Politics & Policy

Tim Kaine Is Wrong about America and Slavery

Detail of Battle of Franklin (Kurz & Allison/Library of Congress)
That the Founders’ vision took centuries of struggle and a Civil War to be properly realized is no reason to doubt its righteousness.

Last week’s controversy over the causes of the Civil War told us a little bit about White House chief of staff John Kelly and a lot about Virginia senator Tim Kaine. Neither was particularly flattering, but while Kelly came in for the bulk of the abuse, it’s Kaine’s view that should really alarm us, as it is ultimately an attack on the entire Founding and existence of the United States of America.

To recap, Kelly kicked up a storm by violating one of the cardinal rules of political communications: Don’t start an argument about history. He told Laura Ingraham:

I would tell you that Robert E. Lee was an honorable man. He was a man that gave up his country to fight for his state, which 150 years ago was more important than country. It was always loyalty to state first back in those days. Now it’s different today. But the lack of an ability to compromise led to the Civil War, and men and women of good faith on both sides made their stand where their conscience had them make their stand. [Emphasis added.]

Kaine, the erstwhile Democratic vice presidential candidate, responded on MSNBC:

The Civil War wasn’t because of a lack of compromise. The Civil War was because of an immoral compromise. [The war was about] a nation that put a Constitution in place that enshrined the institution of slavery and said that a slave is equal to three-fifths of a person. [Emphasis added.]

Both of these explanations of the Civil War miss the point.

The March to War

To summarize briefly what I’ve written before at greater length: The American Civil War was the result of long-brewing North–South tensions over a battery of issues. The main driving force of those tensions — and the main cause over which the South seceded, as its leaders stated openly at the time — was slavery. But the Union mostly fought to preserve the nation against secession, and only a minority of its members (especially at the outset) saw the war as an anti-slavery crusade. Thus, while “the war was about slavery” is an oversimplification, it’s neither honest nor reasonable to deny that slavery was the central cause of secession and therefore of war, since the Union was never going to accept its own dissolution without a fight.

Compromises over slavery delayed the conflict, but they didn’t cause it. By 1861, they probably couldn’t have delayed it much further, if at all. Throughout the early history of the United States, from the 1770s right up through the secession crisis of 1860–61, the nation made a series of compromises on the issue, many driven by the South’s fear that its slavery-based economic system would be overturned if the roughly 50/50 slave state/free state political balance tipped in favor of the North.

Compromises over slavery delayed the conflict, but they didn’t cause it.

The original compromises, in the era of the Founding Fathers, included (1) deleting an attack on the slave trade from the Declaration of Independence; (2) counting slaves as three-fifths of a free person for purposes of taxes on the states under the Articles of Confederation (the federal government was financed under the Articles by per capita taxes on state governments); (3) using the same three-fifths formula in the Constitution, thus allowing Southern states to get representation based on their slave populations, but not as much representation as if slaves had each been counted as a full person; and (4) allowing the federal government to ban the slave trade, but Constitutionally preventing a ban from taking place before 1808, 20 years after the Constitution was ratified.

The compromises would continue as the new nation grew. The Missouri Compromise of 1820, brokered by House speaker Henry Clay of Kentucky, allowed statehood for the territory of Missouri as a slave state while admitting Maine (previously part of Massachusetts) as a free state. That 50/50 formula governed new state admissions for three decades (Arkansas with Michigan, Florida and Texas with Iowa and Wisconsin) and gave official blessing to an unofficial pattern in the years leading to the deal (Mississippi with Indiana, Alabama with Illinois). The Compromise of 1850, brokered again by Clay, admitted California alone as a free state despite the fact that its territory extended below the 36th-parallel line drawn by the Missouri Compromise, but at the cost of pro-slavery concessions like an expanded federal Fugitive Slave Act.

None of these compromises ultimately worked, because the South still saw a problem: Not only was the North’s population growing faster, but most of the territory available for future states lay above the 36th parallel. Slave states, an Electoral College majority through 1800, had dropped briefly below 40 percent by 1812. That trend was arrested by 1820, but by the 1850s, the admission of new states and the population growth of the North was once again running against the South, and the admission of Oregon, Minnesota and Kansas as free states between 1858 and 1861 would tip it further:

Slavery’s defenders switched to a new argument after 1850: New states should let “popular sovereignty” within the territory decide free or slave status. The first test of this, the 1854 Kansas–Nebraska Act, led to widespread violence in “Bleeding Kansas,” as outside influences from both sides sought to control the new state. New England abolitionist preacher Henry Ward Beecher was widely believed to have shipped “Beecher’s Bibles” — rifles disguised as boxes of the Good Book — to the anti-slavery forces, including radicals like John Brown. The Republican party was born in the bloodshed, as anti-slavery forces around the nation rallied to the cause. The marriage of Bibles, guns, and freedom have been the rallying points of the Republican tribe ever since.

The Supreme Court thought it could put a stop to the strife with the 1857 decision in Dred Scott v. Sanford, handed down two days after James Buchanan’s inauguration. The tangled history of Dred Scott offered the Court many ways, if it wanted, to resolve the case in favor of either party on narrow legal grounds, but it instead it announced a broad ruling claiming to restrict Congress’s power to keep slavery out of the territories through creative interpretations of the due-process clause and other unwritten constitutional doctrines. Republicans like Abe Lincoln would charge — hyperbolically, but with some accuracy, history shows — that Buchanan had conspired in advance with members of the Court to shape the ruling and take the issue out of electoral politics. The Court’s sole Whig justice resigned in protest, the only Supreme Court justice ever to do so.

The Compromise of 1850 and the Kansas–Nebraska Act were successive setbacks for abolitionists in the North, but emboldened by Dred Scott and alarmed by John Brown’s 1859 effort to raise an armed slave rebellion, Southern pro-slavery forces by 1860 regarded even Kansas–Nebraska as too much compromise. They accordingly walked out of the 1860 Democratic Convention over the nomination of free-state senator Stephen Douglas, the father of the Kansas-Nebraska framework. Douglas would win just two states (free-state New Jersey and slave-state Missouri) in 1860. More alarmingly for the South, the free states other than New Jersey would for the first time vote as a unified bloc for Abraham Lincoln. Lincoln was the first president elected without the support of a single slave state, and that terrified the Slave Power.

Secession had been threatened before 1860, by some New England states opposed to the War of 1812 and by South Carolina in the Nullification Crisis of 1832, but it finally arrived in December 1860. The immediate trigger was not any policy or act of the government, but the election of a Republican president. Southern Democrats had warned for most of the year that they would leave the Union if a Republican was elected president; upon Lincoln’s election, seven states voted to leave without waiting to see what he would actually do in office.

Lincoln and other leading Republicans — as well as loyal Northern Democrats like Douglas — bent over backward to offer concessions to stave off secession. Lincoln ran explicitly on the promise to leave slavery alone in the states where it existed (a promise he would reiterate in his First Inaugural Address), and had run for the Senate in 1858 on the platform of preserving the “Black Codes” that deprived free blacks in Illinois of civil rights like voting and jury service. With Lincoln’s quiet support, Senator William Seward (known to be Lincoln’s incoming secretary of state) proposed a battery of concessions including a Constitutional Amendment to protect slavery:

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

The Amendment passed Congress two days before Lincoln’s inauguration in March 1861, and was endorsed by Buchanan; Lincoln himself pledged in his Inaugural Address not to oppose it. But only one state (Kentucky) had ratified it when war broke out, and only a few others ever did. Nothing deterred the seceded states. After South Carolina fired on the federal military base at Fort Sumter and the Union indicated its intent to resist such seizures, four wavering states (Virginia, North Carolina, Tennessee, and Arkansas) joined the Confederacy, while four others (Missouri, Kentucky, Maryland, and Delaware) remained. Yet, all the way to 1865, even after the Emancipation Proclamation, Lincoln continued to hold out the olive branch of compromise; at the time of the Hampton Roads peace conference in early 1865, he was still dangling the offer to withdraw the 13th Amendment or compensate Southern slaveholders. Every offer was rebuffed by Jefferson Davis’s government.

Compromise and Its Lessons

It’s not entirely clear, since Kelly hasn’t explained himself further, but he appears to argue that the war could have been avoided if both sides had been willing to compromise at or near the point of the secession crisis. If Kelly blamed the war on Southern recalcitrance, he’d be right. “Both sides failed to compromise” was more or less the conventional wisdom when Kelly was a young man in Boston, but if you’ve read this far, you can see that it was wrong: By 1861, the South was the only side that was unwilling to explore any compromise, propelled by the fear that a growing and increasingly unified North and West would prevent slavery’s expansion and gradually consign it to an outvoted and vulnerable minority. The only room for “compromise” was over the Union’s letting the slaveholding Southern states secede without a fight or invade lands to the south — Mexico, Cuba, the Dominican Republic — to spread slavery.

Compromise had kicked the can down the road for long enough, and even if a compromise was still possible in 1861, it would not have held for much longer.

As a military man who has seen enough of the cost of war, Kelly can be forgiven for valuing the idea of “jaw-jaw” before resorting to “war-war,” in Churchill’s memorable words. Over 600,000 men died in the Civil War, and many more were wounded or crippled. It’s not such a bad thing for a president to be advised by veterans who look at that kind of carnage and linger over whether it was avoidable. It’s more than a little curious to find liberals and progressives, of all people, scoffing at the idea that any alternatives to war were even thinkable.

We don’t regard the American Revolution as a tragedy because we can’t see any way history would bring us American independence without it. We’re inclined to regard the Civil War as tragedy because we still wonder if there was another way to end slavery. But the latter question has to be at the core of any retrospective of the avoidability of the war.

For that reason, as Jonah Goldberg explains, Kelly’s framing of the Civil War whitewashes the moral dimension of the underlying conflict. It also misses the insight that compromise — while sometimes the lesser evil — is not itself a principle, and neither is moderation in its pursuit. The North was becoming gradually radicalized and politically united on slavery (or at least its expansion) by 1860, but slavery was the sort of moral issue on which people should be radicalized. Compromise had kicked the can down the road for long enough, and even if a compromise was still possible in 1861, it would not have held for much longer. The desire to delay the reckoning is natural, but the reckoning was due.

The Course of Human Events

By contrast, Kaine’s view that compromise caused the war — and its implicit suggestion that the Union should never have compromised with slavery — is at best ahistorical ignorance, at worst a deliberate rejection of the very existence of our nation. Given the currency of this viewpoint among writers on the left, it’s worth exploring.

Kaine lays the blame at the feet of the Constitution: “a nation that put a Constitution in place that enshrined the institution of slavery and said that a slave is equal to three-fifths of a person.” But the compromises struck at Philadelphia in 1787 (or before that, during the Revolution) did not create slavery; slavery had existed in the Thirteen Colonies for a century, and the problem faced by the Founding Fathers was what to do with a society where it already existed.

By and large, the generation of the Founding Fathers saw slavery as an evil; they were acutely aware of the charge of hypocrisy laid against the broad principles of universal human rights they declared. At the same time, in an age when indentured servitude was still common, the moral argument that slavery was a fundamentally distinct evil was not as far advanced as it would later become:

As Seymour Drescher, one of the finest historians of abolition, puts it, just 200 years ago “personal bondage was the prevailing form of labor in most of the world. . . . Freedom, not slavery, was the peculiar institution.” Servitude stretched from serfdom in Russia to the sugar plantations of the Caribbean to the indigenous slave systems in Africa that supplied both the Arabian and Atlantic trades.

The Founders believed that the new nation was too fragile a union to survive a major internal battle over slavery at a time when the nation’s independence, system of government, and financial and military viability were still being worked out. Even those who most ardently deplored slavery, like Adams, Hamilton, and Franklin, hesitated to raise it as an obstacle to union with the slave states. They were probably right. The new government, in the 1780s and 1790s, lacked the resources to compensate slave owners or the internal military force to compel them. It could not have addressed the dilemmas of destitute freed slaves at a time when it could scarcely even pay Revolutionary War pensions.

Intensely aware that they were creating an experimental new form of government capable of advancing human freedom beyond anywhere it had gone before, the Founders were naturally inclined to establish that project first before turning to internal programs of social reform, even pressing ones like half a million people living in bondage. They saw the nation they were creating as a unique blessing to human liberty around the globe, one whose failure was eagerly anticipated by the enemies of freedom. Had they followed Tim Kaine’s advice, liberty would likely have perished in the first generation.

Optimism that slavery would die out over time in the new nation, where agitation against it had only begun in 1775, was fairly widespread.

Optimism that slavery would die out over time in the new nation, where agitation against it had only begun in 1775, was fairly widespread. It was not unreasonable for the Founding generation to think that ducking the issue in the Constitution and putting off the slave-trade question for 20 years would give the country time and space to go further down the road to abolition. Delaware banned the importation of slaves in 1776 and Virginia in 1778. Vermont began phasing out slavery in 1777. Another five of the original 13 states banned slavery between 1780 and 1784. New York ordered gradual emancipation beginning in 1799, New Jersey in 1804.

The new federal government banned slavery in the Northwest Territory. This was land that had been claimed by Virginia, and it would eventually become the states of Ohio, Indiana, Michigan, Illinois, and Wisconsin. The anti-slavery language (later adapted into the 13th Amendment) was drafted by Thomas Jefferson, and it was signed into law by President Washington. Washington included in his will provisions freeing family slaves beginning with his death in 1799; Madison aspired to do the same, and perhaps Jefferson too, though neither ended up doing so. The balance in Congress and the Electoral College swung decisively toward free states between 1796 and 1804, as we have seen. In late 1806, President Jefferson called in his State of the Union message for abolishing the importation of slaves as soon as the constitutional moratorium expired in 1808, and Congress did so. With England and France moving against slavery, it appeared to be on what we would now call the wrong side of history.

Kaine, echoing today’s left-wing writers, would damn the Founding Fathers for their optimistic faith in the American promise. But the revolutionaries of France tried to tackle all of society’s ills simultaneously, and ended up on a Reign of Terror. We should not be so quick, from the distance of history, to condemn the Founders for making a world that was better than the one they knew just because the job was unfinished.

Monroe and Missouri

Did further compromises cause the war, or simply delay it? Would it have been better to face it sooner? We can only speculate.

No more states banned slavery after New Jersey in 1804, and some of the slave states that had restricted the importation of slaves later reversed themselves. Restrictions on slavery after 1808 were almost entirely limited to places it didn’t already exist. What happened? The Founding generation was wise, but they were not omniscient. They failed to foresee how developments like the cotton gin and American expansion into the Gulf Coast and the Mississippi Delta would vastly increase slavery’s profitability, creating a whole new set of incentives to defend the institution. Sure enough, as the 19th century wore on, more voices came to the fore pushing an ideology that defended slavery as a positive good. Ta-Nehisi Coates has cited the dramatic rise in the value of slaves that began to accelerate after the War of 1812 and particularly after the Mexican War:

Given its position at the inflection point of this trendline, the Missouri Compromise is harder, in retrospect, to defend than the compromises of the 1780s. By 1820, the federal government was solvent and well-established. The nation’s borders were, for the first time, reliably secure from European powers exhausted by the Napoleonic Wars. Britain had buried the hatchet after the War of 1812, France had sold us the Louisiana Territory, and Spain in 1819 had ceded Florida. The country was politically united as never before or since: The Democrats had emerged as the only viable national political party, and President Monroe was running for reelection unopposed. Monroe was the third consecutive president (all Democrats) from the Virginia planter class, with his political base in the South and a record stretching back to his service in the Revolutionary War. Had he been a strong leader dedicated to putting the nation on the path to extinguishing slavery without civil war, he would have been in as strong position as anyone to do so. But he was not the kind of leader, and no subsequent president would have a similar opportunity.

The compromisers of 1820, having no such leadership, faced the choice between breaking up the Union just as it had finally attained peace and prosperity or failing to face its greatest moral illness. They chose to delay, in the start of a pattern that would last the next 40 years. But down either path lay a conflict that was fated to be painful.

Would we have the courage, today, to face up to an atrocity that had ingratiated itself into the fabric of our society? Pro-lifers, the heirs of the stern-faced, Bible-thumping abolitionists, ask ourselves that question often, and often we come away disappointed. Few Americans fail that test more spectacularly than the nominally Catholic Kaine, who stands foursquare for using taxpayer dollars to fund our modern peculiar institution. It’s easier for him to rail against injustices far in the past that don’t require of him any hard choices.

Here, The People Rule

The last lesson for today from the march to the Civil War is that democracies cannot avoid the reckoning of the great issues of the day by keeping them from being decided by elections. The defenders of slavery tried that in two ways at the end: first, by enlisting the Supreme Court to try some creative judicial activism to remove the slavery issue from the democratic process, and second, by choosing secession and armed resistance rather than letting the duly elected President Lincoln enact the popular will (even if it was, by the popular vote, only the will of 40 percent of the voters). The voters of the North had taken this sort of thing sitting down for too long, and secession was their breaking point. What started as simply a reaction against the endless compromises and high-handedness ended with the most powerful army the world had seen bleeding Lee’s forces dry in Virginia under Grant and burning its way through Georgia and the Carolinas under Sherman.

America was founded on a promise, a dream of God-given equal rights that has taken time to bear fruit for all. Compromises to advance the promise were worth it, but advancement, and not compromise, was always the point. If we want to honor the memory of the American Civil War, we should keep the practical optimism of Lincoln and the Founding Fathers alike as our guide, rather than damning them through a politically expedient misinterpretation of history.

READ MORE:

Stop Relitigating the Civil War

Was Robert E. Lee A Hero or a Villian?

When College Students Think America Invented Slavery

Dan McLaughlin — Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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