The Half Has Never Been Told: Slavery and the Making of American Capitalism (67 page)

Palfrey repeated Leavitt’s critiques, for he and other northern whites—and some southern ones, too—were starting to believe that reality was demonstrating the accuracy of his economic analysis. Everyone could see that the
North was surging ahead in prosperity and population. Enslaver-politicians had long used their power in Congress to expand unfree territory, steer northern capital south, shut off discussion, destroy monetary systems so that enslavers wouldn’t have to repay their creditors, and tear down tariff protections for the northern industrial sector. But now, enterprising northern
manufacturers no longer
needed the South. So there was no justification for acceding to continued southern dominance over the political process.

And yet, though still stuck in what northerners increasingly considered self-inflicted economic depression at mid-decade, southern politicians were still demanding that the major focus of US foreign policy be the expansion of slave territory. And the Slave Power still exerted
disproportionate political influence. Polk, the current occupant of the White House, was a slave owner, like his predecessor. Northern Democrats still obediently tried to silence abolitionists, and the need to get southern votes in order to compete with Democrats trapped northern Whigs in similar binds. Leavitt insisted that northerners needed to raise the electoral cost, to their politicians,
of conciliating the South. This meant drawing voters to anti-slavery-expansion third parties or factions by “develop[ing] the true nature of slavery,” as Leavitt put it: showing how the South opposed northern white men’s political rights and economic prosperity. “Direct resistance to the political domination of the Slave Power” would then replace party interests with regional ones.
²⁵

Indeed,
by the time Palfrey published his own pamphlets on the Slave Power, a few years after Leavitt, changing economic and political circumstances were about to make more northern whites than ever suspect that Leavitt and Palfrey might be right about the South. Congress had approved the declaration of war with Mexico on May 13, 1846. A few months later, on August 8, and with war well under way, President
Polk asked Congress for $2 million to fund his administration’s negotiations with Mexico. Northern Democrats had backed Polk and his war. But plans for expensive negotiations suggested that he was now thinking of extracting still more territory from Mexico. At the same time, he was compromising with Britain, abandoning his promise to assert a claim to present-day British Columbia. Representative
Hugh White, a Whig from upstate New York, seized this opportunity to challenge northern Democrats to prevent the appropriations bill from paying for the expansion of slavery. David Wilmot, a freshman Democrat from Pennsylvania, took the bait. He offered an amendment that mandated that all territory acquired in the war with Mexico must become free. If implemented, the “Wilmot Proviso” would permanently
block slavery’s geographic expansion.
²⁶

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 allies
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.