The Cost of Compromise and the Covenant with Death

Pepperdine Law Review, Dec 2011

This article is a rebuttal to the writings of those advocating the view that America was formed through compromise and that compromise in modern constitutional law is, therefore, necessary and beneficial. A recount of the “compromises” at the Constitutional Conventional that eventually led to the approval and protection of slavery begins the analysis establishing the danger of Americans compromising over constitutional protections. The article continues on, discussing the Compromise of 1850 and its drafters whom others have considered “passionately devoted to the Union”, like John Calhoun, who would later assert that the Constitution was expendable. The Compromise of 1850 did little more than to bolster pro-slavery forces into the Kansas-Nebraska Act and the Dred Scott decision. From here, the article provides an in depth analysis of the Compromise of 1850 and the aftermath of the Fugitive Slave Law, and the spread of slavery into every new territory. In the history of United States Constitutional law, compromise is not always compromise at all. Instead, the appeasements linger and fester, merely allowing the same problems to grow to larger scales. In the context of slavery, the appeasements were only corrected with the Civil War, leaving one to wonder about the value of compromise.

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The Cost of Compromise and the Covenant with Death

Pepperdine Law Review Volume 38 Issue 5 Compromise and Constitutionalism Article 3 4-20-2011 The Cost of Compromise and the Covenant with Death Paul Finkelman Follow this and additional works at: http://digitalcommons.pepperdine.edu/plr Part of the Constitutional Law Commons, Dispute Resolution and Arbitration Commons, and the Ethics and Professional Responsibility Commons Recommended Citation Paul Finkelman The Cost of Compromise and the Covenant with Death, 38 Pepp. L. Rev. 5 (2011) Available at: http://digitalcommons.pepperdine.edu/plr/vol38/iss5/3 This Response is brought to you for free and open access by the School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized administrator of Pepperdine Digital Commons. For more information, please contact . The Cost of Compromise and the Covenant with Death Paul Finkelman* I. II. III. IV. V. VI. VII. VIII. IX. INTRODUCTION THE CRISIS CLAY'S RETURN TO THE SENATE CLAY'S COMPROMISE DEBATING CLAY'S BILL PRESIDENT FILLMORE AND THE COMPROMISE THE FUGITIVE SLAVE LAW OF 1850 THE GREAT FAILURE AND ITS AFTERMATH: THE SPREAD OF SLAVERY THE GREAT FAILURE AND ITS AFTERMATH: THE FUGITIVE SLAVE LAW I. INTRODUCTION Professor Levinson argues with some passion for compromise in constitutional law. He notes that the Constitution itself was a product of compromise. That is clearly the case. However, it is worth considering if compromise is always such a wonderful thing. We might even ask if the compromises at the Constitutional Convention were worth the long-term As I have argued elsewhere,' throughout the Constitutional costs. Convention the northern delegates made numerous compromises over slavery. 2 The southern delegates made demands and the northern delegates, for the most part, gave the southerners most or all of what they asked for.' As a result, the delegates in 1787 created a slaveholders' republic in which the national government was committed to protecting slavery. * President William McKinley Distinguished Professor of Law and Public Policy, Albany Law School. 1. See e.g., PAUL FINKLEMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON (2d ed. 2001). 2. Id. at 6-12. 3. See id at 110 (stating that the Constitution "accommodated the needs and demands of slavery at almost every turn"). 845 Meanwhile, the structure of the Constitution gave slavery enormous protection. Under the Constitution, Congress lacked the power to regulate the day-to-day life of the American people, and thus prevented any meaningful legislation that could have harmed slavery. Nor could the political system deal with slavery through a constitutional amendment. By requiring that three-fourths of the states were necessary to ratify any constitutional amendments,4 the Framers made sure that slavery could never be abolished as long as normal constitutional processes were in place. To understand this, it is useful to remember that in 1860 there were fifteen slave states, and if all of them had remained in the Union, it would be impossible, to this day, to pass a constitutional amendment to end slavery. With fifteen slave states it would take forty-five free states-in a sixty state union-to ratify an amendment ending slavery. Most of the major compromises over slavery were eventually undone by the Civil War Amendments,' but as their name reminds us, these Amendments were possible only because the normal constitutional order had been disrupted by four years of brutal war. The cost of undoing the compromises of 1787 was paid with the lives of some 620,000 Americans, the disrupted lives of millions more, and billions in treasure. Some compromises over slavery at the Convention, such as counting slaves for purposes of representation, 6 were clearly necessary to create a stronger national government. There could be no population based representation without some accommodation for slavery. On the other hand, the fugitive slave clause' was given to the South without any quid pro quo or even much debate. The Convention adopted the slave trade provision' over the angry protests of numerous delegates, including some slave owners, who recognized that there was something especially immoral about protecting the African Slave Trade, when the Constitution did not give any special protection to any other form of commerce or any other social or economic institution. The electoral college, which continues to haunt American politics, 9 was also a function of the compromises over slavery.' 0 Counting 4. U.S. CONST. art. V. 5. Not all slavery-related compromises were eliminated by the end of slavery. The electoral college was designed to fold slavery into the election of the president by basing electors on the members of the House of Representatives, which was in turn based on the three-fifths clause, which counted slaves for representation. Paul Finkelman, The Proslavery Origins of the Electoral College, 23 CARDOZO L. REV. 1145 (2002). The Thirteenth Amendment ended slavery, but the electoral college remained. Similarly, the prohibitions on export taxes in Article I, Section 9 and Section 10 of the Constitution were also adopted to prevent an indirect taxation of slaves by taking the products-tobacco and rice in 1787-they produced. The need to protect slavery in this way is long gone, but the prohibition on export taxes remains. 6. U.S. CONST. art. I, § 2, cl. 3 ("Representatives and direct Taxes"). 7. U.S. CONST. art. IV, § 2, cl. 3 ("No Person held to Service or Labour"). 8. U.S. CONST. art. I, § 9, cl. I ("The Migration or Importation of such Persons"). 9. See Bush v. Gore, 531 U.S. 98 (2000). 10. See Finkelman, supra note 5, at 1145-57. 846 [Vol. 38: 845, 2011] The Cost of Compromise PEPPERDINE LAw REVIEW slaves for representation and the electoral college, while specifically preventing Congress from ending the African Slave Trade for at least twenty years," led one delegate to complain: when fairly explained [it] comes to this: that the inhabitant of Georgia and S[outh]C[arolina] who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and dam[n]s them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of [Pennsylvania] or N[ew] Jersey who views with a laudable horror, so nefarious a practice.12 Thus the framers created a constitution that protected slavery in a variety of ways. The South gained extra political muscle for its slaves, was guaranteed that fugitives would not be emancipated, and knew that the slave trade would be protected for at least twenty years. The national government promised to help suppress slave rebellions and never tax the export products produced by slaves.' 3 The requirement that three-quarters of the states were needed to ratify an amendment gave the South what amounted to a perpetual ve (...truncated)


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Paul Finkelman. The Cost of Compromise and the Covenant with Death, Pepperdine Law Review, 2011, Volume 38, Issue 5,