16 January 2012

CIVIL WAR: THE SEQUEL? The Election Of 2012 (Part 3)

JAMES BUCHANAN President Buchanan, a Pennsylvanian, served from March 4, 1857 to March 4, 1861. Another "doughface", he battled with Senator Stephen A. Douglas of Illinois for the control of the Democratic Party. As Buchanan assumed the presidency, the nation continued to boil.

At the outset of his presidency, in his inaugural address, he described the territorial expansion question as "happily, a matter of but little practical importance." He assumed that the Supreme Court was about to settle it "speedily and finally" in the near future and proclaimed that when the decision came he would "cheerfully submit, whatever this may be."

The Court spoke two days later, but, far from settling the question, it struck a spark near the fuse of an emotional and political powder magazine. The fuse burned throughout Buchanan’s term, exploding in its waning days. The Court's action may be the one thing for which the Buchanan presidency is best remembered: the decision in “the Dred Scott case.”

Dred Scott was a slave who, at the relevant 30 or so years, was owned by an Army doctor or his estate. As the doctor was transferred from post to post, he took his slave with him, from slave state to free state and back to slave state. The gist of Scott’s case was that, as soon as he was taken into a State whose laws prohibited slavery, he had become a free man. He sued in Missouri and won a verdict in his favor, inasmuch as Missouri precedent clearly established that the movement of a slave by his owner to a free state ended his involuntary servitude.

On appeal, however, the Missouri Supreme Court reversed the trial court, overturning the precedents, and holding that by failing to sue for his freedom when he was in a free state, he could not, upon his return to Missouri, seek to overturn Missouri law which permitted slavery. The decision was appealed to the United States Supreme Court.

Dred Scott v. Sandford, 60 U.S. 393 (1857), first held that federal courts lacked jurisdiction in the matter, inasmuch as Scott, and all people of African descent for that matter, were not citizens of the United States. Under normal Supreme Court procedure, this should have been the end of the decision. Without “standing,” Scott’s case could not even be before the Court.

Quick lapse to lawyerese. Standard Supreme Court practice is to look for any non-Constitutional basis for deciding a case. If such a basis exists, the Court usually makes that the foundation for its decision and goes no further on the grounds that, having resolved the case, there is no need to go further. This is because the Court has always recognized that in holding the act of two other of the three co-equal branches of the government to be unconstitutional, it is treading on thin ice.

Thus, jurisdiction is one of the first nonconstitutional questions any court must determine. Having decided that it had no jurisdiction over the matter, the Court could have stopped right there. The decision would undoubtedly been unpopular, but it would have been less emotional. Chief Justice Taney, however, realized that the opponents of slavery would just look for another “test case.” He was looking for the magic bullet which would finally and completely settle the issue of slavery in the United States. As a result, he wandered into the dangerous territory of obiter dictum, taking five other Justices with him. [Obiter dictum (“said in passing”), is a remark or observation included in the body of the Court's opinion, but which does not form a necessary part of the court's decision and has no precedential value.]

Continuing, Taney’s majority opinion, for only the second time in the history of the Court, held an Act of Congress to be unconstitutional, concluding that the Missouri Compromise, and perhaps the Northwest Ordinance, were void because Congress had no authority to prohibit slavery in federal territories, and that after States were admitted to the Union, they were free to make the decision as separate sovereigns. As if that were not enough, the Court also held that slaves were not citizens and that, inasmuch as slaves were property, they could not be taken from their owners without due process of law.

Every Justice wrote separately. Five also joined in the majority opinion and one concurred in the result. The seven were Taney, CJ and Wayne, Catron, Daniel, Campbell, Nelson and Grier, JJ. Taney was a Marylander, Wayne, a Georgian, Catron, a Tennesseean, Daniel, a Virginian, Campbell, an Alabaman, Nelson, a New Yorker, and Grier, a Pennsylvanian. The two dissenters were McLean, a New Jerseyian and Curtis, a Massachusettsman.

At least two were slave-owners (Taney and Catron) and it is likely that the other Southerners were as well (Wayne, Daniel, and Campbell). Two, McLean (1829) and Wayne (1835), were appointed, approved by the Senate, and seated on the Court in the space of three days from appointment to assumption of duty. One, Curtis, was a recess appointee, later confirmed, and three others, Nelson, Grier, and Campbell, were appointed only after two (Grier) or four (Nelson and Campbell) other candidates were blocked in the Senate by political opponents of the appointing presidents. Taney was appointed twice, first as an Associate Justice, which appointment was blocked in the Senate, and a year later as Chief Justice, at which time control of the Senate had changed and he was approved.

Later, at the behest of William Seward, Lincoln’s Secretary of State-designate, Campbell was an intercessor in February-March 1861 between negotiators from the North and the upper South who tried, one last time, to prevent civil war. When war broke out, he resigned from the Court, went back home, and was appointed Assistant Secretary of War of the Confederate States of America.

So anxious was Buchanan for a legal, rather than a political, resolution of the slavery issue that shortly after his election in November 1860—four months prior to his inauguration--he wrote to Associate Justice Catron asking whether the case would be decided by the U.S. Supreme Court before his inauguration. It was his fervent hope that the decision would put the future of slavery beyond the realm of political debate. He later successfully pressured his fellow Pennsylvanian, Associate Justice Grier, to join the Southern majority in the Dred Scott decision, to prevent the appearance that the decision was made along sectional lines.

Republicans fueled speculation as to Buchanan's influence on the decision by publicizing that, just prior to administering the oath of office to Buchanan, Chief Justice Roger Taney had whispered in Buchanan's ear, giving him advance notice of the Court’s decision. A few moments later, in his inaugural address, Buchanan expressed his “hope” that the slavery question would "be speedily and finally settled" by the Supreme Court.

In the meantime, “Bleeding Kansas” was still bleeding. It became a powerful political weapon for the Republican Party.

During the Pierce administration, competing territorial governments—-pro-slavery in Lecompton and anti-slavery in Topeka—-were organized and adopted competing constitutions. In order to achieve statehood, the territory needed to submit to Washington a single state constitution adopted by all Kansans.

When Buchanan took office, he appointed Robert Walker as the territorial Governor with the specific assignment of reducing the divisiveness and ensuring a fair and full vote by all the people in forming a constitution. Walker was a poor choice, and the result was a census and vote corrupted by partisans on both sides.

The vote resulted in the adoption of the pro-slavery Lecompton Constitution which was rejected by the anti-slavery forces. Wanting only to obtain the final admission of Kansas to the United States, Buchanan threw the support of his administration behind congressional approval of the pro-slavery Lecompton Constitution, infuriating the Douglas wing of his own party.

Senator Douglas, leader of the Democrats in the Senate, denounced Lecompton and the battle over Kansas escalated into a battle over the control of the Democratic Party. Buchanan made the political defeat Douglas and the admission of Kansas, a priority for the White House. He and his operatives offered political favors, patronage appointments and even cash in exchange for votes. The proposed Kansas (Lecompton) Constitution and the enabling act passed through the House, but it was blocked by Douglas in the Senate.

Congress then voted to call a new vote on the Lecompton Constitution, a move which now infuriated Southerners. Buchanan and Douglas then engaged in an all-out struggle for control of the Democratic Party in 1857–60, with Buchanan using his patronage powers and Douglas rallying the popular base. Douglas emerged victorious, and Buchanan was reduced to a narrow base of southern supporters. Kansas was finally admitted to the Union as a free state in January 1861, after Lincoln’s election but while Buchanan was still in office.

Rather than quelling unrest in the country over the slavery issue, the Dred Scott decision caused a firestorm in the Northern abolitionist circles and the continued tumult over Kansas fed the fire. Not only did the Court rule that slaves were property and could never be citizens, but, by negating the Missouri Compromise, it apparently opened to slavery the States that the abolitionists had presumed to be permanently free States.

Adding to the internal National tensions, John Brown, having left Kansas, poured gasoline on the fire. With the support of several prominent abolitionists and abolition societies, he acquired arms, ammunition and recruited a few followers The plan was for the small group to seize the United States Arsenal at Harper’s Ferry Virginia. With the captured weapons, he would arm slaves in the area and begin a slave insurrection—the single greatest fear of the ante-bellum South—and strike South to end slavery. (There is some modern thought that the intellectuals, academics, theologians, and other supporters of Brown’s efforts, probably unbeknownst to him, hoped more for a martyr than a success.)

The raid failed, the local slaves did not rise up and flock to Brown’s cause, and Brown was captured. Tried and convicted of treason, he was executed in December 1859. His failed effort convinced many in the deep South that the North would not cease and desist until slavery was abolished, by force of arms, if necessary.

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