According to information on the verso of this volume, American Orations is a series of books in four volumes printing important speeches in American history. The first volume includes speeches on colonialism, constitutional government, the rise of democracy, and the rise of nationalism. The second volume (under review here) includes speeches on the question of slavery. Slavery is also the subject of the speeches in the third volume. The fourth volume important subjects of the post-war era. The speeches found in the present volume are by Rufus King, William Pinkney, Wendell Phillips, John Quincy Adams, John C. Calhoun, Daniel Webster, Henry Clay, and Charles Sumner. Together they provide an interesting look into the salient issues leading up to the Civil War and the manner of oratory of the time.
New York Senator Rufus King addressed the Senate in February, 1820 during the debate over the Missouri Compromise. His speech is an impressive brief, outlining the precedents and principles giving Congress the power to regulate and ban slavery in newly admitted states, without extending that power to currently recognized states. His argument rests on the constitutional principle that Congress has '"the power to make all needful regulations" governing any territory of the United States. Furthermore, Congress retains the power to admit new states, without limitation on the terms of admission. Consequently, Congress may prohibit slavery in U.S. territories and admit states on the condition that slavery remains prohibited. At the same time, Congress my choose not to exercise these powers. He also explains that the current states, having established slavery prior to the adoption of the constitution, are free to maintain slavery within their borders as their ratification of the constitution was dependent upon the continuation of slavery within their states. King's speech recounts several instances in which states were admitted to the Union consistent with these principles, importantly, the Northwest Territory that would be composed of Ohio, Indiana, Illinois, Michigan, Wisconsin, and eastern Minnesota. Among the speeches contained in this volume, King's stands out as well-argued.
In the same week as King's speech, Maryland Senator William Pinkney rose in rebuttal. Pinkney argued that to admit new states on terms different from the original thirteen was to deny the equality of states and create a different form of union. While Pinkney no doubt reasons from a plausible premise of equality among states, the protagonists of freedom can just as plausibly argue that there is no reasons that the terms of formation and expansion of the union might not be different. Taken together, King and Pinkney provide clear examples of the two sides of the debate during the discussion of the Missouri Compromise.
The third speech in the volume is by Wendell Phillips which he gave in Boston in 1837 following the murder of Elijah Lovejoy. Lovejoy printed an abolitionist newspaper in St. Louis until the proponents of slavery destroyed his printing press for a third time. He then set up his newspaper across the Mississippi River in Alton, Illinois, but the mob followed him and murdered him while he attempted to defend his press. I'll confess that coming from St. Louis, I have always held Lovejoy in the highest esteem. There are few white abolitionists prior to the war who remained so determined and risked so much as Lovejoy. Consequently, I was rather disappointed in Phillips's speech. While it did eulogize Lovejoy, its primary point was to defend the freedom of the press -- a good cause, no doubt, but I had hoped for a more forceful call to follow Lovejoy's example and raise the profile of resistance to slavery.
John Quincy Adams's speech, given on the floor of the House in 1837. The occasion of the speech was a bill to authorize money to suppress an Indian revolt in Georgia. Adams pointed out that many of his constituents might not be in favor of such an expenditure and that it was beyond the authority of the federal government to tax them for this purpose. In response, Adams argued that the federal government had authorities in peace and authorities in war. While the authorities in peace are limited, authorities in war know no limits. In modern terminology, Adams was appealing to a "national defense" argument. To make this case, he observed several instances when the federal government intervened on the issue of slavery. This was his real purpose. Early, he had been prohibited from making comments about slavery when a resolution was moved that the federal government had no authority to intervene in the slavery question, due to the "gag rule" previously passed into law. No, in the context of appropriating money to suppress an Indian revolt, he was able to lay out his case for why the federal government had the authority to intervene in the slavery question. The speech provides an interesting glimpse into the subtleties of the parliamentary contest that Congress was engaged in during the 1830s along with the constitutional questions that slavery posed.
John C. Calhoun's speech recorded in this volume was the last and perhaps the most significant that he ever gave. It occurred in 1850 during the debate of the great compromise fashioned by Henry Clay. The bill -- an omnibus bill -- called for admitting California as a free state, forming a territorial government in Utah without mention of slavery, amending the Fugitive Slave Act, the abolishing the slave trade in Washington D.C., and establishing the border between Texas and New Mexico. The bill failed in its omnibus form, but each element was subsequently passed by Congress. Calhoun's speech was noteworthy for its rigorous reasoning in opposition to the compromise. His main objections were leveled against allowing California to be admitted as a free state and not unambiguously asserting a right that slaveholders might bring slavery to the territories and establish slavery under the territorial laws. This became known as "squatter sovereignty." He argued that by denying the authority of Californians to choose their own laws related to slavery and failing to stand up for the "rights" of the slave holding states, the honor and equal standing of those states were diminished. With the advantage of an modern viewpoint, it seems clear that Calhoun must have understood that slavery could not be saved by normal political means and that he understood that the slave states would eventually need to secede in order to preserve their human property. Indeed, his speech directly threatens secession if the federal government does not accommodate slavery throughout the nation. Of all the speeches in this volume, Calhoun's is perhaps the most significant and the most reprehensible.
During that same debate, Daniel Webster made a speech that forever separated him from the opponents of slavery. He had previously been seen as at least a lukewarm ally, but his forceful defense of the Fugitive Slave Act outraged his former fellow travelers. The amended Fugitive Slave Act would strengthen the powers of slave hunters and require state and local officials to assist in the captures. The Fugitive Slave Act was justified by a clause in the Constitution which directs that persons "held to service or labour in one state...escaping into another...shall be delivered up on claim of the party to whom such service or labour may be due." Webster found this was sufficient to bind state and local authorities to assist in the capture and return of fugitive slaves. He furthermore referenced the Supreme Court's support for this view. At the time, opponents of the Fugitive Slave Act argued that the clause did not specify "slaves," but on persons "held to service or labour." This reading required the authorities to return indentured servants or other persons who were under contract to perform service or labor. Had it been meant to include slaves, the clause would have said as much. Webster's decision to read the critical clause to include slaves was taken as a betrayal by his anti-slavery supporters. Webster might be praised for standing by what he believed was an honest interpretation of the Constitution, but a reasonable case can be made that no law permitting the enslavement of a person can be valid under a constitution putatively dedicate to freedom. Furthermore, the concept of natural (or human) rights was already well-established, making a free state's assessment of the invalidity of slave labor arguably justified. Webster chose not to avail himself of these arguments and must go down in history as a proponent of a reprehensible positive law at the expense of human rights.
The next speech in the volume is by Henry Clay, the author of the Compromise of 1850. Here we get his direct appeal to the Senate to pass his bill. It is a classic appeal to everyone to give a little in order to get a little. He understands that no one, perhaps including himself, will be happy with every element of the bill, but that peace and tranquility in the nation requires that the Congress come to an agreement on the vexing issues of the day and that given the profound disagreement within the country on so many of these issues, there can be no agreement that satisfies everyone. Perhaps the most surprising passages in the speech -- at least for me -- were those in which Clay condemned slavery in no uncertain terms. I had always understood that he his attitude toward slavery was ambiguous. He both attempted to have it outlawed in his home state and owned 60 slaves at one point. It appears he thought it an unfortunate evil that should not be extended beyond its current scope, but that it was also a fact of economic life for the well-to-do Southerner. Perhaps much as a democratic socialist might regard his or her stock portfolio today. It is an interesting lesson in parliamentary strategy to recognize that his compromise was defeated in its omnibus form, but that each element passed Congress. Often omnibus bills are crafted to ensure an unpopular element passes, but in this case the aggregated opposition minorities combined to defeat the omnibus bill. Alone, each minority failed to defeat what they opposed.
The volume includes a second speech by Wendell Phillips. This is perhaps appropriate as he was widely regarded as the most effective abolitionist speaker. It is a masterful summary of the abolitionist movement starting in 1830 with William Garrison's groundbreaking newspaper The Liberator. He provides an account of the contributions of most of the important abolitionists and places their work in the context of the social and political opposition that they faced. He emphasizes that abolitionists have always been a despised minority, but points out how successful they have been in moving public opinion. He shows how many Whigs, Northern Democrats, and members of the Free Soil Party eventually made use of the arguments of the more radical Garrisonians and other abolitionists when it became politically expedient to do so. For Phillips, staking out a principled, though unpopular opinion was a necessity and he relied on its fundamental decency to eventually win popular support. It's hard to say his strategy was mistaken.
His speech was given in 1853, just three months after the death of Daniel Webster and his unwillingness to speak well of the dead with whom he disagreed is a testament to his principled stand for truth. At one point, he denounces Webster's "treachery," underscoring the abolitionists' dissatisfaction with Webster's support for the Compromise of 1850, particularly his defense of the Fugitive Slave Act.
One could get tied in knots attempting to understand the legal and constitutional status of slavery, the slave trade, the power of the federal government to regulate it, control it within the territories, etc. The intractability of these legal and constitutional questions is rooted in the contradictory attitudes of the framers of the constitution and the presidents and legislators who labored under the Constitution; but the question of the fate of slavery was for many people prior to the war so monumental that it transcended the constraints of law and the Constitution and posed a profound moral question. Wendell Phillips's speeches make it perfectly clear that he understood this and his voice, as much as anyone's, moved our country beyond the terrible condition that it had inherited from colonial times.
The final speech in the volume is by Charles Sumner, given in 1853 on the occasion of a debate over the repeal of the Fugitive Slave Act. Sumner was widely recognized as the Senate's most articulate proponent of the abolition of slavery. He is perhaps best known as the victim of a "caning" by Rep. Preston Brooks on the Senate floor. Two days following a speech given by Sumner, Brooks beat Sumner unconscious with a gold tipped cane. His reason for doing so was that Sumner's speech had insulted another Senator Andrew Butler, who was related to Brooks. It is noteworthy that in the run up to the Civil War, it was not uncommon for Congress members to come to debates armed and on at least one occasion, several pistols were drawn on the floor of the House.
In Sumner's speech recorded here, he presented a detailed argument that slavery was not properly considered "national," but instead an institution of the states. Consequently, the federal government had no obligation to require officers of free states to participate in the return of fugitive slaves. His argument was based primarily on references to the sentiments of the nation's founders. He then turned to a critique of the argument that the Fugitive Slave Act was required by the Constitution. here is argument was quite strong. Sumner provided a detailed summary of the controversy at issue during the drafting of the Constitution in order to establish the original intent of the Constitution. He makes a strong case that the clause requiring that "persons held to service or labour...escaping to another state" shall be delivered up to whom their service or labour is due was not intended to include slaves. Sumner mentions that an earlier draft of the clause which specifically mentions fugitive "slaves" was rejected and that in a passage in the Constitution the term "service" was adopted in place of "servitude" in order to specify the work of free labor. It is interesting to read Sumner's speech along with Daniel Webster's speech also in this volume. Here, two Massachusetts senators come to completely different interpretations of the Constitution. Perhaps it is my own desire that the Constitution not endorse slavery, but Sumner's arguments seem obviously stronger.
In all, the speeches recorded in this volume are indeed noteworthy, though not always Earth-shattering. Their seeming moderate nature may be due to the distance we have from the super-charged political environment of the antebellum decades. Nonetheless, one does get a sense that the speakers on both sides understood the gravity of what was at stake. Whether they all truly understood that they were drifting toward what William Seward would call an "irrepressible conflict" isn't so clear.
Showing posts with label Constitutional Law. Show all posts
Showing posts with label Constitutional Law. Show all posts
Tuesday, June 28, 2016
Monday, May 6, 2013
The Offensive Internet: Speech, Privacy, and Reputation / Saul Levmore and Martha C. Nussbaum, eds. -- Cambridge, Mass.: Harvard University Press, 2010
The following are excerpts from a review that is forthcoming in The
Journal of Information Ethics.
Most of us learned at an early age that “sticks and stones will break your bones, but names will never harm you,” but we also discovered that the saying was often cold comfort. Disregarding verbal abuse or defamatory remarks is not easy. Fortunately, we usually are able to find a more or less adequate way of responding to insults, if only to allow the passage of time to dull the pain. The Internet has made this much more difficult. On the web, insults, defamation, and invasions of privacy can immediately spread to a world-wide audience and last seemingly in perpetuity. The Offensive Internet: Speech, Privacy, and Reputation, edited by Saul Levmore and Martha Nussbaum, presents thirteen chapters that address harm, speech, and privacy issues raised by the Internet. The authors are, with a few exceptions, law professors at some of the leading U.S. law schools. So unsurprisingly, the chapters are consistently of high quality. They approach the issues at various levels of abstraction, ranging from philosophical discussions to examinations of concrete instances of harm. Most of the authors advocate specific legislative or judicial remedies for the harms under discussion.
First Amendment absolutist certainly will find the treatment of free speech in The Offensive Internet inadequate. Their judgment is likely to be based on a high assessment of the importance of speech and the slippery slope that regulation poses. Some may downplay the gravity of the harms that occur on the internet, making the dangers of censorship relatively greater. Their critique, however, needs to address the important distinctions made in The Offensive Internet, particularly in the section on speech. An important hurdle that the critics will need to overcome is the growing maturity of the Internet. In its initial manifestation, the Internet was shielded from regulation in order to promote its promise for enhanced, democratic communication. Today, however, it is perhaps the primary medium of mass communication around the world. As such, it no longer needs special protections. It is now appropriate to employ the widely accepted methods of holding Internet posters accountable for speech that would otherwise fall outside of First Amendment protection.
In general, The Offensive Internet is a valuable exploration of some of the more unpleasant aspects of unregulated speech and the consequences that follow from situations in which people can be unaccountable for their behavior. Fortunately, the authors offer us an impressive variety of means to address the problems. The volume does not, however, adequately address two important issues. The first has already been mentioned: protections against harms, protections of the freedom of speech, and protections of privacy can only be established equitably when the relative vulnerability of the parties is recognized. The early chapters’ emphasis on harms to women and minority groups is a move in the right direction, but the recognition of power dynamics tends to disappear in later chapters which seem to assume a power-blind approach. This is particularly clear in the chapters on privacy and reputation. An equitable legal regime should more completely protect the privacy of individuals, while leaving powerful institutions, like government agencies and major corporations, open to public scrutiny.
The second important issue that is not sufficiently addressed is whether the internet entrenches false information or exhibits self-correcting tendencies. Several of the authors acknowledge the fact that assertions (true or false) reside on the web indefinitely, that misinformation is often intentionally posted on the web, and that people tend to post (or re-post) what they wish to be true rather than what is well-justified. At the same time, the on-going activity of editing and re-editing wikis and blogs can also allow for the slow construction of reliable information. If this latter feature of the web becomes more dominant, then the concerns over false information undermining corporate or even personal reputations should decreased. Addressing these epistemic questions, however, would enlarge significantly the scope of the work, but much could have been gained by including at least a chapter or two on the broader philosophical background that lies behind the legal concerns that are central to the work.
Most of us learned at an early age that “sticks and stones will break your bones, but names will never harm you,” but we also discovered that the saying was often cold comfort. Disregarding verbal abuse or defamatory remarks is not easy. Fortunately, we usually are able to find a more or less adequate way of responding to insults, if only to allow the passage of time to dull the pain. The Internet has made this much more difficult. On the web, insults, defamation, and invasions of privacy can immediately spread to a world-wide audience and last seemingly in perpetuity. The Offensive Internet: Speech, Privacy, and Reputation, edited by Saul Levmore and Martha Nussbaum, presents thirteen chapters that address harm, speech, and privacy issues raised by the Internet. The authors are, with a few exceptions, law professors at some of the leading U.S. law schools. So unsurprisingly, the chapters are consistently of high quality. They approach the issues at various levels of abstraction, ranging from philosophical discussions to examinations of concrete instances of harm. Most of the authors advocate specific legislative or judicial remedies for the harms under discussion.
...
First Amendment absolutist certainly will find the treatment of free speech in The Offensive Internet inadequate. Their judgment is likely to be based on a high assessment of the importance of speech and the slippery slope that regulation poses. Some may downplay the gravity of the harms that occur on the internet, making the dangers of censorship relatively greater. Their critique, however, needs to address the important distinctions made in The Offensive Internet, particularly in the section on speech. An important hurdle that the critics will need to overcome is the growing maturity of the Internet. In its initial manifestation, the Internet was shielded from regulation in order to promote its promise for enhanced, democratic communication. Today, however, it is perhaps the primary medium of mass communication around the world. As such, it no longer needs special protections. It is now appropriate to employ the widely accepted methods of holding Internet posters accountable for speech that would otherwise fall outside of First Amendment protection.
...
In general, The Offensive Internet is a valuable exploration of some of the more unpleasant aspects of unregulated speech and the consequences that follow from situations in which people can be unaccountable for their behavior. Fortunately, the authors offer us an impressive variety of means to address the problems. The volume does not, however, adequately address two important issues. The first has already been mentioned: protections against harms, protections of the freedom of speech, and protections of privacy can only be established equitably when the relative vulnerability of the parties is recognized. The early chapters’ emphasis on harms to women and minority groups is a move in the right direction, but the recognition of power dynamics tends to disappear in later chapters which seem to assume a power-blind approach. This is particularly clear in the chapters on privacy and reputation. An equitable legal regime should more completely protect the privacy of individuals, while leaving powerful institutions, like government agencies and major corporations, open to public scrutiny.
The second important issue that is not sufficiently addressed is whether the internet entrenches false information or exhibits self-correcting tendencies. Several of the authors acknowledge the fact that assertions (true or false) reside on the web indefinitely, that misinformation is often intentionally posted on the web, and that people tend to post (or re-post) what they wish to be true rather than what is well-justified. At the same time, the on-going activity of editing and re-editing wikis and blogs can also allow for the slow construction of reliable information. If this latter feature of the web becomes more dominant, then the concerns over false information undermining corporate or even personal reputations should decreased. Addressing these epistemic questions, however, would enlarge significantly the scope of the work, but much could have been gained by including at least a chapter or two on the broader philosophical background that lies behind the legal concerns that are central to the work.
Sunday, December 30, 2012
The Failure of Popular Sovereignty: Slavery, Manifest Destiny, and the Radicalization of Southern Policitcs / Christopher Childers -- Lawrence, Kan.: Univeristy Press of Kansas, 2012
It is often said the American Civil War was not fought over the issue of slavery, but over the right of states to secede. The assertion is initially appealing in that significant majorities in the northern states felt no need to go to war over the presence of slavery in the South, but a northern army was quickly mobilized when southern states seceded. This analysis, however, overlooks the decades-long debate over slavery, particularly the debate over its extension into the U.S. territories, which was the core disagreement that finally led to secession. Imagine two farmers who begin arguing about the ownership of a plot of land and find themselves coming to blows when they cannot agree on a subtle point in contract law. We would not say that they were fighting over a legal principle, but that they were fighting over the land. So too was the Civil War a struggle over slavery, not state sovereignty. Christopher Childers's masterly book The Failure of Popular Sovereignty traces the long argument that finally led to the Civil War. In the course of the account, the importance of slavery is revealed by the changing justifications offered by southern slaveholders in particular.
The central concern in both the North and the South was the extension of slavery into the territories. In time, four positions surfaced: (1) the federal government had authority to regulate and even outlaw slavery in the territories, (2) the government of a territory could regulate or outlaw slavery, (3) the citizens of a territory could regulate and even outlaw slavery, but only when applying for statehood, and (4) the federal government had an obligation actively to protect slavery in the territories until the territory became a state. Other positions also surfaced, but they tended to be opportunistic modifications of one of these four.
Strong precedents existed for the first of the four positions, even since before the ratification of the Constitution. The Northwest Ordinance (1787) prohibited slavery in the the territories north of the Ohio River and Thomas Jefferson's original draft of the Ordinance of 1784 regulating territories contained a stipulation that slavery in the territories would be prohibited after 1800. The stipulation was stripped from the ordinance, but only due the the sickness and absence of a single voter in the Confederation Congress. In 1820, the federal government passed the Missouri Compromise which prohibited slavery in the Louisiana territory north of 36' 30". It is noteworthy that during the discussion of the Missouri Compromise, John C. Calhoun, who later became the leading defender of the extension of slavery, endorsed the power of the federal government to prohibit it.
The Slave Power's early lack of concern over the federal power to restrict slavery changed as political sentiment against slavery grew in the country. Proslavery officials came to adopt a version of popular sovereignty that excluded federal authority over slavery in the territories. This headed off the extension of the Northwest Ordinance to the Orleans territory (Louisiana) and allowed the Arkansas territory to draft a slave code and be admitted as a slave state. The proslavery arguments held that the federal government should not dictate legislation to the citizens of the territories. To do so would be to treat them as colonies. This view was not based on any specific language in the Constitution. Indeed, Article Four, Section Three permitted the federal government to pass "needful rules and regulations" for the territories. Instead, the proslavery endorsement of popular sovereignty was based on a basic principle of American government that the people are capable of self-governance and that local authority should trump federal authority.
With the conquest of the Mexican territories, the proslavery position changed. The citizens of the territory of New Mexico were disposed to pass legislation prohibiting slavery, but to protect slavery, the Slave Power argued that the citizens of the territories were not politically mature enough for self-governance and that they could only prohibit slavery at the time they submitted an application for statehood. The Slave Power derided their own earlier position that allowed the territorial government authority over slavery, calling it "squatter sovereignty." It was thought by many that by insisting on "state sovereignty" instead, slaveholders would have time to emigrate to New Mexico and ensure that it would be admitted as a slave state.
By this time, Calhoun had recognized that even while the territorial governments might not be permitted to prohibit slavery, their slave codes (and social conditions) might effectively prohibit the emigration of slaves and slaveholders to the territories. What was necessary, according to Calhoun was the active protection of slave property by the federal government in the territories. Many southerners accepted Calhoun's analysis, but others, especially those in the upper South and border states, continued to adhere to "state sovereignty." Calhoun's position was effectively endorsed years after his death by the Supreme Court in Dred Scott v. Sandford (1857). More explicitly, Dred Scott rejected the constitutionality of the Missouri Compromise and held that the federal government had no authority to outlaw slavery in the territories, but by this time all four main positions regarding the extension of slavery were advanced by important political factions and various splinter positions were offered in an effort to reach a compromise over slavery.
Perhaps the most consistent position was held by the antislavery forces who argued that the federal government, empowered by the Constitution's Article Four, Section Three, could establish "needful rules and regulations" for the territories, that this included the prohibition of slavery, and that the frequent exercise of this power had established it in practice.
Among Childers's most interesting observations are the fine legal distinctions that were made by proponents of various versions of popular sovereignty. Proslavery radicals appeared to completely alter their views on popular sovereignty, moving through each of the four main positions to fit their interests in the extension of slavery. Steven A. Douglas, a more moderate politicians, retained his view that territorial governments could pass legislation regarding slavery (squatter sovereignty, if you will). Douglas argued that slavery could not exist where laws did not provide for its aid and protection. Douglas, consistent with his previous support for the Kansas-Nebraska Act, continued to argue for territorial sovereignty and against federal intervention in the territories. Douglas remained true to his commitment to the principle of self-determination of local communities. He also seemed to hope that this position would satisfy both southern and northern Democrats and maintain his party's political dominance.
Other politicians, particularly Lewis Cass attempted to satisfy both wings of the Democratic Party by issuing ambiguous statements on precisely when a territory was empowered to regulate slavery. His cagey approach nearly won him the presidency in 1848, but he was defeated by the Mexican War hero Zachery Taylor, who simply remained silent about the practicalities of popular sovereignty.
In general, The Failure of Popular Sovereignty is the story of a decades-long struggle over the extension of slavery. It provides an illuminating account of cross-cutting political considerations and evolving views about the constitutional protections afforded to slavery. Specific political figures involved in the formulation of the doctrine of popular sovereignty are vividly drawn, and the rising stakes in the debate lend growing excitement to the story. If there is a weakness to the history, it is the scant descriptions of the antislavery movement. A better understanding the internal debates within the Democratic Party over popular sovereignty would be achieved by placing the debate within a more vivid description of the larger political context. This would, of course, add a number of pages to the work, but the topic certainly deserves additional treatment.
The central concern in both the North and the South was the extension of slavery into the territories. In time, four positions surfaced: (1) the federal government had authority to regulate and even outlaw slavery in the territories, (2) the government of a territory could regulate or outlaw slavery, (3) the citizens of a territory could regulate and even outlaw slavery, but only when applying for statehood, and (4) the federal government had an obligation actively to protect slavery in the territories until the territory became a state. Other positions also surfaced, but they tended to be opportunistic modifications of one of these four.
Strong precedents existed for the first of the four positions, even since before the ratification of the Constitution. The Northwest Ordinance (1787) prohibited slavery in the the territories north of the Ohio River and Thomas Jefferson's original draft of the Ordinance of 1784 regulating territories contained a stipulation that slavery in the territories would be prohibited after 1800. The stipulation was stripped from the ordinance, but only due the the sickness and absence of a single voter in the Confederation Congress. In 1820, the federal government passed the Missouri Compromise which prohibited slavery in the Louisiana territory north of 36' 30". It is noteworthy that during the discussion of the Missouri Compromise, John C. Calhoun, who later became the leading defender of the extension of slavery, endorsed the power of the federal government to prohibit it.
The Slave Power's early lack of concern over the federal power to restrict slavery changed as political sentiment against slavery grew in the country. Proslavery officials came to adopt a version of popular sovereignty that excluded federal authority over slavery in the territories. This headed off the extension of the Northwest Ordinance to the Orleans territory (Louisiana) and allowed the Arkansas territory to draft a slave code and be admitted as a slave state. The proslavery arguments held that the federal government should not dictate legislation to the citizens of the territories. To do so would be to treat them as colonies. This view was not based on any specific language in the Constitution. Indeed, Article Four, Section Three permitted the federal government to pass "needful rules and regulations" for the territories. Instead, the proslavery endorsement of popular sovereignty was based on a basic principle of American government that the people are capable of self-governance and that local authority should trump federal authority.
With the conquest of the Mexican territories, the proslavery position changed. The citizens of the territory of New Mexico were disposed to pass legislation prohibiting slavery, but to protect slavery, the Slave Power argued that the citizens of the territories were not politically mature enough for self-governance and that they could only prohibit slavery at the time they submitted an application for statehood. The Slave Power derided their own earlier position that allowed the territorial government authority over slavery, calling it "squatter sovereignty." It was thought by many that by insisting on "state sovereignty" instead, slaveholders would have time to emigrate to New Mexico and ensure that it would be admitted as a slave state.
By this time, Calhoun had recognized that even while the territorial governments might not be permitted to prohibit slavery, their slave codes (and social conditions) might effectively prohibit the emigration of slaves and slaveholders to the territories. What was necessary, according to Calhoun was the active protection of slave property by the federal government in the territories. Many southerners accepted Calhoun's analysis, but others, especially those in the upper South and border states, continued to adhere to "state sovereignty." Calhoun's position was effectively endorsed years after his death by the Supreme Court in Dred Scott v. Sandford (1857). More explicitly, Dred Scott rejected the constitutionality of the Missouri Compromise and held that the federal government had no authority to outlaw slavery in the territories, but by this time all four main positions regarding the extension of slavery were advanced by important political factions and various splinter positions were offered in an effort to reach a compromise over slavery.
Perhaps the most consistent position was held by the antislavery forces who argued that the federal government, empowered by the Constitution's Article Four, Section Three, could establish "needful rules and regulations" for the territories, that this included the prohibition of slavery, and that the frequent exercise of this power had established it in practice.
Among Childers's most interesting observations are the fine legal distinctions that were made by proponents of various versions of popular sovereignty. Proslavery radicals appeared to completely alter their views on popular sovereignty, moving through each of the four main positions to fit their interests in the extension of slavery. Steven A. Douglas, a more moderate politicians, retained his view that territorial governments could pass legislation regarding slavery (squatter sovereignty, if you will). Douglas argued that slavery could not exist where laws did not provide for its aid and protection. Douglas, consistent with his previous support for the Kansas-Nebraska Act, continued to argue for territorial sovereignty and against federal intervention in the territories. Douglas remained true to his commitment to the principle of self-determination of local communities. He also seemed to hope that this position would satisfy both southern and northern Democrats and maintain his party's political dominance.
Other politicians, particularly Lewis Cass attempted to satisfy both wings of the Democratic Party by issuing ambiguous statements on precisely when a territory was empowered to regulate slavery. His cagey approach nearly won him the presidency in 1848, but he was defeated by the Mexican War hero Zachery Taylor, who simply remained silent about the practicalities of popular sovereignty.
In general, The Failure of Popular Sovereignty is the story of a decades-long struggle over the extension of slavery. It provides an illuminating account of cross-cutting political considerations and evolving views about the constitutional protections afforded to slavery. Specific political figures involved in the formulation of the doctrine of popular sovereignty are vividly drawn, and the rising stakes in the debate lend growing excitement to the story. If there is a weakness to the history, it is the scant descriptions of the antislavery movement. A better understanding the internal debates within the Democratic Party over popular sovereignty would be achieved by placing the debate within a more vivid description of the larger political context. This would, of course, add a number of pages to the work, but the topic certainly deserves additional treatment.
Thursday, January 12, 2012
Constitution 3.0: Feedom and Technological Change / Jeffrey Rosen and Benjamin Wittes, eds. -- Washington D.C.: Brookings Institution Press, 2011
In 1928, the U.S. Supreme Court handed down a ruling in Olmstead v United States, a case arising out of the new wiretapping technology available to law enforcement. Attorneys for Olmstead argued that a government wiretap violated Olmstead's Fourth Amendment right to be secure against unreasonable searches and seizures, but 5-4 majority of the Court found that as conversations were not tangible effects that could be searched or seized and as the government had not trespassed on Olmstead's property in placing the wiretap, no violation of the Fourth Amendment had occurred.
In contrast, Justice Brandeis's dissent rested on the observation that phone conversations often contained more information than sealed letters and that as the Fourth Amendment's intent was to protect the privacy of citizens, the Court should find that phone conversations deserve the same protection as mailed correspondences. It is fair to say that Brandeis was reading beyond the simple words of the Fourth Amendment, but it is hard to argue that Court should not have done exactly this. Justice Butler explained why in his dissent, writing "this Court has always construed the Constitution in the light of the principles upon which it was founded. The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words."
The framers of the Constitution could not possibly have imagined the technological developments of the 20th century, and as these technologies directly bore on the values protected by the Fourth Amendment, the Supreme Court should have exercised its authority to interpret the Constitution and apply those values to present circumstances. The task of applying an 18th century document to unimaginable technologies has only become more problematic over the past fifteen years. Happily, Constitution 3.0 offers us a collection of essays exploring how emerging technologies might affect the core concepts in constitutional law, particularly how they might affect the interpretation of the First, Fourth, Fifth, and Fourteenth Amendments. The essays take up several rather narrow questions, but stand as a fine starting point for a longer discussion of the constitutional problems that 21st century technologies pose.
Constitution 3.0 is divided into four parts, covering surveillance and data mining, free expression and privacy, brain scan technologies, and genetic engineering. This review will only address parts one and two.
In Chapter Two, Christopher Slobogin observes that surveillance technology currently can track the public movements and record the on-going, daily activities of citizens. Such surveillance might not implicate the Fourth Amendment as it falls outside of the legal concept of a search. Slobogin argues that in response we must expand the concept of a search to reflect its ordinary language meaning and regulate government surveillance proportionate to its intrusiveness.
In Chapter Three, Orin S. Kerr responds to new surveillance technologies by noting that surveillance now involves a four stage process: evidence collection, data manipulation by a machine, disclosure to a person operating the surveillance program, and disclosure to the public. The "old law of surveillance" attempted to prevent the collection of evidence. Kerr argues that we should now be more concern about regulating each stage of the process as appropriate, particularly its dissemination, rather as the information collected by the I.R.S. is not available to the public.
In Chapter Four, Jack Goldsmith emphasizes the dangers to national security that new technologies pose and identifies numerous instances where unwarranted searches and invasive screening processes are permitted by the Court. While he recognizes that allowing unwarranted searches in a broader range of circumstance may seem unnecessary, he is concerned that "bits [of data] and strings [of code] can do, and are doing, enormous harm," thereby justifying "massive government snooping."
In Chapter Five, Jeffrey Rosen points out that more and more the questions of privacy and free speech are decided by private corporations, e.g., Facebook, Twitter, and Google. This poses a special problem for protecting Fourth Amendment values as the Amendment limits what governments actions and does not clearly reach private actors, particularly when the information gathered is voluntarily surrendered. Rosen suggests that technical solutions are available, but must be implemented by "regulators, legislators, technologists, and ultimately,...politically engaged citizens." We can not simply rely on the Court for relief.
In Chapter Six, Tim Wu describes two traditions of free speech. The first balances the value and significance of free expression against legitimate government interests. The second arose in the middle of the 20th century with the creation of an oligarchic national broadcasting system. The concern became finding ways in which more than a few voices could have a national audience. With the rise of the internet, it appears that this problem has been solved, but Wu points out that speakers are connected to their audiences by a small number of intermediaries, i.e., mainly, "Verizon, AT&T, the cable industry, and a handful of crucial switches, Google most obviously." Like Rosen, Wu is concerned about that constitutional issues are increasing implicating private actors and he is particularly concerned about the concentration of power within the sphere of private communications.
In Chapter Seven, Jonathan Zittrain discusses two problems arising from the concentration of content; (1) the potential that a private actor or government agency will effectively destroy unique content and denial-of-service attacks launched against particular content providers. He recommends in response a "mutual aid treaty for the internet," meaning that site operators would agree to download and store any page to which they link. If any of these sites suffer a denial-of-service attack, a version of the content that was most previously accessed could be displayed. While the downloaded pages might not be absolutely current, they would provide internet browsers with a reasonably up-to-date version of the content.
What is most interesting about these essays is that they grapple with values that often come into conflict: privacy and national security versus freedom of information and freedom of expression. These values have been in conflict since long before digital technology began changing our information environment, but the problems these conflicts pose have become far more profound. In the final essay, Lawrence Lessig points out that how future Courts will solve these problems will depend on a cultural climate that establishes unquestioned norms. Hence, the spread of private video recording devices and the willingness to participate in social media that record and disseminate personal information may make our concerns about privacy virtually vanish. It is through these changes in culture that the changes in technology will transform our Constitutional liberties.
In contrast, Justice Brandeis's dissent rested on the observation that phone conversations often contained more information than sealed letters and that as the Fourth Amendment's intent was to protect the privacy of citizens, the Court should find that phone conversations deserve the same protection as mailed correspondences. It is fair to say that Brandeis was reading beyond the simple words of the Fourth Amendment, but it is hard to argue that Court should not have done exactly this. Justice Butler explained why in his dissent, writing "this Court has always construed the Constitution in the light of the principles upon which it was founded. The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words."
The framers of the Constitution could not possibly have imagined the technological developments of the 20th century, and as these technologies directly bore on the values protected by the Fourth Amendment, the Supreme Court should have exercised its authority to interpret the Constitution and apply those values to present circumstances. The task of applying an 18th century document to unimaginable technologies has only become more problematic over the past fifteen years. Happily, Constitution 3.0 offers us a collection of essays exploring how emerging technologies might affect the core concepts in constitutional law, particularly how they might affect the interpretation of the First, Fourth, Fifth, and Fourteenth Amendments. The essays take up several rather narrow questions, but stand as a fine starting point for a longer discussion of the constitutional problems that 21st century technologies pose.
Constitution 3.0 is divided into four parts, covering surveillance and data mining, free expression and privacy, brain scan technologies, and genetic engineering. This review will only address parts one and two.
In Chapter Two, Christopher Slobogin observes that surveillance technology currently can track the public movements and record the on-going, daily activities of citizens. Such surveillance might not implicate the Fourth Amendment as it falls outside of the legal concept of a search. Slobogin argues that in response we must expand the concept of a search to reflect its ordinary language meaning and regulate government surveillance proportionate to its intrusiveness.
In Chapter Three, Orin S. Kerr responds to new surveillance technologies by noting that surveillance now involves a four stage process: evidence collection, data manipulation by a machine, disclosure to a person operating the surveillance program, and disclosure to the public. The "old law of surveillance" attempted to prevent the collection of evidence. Kerr argues that we should now be more concern about regulating each stage of the process as appropriate, particularly its dissemination, rather as the information collected by the I.R.S. is not available to the public.
In Chapter Four, Jack Goldsmith emphasizes the dangers to national security that new technologies pose and identifies numerous instances where unwarranted searches and invasive screening processes are permitted by the Court. While he recognizes that allowing unwarranted searches in a broader range of circumstance may seem unnecessary, he is concerned that "bits [of data] and strings [of code] can do, and are doing, enormous harm," thereby justifying "massive government snooping."
In Chapter Five, Jeffrey Rosen points out that more and more the questions of privacy and free speech are decided by private corporations, e.g., Facebook, Twitter, and Google. This poses a special problem for protecting Fourth Amendment values as the Amendment limits what governments actions and does not clearly reach private actors, particularly when the information gathered is voluntarily surrendered. Rosen suggests that technical solutions are available, but must be implemented by "regulators, legislators, technologists, and ultimately,...politically engaged citizens." We can not simply rely on the Court for relief.
In Chapter Six, Tim Wu describes two traditions of free speech. The first balances the value and significance of free expression against legitimate government interests. The second arose in the middle of the 20th century with the creation of an oligarchic national broadcasting system. The concern became finding ways in which more than a few voices could have a national audience. With the rise of the internet, it appears that this problem has been solved, but Wu points out that speakers are connected to their audiences by a small number of intermediaries, i.e., mainly, "Verizon, AT&T, the cable industry, and a handful of crucial switches, Google most obviously." Like Rosen, Wu is concerned about that constitutional issues are increasing implicating private actors and he is particularly concerned about the concentration of power within the sphere of private communications.
In Chapter Seven, Jonathan Zittrain discusses two problems arising from the concentration of content; (1) the potential that a private actor or government agency will effectively destroy unique content and denial-of-service attacks launched against particular content providers. He recommends in response a "mutual aid treaty for the internet," meaning that site operators would agree to download and store any page to which they link. If any of these sites suffer a denial-of-service attack, a version of the content that was most previously accessed could be displayed. While the downloaded pages might not be absolutely current, they would provide internet browsers with a reasonably up-to-date version of the content.
What is most interesting about these essays is that they grapple with values that often come into conflict: privacy and national security versus freedom of information and freedom of expression. These values have been in conflict since long before digital technology began changing our information environment, but the problems these conflicts pose have become far more profound. In the final essay, Lawrence Lessig points out that how future Courts will solve these problems will depend on a cultural climate that establishes unquestioned norms. Hence, the spread of private video recording devices and the willingness to participate in social media that record and disseminate personal information may make our concerns about privacy virtually vanish. It is through these changes in culture that the changes in technology will transform our Constitutional liberties.
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