George William Van Cleve

B&C (5-6/13) review of two books and the US Constitution and slavery reviewed by Allen C. Guelzo in article entitled "No Union with Slaveholders"

That Lincoln revered the Constitution is not really to say anything different from what almost every other American of his generation would have said about it. "No slight occasion should tempt us to touch it," Lincoln warned in 1848. "Better, rather, habituate ourselves to think of it, as unalterable. It can scarcely be made better than it is …. The men who made it, have done their work, and have passed away. Who shall improve, on what they did?" Only the most radical of abolitionists were inclined to regard it, in William Lloyd Garrison's kindling terms, as "an infamous bargain … a covenant with death and agreement with hell" because it seemed to offer shelter to chattel slavery. But by the 1880s, there were many more voices of question about the untouchable perfection of the Constitution, and unlike Garrison, they were expressing eerie parallels to voices in that same decade which were beginning to question the untouchable perfection of the Bible. "The Constitution of the United States had been made under the dominion of the Newtonian Theory," wrote Woodrow Wilson, whose PhD dissertation in 1883 on Congressional Government: A Study in American Politics frankly questioned the wisdom of a government of separated powers. "The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton."

In more recent times, these arguments were taken up by Leon Higginbotham, Sanford Levinson, Thurgood Marshall, and Mark Graber, mostly as a way of substantiating their larger-view annoyance with the Constitution's intractability to progressive policy changes.

The Revolution itself was caused by the panic slaveholders felt over the implications of the 1772 Somerset decision in the Court of King's Bench, which rendered slavery a legal impossibility in England. By denying slavery legal standing anywhere in the empire outside the colonies, Somerset alarmed American slaveholders, who were thus rendered instant converts to a revolution against imperial authority.

And then there was Lincoln, who in his breakthrough speech at the Cooper Institute in February 1860, announced that the Constitution, far from recognizing slavery, actually empowers Congress to vaporize it any moment slavery puts a foot outside the states where it has been legalized. "An inspection of the Constitution will show that the right of property in a slave is not 'distinctly and expressly affirmed' in it."

If "efficiency" (the demon-god of Wilsonian Progressives) or problem-solving or "responsiveness" is the prime desideratum in government, then the Constitution will surely appear as an outdated recipe for chronic political constipation.

The problem with Madison is not that his version of government is 225 years old, or that it is Newtonian or mechanistic. It is that Madison and his fellow delegates in Philadelphia did not care a wet slap for efficiency in government. They wanted liberty, and anything which slowed the pace of governmental decision-making, or which exhausted the power of one branch in argument with another, and made government as safely unresponsive as it could be short of inanition, was by their lights precisely what a republic of liberty should prize (even if that guaranteed a large measure of inanition about slavery). What we want the Constitution to be has always had a peculiar way of determining what we think the Constitution was, and is.… (meer)