Land of Hope: An Invitation to the Great American Story

by Wilfred M. McClay

The brilliance of this solution might not be immediately apparent. But it is important to keep in mind that the work of courts, and especially courts of appeal, is built around the authority of legal precedents. And like a chess master who sacrifices his pawns to get at his opponent’s queen, Marshall sacrificed Marbury’s commission to take possession of something much larger. He in effect refrained from pursuing a small and unimportant potential Federalist gain (Marbury as a single Federalist judge) in exchange for a much larger gain: establishing a precedent that could be used again and again, because it served to underscore the independent power of the Supreme Court to rule an act of Congress unconstitutional. He gave Jefferson the decision Jefferson wanted, but he did so by means of reasoning that Jefferson did not want at all.

Observe the many layers of irony here. Just as Jefferson consolidated the Hamiltonian economic program rather than reversing it, so too he more than reinforced the Hamiltonian interpretation of the Constitution, rather than reversing it, by means of the single greatest exercise of executive power in the country’s history to that point. And at the same time, he consolidated his own power, and the power of his party, for a generation to come. The fortunes of the Federalist Party sank further and further – even though some of the most consequential actions taken by Jefferson, actions that greatly bolstered his popularity, would seem to have supported their principles far more than they did his. It would not be the last time that a president would find it necessary to consolidate and secure some of the very initiatives and ideas he had opposed before taking office – not out of cynicism or opportunism but out of political and pragmatic necessity. It only added to the irony that a bitter rump group of defeated Federalists in New England, known as the Essex Junto (because so many of them were from Essex County, Massachusetts), began hatching schemes to secede from the Union and tried, unsuccessfully, to get Hamilton to join them. Federalists as secessionists and Republicans as nationalists: the world did seem to be turning upside down again.

Louisiana purchase

He came to refer to his presidential experience as “splendid misery” and even seemed to wonder for a time whether he had been miscast for his role in politics, whether he was made for a more contemplative existence. He wrote to a French economist friend just before the end of his second term, “Never did a prisoner, released from his chains, feel such relief as I shall on shaking off the shackles of power. Nature intended me for the tranquil pursuits of science, by rendering them my supreme delight. But the enormities of the times in which I have lived, have forced me to … commit myself on the boisterous ocean of political passions. I thank God for the opportunity of retiring from them.”

Jefferson splendid misery

Or, as he had said several years before, in rather more ominous tones, “if a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”

Thus, despite the continued low level of American military preparedness, Madison yielded to the accumulating pressure and reluctantly asked for a declaration of war on June 1, 1812. Ironically, the British had decided at the same time to revoke the orders in council that had sustained their interference with American shipping. But thanks to the difficulties of transatlantic communication, their decision was not known until it was too late; war had been declared, and the requirements of war had taken on a momentum of their own.

Like Marbury v. Madison, the Monroe Doctrine established a vital and enduring principle at just the right moment, when it was least likely to be successfully challenged.

And he went on to express his sense of the difficulty of moving past the issue with a colorful image: “We have the wolf by the ear, and we can neither hold him, nor safely let him go.”

Jefferson Slavery

Madison himself had explained why it could not last, in his insightful Federalist 10: the causes of faction were sowed in the hearts of men and in the divergent material interests that came with their diverse situations in life.

It should be noted, too, that Chief Justice John Marshall suffered a notable setback in the matter of the Cherokee removal from Georgia, which he opposed. In the case Worcester v. Georgia (1832), the Court ruled that the laws of Georgia had no force within Cherokee territory. Jackson, however, sided with Georgia and simply ignored the ruling, thereby rendering it impotent and futile. It was an act of presidential nullification, in a sense, and served as a powerful illustration of the limits of the Supreme Court’s power when an executive is determined to reject its dicta.

The result, his two-volume book Democracy in America (1835–40), is perhaps the richest and most enduring study of American society and culture ever written. If one were permitted to read only one book on the subject, Democracy in America would almost certainly be the best choice – a surprising statement perhaps, given the fact that nearly two centuries have passed since its initial publication.

Chief among the dangers was its pronounced tendency toward individualism – a new word at that time. Tocqueville saw in America the peril that citizens might elect to withdraw from involvement in the larger public life and regard themselves as autonomous and isolated actors, with no higher goal than the pursuit of their own material wellbeing. He acknowledged that in a modern commercial democracy, this was a particularly strong possibility, because self-interest would inevitably come to be accepted as the chief engine of all human striving. But where, then, would the generous and selfless civic virtues needed for the sustaining of a decent society come from? How could the individualistic Americans of the 1830s prevent selfinterestedness from overwhelming all considerations of the public good and undermining the sources of social cohesion? Why, he asked, in a chapter that reads as if it were written today, are prosperous Americans so restless in the midst of their prosperity? And why, he asks later, are these same individualistic Americans so vulnerable to accepting the “soft despotism” of the state? We may perhaps hear a faint echo in these questions of the AntiFederalists’ worries, and Jefferson’s, about the fate of virtue in a commercial society. And even though nearly every outward feature of the Jacksonian-era world that Tocqueville described in his book has changed, and altered beyond recognition, the inward traits and tendencies he describes have remained remarkably c...

Tocqueville Prophetic individualism

IN DEMOCRACY IN AMERICA, TOCQUEVILLE WAS NOT MERELY interested in studying democracy as a political form. He argued that a democratic regime would manifest itself in every facet of human life: not merely in public institutions but also in family life, in literature, in philosophy, in manners, in language usage, in marriage, in mores, in male–female relations, in ambition, in friendship, in love, and in attitudes toward war and peace. He grasped the fact that a society’s political arrangements, far from being matters that merely skate on the surface of life, are in fact influences that reach deep down into the very souls of its inhabitants. Democracy is not just about politics; it is also a matter of culture, of a people’s sensibility and way of life: their habits, convictions, morals, tastes, and spiritual life.

If Mormonism could be said to be a product of the intellectual and spiritual ferment of the Jacksonian era, it might with equal justice be said to be a reaction against the era’s sometimes chaotic individualism.

Few were as radical as Garrison, however, a forceful and steel-spined man who demanded “immediate” emancipation and publicly burned a copy of the Constitution and condemned it as a “proslavery” document, a “Covenant with Death,” and “an Agreement with Hell.”

Conflicts among antislavery proponents as to both means and ends had the effect of undermining the movement’s practical effectiveness by the 1840s. Garrison in particular became convinced that slavery had so completely corrupted all of American society that only a revolutionary change could effect emancipation. His position was too extreme for most and precipitated a split in the movement, leaving it too weakened to have much political influence when the nation’s sectional crisis heated up in the 1850s.

So how are we to evaluate their success? Some scholars have argued that the antislavery movement, particularly in its Garrisonian abolitionist form, made things worse rather than better, by amplifying southern fears and alienating northern allies. Others argue that, without their having taken a strong and intransigent position challenging the practice of slavery, and insisting upon its incompatibility with American and Christian convictions, nothing would have changed, and the nation would have drifted forward indefinitely, with the moral blot of slavery still unaddressed well into the twentieth century. This is a debate worth having, since it connects in some way to the perplexities in almost every great moral cause in human history.

Something that might be useful to introduce here is a distinction that the German sociologist Max Weber made between the ethic of moral conviction and the ethic of responsibility, two different ways of thinking about how leaders address moral problems in politics. The ethic of moral conviction was what propelled Garrison; it is the point of view that says one must be true to one’s principles and do the right thing, at whatever cost. It has a purity about it that is admirable. The ethic of responsibility takes a different view. It guides moderates (and, as we shall see, Lincoln himself) to the belief that leaders must take responsibility for the totality of effects arising out of their actions. It takes into account the tragic character of history, the fact that one can easily do the right thing at the wrong time, in the wrong way, and do an immense amount of damage to good and innocent parties in the process. Such a distinction does not decide the question, but it does clarify it.

Max Weber

The book succeeded in people’s minds not because of its cogent preaching on questions of abstract individual rights or abolitionism but because it appealed, vividly and emotionally, to antebellum Americans’ sense that no institution could be defended if it so brutally and pitilessly violated the sanctity of the family. It succeeded because it endowed its black characters with undeniable dignity and brought the reader to identify with their suffering, and to feel the injustice of bondage as a denial of personal freedom, one of the central features of the American experiment. And it succeeded all the more because it showed that one of the worst aspects of slavery was its degrading effect upon the master class itself. In other words, it demonstrated the comprehensive wrongness of the institution by showing, in a powerful and plausible way, its awful consequences to everyone involved in it.

Slavery corroded all- like abortion

It brought slaves inside the affective circle of its readers’ minds, and it did so not with harsh sermons or shrewd political maneuvering but with an appeal to the moral imagination.

Need For narrative

In the Transcendental vision, individuals perfected themselves in unfettered liberty, in order that they might form a community that thrives without authority or traditions. Transcendentalism promoted a social and ethical theory that amounted to little more than the principle of self-trust. Transcendentalism would have been unthinkable without its many transatlantic additives, including a nice helping of German romanticism. But it also was a movement as American, and New England, as apple pie, a movement marking a distinct phase in the strange career of American Puritanism. In Transcendentalism, the mysticism of Jonathan Edwards was turned loose in an unEdwardsian universe, one in which Nature took the place of God and the sense of sin itself had begun to evaporate. This sounds very much like a highbrow version of Finney’s theology.

It was the thrilling paradox of Emerson’s idea of democratic culture that it could include both the grandeur of the uncoerced and nonconforming mind and a tender respect for the ordinary details of everyday existence, admitting no contradiction between the two.

The most distinguished students of the subject, the historians Eugene Genovese and Elizabeth Fox-Genovese, asked poignantly in their 2005 book The Mind of the Master Class, how civilized people who were admirable in so many ways could also have embraced a cruel social system that inflicted horrors upon those subordinated to it. This is a haunting question that lingers in the mind and is not easily answered or set aside.

Lulled into a false sense of economic security by the illusion that cotton was invincible and its prices would never fall, the South would become fatally committed to a brutal social and economic system that was designed for the lucrative production of cotton on a massive scale but that achieved such productivity at an incalculable cost in human and moral terms. It placed the region on a collision course with changing moral sensibilities in the world, and with fundamental American ideals.

The majority of whites, three-fourths of them by 1860, were not slaveholders at all and were unable to afford the rich low-lying farmland favored by the planters, who lived instead in the upcountry, and got their living largely as subsistence farmers. The growing concentration of slaves in fewer and fewer southern hands and the decline of slavery in border states indicated to many Southerners that an end to slavery within the Union was coming. Yet the large planters continued to set the tone for the whole, exercising a disproportionate influence on their societies and the legislatures of their states. Far from resenting them or begrudging them their wealth, most poor whites tended to be loyal to the planters and hoped someday to be able to emulate them.

Slavery in North America had begun in 1619 in Virginia as something approaching a casual afterthought, not always clearly distinct from indentured servitude, and as it spread, it changed and adapted to circumstances.

Slave marriages had no legal validity and no protections against the invasive force of the slave market, which often dictated that families could be torn apart at any moment by an owner’s decision to sell a husband, a wife, or (more often) a child. (The plot of Uncle Tom’s Cabin revolves around a series of such family dismemberments.) Ironically, the end of the legal slave trade in 1808 made such transactions more frequent, since the offspring of existing slaves had become even more valuable, particularly since the demand for slaves only increased as planters moved west, expanding cotton cultivation into the rich lands of the lower Mississippi Valley.

While it would be wrong to minimize the psychological ravages of slavery, it would be equally wrong to exaggerate them and thereby deny the heroism and resiliency that slaves showed, guarding their hearts and keeping hope alive under hopeless conditions.

Estimates range as high as one hundred thousand for the number of escapes made possible by the Railroad.

None defended slavery in abstract terms; in fact, their compromise resolution did not hesitate to call slavery an evil and agreed that slavery would eventually end in Virginia. After vigorous debate, the members narrowly rejected, by a vote of 73 to 58, a plan for gradual emancipation and African colonization, proposed by a descendant of Thomas Jefferson. Instead, members declined to pass any such laws, deciding instead that they “should await a more definite development of public opinion.” That decision doomed to failure any hope that slavery would be abandoned in an orderly and peaceable way, for the window of opportunity for any such enlightened action was closing, and public opinion in the state was already running in the opposite direction.

History is only very rarely the story of inevitabilities, and it almost never appears in that form to its participants. It is more often a story of contingencies and possibilities, of things that could have gone either way, or even a multitude of other ways. Very little about the life of nations is certain, and even what we think of as destiny is something quite different from inevitability. Every attempt to render history into a science has come up empty-handed. The fact of human freedom always manages to confound the effort to do so. What we can say, though, is that there were landmark moments along the way in which a blood-stained outcome became much more likely, and after which the alternatives to armed conflict and separation became far fewer and far less accessible.

Yes, there were economic and political motives involved; yes, there was arrogance and crusading zeal; but there were also generous democratic ideals being put forward. Like so many things in history, Manifest Destiny was a mixed bag.

With the signing of the Treaty of Guadalupe Hidalgo on February 2, 1848, Mexico abandoned its claims to Texas above the Rio Grande and ceded California and the Utah and New Mexico territories to the United States. The result was yet another transformation of the American map, akin to a second Louisiana Purchase. If the newly annexed land of Texas is included in the total, the United States had just acquired nearly one million square miles of additional territory through the Mexican Cession. With the acquisition of the Oregon Territory two years before by treaty with Great Britain, the United States now had suddenly and dramatically achieved the dream of a transcontinental nation, including the acquisition of a new ocean coastline that featured the world-class harbors of San Francisco and San Diego. It must have seemed almost a culminating sign from on high when, in early 1848, at the same time that General Scott’s troops were occupying the Mexican capital and the Treaty of Guadalupe Hidalgo was being negotiated, gold was found at Sutter’s Mill in California, some forty miles northeast of Sacramento. The resultant gold rush would bring three hundred thousand people to California in the next seven years, transforming it almost overnight from a remote Mexican frontier into a thriving American state, the home of the first presidential candidate of the new Republican Party, John C. Frémont, in the election of 1856.

The discovery of gold in California seemed to be the crowning expression of divine favor; according to historian Robert W. Johannsen, “it was almost as if God had kept the gold hidden until the land came into the possession of the American republic.” The way ahead seemed majestically clear and open.

Yet, at the same time, vividly illustrating the widening cultural gulf between North and South, Senator John C. Calhoun of South Carolina responded to the Wilmot Proviso’s antislavery intentions with undisguised disdain. Slaveholders had a constitutional right, he insisted, to take their slaves into the territories if they wished. The prohibition being proposed, he argued, would violate the Fifth Amendment to the Constitution, which ensured that no one could be deprived of life or property – and slaves were considered legal property – without due process of law.

Same amendment argument to abortion

One way to manage the situation was to invoke the principle of “popular sovereignty,” which was described by its chief proponent, Senator Lewis Cass of Michigan, as a system allowing the territories to “regulate their own internal concerns in their own way.” Instead of having a great and polarizing national fight over the issue, it would allow for solutions to be arrived at piecemeal, region by region, permitting the decision in each instance to be made by those who were closest to the situation and knew it best. It was an idea with much superficial appeal to Americans, invoking as it did the fundamental idea of self-rule, and of allowing the people to decide the laws by which they would be governed. But it ran directly against the natural-rights philosophy embedded in the Declaration of Independence. Time would tell whether it could be effective in managing and mitigating the nation’s growing divisions.

Popular sovereignty vs natural law- abortion too

Often in politics, problems are not solved so much as they are managed – and it is often in the unromantic work of preventing the worst from happening that statesmanship shows itself to best effect.

“What happens to a dream deferred?” asked the African American poet Langston Hughes. “Does it dry up / like a raisin in the sun? / Or fester like a sore – / and then run?…. Or does it explode?”

Abolitionist pastor Luther Lee of Syracuse, New York, declared simply, “The Fugitive Slave Law is a war upon God, upon his law, and upon the rights of humanity…. To obey it, or to aid in its enforcement, is treason against God and humanity, and involves a guilt equal to the guilt of violating every one of the ten commandments.”

Slaveholders from adjacent Missouri began moving into Kansas and setting up homesteads partly in an effort to game the eventual vote and flip Kansas into a slave state. Such were the inherent limitations of popular sovereignty, even aside from its moral failings.

Kansas-Nebraska act: like shuttling women for abortions

The reaction to this incident was also telling. In the North, there were rallies in support of Sumner in Boston and a half-dozen other cities, and Emerson’s comments were representative: “I do not see how a barbarous community and a civilized community can constitute one state. I think we must get rid of slavery, or we must get rid of freedom.” But the southern view was different. The Richmond Enquirer praised the attack and asserted that Sumner should be caned “every morning.” Brooks received hundreds of new canes in endorsement of his assault, and one of them was inscribed “Hit him again.” Splinters of the cane became sacred relics.

Whatever means necessary

It was the first time a national party had declared its opposition to slavery.

There were three main thrusts of Taney’s opinion. First, he dismissed Scott’s claims, arguing that Scott did not even have legal standing to sue because he was not a citizen – and he was not a citizen because, he asserted, the Framers of the Constitution did not intend to extend citizenship rights to blacks. Second, he argued (distinctly echoing Calhoun) that Congress lacked the power to deprive any person of his property without due process of law, and because slaves were property, slavery could not be excluded from any federal territory or state. Third and finally, the Missouri Compromise was not merely rendered moot by the Kansas– Nebraska Act; it was unconstitutional, and had been all along, because it had invalidly excluded slavery from Wisconsin and other northern territories.

Dred scott- like roe

Lincoln tried to make Douglas look like a radical proslavery, pro–Dred Scott southern sympathizer, something he was not. Douglas tried to make Lincoln look like a dangerous abolitionist and advocate for “race amalgamation,” something he was not.

Neither man, sadly, was able to rise above the sentiments of the crowd with regard to the principle of racial equality. Neither would pass the test of our era’s sensibilities. But they also engaged the questions besetting the nation in a rational and surprisingly complex way, one that dignified and elevated the process of democratic deliberation. We would do well to recover their example. Our own era’s content-free presidential “debates” are hardly even a pale imitation.

Civil Debate

As with Preston Brooks, so with John Brown, the response to his actions and his execution were profoundly polarized. Southerners were horrified and took his violent rampage to be representative of the Republican antislavery program and a sure indication of what the North had in store for them. Northerners like Emerson, however, saw Brown as a martyr and saint, who “make[s] the gallows as glorious as the cross.” Unfortunately, matters had come to a point where the extremists on both sides reinforced one another’s perspective. There was not much room for moderates who saw slavery as neither an unalloyed good nor an irremediable evil but a problem that might eventually be solved by peaceful means.

When Sumter’s commanding officer, Major Robert Anderson, declared that he and his sixty-nine men had only a few weeks’ supplies left, Lincoln made the decision to attempt again to resupply him and the fort. Unwilling to permit this, the Confederates opened fire on the fort and, after more than thirty hours of shelling, forced its surrender in advance of the arrival of the resupply effort. This was a seeming defeat for the Union. But actually the result was an important strategic triumph, for Lincoln had shown political and tactical shrewdness by maneuvering the South Carolinians into firing the first shots. If war was unavoidable, then it should be begun on terms favorable to the Union. He could easily have chosen other, more muscular measures. For example, he could have wasted no time in attacking the South Carolinian forces head-on. But any such measures would have sacrificed the moral high ground, always important in modern warfare, and especially important in the conduct of a civil war whose success would depend on the direction of public opinion, and whose ultimate objective was not a conquest but a reconciliation of the warring factions. It was of inestimable value for him, and the federal forces, to be able to claim in truthfulness that they were not the ones to initiate the violence and that their response was one not of aggression but instead one of self-defense.

For Lincoln, the restoration and preservation of the Union was the chief goal of the war. All other objectives were subordinated to that one. It is important to stress this. It was not until well into the war that the overthrow of slavery became an important part of the Northern agenda. There could be no doubt that the existence of slavery was a central cause of the war; but there also can be no doubt that, as the war began, opposition to slavery was not the central reason why the North embraced a war against secession.

That last item underscores something important about the Emancipation Proclamation: it was tailored as a war measure. Lincoln handled the matter this way out of his profound respect for the Constitution. He insisted that during peacetime, he had no legitimate power to abolish slavery where it already existed and already enjoyed constitutional protections. But in wartime, different considerations applied. He still could not abolish slavery by fiat. But as commander in chief of the nation’s armed forces, he had martial powers under the Constitution to free slaves in rebel states “as a fit and necessary war measure for suppressing said rebellion.”

He was in no doubt that the Constitution’s provision for slavery, while it had thus far been complicit in carrying forward the national wound wrought by that institution, was inconsistent with the Constitution’s fundamental makeup, precisely because it was inconsistent with the Declaration’s insistence upon the natural rights of all human beings. The remedying of that flaw would, he believed, render the Constitution more fully the instrument it was meant to be: a document of liberty, a “picture of silver” framing the “apple of gold,” the Declaration. But the law could be corrected only by means of the correct use of the law, not by the overturning of the law – and there were legal means available for doing just that. The Thirteenth Amendment to the Constitution, not a second resonant Declaration, would be the proper way to accomplish it.

A consolation for the Union, though, was that the Confederates paid heavily too, losing even more of their men (thirteen thousand casualties out of sixty thousand) than they had at Antietam, and losing the extraordinary General Stonewall Jackson, who died from accidental wounds produced by confused “friendly” fire from his own pickets in the darkness, which mistook his returning party for a Union cavalry unit. It is hard to exaggerate the importance of Jackson’s death and the grief elicited by it. He was arguably the most gifted and most beloved of all the Confederate generals, a deeply pious man who was also a brilliant tactician, the general whom Lee considered to be his irreplaceable “right arm.” His loss was not only a military setback but a profound blow to the morale of the Confederate Army and its leaders, and to the Southern public.