WEBVTT - Deep Background Presents: The Broken Constitution Ep. 1 0:00:15.396 --> 0:00:25.116 Pushkin. This is The Broken Constitution, a miniseries for unknown 0:00:25.196 --> 0:00:29.156 history from quick and dirty tips and deep background from 0:00:29.156 --> 0:00:33.756 Pushkin Industries. Over three episodes, I'm going to talk about 0:00:33.836 --> 0:00:36.996 Abraham Lincoln and how he needed to break the American 0:00:37.076 --> 0:00:40.556 Constitution in order to remake it. It's all based on 0:00:40.596 --> 0:00:44.596 my new book, The Broken Constitution, Lincoln, Slavery and the 0:00:44.676 --> 0:00:49.476 Refounding of America, out November second. If you're listening to 0:00:49.516 --> 0:00:52.396 this podcast, you already know that one of the most 0:00:52.436 --> 0:00:56.636 important and pressing questions facing the United States today is 0:00:56.676 --> 0:01:01.076 whether racism and slavery are encoded into the DNA of 0:01:01.076 --> 0:01:05.716 our nation by virtue of being encoded into the US Constitution. 0:01:06.516 --> 0:01:09.956 This question is behind debates about who we are, what 0:01:10.036 --> 0:01:13.476 we should teach, and what the possibilities are for our 0:01:13.596 --> 0:01:18.636 nation going into the future, especially with respect to racial equality. 0:01:19.556 --> 0:01:22.556 I wrote this book because I wanted to know the answer. 0:01:23.116 --> 0:01:26.116 I've devoted most of my professional life to thinking about 0:01:26.156 --> 0:01:30.636 the US Constitution and about other constitutions, whether in Iraq 0:01:30.916 --> 0:01:34.756 or Tunisia or anywhere else around the world. I'd written 0:01:34.756 --> 0:01:38.636 books about James Madison and the drafting of the US Constitution, 0:01:38.676 --> 0:01:41.516 as well as its ratification and I'd also written a 0:01:41.556 --> 0:01:45.396 book about the interpretation of the Constitution in the modern period, 0:01:45.716 --> 0:01:49.436 starting with the justices appointed by Franklin Delano Roosevelt in 0:01:49.476 --> 0:01:52.156 the nineteen thirties and going all the way up into 0:01:52.156 --> 0:01:56.516 the nineteen sixties. That study gave me a foundation in 0:01:56.556 --> 0:01:59.436 trying to answer the question. But I must tell you 0:01:59.756 --> 0:02:03.356 that I was genuinely astonished by many of the things 0:02:03.356 --> 0:02:06.756 that I discovered in researching this book, and the answer 0:02:06.796 --> 0:02:09.516 that I reached is not the answer that I thought 0:02:09.556 --> 0:02:13.476 I was going to reach when I began. My surprise 0:02:13.916 --> 0:02:18.556 can be summed up in three simple propositions, each of 0:02:18.596 --> 0:02:21.436 which I believed and each of which I now think 0:02:21.796 --> 0:02:27.236 is wrong. I thought that from the start our Constitution 0:02:27.276 --> 0:02:30.996 in the United States functioned as a higher moral law 0:02:31.556 --> 0:02:37.396 guiding us into the future. It did not. I thought 0:02:37.436 --> 0:02:40.836 we had the same constitution that we had had since 0:02:40.956 --> 0:02:44.276 it was drafted in seventeen eighty seven and ratified in 0:02:44.316 --> 0:02:47.876 a couple of years afterwards. As it turns out, we 0:02:48.076 --> 0:02:53.316 do not. And perhaps most surprisingly, I always thought of 0:02:53.356 --> 0:02:57.676 Abraham Lincoln as the president who saved the US Constitution. 0:02:58.356 --> 0:03:02.236 In fact, however, the truth is that Abraham Lincoln did 0:03:02.276 --> 0:03:08.796 not save our Constitution. He broke the Constitution three separate times, 0:03:09.196 --> 0:03:12.796 in three separate ways, in order to transform it into 0:03:12.876 --> 0:03:17.156 something very new and very different. Over the course of 0:03:17.156 --> 0:03:19.916 this mini series, I'm going to discuss all three of 0:03:19.956 --> 0:03:24.116 these ideas misconceptions, really, and I'm going to tell you 0:03:24.196 --> 0:03:28.356 a story, the story of Abraham Lincoln's own engagement with 0:03:28.436 --> 0:03:32.116 the Constitution and what it reveals not only about his 0:03:32.356 --> 0:03:36.476 tremendous importance as a thinker about the Constitution, but also 0:03:36.556 --> 0:03:41.716 about the Constitution itself. In this first episode, I'm going 0:03:41.756 --> 0:03:46.716 to suggest that the Constitution Abraham Lincoln supported was not 0:03:47.196 --> 0:03:51.396 a moral blueprint for our nation or a higher law 0:03:51.676 --> 0:03:55.436 that the great majority of Americans could support and treat 0:03:55.556 --> 0:04:00.796 as guiding them into the future. Instead, the Constitution of 0:04:00.836 --> 0:04:06.596 the United States until the Civil War was a compromise constitution, 0:04:07.276 --> 0:04:12.036 and that compromise was one that Abraham Lincoln himself was 0:04:12.356 --> 0:04:19.036 entirely devoted to preserving. What made the Constitution a compromise 0:04:19.996 --> 0:04:24.036 everybody remembers from eighth grade Civics that the original Constitution 0:04:24.076 --> 0:04:27.756 of seventeen eighty seven contained a major compromise between the 0:04:27.876 --> 0:04:31.276 large and the small states. That was the compromise that 0:04:31.396 --> 0:04:35.636 created popular representation in the House of Representatives, but treated 0:04:35.716 --> 0:04:38.916 all states as the same with respect to representation in 0:04:38.956 --> 0:04:42.556 the Senate. That was a big fight in Philadelphia in 0:04:42.596 --> 0:04:45.836 the long hot summer of seventeen eighty seven, and it culminated, 0:04:45.916 --> 0:04:48.716 indeed in a walkout where the small states told the 0:04:48.796 --> 0:04:51.996 large states, unless you give us equal representation in the Senate, 0:04:52.116 --> 0:04:54.676 we're not going to participate in the Constitution at all. 0:04:55.556 --> 0:04:59.236 But as the summer progressed, the most astute delegates there 0:04:59.476 --> 0:05:02.876 began to realize that the real conflict that was going 0:05:02.956 --> 0:05:05.156 to emerge in the United States, and they could already 0:05:05.196 --> 0:05:08.036 be sensed in the Convention, was not between large and 0:05:08.116 --> 0:05:11.956 small states. It was between northern states that were either 0:05:12.036 --> 0:05:14.796 free or on their way to becoming free states, and 0:05:15.036 --> 0:05:19.236 Southern states that were committed to slavery as crucial to 0:05:19.276 --> 0:05:23.436 their economic way of life. The compromise that took place 0:05:23.516 --> 0:05:27.036 in seventeen eighty seven between the northern and the Southern 0:05:27.076 --> 0:05:31.036 states had three components each and every one of them 0:05:31.436 --> 0:05:36.596 was connected to slavery. The first was the three fifths compromise. 0:05:37.756 --> 0:05:42.476 The South wanted enslaved persons of African descent to be 0:05:42.596 --> 0:05:47.556 counted as full persons for the purpose of representation. Their idea, 0:05:47.596 --> 0:05:50.436 of course, was that the enslaved persons would never have 0:05:50.476 --> 0:05:54.436 the opportunity to vote, but by counting slaves, Southern states 0:05:54.476 --> 0:05:57.436 would have greater representation in the House of Representatives because 0:05:57.436 --> 0:06:01.116 slaves made up a significant part of the Southern population. 0:06:02.356 --> 0:06:06.436 Northern states, in contrast, did not want to count slaves 0:06:06.476 --> 0:06:09.716 at all in total numbers for representation in the House 0:06:09.716 --> 0:06:13.316 of Representatives because they believed that because enslaved persons did 0:06:13.316 --> 0:06:16.236 not have the right to vote, it followed that they 0:06:16.236 --> 0:06:20.156 shouldn't be counted, and that would give the North more 0:06:20.316 --> 0:06:25.676 proportional representation in the House of Representatives. The three fifths 0:06:25.676 --> 0:06:30.156 compromise was designed to placate both sides. It gave each 0:06:30.156 --> 0:06:33.956 side part of what it wanted, and of course, into 0:06:33.956 --> 0:06:37.476 the bargain, it had the symbolic effect of treating slaves 0:06:37.556 --> 0:06:42.916 as only three fifths of human beings. The second compromise 0:06:43.076 --> 0:06:46.236 having to do with slavery was one which we barely 0:06:46.236 --> 0:06:50.236 remember today, and that was a guarantee in the Constitution 0:06:50.676 --> 0:06:54.836 that the international trade in slaves, importing slaves into the 0:06:54.956 --> 0:06:59.236 United States would be protected for twenty years from the 0:06:59.276 --> 0:07:03.116 time of the ratification of the Constitution. The idea here 0:07:03.516 --> 0:07:05.756 was that in the very deepest part of the South, 0:07:05.916 --> 0:07:10.836 especially South Carolina, slaveholders felt that they needed many, many 0:07:10.916 --> 0:07:14.316 more slaves than they already had in order to expand 0:07:14.356 --> 0:07:17.716 their economies. To do that, they wanted to be sure 0:07:18.036 --> 0:07:23.036 of a steady supply of enslaved persons brought from Africa, 0:07:23.116 --> 0:07:26.356 and they knew that international opposition to the slave trade, 0:07:26.476 --> 0:07:30.676 including opposition in the North, was growing and strong. It's 0:07:30.716 --> 0:07:33.476 important to keep in mind here that even many people 0:07:33.516 --> 0:07:36.796 who thought that slavery was morally acceptable at the time, 0:07:36.996 --> 0:07:40.316 including many in the North, drew the line at the 0:07:40.396 --> 0:07:44.636 idea of capturing people, turning them into slaves, and importing 0:07:44.676 --> 0:07:49.396 them across international waters to North America. It was not 0:07:49.596 --> 0:07:54.436 unusual for people to oppose the slave trade without opposing slavery. 0:07:55.116 --> 0:08:00.196 The Constitution guaranteed in an unamendable way that for twenty 0:08:00.276 --> 0:08:03.996 years slaves could still be imported. After that, it would 0:08:03.996 --> 0:08:06.356 be up to Congress to determine whether the slave trade 0:08:06.356 --> 0:08:10.636 would be ended, as indeed it was. The last compromise 0:08:10.956 --> 0:08:13.636 is one that it's easy to forget today, but that 0:08:13.876 --> 0:08:17.156 was in fact the most significant from the standpoint of 0:08:17.196 --> 0:08:20.636 Americans in the eighteen hundreds, and that was the compromise 0:08:20.796 --> 0:08:25.036 over the fugitive Slave Clause. The fugitive Slave Clause of 0:08:25.076 --> 0:08:29.636 the Constitution specified that if enslaved people were to flee 0:08:29.796 --> 0:08:33.276 from slave states in the South two free states in 0:08:33.316 --> 0:08:37.116 the North, not only would they not become free by 0:08:37.356 --> 0:08:42.116 entering into free territory, but beyond that, they would be 0:08:42.196 --> 0:08:48.316 returned to their owners. What was so fundamentally significant about 0:08:48.356 --> 0:08:52.676 the fugitive Slave clause was that it implicated the North 0:08:52.796 --> 0:08:56.556 fully in the practice of slavery. It meant that even 0:08:56.796 --> 0:09:01.436 states that abolished slavery themselves would still have to participate 0:09:01.636 --> 0:09:05.836 in the realities of slavery by lending their legal systems 0:09:05.876 --> 0:09:10.756 to the capture and return of enslaves to the status 0:09:10.796 --> 0:09:15.076 of slavery. You may ask, especially if you've seen the 0:09:15.196 --> 0:09:19.636 musical Hamilton, how could it be that Northerners at the 0:09:19.636 --> 0:09:23.436 Constitutional Convention, a few of whom were at least skeptical 0:09:23.676 --> 0:09:27.636 about the morality of slavery, could have agreed to these propositions. 0:09:28.556 --> 0:09:34.316 The short answer is compromise was necessary as a condition 0:09:34.756 --> 0:09:40.116 for actually getting the Constitution to be successfully agreed upon 0:09:40.596 --> 0:09:46.316 by all sides, and even Hamilton himself, who was perhaps 0:09:46.396 --> 0:09:49.836 not as fully committed to abolition as lin Manuel Miranda 0:09:49.876 --> 0:09:54.876 would have us think. Hamilton actively defended this compromise, and 0:09:54.996 --> 0:09:58.716 he described the three fifths proposition by saying the quote, 0:09:58.996 --> 0:10:02.756 it was one result of the spirit of accommodation which 0:10:02.796 --> 0:10:07.956 governed the Convention, and without this indulgence, no union could 0:10:07.996 --> 0:10:16.396 possibly have been formed. That sentence explicitly articulated what everybody knew. 0:10:16.996 --> 0:10:20.516 The Constitution was a compromise, and it was a compromise 0:10:20.796 --> 0:10:26.876 between slaveholders and non slaveholders and accommodation without which there 0:10:26.916 --> 0:10:31.876 could not have been a continuing union. What did Abraham 0:10:31.916 --> 0:10:36.516 Lincoln himself think about this compromise Constitution when he was 0:10:36.556 --> 0:10:40.276 a young man living in Illinois. The short answer is 0:10:40.316 --> 0:10:44.836 that Lincoln was a complete and total supporter of the 0:10:44.916 --> 0:10:49.916 compromise Constitution. When it came to politics, his choice from 0:10:49.916 --> 0:10:53.036 early on in his career was to support the Whig 0:10:53.116 --> 0:10:57.076 Party and to idolize the founder and leading figure in 0:10:57.116 --> 0:11:01.356 the Whig Party, a man called Henry Clay, famous in 0:11:01.396 --> 0:11:06.236 American history with the name the Great Compromiser. None of 0:11:06.276 --> 0:11:10.036 this is a coincidence. Lincoln didn't have to be a 0:11:10.116 --> 0:11:13.076 follower of Clay or a wig. In fact, as a 0:11:13.156 --> 0:11:16.996 self made young man at the frontier, he might naturally 0:11:17.076 --> 0:11:21.676 have become a follower of Andrew Jackson and the Jacksonian Democrats. 0:11:22.556 --> 0:11:27.916 Yet Lincoln's personality, his experiences, and his attitudes drew him 0:11:27.956 --> 0:11:32.836 to Clay. That made Lincoln into somebody who was fundamentally 0:11:33.076 --> 0:11:37.796 committed to the ideal of compromise. Lincoln's commitment to the 0:11:37.876 --> 0:11:41.876 Constitution as a compromised document can be seen in his 0:11:41.916 --> 0:11:45.436 first really important political speech, which he gave in eighteen 0:11:45.516 --> 0:11:49.476 thirty eight. The speech was a defense of what Lincoln 0:11:49.516 --> 0:11:54.396 called the perpetuation of our political institutions. His main point 0:11:54.716 --> 0:11:58.756 was that unless Americans would abide by the rule of law, 0:11:59.276 --> 0:12:04.036 the Constitution and the country were doomed to collapse. In 0:12:04.076 --> 0:12:08.636 the course of this speech, Lincoln insisted that the overarching 0:12:08.756 --> 0:12:12.876 value of constitutional life must be reason, what he called 0:12:13.236 --> 0:12:20.556 sober reason, cold calculating, unimpassioned reason, and this reason, Lincoln said, 0:12:20.836 --> 0:12:26.276 should be molded into a reverence for the Constitution and laws. 0:12:27.436 --> 0:12:31.756 The Constitution must be revered for its coldness, its lack 0:12:31.796 --> 0:12:36.516 of passion, and its commitment to reason. Starkly absent from 0:12:36.556 --> 0:12:39.596 this account was any commitment to the idea that the 0:12:39.676 --> 0:12:45.676 Constitution was fundamentally morally right. Lincoln, of course himself was 0:12:45.796 --> 0:12:48.876 not fond of slavery from the moment. We have a 0:12:48.916 --> 0:12:51.436 record of what he thought about it. He considered the 0:12:51.516 --> 0:12:56.516 practice cruel and preferred that it not exists. And yet 0:12:56.796 --> 0:13:00.996 Lincoln remained committed to the idea that slavery needed to 0:13:01.036 --> 0:13:05.716 be preserved in the Constitution. How did Lincoln and other 0:13:05.916 --> 0:13:11.676 mainstream figures in nineteenth century America reconcile these two thoughts. 0:13:13.076 --> 0:13:16.356 In Lincoln's case, the answer was one that he inherited 0:13:16.396 --> 0:13:20.316 from Henry Clay, who himself had inherited it from James 0:13:20.356 --> 0:13:25.636 Madison and James Monroe. This was the idea, the hope, really, 0:13:26.076 --> 0:13:30.356 the aspiration at best, that slavery would die what Lincoln 0:13:30.396 --> 0:13:36.556 called unnatural death. The theory here was that somehow, as 0:13:36.556 --> 0:13:40.796 if by magic, slavery would cease to be economically viable, 0:13:41.236 --> 0:13:44.396 and that Southerners would, as a consequence, stop relying on 0:13:44.476 --> 0:13:48.196 it as the basis for their economies. As a loyal 0:13:48.316 --> 0:13:52.636 son of the old Northwest and of Illinois, Lincoln himself 0:13:52.876 --> 0:13:56.116 was not committed to slavery, which he always viewed negatively, 0:13:56.916 --> 0:14:00.236 but the world in which he lived and the economy 0:14:00.276 --> 0:14:02.876 of the people whom he eventually sought to represent as 0:14:02.876 --> 0:14:07.396 he entered politics, depended on the expansion of the country 0:14:07.876 --> 0:14:12.036 across the continent, eventually all the way to California, and 0:14:12.116 --> 0:14:16.516 that expansion, in turn was completely bound up in the 0:14:16.516 --> 0:14:21.316 expansion of slavery. Over the course of the eighteen hundreds, 0:14:21.516 --> 0:14:28.116 the Constitution was therefore gradually reaffirmed as a blueprint for 0:14:28.236 --> 0:14:32.476 the capacity of the country to expand. In order to 0:14:32.596 --> 0:14:35.796 cross the continent and achieve what came to be called 0:14:35.836 --> 0:14:40.636 manifest destiny, the country needed to be unified. It couldn't 0:14:40.676 --> 0:14:44.676 be broken into two or three different mini republics, which 0:14:44.756 --> 0:14:48.436 might establish tariffs and other limitations on trade as among 0:14:48.516 --> 0:14:55.396 them now. Notwithstanding the felt necessity by Northerners, Westerners, and 0:14:55.596 --> 0:15:01.396 Southerners of maintaining unity, the eighteen hundreds still saw a 0:15:01.556 --> 0:15:06.916 succession of major crises, which played themselves out as crises 0:15:06.916 --> 0:15:12.116 around the Constitution. The Constitution, in practical terms, was a 0:15:12.316 --> 0:15:19.156 compromised deal between slaveholders and non slaveholders designed to facilitate expansion. 0:15:20.076 --> 0:15:24.156 But each and every time that the country expanded to 0:15:24.196 --> 0:15:27.036 include territory that would become part of a new state, 0:15:27.676 --> 0:15:32.676 the compromise came into doubt. If they were free, that 0:15:32.796 --> 0:15:36.516 might give the North an ultimate advantage and the capacity 0:15:36.756 --> 0:15:40.116 to alter the terms of the deal and make slavery 0:15:40.276 --> 0:15:44.396 less powerful or indeed eliminated. If, on the other hand, 0:15:44.556 --> 0:15:46.556 the new states were to be admitted to the Union 0:15:46.596 --> 0:15:50.436 as slave states, that would create circumstances where the slave 0:15:50.516 --> 0:15:54.796 states might be able over time to transform the Union 0:15:55.036 --> 0:15:59.236 into an entirely slave entity, in which the Northern states, 0:15:59.356 --> 0:16:02.076 even if they didn't have slavery, would be further and 0:16:02.156 --> 0:16:07.556 further implicated in the practice. Not by the design of 0:16:07.596 --> 0:16:13.636 seventeen eighty seven, but rather by gradual realism. A fifty 0:16:13.756 --> 0:16:17.796 fifty balance in the Senate had been established between slave 0:16:17.916 --> 0:16:25.036 states and free states, and the crises of the eighteen twenties, thirties, forties, 0:16:25.036 --> 0:16:29.116 and fifties, coupled with the compromises that purported to save them, 0:16:29.596 --> 0:16:32.996 were all focused on the question of the balance of 0:16:33.036 --> 0:16:36.076 the Senate as it would be shaped by the admission 0:16:36.116 --> 0:16:41.596 of new states. The paradox, then was that the compromises 0:16:41.676 --> 0:16:46.036 were necessary to maintain balance, and the balance was necessary 0:16:46.036 --> 0:16:51.276 to achieve expansion, but the expansion itself created doubt about 0:16:51.316 --> 0:16:56.836 the capacities of the compromise to exist. Throughout this period 0:16:56.836 --> 0:17:01.796 of time, Lincoln committed himself to a centrist position. He 0:17:01.916 --> 0:17:07.876 repeatedly denounced abolitionists as people who were doing something unwise, 0:17:08.676 --> 0:17:13.716 namely trying to undermine the very balance that was crucial 0:17:13.756 --> 0:17:17.436 to the existence of compromise. At the same time, he 0:17:17.516 --> 0:17:21.796 maintained a moral objection to slavery, one that he expressed 0:17:21.996 --> 0:17:26.596 more and more clearly during these years. The way for 0:17:26.676 --> 0:17:30.756 Lincoln and others to achieve some kind of coherence, if 0:17:30.796 --> 0:17:33.756 you can call it, that, was to remind themselves and 0:17:33.876 --> 0:17:37.516 everybody else that the Constitution was a set of rules 0:17:37.556 --> 0:17:42.116 that deserved reverence and obedience because everyone had promised to 0:17:42.156 --> 0:17:46.396 follow it as part of a compromised deal. The idea 0:17:46.436 --> 0:17:48.476 that you had a moral duty to keep an agreement 0:17:48.756 --> 0:17:54.316 which was itself all about an immoral arrangement, required tremendous 0:17:54.516 --> 0:18:00.596 conscious analysis of the problem and simultaneously tremendous denial of 0:18:00.636 --> 0:18:05.596 the fundamental immorality that underlay it. And it's not as 0:18:05.596 --> 0:18:08.796 though nobody in the United States at the time was 0:18:08.876 --> 0:18:15.276 thinking about the contradictions of this compromise. They were abolitionists 0:18:15.276 --> 0:18:17.996 in the United States in the eighteen hundreds made it 0:18:18.316 --> 0:18:24.516 extraordinarily clear that to agree to the compromise Constitution was 0:18:24.596 --> 0:18:28.196 to be committed to what the abolitionist Wendell Phillips called 0:18:28.556 --> 0:18:33.556 an agreement with death and a covenant with Hell. Before 0:18:33.676 --> 0:18:36.916 ending this episode, I want to share with you some 0:18:37.076 --> 0:18:39.956 fascinating material that I was able to discover with the 0:18:39.996 --> 0:18:45.076 help of my research assistance. This material consists of debates 0:18:45.356 --> 0:18:50.116 among African American abolitionists in the eighteen thirties, forties, and 0:18:50.196 --> 0:18:55.476 fifties about whether the original Constitution was itself so immoral 0:18:55.956 --> 0:19:01.516 that any accommodation to it made the person who accommodated 0:19:01.956 --> 0:19:07.476 also immoral. Consider as an example, a fascinating debate that 0:19:07.596 --> 0:19:11.636 took place on January sixth, eighteen fifty one, at the 0:19:11.796 --> 0:19:16.796 sixth State Convention of Colored Citizens of Ohio, held in Columbus. 0:19:17.356 --> 0:19:20.996 State conventions of free African Americans had become common by 0:19:20.996 --> 0:19:25.716 the eighteen fifties. In this particular convention, a debate broke 0:19:25.756 --> 0:19:30.396 out between two significant African American abolitionists, one a man 0:19:30.476 --> 0:19:34.716 called Hezekiah Ford Douglas, who had escaped being a slave 0:19:34.756 --> 0:19:36.836 at the age of fifteen and went on later to 0:19:36.836 --> 0:19:39.596 command his own unit in the Civil War, and on 0:19:39.636 --> 0:19:43.676 the other side, a man called William Howard Day, originally 0:19:43.756 --> 0:19:47.276 born free in New York, a graduate of Oberlin College, 0:19:47.316 --> 0:19:49.836 who would become the founder and editor of a weekly 0:19:49.916 --> 0:19:56.636 Cleveland newspaper with the extraordinary name The Aliened American. The 0:19:56.716 --> 0:20:00.436 subject of the debate was whether it was appropriate for 0:20:00.636 --> 0:20:04.836 African Americans who were free to vote in states where 0:20:04.876 --> 0:20:09.876 they were free to vote, such as Ohio. Hezekiah, for Douglas, 0:20:10.116 --> 0:20:13.516 took the view that it was immoral for a free 0:20:13.596 --> 0:20:18.036 African American to vote in a federal election, because to 0:20:18.196 --> 0:20:22.636 do so was to implicate oneself in the immorality of 0:20:22.676 --> 0:20:27.476 the Compromise Constitution. As Douglas put it, I hold sir, 0:20:27.796 --> 0:20:30.796 that the Constitution of the United States is pro slavery, 0:20:31.356 --> 0:20:34.636 considered so by those who framed it and construed to 0:20:34.676 --> 0:20:38.956 that end ever since its adoption. This was simply a 0:20:39.036 --> 0:20:42.996 historical fact, as Douglas and his listeners knew, the Compromise 0:20:43.116 --> 0:20:50.076 Constitution did enshrine slavery, and Douglas went on, we are, all, 0:20:50.116 --> 0:20:54.116 according to Congressional enactments, involved in the horrible system of 0:20:54.236 --> 0:20:57.676 human bondage by virtue of the fact that Congress had 0:20:57.756 --> 0:21:01.436 enacted the Fugitive Slave Act in fulfillment of the constitutional 0:21:01.476 --> 0:21:05.836 promise of the Fugitive Slave Clause. Douglas was saying everyone 0:21:05.876 --> 0:21:10.036 who voted for Congress was morally implicated in their perpetuation 0:21:10.076 --> 0:21:14.876 of slavery. His conclusion was, although African Americans were free 0:21:14.916 --> 0:21:18.276 to vote in federal elections in Ohio, they should not 0:21:18.436 --> 0:21:24.716 do so. William Howard Day fundamentally disagreed. He took the 0:21:24.836 --> 0:21:29.116 view that although the Constitution could be construed or interpreted 0:21:29.236 --> 0:21:33.476 as pro slavery, he refused to interpret it that way. 0:21:34.516 --> 0:21:37.236 In fact, he said, even though the Supreme Court of 0:21:37.236 --> 0:21:40.036 the United States has given aid to slavery by their 0:21:40.116 --> 0:21:45.756 unjust and illegal decisions, that is not the Constitution. Those decisions, 0:21:45.756 --> 0:21:49.556 he said, are not that under which I vote. Day 0:21:49.636 --> 0:21:53.156 drew an analogy between the Bible, which could be misinterpreted 0:21:53.276 --> 0:21:56.756 but should be interpreted correctly, and the Constitution, which had 0:21:56.796 --> 0:22:02.116 been misinterpreted, he said, but should be interpreted differently. Day 0:22:02.116 --> 0:22:05.556 went on to give a pragmatic explanation for why he 0:22:05.596 --> 0:22:09.196 wanted to rely on the Constitution as a weapon to 0:22:09.196 --> 0:22:13.476 fight against slavery. Sir, he said, coming up as I 0:22:13.556 --> 0:22:16.316 do in the midst of three millions of men in chains, 0:22:16.516 --> 0:22:20.316 and five hundred thousand only half free. I consider every 0:22:20.396 --> 0:22:24.596 instrument precious which guarantees to me liberty. I consider the 0:22:24.636 --> 0:22:28.356 Constitution a foundation of American liberties, and wrapping myself in 0:22:28.396 --> 0:22:31.156 the flag of the nation, I would plant myself upon 0:22:31.196 --> 0:22:34.436 that Constitution, and using the weapons they have given me, 0:22:34.756 --> 0:22:37.476 I would appeal to the American people for the rights 0:22:37.836 --> 0:22:42.916 thus guaranteed. William Howard Day was saying that whatever the 0:22:42.996 --> 0:22:46.636 immorality of a constitution might be, as applied, he preferred 0:22:46.636 --> 0:22:50.916 to wrap himself in the Constitution as a patriotic basis 0:22:51.036 --> 0:22:55.676 for making an anti slavery argument. You could see here, 0:22:56.076 --> 0:22:58.916 in almost all of its detail, a version of the 0:22:58.996 --> 0:23:02.076 argument that we are still having today as a country. 0:23:02.236 --> 0:23:05.356 Should the Constitution be interpreted in the light of the 0:23:05.396 --> 0:23:09.476 recognition of slavery that initially included, or should the Stution 0:23:09.556 --> 0:23:13.356 instead be read against the grain as a document that 0:23:13.476 --> 0:23:19.476 could be used to fight against slavery. Notwithstanding that history, 0:23:19.796 --> 0:23:22.836 in this particular debate, in the years before the Civil 0:23:22.836 --> 0:23:25.956 War and the eventual emancipation of slaves and the passage 0:23:25.956 --> 0:23:30.236 of the Fourteenth Amendment, Hezekiah for Douglas got the last word. 0:23:31.076 --> 0:23:35.836 Responding today's plan of wrapping himself in the flag, Douglas said, 0:23:36.596 --> 0:23:39.036 the gentleman may wrap the stars and stripe of his 0:23:39.076 --> 0:23:42.276 country around him forty times, and with a declaration of 0:23:42.316 --> 0:23:44.956 independence in one hand and the constitution of our common 0:23:44.956 --> 0:23:47.676 country and the other, may seat himself under the shadow 0:23:47.716 --> 0:23:51.236 of the frowning monument of Bunker Hill. And if the slaveholder, 0:23:51.356 --> 0:23:54.676 under the constitution and with the fugitive bill don't find you, 0:23:55.036 --> 0:23:59.916 then there don't exist a constitution. Hezekiah for Douglas was 0:23:59.956 --> 0:24:02.876 saying that even if a black man were to be 0:24:02.956 --> 0:24:07.396 in Massachusetts, where slavery was outlawed, and sitting under the 0:24:07.476 --> 0:24:11.156 Bunker Hill Monument in Charlestown, and wrapped in the stars 0:24:11.156 --> 0:24:13.156 and stripes, with the Constitution in one hand and the 0:24:13.156 --> 0:24:16.156 declaration in the other, he would still be treated by 0:24:16.156 --> 0:24:20.236 the law as an escaped slave, and the federal fugitive 0:24:20.276 --> 0:24:23.356 Slave law would still lead the slave catcher to grab 0:24:23.436 --> 0:24:27.196 him up in Massachusetts and treat him as a slave. 0:24:29.236 --> 0:24:32.196 In the next several episodes, I'm going to describe to 0:24:32.236 --> 0:24:38.316 you the crisis of Southern Secession, the war, and the 0:24:38.396 --> 0:24:43.116 consequences of Lincoln's three major acts of breaking the Constitution 0:24:43.196 --> 0:24:46.396 as it was known at the time. I'll suggest you 0:24:46.636 --> 0:24:50.876 that those acts eventually had a transformative effect on the 0:24:50.916 --> 0:24:54.516 Constitution as it stood up to the moment of the 0:24:54.636 --> 0:24:59.956 Civil War. That in turn will lead me to suggest 0:24:59.996 --> 0:25:04.156 that the Compromise Constitution that existed up to the Civil War, 0:25:04.956 --> 0:25:09.436 with its character of fundamental willingness to incorporate immorality, is 0:25:09.516 --> 0:25:15.036 not the Constitution that we still have today. For this episode, though, 0:25:15.316 --> 0:25:18.636 I want to leave you with the words of Frederick Douglas, 0:25:18.676 --> 0:25:22.276 the most important abolitionist of them all. Over the course 0:25:22.276 --> 0:25:25.556 of his career, Douglas had different points of view on 0:25:25.676 --> 0:25:29.036 how the Constitution should be considered. Early on, he was 0:25:29.076 --> 0:25:33.356 committed to the view that it was fundamentally immoral. Later, 0:25:33.596 --> 0:25:35.716 in the run up to the Civil War, he shifted 0:25:35.716 --> 0:25:38.476 to the alternative view that the Constitution should be read 0:25:38.676 --> 0:25:41.516 against its own words and against its own history, as 0:25:41.556 --> 0:25:46.596 a document that could promote freedom in between. However, in 0:25:46.676 --> 0:25:50.276 eighteen fifty Douglas describe things in words that seemed to 0:25:50.356 --> 0:25:55.076 my mind entirely accurate. Here's what he said about the 0:25:55.156 --> 0:26:00.996 Compromise Constitution. Liberty and slavery opposite, as heaven and hell 0:26:01.476 --> 0:26:05.996 are both in the Constitution, Douglas said, and the oath 0:26:06.116 --> 0:26:10.556 to support the Constitution is an oath to perform that 0:26:10.756 --> 0:26:17.596 which God has made impossible. The Constitution was, Douglas concluded, 0:26:18.236 --> 0:26:23.236 at war with itself. But those words that an oath 0:26:23.316 --> 0:26:27.436 to support the Constitution is an oath to perform that 0:26:27.596 --> 0:26:31.516 which God has made impossible a self contradiction, and the 0:26:31.556 --> 0:26:36.156 support of a document at war with itself precisely captures 0:26:36.436 --> 0:26:41.116 the situation that Abraham Lincoln would find himself in just 0:26:41.316 --> 0:26:45.076 ten years after Douglas spoke those words. When Lincoln was 0:26:45.076 --> 0:26:49.596 elected president, the Southern States seceded, and he was required 0:26:49.636 --> 0:26:53.516 to consider what the oath of office to support, protect, 0:26:53.516 --> 0:27:04.356 and defend the Constitution should mean in practice to him. 0:27:04.396 --> 0:27:07.676 To hear more about that, listen to the next episode 0:27:07.756 --> 0:27:11.476 of this podcast, The Broken Constitution, coming to you in 0:27:11.556 --> 0:27:15.556 one week. If you can't wait, you can listen to 0:27:15.556 --> 0:27:18.356 the next episode a few days early on the Unknown 0:27:18.396 --> 0:27:21.996 History podcast from Quick and Dirty Tips. Find it in 0:27:22.036 --> 0:27:26.236 the show notes or your favorite podcast app, and go 0:27:26.276 --> 0:27:30.436 ahead and pre order or by The Broken Constitution from 0:27:30.436 --> 0:27:36.156 your favorite local bookstore. It's out on November second. The 0:27:36.236 --> 0:27:40.196 Broken Constitution was produced by Nathan's SEMs and Quick and 0:27:40.276 --> 0:27:43.676 Dirty Tips, a proud part of McMillan publisher's home of 0:27:43.756 --> 0:27:46.916 far Strauss and Jeru, who are publishing my book