the Making of State Constitutions in the Revolutionary Era
  26. Charles Beard, An Economic Interpretation of the Constitution
  27. Pauline Maier, Ratification: The People Debate the Constitution: 1787 – 1788
  28. Akhil Reed Amar, America’s Constitution A Biography
  29. Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution
  30. Carol Berkin, A Brilliant Solution: Inventing the American Constitution
  31. Woody Holton, Unruly Americans and the Origins of the Constitution
  32. Ray Raphael, Founding Myths
  33. David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification
  34. Akhil Reed Amar, The Bill of Rights
  35. Carol Berkin, The Bill of Rights: The Fight to Secure America’s Liberties
  36. Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789-1815
  37. Fergus M. Bordewich, The First Congress: How James Madison, George Washington, and Group of Extraordinary Men Invented the Government
  38. Joanne Freeman, Affairs of Honor: National Politics in the New Republic

Another great list to check out is this one from the American Revolution blog.

There are also a number of excellent biographies of prominent figures from the Founding period. If there’s interest, I may list those in a separate post.

March 4, 1789: Government Under the U.S. Constitution Begins


The Confederation Congress, in September 1788 after the necessary nine states ratified the United States Constitution, chose March 4, 1789, as the day it handed off power to the new constitutional government. The Confederation Congress’ resolution of September 13, 1788, stated –

Whereas the Convention assembled in Philadelphia pursuant to the resolution of Congress of the 21st of Feby 1787 did on the 17th of Sept in the same year report to the United States in Congress assembled a constitution for the people of the United States, Whereupon Congress on the 28 of the same Sept did resolve unanimously ” That the said report with the resolutions & letter accompanying the same be transmitted to the several legislatures in order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the convention made and provided in that case ”

And whereas the constitution so reported by the Convention and by Congress transmitted to the several legislatures has been ratified in the manner therein declared to be sufficient for the establishment of the same and such ratifications duly authenticated have been received by Congress and are filed in the Office of the Secretary therefore Resolved That the first Wednesday in Jany next be the day for appointing Electors in the several states, which before the said day shall have ratified the said Constitution; that the first Wednesday in feby next be the day for the electors to assemble in their respective states and vote for a president; And that the first Wednesday in March next be the time and the present seat of Congress the place for commencing proceedings under the said constitution. (Emphasis added)

At New York City’s Federal Hall, on March 4, 1789, the first session of the U.S. Congress under the new Constitution began. However, of the 22 senators and 59 representatives called to represent the 11 states who had ratified the Constitution, only 9 senators and 13 representatives were present on that date. It would take another month for enough members to arrive in New York to start the 1st Congress and form a quorum to vote.

President George Washington, who had been elected unanimously by the electoral college on February 4, 1789, would not be inaugurated until April 30, 1789.

Congress Passes the Missouri Compromise On This Day in 1820




After the Louisiana Purchase and with the application of Missouri for statehood, controversy arose regarding the numerical balance between slave and free states. Congress adopted the Missouri Compromise on March 3, 1820, in an attempt to maintain this delicate and politically fraught balance.

The legislation admitted Missouri as a slave state and Maine as a free state at the same time, in order to maintain an equal number of slave and free states. The legislation also proposed that slavery be prohibited above the 36º 30´ latitude line in the remainder of the Louisiana Territory. This provision held for 34 years, until it was repealed by the Kansas-Nebraska Act of 1854.

Here is the full text of the legislation:

An Act to authorize the people of the Missouri territory to form a constitution and state government, and for the admission of such state into the Union on an equal footing with the original states, and to prohibit slavery in certain territories.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the inhabitants of that portion of the Missouri territory included within the boundaries herein after designated, be, and they are hereby, authorized to form for themselves a constitution and state government, and to assume such name as they shall deem proper; and the said state, when formed, shall be admitted into the Union, upon an equal footing with the original states, in all respects whatsoever.

SEC.2. And be it further enacted, That the said state shall consist of all the territory included within the following boundaries, to wit: Beginning in the middle of the Mississippi river, on the parallel of thirty-six degrees of north latitude; thence west, along that parallel of latitude, to the St. Francois river; thence up, and following the course of that river, in the middle of the main channel thereof, to the parallel of latitude of thirty-six degrees and thirty minutes; thence west, along the same, to a point where the said parallel is intersected by a meridian line passing through the middle of the mouth of the Kansas river, where the same empties into the Missouri river, thence, from the point aforesaid north, along the said meridian line, to the intersection of the parallel of latitude which passes through the rapids of the river Des Moines, making the said line to correspond with the Indian boundary line; thence east, from the point of intersection last aforesaid, along the said parallel of latitude, to the middle of the channel of the main fork of the said river Des Moines ; thence down arid along the middle of the main channel of the said river Des Moines, to the mouth of the same, where it empties into the Mississippi river; thence, due east, to the middle of the main channel of the Mississippi river; thence down, and following the course of the Mississippi river, in the middle of the main channel thereof, to the place of beginning : Provided, The said state shall ratify the boundaries aforesaid . And provided also, That the said state shall have concurrent jurisdiction on the river Mississippi, and every other river bordering on the said state so far as the said rivers shall form a common boundary to the said state; and any other state or states, now or hereafter to be formed and bounded by the same, such rivers to be common to both; and that the river Mississippi, and the navigable rivers and waters leading into the same, shall be common highways, and for ever free, as well to the inhabitants of the said state as to other citizens of the United States, without any tax, duty impost, or toll, therefor, imposed by the said state.

SEC. 3. And be it further enacted, That all free white male citizens of the United States, who shall have arrived at the age of twenty-one years, and have resided in said territory: three months previous to the day of election, and all other persons qualified to vote for representatives to the general assembly of the said territory, shall be qualified to be elected and they are hereby qualified and authorized to vote, and choose representatives to form a convention, who shall be apportioned amongst the several counties as follows :
From the county of Howard, five representatives. From the county of Cooper, three representatives. From the county of Montgomery, two representatives. From the county of Pike, one representative. From the county of Lincoln, one representative. From the county of St. Charles, three representatives. From the county of Franklin, one representative. From the county of St. Louis, eight representatives. From the county of Jefferson, one representative. From the county of Washington, three representatives. From the county of St. Genevieve, four representatives. From the county of Madison, one representative. From the county of Cape Girardeau, five representatives. From the county of New Madrid, two representatives. From the county of Wayne, and that portion of the county of Lawrence which falls within the boundaries herein designated, one representative.

And the election for the representatives aforesaid shall be holden on the first Monday, and two succeeding days of May next, throughout the several counties aforesaid in the said territory, and shall be, in every respect, held and conducted in the same manner, and under the same regulations as is prescribed by the laws of the said territory regulating elections therein for members of the general assembly, except that the returns of the election in that portion of Lawrence county included in the boundaries aforesaid, shall be made to the county of Wayne, as is provided in other cases under the laws of said territory.

SEC. 4. And be it further enacted, That the members of the conven tion thus duly elected, shall be, and they are hereby authorized to meet at the seat of government of said territory on the second Monday of the month of June next; and the said convention, when so assembled, shall have power and authority to adjourn to any other place in the said territory, which to them shall seem best for the convenient transaction of their business; and which convention, when so met, shall first determine by a majority of the whole number elected, whether it be, or be not, expedient at that time to form a constitution and state government for the people within the said territory, as included within the boundaries above designated; and if it be deemed expedient, the convention shall be, and hereby is, authorized to form a constitution and state government; or, if it be deemed more expedient, the said convention shall provide by ordinance for electing representatives to form a constitution or frame of government; which said representatives shall be chosen in such manner, and in such proportion as they shall designate; and shall meet at such time and place as shall be prescribed by the said ordinance; and shall then form for the people of said territory, within the boundaries aforesaid, a constitution and state government: Provided, That the same, whenever formed, shall be republican, and not repugnant to the constitution of the United States; and that the legislature of said state shall never interfere with the primary disposal of the soil by the United States, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers ; and that no tax shall be imposed on lands the property of the United States ; and in no case shall non-resident proprietors be taxed higher than residents.

SEC. 5. And be it further enacted, That until the next general census shall be taken, the said state shall be entitled to one representative in the House of Representatives of the United States.

SEC. 6. And be it further enacted, That the following propositions be, and the same are hereby, offered to the convention of the said territory of Missouri, when formed, for their free acceptance or rejection, which, if accepted by the convention, shall be obligatory upon the United States:
First. That section numbered sixteen in every township, and when such section has been sold, or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the state for the use of the inhabitants of such township, for the use of schools.
Second. That all salt springs, not exceeding twelve in number, with six sections of land adjoining to each, shall be granted to the said state for the use of said state, the same to be selected by the legislature of the said state, on or before the first day of January, in the year one thousand eight hundred and twenty-five ; and the same, when so selected, to be used under such terms, conditions, and regulations, as the legislature of said state shall direct: Provided, That no salt spring, the right whereof now is, or hereafter shall be, confirmed or adjudged to any individual or individuals, shall, by this section, be granted to the said state: And provided also, That the legislature shall never sell or lease the same, at anyone time, for a longer period than ten years, without the consent of Congress.
Third. That five per cent. of the net proceeds of the sale of lands lying within the said territory or state, and which shall be sold by Congress, from and after the first day of January next, after deducting all expenses incident to the same, shall be reserved for making public roads and canals, of which three fifths shall be applied to those objects within the state, under the direction of the legislature thereof; and the other two fifths in defraying, under the direction of Congress, the expenses to be incurred in making of a road or roads, canal or canals, leading to the said state.
Fourth. That four entire sections of land be, and the same are hereby, granted to the said state, for the purpose of fixing their seat of government thereon; which said sections shall, under the direction of the legislature of said state, be located, as near as may be, in one body, at any time, in such townships and ranges as the legislature aforesaid may select, on any of the public lands of the United States: Provided, That such locations shall be made prior to the public sale of the lands of the United States surrounding such location.
Fifth. That thirty-six sections, or one entire township, which shall be designated by the President of the United States, together with the other lands heretofore reserved for that purpose, shall be reserved for the use of a seminary of learning, and vested in the legislature of said state, to be appropriated solely to the use of such seminary by the said legislature: Provided, That the five foregoing propositions herein offered, are on the condition that the convention of the said state shall provide, by an ordinance, irrevocable without the consent or the United States, that every and each tract of land sold by the United States, from and after the firsl day of January next, shall remain exempt from any tax laid by order or under the authority of the state, whether for state, county, or township, or any other purpose whatever, for the term of five years from and after the day of sale; And further, That the bounty lands granted, or hereafter to be granted, for military services during the late war, shall, while they continue to be held by the patentees, or their heirs remain exempt as aforesaid from taxation for the term of three year; from and after the date of the patents respectively.

SEC. 7. And be it further enacted, That in case a constitution and state government shall be formed for the people of the said territory of Missouri, the said convention or representatives, as soon thereafter as may be, shall cause a true and attested copy of such constitution or frame of state government, as shall be formed or provided, to be transmitted to Congress.

SEC. 8. And be it further enacted. That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always, That any person escaping into the same, from whom labour or service is lawfully claimed, in any state or territory of the United States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labour or service as aforesaid.

Congress Passes a Bill to Abolish the African Slave Trade 210 Years Ago Today

On March 2, 1807, Congress passed “An Act to Prohibit the Importation of Slaves into any Port or Place Within the Jurisdiction of the United States, From and After the First Day of January, in the Year of our Lord One Thousand Eight Hundred and Eight.”

The bill provided that after January 1, 1808,

it shall not be lawful to import or bring into the United States or the territories thereof from any foreign kingdom, place, or country, any negro, mulatto, or person of colour, with intent to hold, sell, or dispose of such negro, mulatto, or person of colour, as a slave, or to be held to service or labour.

The first ship of African slaves arrived in North America at Jamestown, VA, in August 1619.

The slave trade was protected in the text of the United States Constitution in Article I, Section 9, Clause 1:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

With respect to amending this clause of the Constitution, Article V provides:

Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it’s equal Suffrage in the Senate.

In Federalist No. 42, Madison explained why these provisions were written into the Constitution:

It were doubtless to be wished that the power of prohibiting the importation of slaves, had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate for ever within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period it will receive a considerable discouragement from the federal Government, and may be totally abolished by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them, of being redeemed from the oppressions of their European brethren! Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another, as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none; but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.

Because of the provisions of the Constitution protecting the slave trade, the Three-Fifths Clause, and the Fugitive Slave Clause, Frederick Douglass said of the Constitution: “it was ‘conceived in sin, and shapen in iniquity.'” Douglass explained

Had the Constitution dropped down from the blue overhanging sky, upon a land uncursed by slavery , and without an interpreter, although some difficulty might have occurred in applying its manifold provisions, yet so cunningly is it framed, that no one would have imagined that it recognized or sanctioned slavery. But having a terrestrial, and not a celestial origin, we find no difficulty in ascertaining its meaning in all the parts which we allege to relate to slavery. Slavery existed before the Constitution, in the very States by whom it was made and adopted. — Slaveholders took a large share in making it. It was made in view of the existence of slavery, and in a manner well calculated to aid and strengthen that heaven-daring crime.


America would have to fight a bloody Civil War before slavery was fully abolished via the 13th Amendment, reading –

Section 1.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.
Congress shall have power to enforce this article by appropriate legislation.