Seven Events That Made America America

by Larry Schweikart

  Ultimately, though, the ring’s power came from the cash it doled out in the form of rewards to friends, particularly the Manufacturing Stationer’s Company, which got virtually all of New York City’s printing. On top of that, every patronage job involved a salary that the ring vastly inflated. But that was only the tip of the spoils iceberg. Because the ring controlled the Corporation Counsel office under Richard O’Gorman, it allowed cronies to file claims against the city, collect a commission, and then pay the claims at inflated prices. Judgments against the city attained all-time highs (over $400,000), while O’Gorman’s office racked up almost $153,000 in expenses. The Manufacturing Stationer’s Company proved to be the most fortunate, though, in sucking money out of the system. In 1870 alone, it received from the city $3 million, typical charges to those found on almost any other annual billing to the city.

  While outrageous and astonishing on its own, the Tweed Ring demonstrated the direction patronage was sure to take, and spoils became the focus of political reform in the late 1860s and early 1870s—with “reform” itself usually making matters worse. Various groups, mostly within the Republican Party, sought to rein in the spoils system, in the process backing or opposing candidates who either favored spoils or wanted to end it. The most prominent of the patronage supporters were the “Stalwarts,” headed by Roscoe Conkling, who battled reformers such as Rutherford B. Hayes. Another prominent Stalwart, Chester A. Arthur of New York, was nominated as James Garfield’s vice president. Garfield, a “Half Breed” (the name given to enemies of the spoils system), favored instituting a civil service system based on examinations and a merit system. Garfield had been tainted in the Crédit Mobilier scandal, but not seriously so, and had only been in office a few months when Charles Guiteau, who had failed to get a spoils job, shot him in a railway station. Guiteau shouted, “I am a Stalwart. . . . Arthur is president now.”83

  Garfield’s assassination galvanized the forces of reform, resulting in the passage of the Pendleton Civil Service Reform Act in 1883, which created the United States Civil Service Commission, placing most federal employees on a merit system. No longer would competent postmasters and customs collectors be yanked from their jobs merely because of the results of an election. 84 While that appeared both humane and practical, it constituted a massive expansion of the spoils system and patronage, taking it to an entirely different level. Where Boss Tweed and Martin Van Buren only had to promise a few thousand jobs directly to supporters in every election to ensure victory, that option disappeared after 1883. Instead, the Pendleton Act made matters worse because it forced politicians to promise entire programs and legislation in scattershot form that would appeal to larger numbers of voters. Thus, instead of promising a few ward and precinct jobs to cronies, the post-Pendleton politician had to promise masses of jobs cloaked in “support” for such programs as public works, then later, NASA, defense, protectionism for industry, the environment, and hundreds of other areas.

  For example, a presidential candidate speaking in Dayton, Ohio, before a large crowd of residents dependent on Wright-Patterson Air Force Base for employment could legitimately say, “I favor a strong national defense” and certainly some in the audience applaud him for supporting the military. But just as many would interpret that as saying, “I favor a strong commitment to Wright-Patterson Air Force Base and all the jobs it brings,” and they would be right. The same candidate in Iowa might support ethanol subsidies because he genuinely believes it would improve America’s energy problem, but it would just as likely represent that candidate’s awareness that he needs the votes of Iowa’s farmers. What changed between Van Buren’s original structure and the Pendleton “reform” was not the fundamental element of the system—that politicians exchanged jobs for votes—but merely the number of those directly affected by such giveaways!

  The Founders, both Federalists and anti-Federalists, were suspicious of big government and terrified of the tyranny that an unchecked government might bring. James Madison carefully balanced the executive, legislative, and judicial branches, while the other members of the Constitutional Convention worked diligently to secure the rights of the states within the federal system. To all of them, “big government” constituted a serious threat. Even Hamilton, widely considered to be a big-government politician, feared that the masses would gain control of the Treasury and vote themselves taxpayer benefits. While Federalist fathers such as George Washington, John Adams, and James Madison all agreed that a more powerful central government than the Articles of Confederation offered was necessary, none approved of handing out jobs for political support, and all detested the concept of national leaders running for office by, essentially, buying votes. Van Buren not only failed to prevent the war that he intended to avoid, but he bequeathed to the United States a party system that depended on the delivery of jobs as its life-blood. It’s hard to imagine one man, regardless of his good intentions, who has done more damage to the nation, unless it would be our next subject, Chief Justice Roger B. Taney.

  2.

  THE DRED SCOTT DECISION WRECKS AN ECONOMY AND HASTENS A WAR

  To consider . . . judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

  THOMAS JEFFERSON TO WILLIAM JARVIS, 1820

  Seldom do Supreme Court decisions make an immediate impact on American life. Roe v. Wade, probably the most important Court decision of the twentieth century, and Brown v. Board of Education are clear exceptions. Others, however, may settle a case, but they hardly settle the issues surrounding it. For example, Bush v. Gore may have settled an election, but it hardly settled the debate about how elections should be handled. More commonly, the impact is felt over long periods. When courts confirm damaging legislation or executive branch policies, the result normally reinforces practices that had existed during the long appeals process. If courts overturn legislation or block executive actions, markets often have already factored in a likely response. Such events as the breakup of Standard Oil Company in 1911 under antitrust concerns, or the Microsoft decision in the 1990s, had long been discounted before the final verdict. Even the implementation of Brown was delayed for almost a decade, then fought out on still other battle-fields of busing, property taxes, and school vouchers.

  But a few Supreme Court decisions have been unexpected in terms of their scope or implications. The 1857 Dred Scott decision is one such case. In it, the Court reached far beyond the immediate question of the “personhood” of slave Dred Scott and weighed in on the critical issue of slavery in America. As a result, it produced a remarkable trifecta of consequences: it triggered a financial panic, greatly sped up the arrival of the Civil War, and disgraced the Court itself. The Dred Scott decision represents the law of unintended consequences in almost every imaginable way. Historians James Huston and David Potter have both argued that the decision accelerated the drift toward war, perhaps past the point of no return.1 More recently, Judge Andrew Napolitano has re-examined its continued influence on American race relations.2 The case’s impact on slavery and on sectional strife has been established, but not only did Dred Scott potentially affect all existing southern slaves (more than three million), but it threw open the question of whether the American land that still remained to be settled—the vast western territories—would allow slavery or not. In the process, it injected immediate uncertainty into financial markets and perpetuated a depression that had implications for the impending sectional breakup. Not only was Dred Scott bad law in itself, but it also demonstrated the law of unintended consequences, sparking a panic and virtually ensuring a war by taking critical questions out of the hands of the people.

  The case began eleven years before the Supreme Court issued its final decision when, in 1846, a slave named Dred Scott filed a suit for manumission in the slave state of Missouri. Scott was born in 1799 as a slave of a Virginian, Peter Blow, who sold Scott in 1833 to a U.S. Army doctor, John Em
erson. With Emerson, Scott went to a post in Illinois, then to Minnesota, where slavery was illegal. He then was taken with the family to other states, finally arriving in St. Louis, Missouri. There, he took advantage of the Missouri legal system, which permitted blacks to purchase their freedom. After Emerson’s widow, Irene, rejected his offer of $300 to purchase his own liberty as well as his wife’s, he sued in state court in 1846.

  While the historiography of slavery remains divided between those who see the propensity in the Constitution toward confirming an unjust system of human bondage and those who see the Founders as institutionalizing a series of remedies in the wording and in subsequent acts (such as the North-west Ordinance), the purpose here is not to join that argument except to note that in Scott’s case, it should strike the reader as rather astounding that in a slave state, Missouri law permitted Scott access to the court to sue for his freedom.3 In Winny v. Phebe Whitesides, the Missouri Supreme Court noted for the first time the precedent of freeing slaves who had resided in a free state or territory by citing an 1807 territorial statute that allowed anyone held in slavery to petition the court for freedom as a “poor person.”4 Winny won her freedom. Of course, all suits did not work out so well for the petitioners: a circuit court case in 1818, Jack v. Barnabas Harris, featured a slave named Jack who unsuccessfully sued for his freedom. Scott, then, was only one of many—though certainly the most famous—to use the instruments of the law to seek his freedom. In a truly “closed” system, however, with a bias toward the status quo or maintaining elites (including slave owners) in a permanent position of power, no such avenues ever would have been available to Scott or any other slave.

  Scott’s case rested on proof that he had been free in Illinois or in the Wisconsin Territory (Minnesota). He initially lost the case, then appealed to the Missouri Supreme Court, which held that the case should be retried.5 At that point, the St. Louis circuit court found that Scott and his family were indeed free in 1850, whereupon Mrs. Emerson—her husband having died several years earlier—appealed to the Missouri Supreme Court in 1852, which reversed the circuit court decision. By that time, John Sandford, Eliza Emerson’s brother, was given title to the slaves, and thus inherited the case. Scott, meanwhile, had been freed by the sons of his original owner, Peter Blow, who had paid for his legal fees during the court battle. Denied liberty by Missouri’s state courts, Scott then filed a suit in the Missouri federal court, which agreed with the Missouri Supreme Court, leaving Dred Scott with an appeal to the United States Supreme Court and a date with history.

  From the outset, the odds were stacked against Scott: seven of the nine justices had been appointed by southern presidents, and five came from slaveholding families, including Chief Justice Roger B. Taney of Maryland, who had personally owned slaves. As a young man, Taney had befriended Francis Scott Key, whose sister he married. Taney was a Jacksonian partisan of the worst kind, personifying the term “political hack.” A Catholic and a states’-rights champion, the skeletal, stooped, and ailing Taney, nearly eighty years old at the time of the Dred Scott case, read his decision for over two hours in a strained voice as his hands trembled from the stress of holding the paper. He had emancipated his own slaves in the 1820s, but philosophically he still believed in the “peculiar institution.” And he had a track record on the matter. In 1850, Taney’s Court in Strader v. Graham had ruled that slaves from Kentucky who had gone to Ohio and similarly claimed freedom were bound by Kentucky law, not Ohio law.6 As is well known, all Taney and his fellow justices had to do was agree with the Missouri court system that, as a slave, Scott had no right to bring suit. But as we have also seen, Missouri and Maryland, in particular, were subjected to a constant stream of emancipation cases, and, indeed, the frequency with which they were brought in Missouri (as opposed to neighboring Illinois) suggests that in fact the law was in flux. If an owner’s word alone was not sufficient to characterize a black person as a slave, then the very essence of personhood was an issue, and if slaves were persons, then they were dangerously close to being the “men” who were “created equal” under the Declaration.

  Whatever Taney’s motivations, he and the other justices went far beyond a quick resolution of the case by merely upholding the lower court and instead issued a manifesto on property rights and slavery in America. In an unusual development, all nine justices rendered separate opinions in the 7-2 decision against Scott. It was a case of remarkable judicial activism, even more stunning for its lack of logic. (There were seven justices appointed by Democrats, one by the Republicans, and one by the Whigs.) Taney began his opinion by stating that it was “too plain for argument, that [blacks] had never been regarded as part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure.”7 Moreover, the Court maintained that the Founders had not intended to endow blacks with citizenship rights (a strange claim, given that blacks could vote in ten of the thirteen original states).8

  Since Scott was not a citizen of Missouri, the federal courts, including the United States Supreme Court, lacked jurisdiction to hear the suit—but then Taney’s Court went on to render a decision anyway. Engaging in judicial activism by addressing the Missouri Compromise, the justices said that the compromise had been unconstitutional, and therefore the prohibition against slavery there had likewise been unconstitutional. The property of a slaveholder had full protection under the Constitution’s Fifth Amendment. At the same time, the Court held the concept of “popular sovereignty”—in which the people of a territory could decide the fate of slavery at their state territorial conventions, touted by Senators Stephen Douglas of Illinois and Lewis Cass of Michigan—to be equally null and void. The protections of slavery could not be eliminated except by an existing state, meaning that the bias for all new territories to begin their statehood with slavery would be henceforth universal. Put another way, Taney’s Court had essentially said that Congress could not prohibit slavery, nor could the people prohibit slavery in their territorial legislatures. Only the institution of the state, after achieving statehood, could enact laws to prohibit slavery, but even those laws would not extend to any other states.

  Both Abraham Lincoln and Stephen Douglas—the opposing U.S. Senate candidates in Illinois in the election of 1858—recognized the destruction caused by the decision. Each addressed it in the famed Lincoln-Douglas debates, but only Lincoln predicted that it would lead to war. Lincoln’s June 1858 “House Divided” speech warned that the nation would become either all slave or all free. Douglas had attempted to skirt the issue by supporting popular sovereignty. However, Douglas also supported the Dred Scott decision, and Lincoln pounced on his inconsistency by demanding that the “Little Giant” reconcile support for popular sovereignty with the Court’s decision that the people of a territory could not exclude slavery. At Freeport, Douglas’s answer, known as the Freeport Doctrine, killed his presidential chances. Douglas said he supported the Dred Scott ruling but that people could keep slavery out of their state by refusing to pass legislation that would protect slavery and by electing officials who would not enforce it. With the “Freeport Heresy,” as Southerners labeled it, Douglas’s political hopes crumbled and the Democratic Party split along sectional lines, ensuring the election of an anti-slavery Republican in 1860. When that occurred, war became almost inevitable.9

  Lincoln knew popular sovereignty was not an answer for any question of moral and constitutional proportions. He considered it the equivalent of allowing a vote on whether, say, all blonds should be imprisoned or all fifty-year-olds executed. More important, Lincoln sensed, as implied in the “House Divided” speech, that the debate over slavery in the territories was a mere proxy for the reintroduction of slavery into free states as well. It eventually came down to a question of constitutional property rights, and sooner or later, the issue of whether slaves were people or property would eventually require a final resolution.10

  Needless to say, anti-sla
very forces in the North were shocked and outraged by the Court’s decision. In addition to Lincoln, who had wondered in January 1857 if the Court would use the occasion to rule on “the constitutional restriction of the power of a territorial Legislature, in regard to slavery in the territory,” others expressed concern.11 Chicago’s Democratic Press expressed a “feeling of shame and loathing” for the Court; Horace Greeley believed the decision held the same weight as one rendered “in any Washington bar-room.”12 The New York Independent charged that the ruling was a “Moral Assassination of a Race and Cannot be Obeyed,” while a competitor, the Tribune, prophesied that no one who cherished freedom would submit to the results handed down by “five slaveholders and two doughfaces.”13 Washington’s National Era observed, “The Slaveholding Oligarchy have the Administration, the majority in the Senate and in the House, and the Supreme Court. What is left to the People?”14 Of course, southern and Democratic papers were ecstatic: the Philadelphia Pennsylvanian called the decision the “funeral Sermon of Black Republicanism,” and the New Orleans Picayune gleefully boasted that now “the whole basis of the Black Republican organization [is] under the ban of the law.”15

  Obvious to most was the implication that if Scott’s residence on free soil had not entitled him to emancipation, then any slave could be brought into the North permanently. This was precisely what Lincoln cautioned against in his “House Divided” speech—that one way or another, the issue had to be decided nationwide, and on the grounds of either property or personhood. He had warned, “Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South.”16 Taney’s Court had chosen the former. In the Lincoln-Douglas debates, the future president warned about a “nice little niche [that might be] filled with another Supreme Court decision” that would prohibit free states from excluding slavery.”17 Lincoln, however, was well ahead of his contemporaries and fellow Republicans in realizing that “the negative principle that no law is free law” meant that the Constitution had a presumption of human liberty over property rights.18 In this way, Lincoln said what many southerners feared in their hearts: that without “positive” law, slavery would become the subject of a majority vote. They began to fear that Northerners would never permit new slave states, leading the South to demand with increasing intensity a national approval of slave property. Merely admitting the right wasn’t enough: Northerners had to approve of the institution, which they would never do. Calhoun had already broached the subject during the debates over the Wilmot Proviso in 1847 by saying:I go farther, and hold that if we have a right to hold our slaves, we have the right to hold them in peace and quiet, and that the toleration in the non-slaveholding States of the establishment of societies and presses, and the delivery of lectures, with the express intention of calling into question our right to our slaves [and enticing runaways and abolition, are] not only a violation of international laws, but also the Federal compact.19