Quote of the Day (Woody Holton, on Extending the Declaration Into ‘A Universal Declaration of Human Rights’)

“Phrases that had seemed unimportant to the [Continental] Congress caught the attention of Americans who hated slavery. Before the year 1776 was out, Lemuel Haynes, a free Black soldier serving in the Continental Army, had drafted an essay called ‘Liberty Further Extended.’ He opened by quoting the Declaration of Independence’s offhand assertions that ‘all men are created equal’ and ‘that they are endowed by their Creator with certain unalienable Rights.’ By highlighting these claims, Haynes began the process of shifting the focus and meaning of the Declaration of Independence, from Congress’ ordinance of secession to a universal declaration of human rights. That effort was later carried forward by other abolitionists—the only Americans whose initial reactions to the Declaration focused on its equality and rights clauses—joined later by women’s rights advocates and eventually by freedom lovers all over the world.”—Bancroft Prize-winning historian Woody Holton, Liberty Is Sweet: The Hidden History of the American Revolution (2021)

Quote of the Day (Frances Ellen Watkins Harper, on a Slave Mother)

“She is a mother pale with fear,
   Her boy clings to her side,
And in her kirtle vainly tries
   His trembling form to hide.
  
“He is not hers, although she bore
   For him a mother's pains;
He is not hers, although her blood
   Is coursing through his veins!
  
“He is not hers, for cruel hands
   May rudely tear apart
The only wreath of household love
   That binds her breaking heart.”—African-American poet, abolitionist and temperance and women's suffrage activist Frances Ellen Watkins Harper (1825-1911), “The Slave Mother,” originally published in her Poems on Miscellaneous Subjects (1854), anthologized in American Poetry: The Nineteenth Century, Volume Two: Melville to Stickney, American Indian Poetry, Folk Songs and Spirituals, edited by John Hollander (1993)
 
I am glad to see historians’ growing attention to Reconstruction and the far longer Jim Crow era of reaction to the political and economic gains of African-Americans. It’s important to realize how easily such advances can be reversed.
 
But with the federal holiday of Juneteenth occurring today, I think it’s also important to remember that emancipation—and the horrifying Civil War that made it possible—also ended practices that would never be repeated. One of these was the breakup of slave families by their owners, a dread evoked in the above verses.
 
I had never heard of Frances Ellen Watkins Harper before I began looking for a quote in observation of Juneteenth—she never came up in my college courses on American literature nor American history in the 19^th century—but I think her life and career are worth recalling.
 
Particularly in the antebellum era, this child of free blacks bore witness, through her writing and lectures, to the horrors of slavery—and implicitly refuted whites who perpetuated the myth of innate African-American intellectual inferiority.
 
For a deeper consideration of what Harper meant—for her time and ours—I recommend Eric Gardner’s 2015 post on OUPblog, Ohio University Press’s Website offering “Academic Insights for the Thinking World.”
 
The image accompanying this post, Kentucky painter Thomas Satterwhite Noble's The Modern Medea (1867), was inspired by Margaret Garner, a runaway slave who, after being recaptured in the North through the Fugitive Slave Act, killed her own daughter rather than allow her to be returned to slavery.
 
Garner’s case—an example of the plight faced by African-American women under slavery depicted by Harper—also gave rise, a century later, to Nobel Literature laureate Toni Morrison’s novel Beloved (1987), as well as her libretto for the opera Margaret Garner (2005).

This Day in Religious History (Death of Henry Ward Beecher, Brooklyn Abolitionist Preacher)

Mar. 8, 1887—Two days after suffering a stroke, the charismatic Congregationalist minister Henry Ward Beecher died in his sleep at age 73. 

It was an uncharacteristically quiet end to a life of striving and strife, particularly from his Brooklyn pulpit, where for four decades he had moved thousands of listeners by denouncing slavery and other forms of American racism, paying tribute to a Christian god of love—and enduring the suspicions of his congregation and tabloid readers over an alleged affair with a married parishioner.

Several months ago, while walking through Brooklyn Heights, I had hoped to take a photo of a striking statue of Beecher by Gutzon Borglum (sculptor of Mount Rushmore) at the religious institution the preacher founded, Plymouth Church. But, because there was no easy access to it because of the high courtyard fence blocking the way, I’ve decided to get closer to him through his words rather than an image.

And what words they were—all the more extraordinary for being delivered extemporaneously, then transcribed by stenographers. Each Sunday, as many as 2,500 people, often coming over from Manhattan by Brooklyn Ferry, crowded into the church for the spectacle of the long-haired Beecher doing something unexpected.

It could involve Beecher, unlike his Calvinist minister father, Lyman Beecher (who sired six other sons who, like Henry and their father, became preachers), speaking of a benevolent God, nudging the axis of Protestant rhetoric from a theology of punishment to one of forgiveness and love. Or it could involve Beecher deciding, like his equally abolitionist sister Harriet Beecher Stowe, to provoke slaveholders—in his case, by holding a mock auction of a nine-year-old slave girl in 1860.

President James Buchanan’s proclamation of a “National Day of Fasting” on Jan. 4, 1861, as the secession movement swept the South, provoked “Peace, Be Still,” one of Beecher’s most astonishing bursts of oratory. Why was the country “observing a “day of humiliation,” he asked? It was for “the strangest reason the world ever heard,” he noted: because, with the rise of abolitionist sentiment, “the spirit of liberty has so increased and strengthened among us, that the Government is in danger of being overthrown!”

While pointing out the presence of “the most alarming and most fertile cause of national sin—slavery” in the South, Beecher refused to let the North off the hook, noting that, because it “loved money, and that quiet which befits industry and commerce,” the region had allowed the institution to spread even though, when the Constitution was written in 1787, it was framed “only to give oppression time to die decently.”

Nor was he done yet. Still in the same sermon, he castigated as well America’s policy toward Mexicans and Native-Americans (“What must be the nature of that Christianization which makes this Republic a most dangerous neighbor to nations weaker than ourselves?”).

When he wasn’t bitterly criticizing the “peculiar institution,” Beecher was, together with William Ellery Channing and Theodore Parker, part of a liberal theological movement that advocated for God’s love with depths of eloquence. “Religion is in the man, or it is not anywhere,” Beecher took to saying. 

In the 1870s, Beecher received attention of an unwelcome kind when friend and parishioner Theodore Tilton accused him of improper relations with his wife. His charm and exuberance were such that women were continually falling in love with him, making him a constant object of gossip and, among husbands, jealousy, whether or not he acted on temptation. The adultery trial that followed provided newspaper fodder (some say the coverage exceeded that accorded to the Civil War) before ending in a hung jury. The congregation of Plymouth Church absolved Beecher of wrongdoing, but a cloud of scandal lingered on him to his death, and even beyond.

 
Nevertheless, Beecher remains an important figure in American religious history. He helped establish that politics was a right and proper subject for the pulpit.  Moreover, biographer Debby Applegate, in The Most Famous Man in America, credits him with putting progressive evangelicalism and a gospel of love, happiness and self-fulfillment at the center of modern American Christianity, in a pronounced shift from its dour Puritan origins. 

Quote of the Day (Henry David Thoreau, on Liberty and Slavery in Massachusetts)

“Three years ago, also, just a week after the authorities of Boston assembled to carry back a perfectly innocent man, and one whom they knew to be innocent, into slavery, the inhabitants of Concord caused the bells to be rung and the cannons to be fired, to celebrate their liberty — and the courage and love of liberty of their ancestors who fought at the bridge. As if those three millions had fought for the right to be free themselves, but to hold in slavery three million others. Nowadays, men wear a fool's-cap, and call it a liberty-cap. I do not know but there are some who, if they were tied to a whipping-post, and could but get one hand free, would use it to ring the bells and fire the cannons to celebrate their liberty. So some of my townsmen took the liberty to ring and fire. That was the extent of their freedom; and when the sound of the bells died away, their liberty died away also; when the powder was all expended, their liberty went off with the smoke.”— Henry David Thoreau, “Slavery in Massachusetts,” address delivered in Framingham, Mass., July 4, 1854

In another month, Henry David Thoreau would celebrate the publication of Walden, his account of a year spent in the woods near his native Concord, Mass.—an attempt to free himself from the “factitious cares and superfluously coarse labors of life” that began, very self-consciously, with his move into a cabin on the woodlot of friend Ralph Waldo Emerson on Independence Day, 1845.

Nine years after that personal declaration of independence, however, Thoreau would use the Fourth of July for a radically different occasion: a speech at a rally sponsored by abolitionist editor William Lloyd Garrison against the Fugitive Slave Act of 1850, a measure meant to dissipate secessionist sentiment among slaveowners by allowing them to recover runaways, even in free Northern states.

Thoreau would not permit an American Revolution that began in protest to devolve into an annual rite of self-congratulation. The risk was especially high in Concord, where the Minutemen had fired on the redcoats at the local bridge—a now-legendary event alluded to by Thoreau, then quickly undercut by him.  

Thoreau’s address didn’t deign to attack Southerners but his own listeners, as well as anyone else in Massachusetts who stood idly by as slaveowners tried to suborn the laws and moral code of the state. Only five weeks before, abolitionists had stormed the Boston federal courthouse in an unsuccessful attempt to free runaway slave Anthony Burns. Moreover, this wasn’t the first time the arm of the law had acted in favor of the slave power: three years before, in an incident Thoreau takes note of here, the escaped Georgia slave Thomas Sims had been apprehended in Boston, endured a trial, and was returned to his owner.

“Slavery in Massachusetts,” then, doesn’t refer to a pre-Revolutionary era when human chattel could still be held in the Commonwealth, nor even to the insidious manner in which the now predominantly Southern institution was making its presence felt here. It referred to the moral subjugation of a people unaware that their freedom had gone “off with the smoke.”

Like Frederick Douglass’ fiery Fourth of July oration of 1852, Thoreau is rebuking latter-day complacency about the American political faith. Righteous anger led him to a radicalism to match Southern extremists. If they did not want to be part of the Union, fine. “Let the State [Massachusetts] dissolve her union with the slaveholder,” he advised. “She may wriggle and hesitate, and ask leave to read the Constitution once more; but she can find no respectable law or precedent which sanctions the continuance of such a union for an instant.” (Garrison, the organizer of this mass protest, had expressed similar sentiments in 1829, when he first entered public life, as I discussed here.)

A good deal of the speech needs to be read with allusions to contemporary events spelled out, as this annotated text does. But Thoreau also spiked the address with a number of statements from his journals that stand on their own as brilliant aphorisms, including:

*“Those who have been bred in the school of politics fail now and always to face the facts.”

* “It is to some extent fatal to the courts, when the people are compelled to go behind them.”

* “A government which deliberately enacts injustice, and persists in it, will at length ever become the laughing-stock of the world.”

*“Whatever the human law may be, neither an individual nor a nation can ever commit the least act of injustice against the obscurest individual without having to pay the penalty for it.”

*"Probably no country was ever ruled by so mean a class of tyrants as, with a few noble exceptions, are the editors of the periodical press in this country. And as they live and rule only by their servility, and appealing to the worse, and not the better, nature of man, the people who read them are in the condition of the dog that returns to his vomit."

*”The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it.”

Thoreau’s Framingham address is a reminder that deep dissatisfaction with governmental refusal to confront problems—and judicial complicity in this process—will inevitably call for organized action to redress the balance. Mid-19^th century jurisprudence, to its enduring shame, proclaimed the rights of slaveowners. Our Supreme Court discovers equally unsuspected rights among corporations and gunowners. Where is our Thoreau to heap scorn on them?

This Day in Legal History (Marshall Points Commerce-Clause Dagger at States’ Rights)

March 2, 1824—In the last year of what might be termed Jeffersonian Republicanism, John Marshall, Chief Justice of the Supreme Court, continued to strike at the Democratic-Republican Party he had shadow-boxed in more than two decades on the high court.  In Gibbons v. Ogden, he did more than merely decide between two competing steamboat owners, or even establish a precedent that would govern use of the interstate-commerce clause of the Constitution  in everything from the navigation innovations of the 19^th century to the telecommunications revolution of the 21^st.  

No, Marshall—himself a Virginia slaveowner—insisted that, whenever the two conflicted, federal power superseded state power. That nationalist vision repudiated the notions of states’ rights and secession secretly promoted by Thomas Jefferson and James Madison in the Virginia and Kentucky Resolutions of 1798. The enhanced authority this throwback to the now-defunct Federalist Party presented to Congress to pass laws relating to interstate commerce would, in time, become a weapon for abolitionists for the antebellum era, and even for civil-rights activists in the 1950s and 1960s.

A second cousin to Jefferson, Marshall, still vigorous in his late sixties, had outlasted Jefferson, Madison, and now his childhood friend, James Monroe. More infuriating to the Sage of Monticello, Marshall had pulled within his gravitational orbit most of the men that the Democratic-Republican Party had nominated to the high court, in the vain hope of counteracting his influence.

After justices had heard oral arguments, they reviewed the day’s business quickly in their cramped boardinghouse, where the chief’s mastery of men matched any mere President. For a man considered the bulwark of conservatism in the young republic, he put on no airs. (On a visit to the John Marshall House in Richmond some years ago, I was astonished to find that not only did he do his own food shopping in the city streets, but also that he was such a careless dresser that he needed the help of one of his slaves to ensure he looked presentable on special occasions.)

The court’s decision in Gibbons v. Ogden promised to be among them. Daniel Webster, the lead counsel for the case’s appellant, Thomas Gibbons, had drawn a crowd to see if he could deliver another persuasive argument, as he had done in two other landmark Marshall Court decisions (Dartmouth College v. Woodward and McCulloch v. Maryland), and the future Senator from Massachusetts didn’t disappoint. Moreover, commercial interests in New York were keenly watching a young go-getter in the background of the case, Cornelius Vanderbilt, whose tough, even ruthless management of Gibbons' boat had elicited the rancor of the latter's former steamboat partner, Aaron Ogden.  

The case had developed originally because the New York State Assembly had awarded a steamboat monopoly on the Hudson River to politician Robert Livingstone and inventor Robert Fulton. In turn, Livingstone allowed Ogden to navigate the waters between New York and New Jersey with this new mode of transportation. When Ogden fell out with Gibbons, the latter obtained a license to navigate under the federal Coasting Act of 1793. The New York state courts consistently sided with Ogden, until Gibbons played his last trump card and appealed to the Supreme Court.

In siding with Gibbons, Marshall struck down a monopoly that was restraining the growth of a new industry. The decision allowed a host of entrepreneurs who were trying to follow up on Fulton’s steamboat to ply their trade throughout the country. In particular, it “opened the floodgates for the Hudson River,” according to Fulton biographer Kirkpatrick Sale. Together with the Erie Canal (opening a year after the Ogden decision), the steamboat would transform the American interior, uniting East and West through strengthened commercial ties.

But Marshall was engaging in something larger: an adroit, step-by-step process by which he erected a legal foundation for his vision of a mercantile, contract-bound society that would unite all sections of a disparate republic into a true nation. Webster crowed that Marshall imbibed his arguments “as a baby takes in his mother’s milk,” but, in truth, the Chief Justice merely did with the attorney what he had done so successfully with his associate justices: gleefully employed their reasoning as a means of advancing his own constitutional strategy.

Crucially, in interpreting Article 1, Section 8, Clause 3 of the U.S. Constitution—i.e., the power given to Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”—Marshall construed the verbiage broadly to mean not simply the artifacts of commerce, but the whole “intercourse” by which it was conducted. Then, turning to the phrase “among the several states,” he argued for its widest possible application, limited only by the Constitution itself: “Commerce among the states, cannot stop at the external boundary line of each state, but may be introduced into the interior.”

Predictably, Jefferson and his followers did not look benignly on what they saw as yet another incursion by the Chief Justice on states’ rights. But Gibbons v. Ogden proved to be among the Marshall Court’s most popular decisions. Its wide acceptance, in fact, enabled opponents of slavery to wonder if it couldn’t be applied in overthrowing a system they abominated.

The domestic slave trade relied on the “chattel principle,” the notion that slaves were movable property. While most Americans thought that slavery could not be interfered with within individual states, abolitionists saw an increasing point of vulnerability to the peculiar institution in slave trade between states, which would fall under the commerce power.

Abolitionists’ denunciation of the interstate slave traffic, historian David L. Lightner argues in Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War, threatened alike plantation owners in older states (who needed proceeds from sales of surplus slaves to supplement their increasingly narrow profit margins) and those in the Deep South (who needed the labor to farm newly opened territories). Slaveowners’ paranoia about this perceived threat to their livelihood boosted the secessionist movement and hastened the coming of the Civil War.

A century after the Civil War, the administration of Lyndon Johnson crafted the Civil Rights Act of 1964 in such a way that the commerce power could be used to outlaw segregation and prohibit discrimination against African-Americans. It provided the federal government a wedge to charge non-state actors with Equal Protection violations. It also became a tool by which Congress could regulate manufacturing, child labor, workplace safety, farm production, mass media of communication, wages and hours of work, the activities of labor unions, buying and selling at marketplaces, and various other activities.

All of this began with a Chief Justice who served under five Presidents, making what was widely expected to be the weakest branch of the federal government into one with its own unrivaled authority. Marshall did so through a self-confidence that allowed him to range widely over the law while gratefully accepting the expertise of particular justices; the sure-footed instinct to know how far to push a point without incurring the full wrath of Jefferson and his followers (a point I mentioned in a prior post about how he conducted the Aaron Burr treason trial); and a conviviality that furthered the good feelings among the associate justices with liberal amounts of alcohol. 

The justices had a rule about drinking only when it was raining, but, as might be guessed, Marshall used a broad interpretation of their jurisdiction to decide when that applied. He would sometimes ask Associate Justice Joseph Story to “step to the window and see if it does not look like rain.”  If Story said the sun was “shining brightly,” Marshall would often answer, “our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere.”  That was the signal for the bottles to open, and in the ensuing time spent together, the Chief undoubtedly sounded extra persuasive...