The Half Has Never Been Told
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African Americans had been saying for years that slavery’s power built on the acquisition of new territory. On the frontier, enslavers could destroy old standards of production, disrupt families, securitize the individuals extracted from them as commodities, sell the financial instruments thus created on markets around the world, and ride the resulting boom of excitement. Some whites had listened, including Gamaliel Bailey, editor of the antislavery National Era: “What does the past teach us? That slavery lives by expansion” he wrote. Close off new territory, and one closed the veins that pulsed excitement into credit markets. Close off the land that might come from Mexico, and one put a term limit upon the political stranglehold of slave owners over the larger and more rapidly expanding northern population.27
Because Wilmot’s proviso promised to close off southern expansion in every sense, it placed extreme pressure on the two major parties, which were complex interregional alliances that depended on balancing the interests of politicians on both sides of the Mason-Dixon line. Southern Whigs opposed the proviso, while northern Whigs—who knew they faced potential Conscience Whig revolts back home—supported it. Southern Democrats opposed the proviso, but northern Democrats—supporters of national expansion, yet anxious about the voters at home—froze in the oncoming headlights of the midterm elections: ultimately, most bolted in panic. When the proviso came to a vote in the House, only four free-state Democrats opposed the bill, which passed 85 to 80 in a sectional vote. Then, in an apparent replay of the 1819–1820 Missouri debates, the Senate blocked the proviso.
But 1819 and 1846 were different years. In 1819, many in both North and South saw a future in which exported cotton would drive economic growth. Now, expectations of the economic future had evolved. And just as Joshua Leavitt had hoped, David Wilmot and other northern Democrats—most of whom hated both Whigs and black people—were voting against the Slave Power and with antislavery Whigs. Such developments could destabilize the delicate balances inside US politics. One immediate consequence was that opposition to slavery expansionism became a newly viable political identity for many northern candidates for office. In 1847, John G. Palfrey ran for Congress in a special election to fill a seat in a district once dominated by Cotton Whigs. Supporters proclaimed that he had “shown his faith by his works, having emancipated a large number of slaves in Louisiana who came to him by inheritance.” Palfrey won, joining a freshman congressional class that also included a newly elected Illinois Whig named Abraham Lincoln.
Through 1847, however, neither pro– nor anti–Wilmot Proviso forces could gain the upper hand in Washington. And meanwhile, on the far side of the Rio Grande, US troops were winning battles against Mexican forces. General Zachary Taylor, a veteran of counterinsurgency struggles against the Florida Seminoles, defeated one Mexican army in the north of the country. California fell to US troops and US settlers. General Winfield Scott landed an army of 12,000 men on Mexico’s Gulf Coast. Among Scott’s junior officers were names like Robert E. Lee, Ulysses S. Grant, and Thomas Jackson. Retracing Hernando Cortez’s 1519 route, Scott’s troops fought their way west toward Mexico City. After winning a crucial battle at Cerro Gordo, they circled west of the city. On September 12, US troops stormed Chapultepec Castle, the capital’s last strongpoint, and then occupied a city that had been a capital a millennium before Washington’s founding.28
As news came back that the halls of Montezuma had been conquered, the Polk administration became entranced by the idea of annexing all of Mexico. But the New York State Democrats, the largest and oldest branch of the party, split in two over whether the new territories should be open to slavery. As southern constituents grew more agitated about the crisis, John C. Calhoun stepped forward to offer a doctrine that had been developing for a few years now—but that was peculiarly suited to the current situation. This idea re-amplified slavery’s leverage in the political equations of expansion, using constitutional interpretation to highlight the declining relative demographic and financial force of cotton. It was not a rehash of nullification, which Calhoun had abandoned after his defeat by Jackson in the 1830s. It was far more significant than nullification.
Back in 1819, Calhoun had told the rest of Monroe’s Cabinet that he believed that the Constitution allowed Congress to ban slavery from federally controlled spaces, such as new territories. But by 1836, abolitionist petitions were calling for Congress to use its power over federal territory to end the slave trade and even to ban slavery itself in the District of Columbia. In January 1836, Senator Calhoun responded to these demands with a speech that outlined a foundational idea. He told the Senate that he did not find in the Constitution the right of petition to which the anti–Gag Rule forces kept referring. But he did find the Fifth Amendment, and it limited federal power over individuals’ property by decreeing that no one could be “deprived of his property without due process of law.” Calhoun now proceeded to build a sweeping principle on the back of this sentence. “Due process,” he insisted, could mean only “trial by jury” of a specific criminal. Here was the opposite of due process: legislative fiat that erased the property claims of a whole class of people. And, “were not the slaves of this District property,” Calhoun asked, and were not their enslavers a whole class of property-owners? Presumably Congress could not prevent people from buying or selling said property, either, since salability is usually one of property’s characteristics.29
Calhoun was stating an idea that would eventually be known as the doctrine of substantive due process. The “due process” requirement to which the Constitution referred could not be fulfilled simply by passing a law, for a law that invaded the rights of property-owners ran up against something too fundamental for procedure to alter. In Calhoun’s vision, the Fifth Amendment was a geological outcropping that confirmed that beneath the Constitution lay an underlying substantive, tectonic plate of natural law that allowed owners to hold and use property. In 1844, a Mississippi congressman named William Hammett even argued that this federal right also protected enslavers from the actions of state legislatures. Thus the state-mandated emancipations completed by northern states were unconstitutional. Shocked northern congressmen foamed in anger at Hammett’s claim. But enslavers seemed to accept it instinctively as soon as they heard it.30
After the Civil War, pro-big-business legal thinkers from the North would, ironically enough, take up a version of Calhoun’s idea. From the 1890s through the New Deal era, the Supreme Court repeatedly used substantive due process to strike down legislative attempts to regulate Gilded Age industry, protect workers’ rights, or break up monopolies. Substantive due process shaped (and continues to shape) the political economy of the United States in enduring ways. Like his modern cousins, Calhoun offered in his argument for substantive due process a doctrine of radically unfettered property ownership. It implied that enslavers were forever protected from popular majorities that might try to prevent them from taking full advantage of the boundless resources of a conquered continent and an ever-growing world market. Nor is it clear that southern partisans had the worse argument in the terms of precedents available in their time. Justice Story’s 1843 opinion in Prigg v. Pennsylvania gave an anchor point to the claim that the Constitution recognized enslavers’ fundamental rights to property in human beings and compelled the federal government to protect those claims, even against state legislatures.31
The ur-version of substantive due process had been fermenting slowly since 1836, but it had usually stayed in the shadows. How awkward it would have been in the early 1840s if, in the midst of G.T.T. escapes and bond-repudiation, enslaver-entrepreneurs had claimed that governments could not impair the rights of property and contracts. However, war and conquest had by 1847 created new incentives for politicians to find justifications for new slavery territory. Calhoun’s argument went even further than that, of course, envisioning an alternative and highly radical version of economic modernity.32
The ambient friction of the Wilmot Proviso debate gave Calhoun and his a
llies the opportunity to use their logic on audiences that were ready to hear about how the North was trying to strangle the constitutional rights of the South, on the back of whose success the free states’ own growth built. In February 1847, Calhoun offered the Senate a set-piece exposition of his argument that enslavers had a fundamental right to use and move and exploit enslaved human beings. In this, the most significant speech of his long career, he laid out the constitutional and political argument behind which increasing numbers of enslavers would unite over the next fourteen years.33
First, Calhoun insisted that the territories were the equal possession of all the states, free or slave. He also rejected Congress’s right to require that new states’ constitutions outlaw slavery. And then he swung his sledgehammer: “Resolved. That the enactment of any law which should directly, or by its effects, deprive the citizens of any of the States of this Union from emigrating, with their property, in to any of the territories of the United States, will make such discrimination [between citizens from different states of the Union, coding those from free states as worthy and those from slave states as unworthy] and would therefore be a violation of the Constitution.” This resolution referenced the “common blood and treasure” argument—that the slave states had shared equally with the free in the costs and dangers of conquest—but it ultimately depended on his claim that the Constitution protected enslavers’ ability to hold, move, sell, buy, and exploit people as property. He implied that the federal government should pass laws to enact the institution of slavery on federal territory, for to do otherwise would be to deprive individual slave owners, and indeed all southern whites—who were, after all, potential property-holders—of their rights. Thus, the only constitutional fate for the territories was a future in which federal marshals rounded up runaways in California, federal attorneys defeated freedom suits in New Mexico, and federal customs officials regulated and protected the interstate slave trade into Utah.
Thus Calhoun offered a viable alternative to the claim that southern political bullying was protecting an economically backward institution. Southern politicians could now claim that constitutional rights mandated political solutions to their own decline in relative political power. And at the moment when Calhoun made this move, the vision of perpetually expanding slavery as an alternative but still modern economy was once again becoming plausible. The second half of the 1840s brought a small uptick in cotton prices. Enslavers always believed that fresh territory would yield a future of creative-destructive bonanzas. Lest one claim that Calhoun’s intervention was irrelevant, because the frontier farther southwest was too arid to slake enslavers’ thirst for cotton booms, remember that a century later, Arizona would be the nation’s biggest cotton producer. California’s Central Valley, using a labor force that was barely free, would then be the most profitable agricultural district in the world. And after these 1847 resolutions, southern newspapers and magazines began to shape a fantasy in which a new generation of right-handed entrepreneurs opened up northern Mexico, yet un-seized lands in the Caribbean, or Pacific islands such as Hawaii, on whose volcanic soil sugarcane had thrived since the first Polynesian settlers planted it.
“I give no advice,” concluded iron-faced old Calhoun. “But I speak as an individual member of that section of the Union. There I drew my first breaths. There are my hopes”—hopes not just in South Carolina, as in the days of nullification, but also in Alabama, at his son Andrew’s slave labor camp, hopes of an ever-expanding South. “I am,” said Calhoun, “a planter—a cotton planter. I am a southern man and a slaveholder; a kind and merciful one, I trust—and none the worse for being a slaveholder. I say, for one, I would rather meet any extremity on earth than give up one inch of our equality—one inch of what belongs to us as members of this great republic.” He knew others would agree.34
STILL, AS OF 1847, the game Calhoun played was a long con. The bonds of loyalty linking non-planter southern white men to national parties had been forged in the hot fires of the 1830s. And many still hoped that their party’s leadership would put forward a viable interregional consensus candidate for the next presidential election. James Polk did not plan to be one of those candidates. The president had grown weary of the gridlock over the territories. He was also preoccupied by negotiations in Mexico City, which had been going on almost as long as those in Congress. One reason for their delay was the Polk administration’s increasing desire to persuade domestic public opinion into demanding that the United States swallow the entire conquered nation.
John G. Palfrey’s Massachusetts Whigs protested that the annexation of Texas had “stimulated the appetite” of the (rest of) the American people for more territory. “If the Slave Power continues to be strong enough,” wrote Palfrey, states carved from Mexico would be “admitted to the Union with constitutions, forced on them through artifice and intimidation, recognizing and perpetuating slavery,” and adding to the Slave Power’s strength in Congress. About the only thing upon which Calhoun and Palfrey could agree was that all of Mexico was too much. “We have never dreamed of incorporating into our Union any but the Caucasian race,” Calhoun proclaimed. “More than half of the Mexicans are Indians, and the other is composed chiefly of mixed tribes. . . . Ours, sir, is the government of the white race.” Palfrey also thought that Mexico’s “nameless and mongrel breeds” would fit poorly into the United States.35
Just as Calhoun tried to convince southern Whigs and Democrats to align with each other along sectional lines, Palfrey and his fellow Massachusetts Conscience Whigs were splitting their party’s 1848 state convention by insisting that it should reject any presidential nominee who did not state clear opposition to adding new slave territories. When the resolution failed, Palfrey and his Conscience allies left the party. Meanwhile, the New York Democrats also divided. One faction, led by Martin Van Buren and called “Barnburners” by their opponents (after an apocryphal farmer who burned down his barn to kill off the rats), argued that the expansion of slavery hurt the “free white laborers of the North and South.” Proclaiming allegiance to “Free Trade, Free Labor, Free Soil, and Free Men,” these dissident Democrats gathered with Whig splinter groups and Liberty Party activists and created the Free Soil Party. They named Van Buren, a man who had spent decades displaying his allegiance to southern planters, as their presidential candidate. His running mate was Charles Francis Adams, son of original Conscience Whig John Quincy Adams, who had been felled by a fatal stroke on the floor of the House earlier in 1848.36
Back in Washington, the Senate had finally received the Treaty of Guadalupe Hidalgo, the result of negotiations with the representatives of defeated Mexico. In addition to confirming Texas annexation, the treaty gave the United States 525,000 additional square miles of the conquered nation-state—13 acres for each of the 23 million people in the Union. This was the third-biggest acquisition of territory in US history, after the Louisiana Purchase and Alaska. The Senate eliminated an article that promised recognition of land claims granted by the Spanish or Mexican governments. The treaty opened the new southwest to a massive Anglo real-estate grab. If that wasn’t enough incentive for settlers to start dispossessing Mexicans and Indians, gold was discovered at Sutter’s Mill, California, in January 1848.
Yet the great giveaways promised by Guadalupe Hidalgo did not turn a controversial war into a success. In the course of two years of debate over the fate of the conquered territory, southerners, anxious to protect their future access to political leverage and entrepreneurial possibilities, had moved toward arguing that a slave West was the price of union. Meanwhile, northerners, convinced that southern enslavers were treating them the way they treated their slaves, had already destabilized electoral calculations. The political system had depended since the bank war on the stability created by two party alliances, each one balancing regional interests. Those coalitions might not survive the election chaos coming in the fall. Even if they did, it was unclear that the parties could persuade enough southerners or enough northe
rners to accept compromise and resolve the question of organizing the new territories.
In fact, 1848 was putting immense pressure on political arrangements on both sides of the Atlantic. Parisians barricaded the streets and fought the French army. When the smoke cleared, the terrified bourgeoisie was welcoming a second Napoleon, the first one’s nephew, as the leader of a new republic that would soon become an empire. Across the Rhine, people rose up against the rulers of various German states, demanding a liberal, unified nation in some cases, and more radical outcomes in others. When the revolutions collapsed, political refugees fled the European mainland, including one named Karl Marx. He landed in London and spent the rest of his life holed up in British libraries, but many “Forty-Eighters” came to the United States. Meanwhile, in July, in the little Erie Canal town of Seneca Falls, several hundred reformers gathered for an impromptu “Woman’s Rights Convention.” Among the organizers was Elizabeth Cady Stanton. Frederick Douglass, escapee from slavery and one of the most effective conduits of enslaved people’s critiques of white power, was in attendance. The convention drafted a “Declaration of Rights and Sentiments,” a document that claimed for women the right to vote.