Fearfulness and the Evolution of “Principles”

George Anastaplo

I.

             The early history of the United States had been such that Abraham Lincoln could insist, in the 1850s, that the Founders of the Country had believed that matters had been so arranged by them at the outset that slavery had been “put in the course of ultimate extinction.” Of course, concessions had had to be made in the 1787 Constitutional Convention to the insistence of the South Carolina and Georgia delegates that the importation of slaves from Africa would have to be permitted for twenty more years. But there had been the more glorious insistence in the Declaration of Independence, a decade earlier, that “all men are created equal,” something that can be said to have been anticipated in effect by what Lord Mansfield had recently said in Somerset v. Stewart about the odiousness of slavery.”

Then there had been, in 1787, the enactment by the Articles of Confederation Congress of the Northwest Ordinance which prohibited slavery forever in whatever States were developed in the Northwest Territory (which was then the largest territory controlled by the United States). Thereafter the War of 1812 confirmed the Independence of the United States. This was followed by an intensification of abolitionist sentiments in the Country.

But there had also been by then a growing determination in the Slaveholding States that chattel slavery would have to continue indefinitely among them. The growing abolitionist passions could even be understood by some as an insistence by Yankees upon civil war. This was an understanding that came to be reinforced by Southern arguments about the “positive good” of slavery for both slaves and slaveholders.

II.

            Fearfulness grew in the South as a determined abolitionism became more respectable elsewhere. Such respectability was enhanced by the growing anti-slavery movement among the British, a development dramatized by the career of William Wilberforce. And Canada, as a recognized refuge for fugitive slaves, stood as a dramatic repudiation of the system of chattel slavery upon which the Slaveholding States depended.

Arguments for a continuation of slavery were reinforced, of course, by economic calculations. This was despite Adam Smith’s insistence (in The Wealth of Nations) that slavery didn’t really pay. But it was always evident that many did profit from slavery, whatever the overall costs to the community may have been.

Then there were as well the dreadful consequences anticipated in the South should their slaves be no longer subjugated by the rigorous measures designed to keep slaves under control. The masters’ fearfulness about these matters could be intensified by such dramatic challenges as John Brown’s Raid of 1857. In addition, the masters could “project” on to their slaves the feelings that they themselves would have if they and their forebears had been treated as their slaves had been for two centuries (slaves who, in some States, could amount to half of the population).

III.

            Thus, whatever had been expected in the early years of the Republic about the future of slavery, it was evident by the 1830’s that slavery would not be phased out in most of the States where it continued upon the Ratification of the Constitution. Rather, the overriding question, among many Southerners, was where else slavery could be taken. The vast territory provided in 1803 by the Louisiana Purchase invited development.

The Missouri Compromise of 1820 incorporated a controversial settlement of the question where slavery would be permitted in the United States. But the Mexican War of 1846-1848 meant that more such territorial allocations would have to be made. Then there were even Southerners who considered Cuba worthy of their annexation and development.

It was only natural that fair-minded Southern intellectuals would develop sophisticated arguments about “the positive good” of slavery for slaves as well as for masters. Leaders in this campaign were John C. Calhoun (of South Carolina) and Alexander H. Stephens (of Georgia) (who can be suspected of having themselves been enslaved by their circumstances). We can be reminded here of the Classical Greek insistence that all human actions aim at the good, even as we can be reminded as well that some people’s aim is better than that of others.

IV.

            We have seen in our own time what fearfulness can do to the inherited principles of a regime. This was evident again and again during the Cold War. But then, at least, there had seemed to be a formidable opponent to contend with. And, of course, it was an opponent with substantial nuclear weapons and means to deliver them.

Then there has been the challenge of Terrorism once the Cold War seemed to be over. The September Eleventh attacks in 2001 could remind us of how slaveholders regarded such challenges as John Brown’s raid in 1857. Indeed, our 2001 attacks could even be apprehended at the time as “a Second Pearl Harbor,” a remarkably inept comparison considering the damage done to our Pacific Fleet by a formidable Asian power allied with a regime which already controlled much of Europe.

Relatively little was said among us during the decade following the September Eleventh assaults about the grievances that have led to terrorist movements and suicidal attacks. Additional grievances have been generated by some of the measures resorted to by us as defensive measures. Then there have also been the highly questionable uses of massive resources in our efforts to protect ourselves from terrorists, even as other resources are denied to protect ourselves from far deadlier threats to our well-being.

V.

Critical to assessments of how we have responded since September Eleventh is a Sense of Proportion. For example, we have since September 2001 been responsible ourselves for many more deaths elsewhere than the three thousand that were suffered by us in New York, Washington and Pennsylvania. Then there had been, of course, the many thousands of deaths following upon the sanctions levied against Iraq during the preceding decade.

A proper response after September 2011 could have been limited to immediate vigorous attacks upon the places (evidently in Afghanistan) where the September Eleventh attacks had been prepared. Others could thus have been put on notice about what they could expect thereafter if they presumed to attack American interests. Measured responses could even make our uses of power appear more formidable.

Instead, we have seen activities (including systematic resort to torture) that raised questions about our respect both for the modern Laws of War and the ageless guidance provided by Natural Right.  Particularly dramatic has been our reliance on the now-notorious facilities at Guantanamo, where men can be held for a decade without proper charges or trial. We should be reminded here of the disastrous reliance by the French on their infamous Devil’s Island facilities.

VI.

            Our 2003 Iraqi Intervention has generally come to be recognized as a mistake. Now, questions are being raised about the use of drones for deadly attacks distant from any recognized battlefield. That is, people (including American citizens) are singled out (often covertly), for execution (along with anyone else who may be nearby when the deadly blow is struck).

Our disposition here is dramatized by what was done by us to Osama bin Laden. If his corpse could be brought out of Pakistan, why not  him as a prisoner? It would have been salutary to have subjected him (and any captured accomplices) to the kind of trial conducted at Nuremberg in 1945-1946.

Were our authorities aware of what the Nuremberg Trial has meant (a trial, by the way, which even saw defendants acquitted, along with those who were hung)? Indeed, do not our uses of drones for systematic executions “worldwide” themselves have the “feel” of “terrorist” attacks? Far out on the periphery of discussions about Guantanamo, drone executions and the like are recollections of what the ancient Writ of Habeas Corpus defers to.

VII.

            We have allowed ourselves to be trapped by chance occurrences. This can be seen in the excessive responses to the 2013 Boston Marathon bombings. An entire city could be “locked down” for a day in the effort to locate the fanatics responsible for an atrocity which claimed two deaths and scores of wounded.

Compare the killings we tolerate (and “live with”) week after week in Chicago. Again and again, we should ask how our anti-terrorism resources can best be used in our circumstances. This enquiry, to be sensible, depends on a reliable awareness of what we should be afraid of.

I should add that I myself am not concerned here about the invasions of “privacy” that modern surveillance equipment permits. After all, I grew up in a Southern Illinois town where “everyone” knew what one was doing once one ventured out of one’s house. Much is to be said for expecting people to behave themselves as they move about in their community.

VIII.

            Indeed, it can be argued, an insistence upon more and more privacy can harm us. Our constitutional system was inaugurated at a time when it was not anticipated that the Country would grow to much more than, say, twenty-five million in population. We are now up to almost one-third of a billion — and evidently growing.

What, it can be wondered, is likely to promote a healthy sense of community in these circumstance? There are, considering not only our size but also the passions and immense resources worldwide, bound to be attacks, and threats of attacks, on us that can be disturbing. How, it can be wondered, should “grown ups” respond to such a state of affairs?

It may be wondered as well what is not only the healthier but also the nobler responses to the challenges we are bound to face. A sustained apprehensiveness can be degrading as well as ineffective. It is well to be reminded from time to time that we are mortal, and that if one “thing” does not “get us,” something else surely will.

IX.

            Chattel slavery in the United States has had serious long-term consequences. It is evident that the descendants of slaves continue to suffer in critical respects from what their ancestors had had to endure. But also suffering the adverse consequences of centuries of chattel slavery have been the descendants of the people who tolerated slavery and supposedly benefited from it.

What, it can be wondered, would be the long-term consequences of our enslavement by any excessive efforts today to protect against “terrorism?” How, for example, may a determined apprehensiveness shape our own character? May it make us even more attractive as the targets of those who seek thus to make their own deprived lives meaningful?

Indeed, it can also be wondered whether we do people everywhere a serious disservice by legitimating an intensive collective apprehensiveness. To the extent that we thereby corrupt others we may make ourselves even more vulnerable. Is it not salutary to believe, and to appear to act on the belief, that a properly-shaped people is sensible in how it thinks about the fearful things that mortal beings must inevitably confront?

____________________
These remarks were prepared for the introduction, at the Seminary Co-op Book Store in Chicago, Illinois, on May 22, 2013, of George Anastaplo, Reflections on Slavery and the Constitution (Lexington Books, 2013).

 

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