The Constitution in Congress: Descent into the Maelstrom, 1829-1861

The Constitution in Congress: Descent into the Maelstrom, 1829-1861

by David P. Currie

This acclaimed series serves as a biography of the U.S. Constitution, offering an indispensable survey of the congressional history behind its development. In a rare examination of the role that both the legislative and executive branches have played in the development of constitutional interpretation, The Constitution in Congress shows how the actions and


This acclaimed series serves as a biography of the U.S. Constitution, offering an indispensable survey of the congressional history behind its development. In a rare examination of the role that both the legislative and executive branches have played in the development of constitutional interpretation, The Constitution in Congress shows how the actions and proceedings of these branches reveal perhaps even more about constitutional disputes than Supreme Court decisions of the time.

The centerpiece for the fourth volume in this series is the great debate over slavery and how this divisive issue led the country into the maelstrom of the Civil War. From the Jacksonian revolution of 1829 to the secession of Southern states from the Union, legal scholar David P. Currie provides an unrivaled analysis of the significant constitutional events—the Wilmot Proviso, the Compromise of 1850, the Kansas-Nebraska Act, the Lincoln-Douglas Debates, and "Bleeding Kansas"—that led up to the war. Exploring how slavery was addressed in presidential speeches and debated in Congress, Currie shows how the Southern Democrats dangerously diminished federal authority and expanded states' rights, threatening the nation's very survival. 

Like its predecessors, this fourth volume of The Constitution in Congress will be an invaluable reference for legal scholars and constitutional historians alike.

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The Constitution in Congress
Descent into the Maelstrom 1829-1861

By David P. Currie The University of Chicago Press
Copyright © 2005
The University of Chicago
All right reserved.

ISBN: 978-0-226-12916-7

Chapter One The Great Petition Fight

There were slaves in all thirteen colonies. Abolition began in New England around the time of the Revolution and moved slowly southward. Pennsylvania adopted emancipation legislation in 1780, New York in 1799, New Jersey in 1804. States of the upper South enacted legislation to facilitate voluntary manumission as early as 1782. The Confederation Congress banned slavery in the Northwest Territory in 1787; the new Congress forbade the importation of slaves as of 1808.

The course of this civilizing movement was not smooth, however, and around the turn of the century it began to slacken considerably. Slavery was permitted in each of the territories (and later states) erected south of the Ohio River. Missouri, after a famous battle, was admitted as a slave state. The price was a prohibition of slavery in remaining portions of the Louisiana Purchase above Missouri's southern border.

That is where matters stood when Andrew Jackson became President in 1829. Of the twenty-four states then constituting the Union, twelve were nominally slave and twelve free. But there were still slaves in several Northern states, as abolition in most cases had been gradual; the last slaves in New Jersey were not freed until the thirteenth amendment took effect in 1865. Conversely, the number of slaves in Delaware had dropped so drastically that within a few years many Southerners would refuse to count Delaware as a slave state. Virginia's House of Delegates would formally endorse gradual abolition in principle in 1832.

Slavery, however, was about to become the defining issue that would divide the country, first ideologically and then to the point of war. It was around 1830 that the abolitionist movement began to grow in militancy and influence in the North, soon to be alimented by the abolition of slavery in all British colonies. Abolitionist propaganda raised fears of slave insurrection in the South, and Congress was inundated with petitions seeking an end to slavery (or the slave trade) in the District of Columbia. It was these petitions and this propaganda, together with questions connected with the colonization of blacks in Africa and the admission of Arkansas to the Union, that produced the first congressional confrontations over slavery during the period of this study.

I. Skirmishing

On December 12, 1831 John Quincy Adams, the only ex-President yet to serve in Congress, presented to the House of Representatives fifteen petitions from Pennsylvania citizens to abolish both slavery and the slave trade in the District of Columbia. The latter request, Adams suggested, might be a proper subject for congressional action, and he therefore recommended that the petitions be referred to the Committee on the Affairs of the District of Columbia. As for the abolition of slavery itself, he hoped (whatever his views on the merits) it would not be discussed: "The most salutary medicines, unduly administered, were the most deadly of poisons." Within a week the committee reported that so long as slavery existed in Maryland and Virginia "it would be unwise and impolitic, if not unjust, to the adjoining States, for Congress to interfere in a subject of such delicacy and importance as is the relation between master and slave."

When Pennsylvania Representative William Hiester presented a similar petition in early 1833, John Mason of Virginia suggested that it came from an improper source, and a Maine Democrat (James Bates) moved to table it. "It would be time enough for Congress to act respecting the District of Columbia," said Mason, "when the people of the District should themselves request it." Hiester, however, had already opined that slavery in the District of Columbia implicated "the fair fame and character of the whole nation"; Mason's Virginia colleague Robert Craig added that "the people of Pennsylvania and Massachusetts ... were as much concerned in all matters concerning the District of Columbia as those of the Southern States." Adams, noting that the committee had expeditiously disposed of similar petitions during the previous session, argued that to table the present request would be "disrespectful to the petitioners" and for what may have been the first time in this controversy invoked the Constitution: "The right of petitioning was guarantied by the constitution, and nothing but very extraordinary circumstances should induce the House to treat a petition with disrespect." The House refused to table the petition, Mason withdrew his objection, and the matter was referred to committee as before." If the index is to be believed, the petition was never heard from again.

The Senate followed a similar procedure, but it was beginning to be questioned from both sides. South Carolina's William C. Preston asked that an 1834 decision to refer such a petition to committee be reconsidered; he relented (for the moment) when assured that the reference was both customary and harmless. A year later Thomas Ewing of Ohio, in presenting additional petitions, pointedly expressed the hope that the committee would not "pass them over in silence" but would explain why, if it so concluded, slavery ought not to be abolished in the capital. The committee did not oblige him.

The heat was turned up in the House too in 1835. John Dickson of New York, in offering still more petitions on the same subject, proclaimed that Congress had plenary power to abolish slavery in the District and ought to do so. He asked that the petitions be sent to a select committee, not buried like their predecessors in the Southern-dominated Committee on the District of Columbia, which no longer even bothered to file adverse reports. Dickson echoed Adams's earlier reference to the Constitution and elaborated it:

A right "to petition the Government for a redress of grievances" is secured to the people [by the first amendment]. But, sir, of what use to the people is the right to petition, if their petitions are to be unheard, unread, and to sleep "the sleep of death," and their minds to be enlightened by no report, no facts, no argument?"

His colleagues were unpersuaded; the House tabled the whole subject (including his petitions) by a vote of 117-77.

The flood of petitions continued. Dickson presented another soon afterward, asking that it be tabled (apparently since, as another Representative had just said, it was pointless to send it to the graveyard of committee) but printed for the elucidation of members and the public. The House initially voted to print the petition but thought better of it after several Southern members objected. The publication of such a document, said Clement C. Clay of Alabama, would be a crime in almost every Southern state. The petition should be received, said Virginia's self-styled "moderate" Henry A. Wise, but not printed, "to fan the flames of the zealots on one side, and to serve as food for the disorganizers on the other." The decision to print the petition was reconsidered, and the whole subject was tabled once again.

11. The Right to Petition

The fireworks began in earnest in the winter of 1835-36, when South Carolina spokesmen in both Chambers demanded that petitions to ban slavery in the District not even be received. We had hoped, said James Hammond in the House, that tabling such petitions would discourage them, but it had failed to do so. Congress had no more power to abolish slavery in the District, said John C. Calhoun in the Senate, than in the states. Petitions urging it to do so were incendiary and slanderous attacks on the South and a threat to the Union; they should be smothered by refusing to receive them.

Major debates broke out in both Houses. Northern and Southern speakers joined in condemning the proposal not to receive petitions as unnecessary and divisive. To reject petitions at the threshold, said Silas Wright of New York and Felix Grundy of Tennessee, would only inflame public opinion. Tabling petitions after receiving them was just as effective, said Bedford Brown of North Carolina, and avoided acrimonious debate. So was referring them to the Committee on the District of Columbia, said John Tyler of Virginia: "Let them go to the lion's den, and there will be no footprints to show their return." John Quincy Adams made the same point in the House: "[F]rom the moment that these petitions are referred to the Committee on the District of Columbia, they go to the family vault 'of all the Capulets,' and you will never hear of them afterwards." South Carolina, it appeared, was trying to pick a fight on an issue it had already won: Very few legislators in either House thought Congress ought at that time to ban slavery in the District of Columbia.

If Calhoun and his acolytes were looking for a feud, they got what they wanted. They succeeded in making enemies of a great many people, in and out of Congress, who had no thought of abolishing slavery in the District or anywhere else. For they managed to turn what had been the quixotic crusade of a despised and minuscule abolitionist minority into a broad-based defense of the right to petition.

Henry Hubbard of New Hampshire told the Senate he believed the petitioners officious intermeddlers, their proposals "fraught ... with the most imminent danger to public peace" and "tending ... to rend asunder the bonds of this Union." Yet he thought the petition should be received. It would be dangerous and impolitic, he said, to turn a deaf ear to the sovereign people. "No man," added Georgia Senator John P King, "was ever convinced of his error by refusing to hear him." But the objections were not based on expediency alone. The right to petition, said Nathaniel Tallmadge of New York, had been recognized by the English Bill of Rights in 1688 and later by the first amendment; it was the inalienable "birthright" of every American citizen. If the citizen had the right to submit a petition, said Tallmadge, the Senate had a duty to receive it; "for it is in vain to grant the right on the one hand, without incurring the obligation on the other." James Buchanan of Pennsylvania offered analogies to prove the point:

If the people have a right to command, it is the duty of their servants to obey. If I have a right to a sum of money, it is the duty of my debtor to pay it to me. If the people have a right to petition their representatives, it is our duty to receive their petition.

Morris of Ohio, Niles of Connecticut, Wall of New Jersey, Prentiss of Vermont, Hubbard of New Hampshire agreed. So did King of Georgia, King of Alabama, Grundy of Tennessee, Kent of Maryland, and Henry Clay of Kentucky.

Opponents of reception proffered a medley of responses, some of which had been heard before. The Constitution secured only the right to present one's own grievances; only residents of the District of Columbia could complain of slavery there. One could petition Congress only to take action within its powers, and Congress had no authority to abolish slavery in the District. Congress was forbidden only to pass "law[s]" abridging the right to petition, and the refusal to receive a petition was not a law. Finally, the first amendment merely gave individuals the right to submit petitions; it did not require Congress to accept them.

Only the last of these arguments, I think, had merit. Hiester and Craig had already argued in the House that slavery in the District concerned the whole country. John King of Georgia told the Senate it would be difficult to "get round" this reasoning, and he was right. Senator Tallmadge added that grievances lay in the eye of the beholder: Only the petitioner could say whether he was aggrieved. In the context of judicial standing to sue, this argument would not be persuasive: To permit suit by anyone who is distressed by wrongs done to others would eviscerate limits on standing. Connecticut's freshman Senator John M. Niles, however, convincingly argued that the right to petition was not meant to be limited to those grievances that would give rise to "cases" or "controversies" in the judicial sense.

Some Senators appear to limit and contract this privilege to the smallest possible point; to regard it as nothing more than a private right, or the privilege secured to individuals of applying to Congress for the redress of some private injury, as the payment of a just debt, or the obtaining compensation for private property taken or destroyed.... I have a very different view of this question, and regard the right of petition as an important political right ... [that] springs from the form and principles of our institutions.

Sir, this is a popular Government-the sovereign power resides in the people.... Public functionaries of every description are the agents of the people, authorized to perform certain duties for their benefit. Does it not result from the very nature of a Government so entirely popular as this, that the people have a right to present their complaints or desires to Congress in relation to every subject? ... The people, who appoint public agents, must have a right to lay their complaints and wishes before them....

"[I]t was perfectly clear," added the intrepid King of Georgia, "that the people of the United States intended to secure a free intercourse between the people and their Government."

The second objection fared no better in debate. To reject a petition on the ground that Congress had no power to grant it, King insisted, would prejudge the merits. On this question even judicial practice arguably supported him: A court does not ordinarily dismiss a claim for want of jurisdiction because it fails to state a claim on which relief can be granted. For those who thought Congress could ban slavery in the District, of course, there was no difficulty. Henry Clay, who thought petitions "must be addressed to a deliberative body, having power over the subject of which the petition treated," argued that the petition before the Senate should be accepted for this reason. As Wall and Buchanan observed, however, even acceptance of Clay's suggested limitation would exclude few petitions from congressional consideration; if the subject lay beyond its existing legislative authority, Congress could always propose that the Constitution be amended.

Senator Gabriel Moore's suggestion that refusal to accept a petition was permissible because it did not entail the passage of a "law" was greeted with ridicule. It was absurd, said Buchanan, to think that the Senate was free to do alone what both Houses together were forbidden to do by statute; such an interpretation would destroy the right the constitutional provision was meant to preserves, "In both cases," said Tallmadge,

the right of petition is equally denied; and it matters little to the citizens by what means you have arrived at such a result. It is in vain to tell them you have made no law prohibiting the people from assembling and petitioning the people for a redress of grievances, if, when their petition is presented, you refuse to receive it.... The result is the same in either case.

"The true import of the language," Senator Niles concluded, was "that Congress shall do no act to take away or limit the right of petitioning." Tallmadge and the irrepressible King of Georgia went further: The right to petition antedated the first amendment, for it was implicit in republican government; no branch of government was at liberty to abridge this preexisting rights. Buchanan closed the case on this branch of the argument with an apt analogy:

Now, sir, we must all admit that libels of the grossest character are daily published against the Senate and its individual members. Suppose an attempt should be made to bring one of these libellers before us, and to punish him for a contempt, would the gentleman from South Carolina contend that we might do so without violating the constitution, and that we might convict him and sentence him to imprisonment, because such a conviction and sentence would not be the passage of a law abridging the freedom of the press? The gentleman's excited feelings on the subject of abolition have led his judgment astray.


Excerpted from The Constitution in Congress by David P. Currie Copyright © 2005 by The University of Chicago. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

David P. Currie (1936-2007) was the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of the three other volumes in the Constitution in Congress series and the award-winning two-volume history The Constitution in the Supreme Court, all published by the University of Chicago Press.

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