Arguing About Slavery: The Great Battle in the United States Congress.

• Author: Mark, Gregory A.
• Position: 1999 Survey of Books Related to the Law

ARGUING ABOUT SLAVERY: THE GREAT BATTLE IN THE UNITED STATES CONGRESS. By William Lee Miller. New York: Alfred A. Knopf. 1996. Pp. 577. $35.

When was the last time you read a serious, recently published work of constitutional history that did not deal mainly with the work of the Supreme Court? When, even among those works, did the author look beyond the immediate litigants to give the reader a sense of an evolving constitutional culture -- a culture in symbiosis with the larger political and social culture -- its eddies and byways, as well as its mainstream?

My strong hunch is that anyone who can triumphantly respond to the implicit condemnation of narrowness in these questions will do so in large measure having read either or perhaps both William Lee Miller's Arguing About Slavery(1) and David Rabban's Free Speech in Its Forgotten Years.(2) Both books explore unfamiliar contexts of familiar constitutional terms; both thereby enrich and unsettle our complacent modern understanding of such terms; both should excite our historical imaginations and cause us to look for other untold or long-lost stories, which in turn might give us a more capacious and ironic understanding of constitutional institutions. What is more, both works tell us stories--ones with heroes and villains, themes of hope and betrayal, and, unfortunate as it may be, endings that are not necessarily happy. Each book also can teach us about writing history. Each raises questions about the historian's method. What is more, read together, they put before us the deepest of questions regarding the construction of constitutional meaning.

What is most interesting about each work, however, is something so obvious that it may easily be overlooked. These books are about political abstractions embodied in constitutional institutions, structured by our predecessors' reduction of those institutions to a few words on paper and succeeding generations' tortured fealty to those abstractions in the face of immediate, real-life, substantive pressures. For lawyers, each book therefore raises, implicitly at least, questions such as whether fealty should be to the precise historical meaning of each clause, whether the values embodied in certain constitutional language may become irrelevant to later polities, and, even more confusing to lawyers, whether such values may be said to migrate from one given constitutional clause to another. Each book thus raises, without answering, the question of what in such abstractions can command loyalty and passion.

THE STORIES(3)

The constitutional institution at the center of Professor Miller's story is the right to petition for redress of grievances.(4) As Professor Miller rightly notes, "[t]oday the right of petition looks rather pale beside those robust rights that have distinct constituencies, sharp disagreements, and sensational cases -- freedom of the press, certainly, and religious liberty, and freedom of speech, or the cluster of rights in the middle articles of the Bill of Rights that protect the accused."(5) In another era, however, when Congress, indeed the federal government itself, was deliberately left to its own devices in the malarial swamp from which the District of Columbia arose,(6) the right to petition was thought, by some at least, to be a core constitutional institution. It embodied a vision of fair and representative government, one in which all the people, individually and collectively, could make governmental officials aware of their worries and difficulties, and could even propose solutions to their concerns. The people would do so in formal documents styled petitions, and, by taking up their grievances in such forms, the people could require the officials to take cognizance of those grievances. In an era when communication over time and distance was limited to documents and messengers, and when physical isolation was profound, the centrality of such a device in a republican polity was palpable.(7)

Antebellum America, however, was no idyll of commonwealthmen, as the book's very title suggests. The bitterly divisive question of slavery hung in the background of American politics, especially of American constitutional politics, from the moment of the Founding forward, belying at a deep level the existence of a universal commonality of interest sufficient to keep all citizens united. Miller's story is the intersection of the constitutional institution which presupposed such a commonality and the institution of slavery. From the first federal Congress, antislavery petitions had been presented to the federal government.(8) At first they were cast in traditional petitionary form. They were measured, reasoned documents, formal prayers to legislators to take action where Congress could: to constrict the future reach of slavery, to eliminate it where Congress had the power, and to alter the Constitution to prohibit it entirely. Thus, as the country expanded westward, petitions variously sought to keep slavery from the territories, to condition those territories' statehood on its prohibition, and the like. For the District of Columbia itself, where the Congress functioned as landlord and town council, some prayers went so far as to request slavery's local prohibition.(9) Gradually, as antislavery sentiment crystallized, as the arguments grew more precise, numerous, and pointed, so did the vehicle for their expression. Petitions grew less formal, their tone less civil. As prayers turned to demands, they became shorter. The less attention they were paid, the more numerous they became.(10)

What had begun as a specific articulation by some Quakers and a vague disgust that existed at some level throughout the country became a political movement, rooted in religiously inspired moralism (pp. 80-84), a movement not quite secular but not sectarian, and with an extraordinarily pronounced regional character. The abolition movement never succeeded in claiming all those who felt discomfort with slavery. Its rhetoric was too radical, its adherents too eccentric in too many ways for that.(11) Nonetheless, abolitionists grew in number and formed the vanguard of antislavery sentiment more generally. One of their political eccentricities -- or at least an eccentricity of a large minority of abolitionists -- was a willingness to countenance, at first simply as signatories on petitions, and later to encourage, as active speakers and circulators of petitions, women and free blacks to participate in abolitionists' work (though this encouragement ultimately split the movement). Quakers had, in their petitions to the early Congresses, allowed women signatories, but later abolitionists, some Quakers included, went much farther.(12) Chief among the tactics of abolitionists was a concerted attempt to keep antislavery at the forefront of American politics, and their chief vehicle was to petition Congress (pp. 107-12). The petition campaign was a conscious and sustained effort, suffused with moralism, but a political campaign nonetheless.

By the middle of the 1830s, slavery, which had bedeviled the workings of so many American institutions, thus collided with the constitutional institution of petition. A decade-long clash ensued in the Congress, more dearly and quietly in the Senate than in the House, but almost concurrently in both chambers. Southern senators, visibly irritated and insulted by the persistence of antislavery petitioning(13) and at least vaguely fearing that the Senate's constant focus on slavery might actually result in tangible victories for antislavery forces,(14) succeeded quickly and without much fanfare in having the Senate adopt a parliamentary device which automatically responded negatively to antislavery petitions (p. 144).

Southern representatives, who were no less irritated, insulted and fearful than their senatorial counterparts, achieved a much more hard-won success. What Miller does before telling the story of what was labeled the "gag-rule," the rule of the House barring reception of antislavery petitions, is to give enough background briefly to set the stage. We are reminded, to be sure, of the evolution of antislavery sentiment and abolitionism,(15) but Miller quickly moves to personalities rather than social forces and movements. Young Southern representatives, perhaps egged on by the statesmen of the Senate,(16) quickly rose to defend the honor of the South from petitioners, hardly restrained by their more sage elders in the House. Why, however, was the victory so easily won in the Senate, yet so hard-won in the House? The difference may be summed up in one name: John Quincy Adams.

Adams is the hero of Miller's story. Southern defenders of slavery are the villains. No open abolitionist he,(17) Adams was instead a man more deeply committed to an abstraction of liberty contained in the Constitution -- the right of political participation and communication as it was embodied in the ancient institution of petition (pp. 351-57). He fought the adoption of the gag-rule. He tested its contours at every opportunity.(18) Before the gag-rule became a permanent rule of the House, he tried to introduce antislavery petitions (p. 197); he tempted political fate by attempting to query the Speaker of the House concerning a "petition from twenty-two persons, declaring themselves to be slaves" (p. 230); he was subjected to cries and motions to censure him? and he led the fight for the gag-rule's repeal. In these efforts he was joined by some, though not many, constitutional traditionalists and a slowly growing number of antislavery Congressmen.

Miller gives us an almost day-to-day recitation of the events as they unfolded from the gag's adoption in 1836 until its repeal in 1844. Along the way he takes time for some excursions into related matters. He briefly discusses the role of women in the petition campaign,(20) the struggles within the political parties, including those based on slavery,(21) the nature of...