[BLANK_AUDIO] Welcome back. We've come to another critical turning point in the story of the American Constitution. We've pretty much finished a conversation about the Founding Era. An era that generates not just the original Constitution, and and, before it the Declaration of Independence, but, that, that also includes the first set of constitutional amendments. The Bill of Rights amendments. 1 to 10, and the 11th and 12th amendments that follow shortly thereafter. The 12th amendment's adopted in the era of Thomas Jefferson. It cements his vision of of a more democratic and, and frankly a more slavocratic presidential election system. And with that amendment, the founding era. The era of of, of, folks who actually had lived through the American Revolution. and, and made and incorporated some of the ideas of the American Revolution, some of its themes, into our, our foundational document. That era comes to a close. And the next set of amendments aren't going to happen for more than a half century. So now is a good time to just to pause and to, to just recap a bit our 3 themes of democracy, national security, and slavery. Let's just trace, just a bit, the connections between democracy and national security to begin with. Let's remember that there is no Constitution. It just doesn't exist unless Americans are able to successfully, not merely declare their independence from Great Britain, but establish that. And they need to establish that on a battle-, on a field of battle. Through a long and, and bloody war. And they barely win that war. They are very lucky to win that war. George Washington understands that, that providence smiled on, on him, again, and again, and again. It's won only with the help of the French at critical moments, and you can't count on the French, in the future. And so, Washington understands there's a geostrategic, a national security imperative, to create a stronger central government. because remember, the Articles of Confederation just aren't strong enough to achieve their basic purpose, which is common defense. The Declaration says what we're against. We're against Britain. And it says what we're for in terms of principles, we're for unalienable rights of life, liberty, and the pursuit of happiness, no taxation without representation, jury trials and so on. But how is that going to be compete oh those principles, how those principles going to be manifest in a new system of government? Well state constitutions emerge replacing colonial governments. And at the continental level, we have this Articles of Confederation, which is a loose league, an alliance, a treaty, a confederacy of sorts, to coordinate military opposition to King George. And that alliance has a, had as its central purpose, basically foreign affairs and national security, common defense, and it didn't work well enough because, it was premised on the idea that individual states would pay into continental coffers, to support, the army and the war, individual states would provide the, the, the soldiers, and, and the problem is the individual states really didn't pony up. They didn't pay when they were supposed to, they didn't always provide the manpower they had promised to, and what do you do if Virginia doesn't pay up? You can't put Virginia in jail, so, the Constitution emerges as a national security alternative to the article of confederation, and, and and a foreign affairs alternative to the Articles of Confederation. In foreign affairs, the Articles of Confederation promise that America's that this continental assembly would, would make treaties with foreign nations. But the problem is, individual states sometimes violated those treaties, and then gave the foreign nations an excuse to not keep their end of the bargain. So Britain, at the end of the Revolutionary War, promised to abandon a whole bunch of forts. And it, it, it refused to, to honor it, using as its excuse, well, different states, haven't followed the treaty of peace. So since individual states were violating the treaty of peace, Britain didn't have to keep up its end which was to evacuate the forts. Now, as an alternative, to that Articles of Federation regime, we have a Constitution that emerges. And the Constitution is going to give this new central government power to not just make treaties, but to make those enforceable law, [UNKNOWN] that the states are going to have to follow. It's going to have power to impose taxes on individuals, and if an individual doesn't pay, you can put him or her in jail. And with that tax money, it has the power to create it's own army and pay for it, and to regulate western territory again something the Articles of Confederation, sort of, hadn't provided for. So now we're going to have a much more powerful central government with the power to tax people, and raise armies, and conduct foreign affairs, and negotiate treaties that will really be binding law and regulate the west and regulate interstate commerce and international commerce. And it's a lot more dangerous, because it really can pass laws now that bind individuals. So, we have to have some safeguards. It has to be more representative. Because individuals are going to be taxed, they have to be represented. Because it's actually a real legislature that can pass real laws. It should be broken into two, just like state legislatures in most of the state's wares. It's gotta be bicameral. We're going to need a separate executive brand to check and balance it, so it doesn't get out of control the way some state legislatures have gotten out of control. And that separate executive is also going to have be of, of value in national security, because he's going to be able to, to lead, be a commander-in-chief, and negotiator-in-chief, and, and diplomat-in-chief, and have some weightiness, some gravitas on, on the on the international stage, and that's going to be especially true when George Washington becomes president, as everyone expects him to be. You need a separate judiciary, both to enforce these, treaties and continental laws against recalcitrant states, and also to check and balance Congress. So precisely because you're craving a more powerful legislature, you need to break it into two to create a separate executive, to create a separate judiciary, both of which are also going to be useful for geostrategic purposes, to ensure, to negotiate good treaties, and ensure their compliance by states. So, the national security of paradigm now explains a lot of the existing constitution now. Who, whose the big loser in this game with a lot more power in the federal government? The states, are the big losers. The state governments, they probably are not going to be as excited about this new constitution, and so in order to get the constitution launched, the framers at Philadelphia do an end run around state governments and say, we're going to actually propose our plan to the people themselves, rather than to ordinary state governments. We'll get them to sign on. And by the way, we, we're going to do away with unanimity, because if unanimity is required, Rhode Island will veto the whole project. So, as an end-around state governments, the constitution appeals to the people themselves, driven by this national security imperative. The Philidelphia insiders actually have to play an outsiders game. Appealing to the people themselves, going over the heads of state governments. State governments had legitimacy, they had traced back to the colonial governments that had been up and running for in Virginia, Virginia's case 150 years before the American Revolution. But state governments actually might not go for this system that drains so much power for them, so the framers appealed to the people themselves. And if people themselves are going to be asked to ratify it, you're going to have to put in this document a lot of democratic sweeteners. Regular elections and no property qualifications for office holders and and all sorts of egalitarian ideas that are going to get the people to vote for the thing. You're going to have to let the centers speak up, because otherwise, there's not going to be a democratic buy-in. So starting from a simple premise, of national security, I think we've traced many of the features of the Constitution. Separation of powers, bicameralism, strong executives and, and judiciaries the very idea of popular ratification, which in turn is going to require all sorts of other democratic sweeteners. And of course, leads to, that ratification process, a bill of rights. Cause the first thing that people say, when they're asked about the constitution is, what about the rights? Precisely cause we're creating a much more powerful central government, we want the bill of rights limiting it, just as bills of rights limit state governments, because this new government is a lot more powerful than the articles confederation. Maybe you didn't edit bill of rights in the articles confederation, but you do need one against this new government and, and and when that bill of rights is passed, it begins with a promise that congress won't abridge free speech and free press. Within a decade, congress does abridge free speech and free press by passing a law in the middle of a quasi-war with France, a naval war, in which John Adams signs his name to the Alien and Sedition Act. And the Sedition Act makes it a crime, to criticize the federal government. It's a crime to criticize John Adams, or, and to criticize congressional incumbents. It's actually not a crime, interestingly enough, to criticize the vice president, Thomas Jefferson, who's the leader of the other party. It's a crime for challengers to criticize incumbents, but not for incumbents to criticize challengers. And Jefferson and his party thinks that all this, stinks. And he mobilizes his folks in the election of 1800, and beats John Adams in the rematch. And when he comes into power, his party, constitutionalizes, their interest in a 12th amendment that as we saw, is pro-democratic in certain ways, it, it makes for a more democratic, popularly accountable Plebiscitarian party-based, partisan presidency. So, in that way it actually is encouraging American democracy, which is being channeled through the party system, but it's also more pro-slavery, because it entrenches the, the 3 5ths clause compromise, that's built in to the electoral college. So, we started from a simple premise of national security, and we've deduced a lot of the Constitution from that simple premise. and, and, and we could bring the founding era to a close, with the 12th amendment. And we see in play the themes of democracy, and, and national security. And this theme of slavery actually, also especially with the 12th amendment. Now, that system, the founder system, will eventually fail. We call that failure the Civil War, and part of the reason it fails is, I'd, would say probably the biggest reason, it didn't eradicate slavery. It didn't put slavery on the path of ultimate extinction. It, for example, gave Congress, this constitution, the power to eliminate slavery in the territories, but it didn't require Congress to eliminate slavery in the territories. And Congress actually chose to eliminate slavery from some territories, but not others, and we were lucky, just lucky, that eventually those free territories predominated. Imagine, a world in which most of the early immigration flows into the southwest rather than the northwest. Well, in that kind of world, if the south wins the early footrace for Western settlers, maybe it actually is able to expand slavery throughout the territories. That didn't happen because northern Indians got defeated. First and so lots of people flowed into Ohio. It didn't happen because lots of European immigrants wanted to come to the northwest where there was free labor, rather than the southwest where they would have to compete against slave labor. And, and some of 'em were simply racist. They didn't want to live alongside lots of, of, of black people. It didn't happen because there was less early slave importation. That might have been anticipated, because there was a, a slave revolt in Haiti led by Toussaint L'ouverture. And once that Haitian slave revolt had occurred, some southern jurisdictions were scared of importing too many slaves from the Caribbean, because those slaves might have actually been, part, been participants in slave revolts, or might have seen black people killing white people and, and those are kind of dangerous viruses that you'd be importing into into your own state if you, if you imported those slaves. So, there were fewer slaves that got imported into the south, and the southwest then had, been anticipated, more early immigration poured into the northwest than, might have been predicted, and as a result, kind of luckily, the north won the foot race, for western land. The Constitution could have done better. It could have said, no slavery in the territories, or no slavery in any of the territories after 1808, and it didn't do that, and we got lucky, in a way, that the north predominated over the south. now, the structure of the Constitution, remember, through the three-fifths clause, tilts the presidency in favor of the south. And that becomes entrenched after the 12th Amendment. Thomas Jefferson's ascension. And Jefferson is going to be succeeded by Andrew Jackson, eventually, who, who was the, carries the banner of the party that Jefferson and Madison, both slave-holding Virginians, they found a party that they call themselves the Republicans, but they eventually are renamed the Democrats. And that becomes Andrew Jackson's party, and Jackson is Democratic and national security-oriented. He's a general can beat the British. And pro-slavery, and he puts on the court, proslavery jurists like Roger Taney, who succeeds John Marshall, who in the Dred Scott case, says actually Congress can't prohibit slavery in the territories. Now that's preposterous, Congress had tried to prohibit slavery in certain territories from 1789 on, the northwest ordinance. And the constitution, It didn't require that Congress prohibit slavery in the territories, but it surely permitted Congress to prohibit slavery in any territory it chose. But by 1857, the Supreme Court is saying otherwise. And, and when the Supreme Court says otherwise and when slavery starts to spread even into the northwest, when Jackson's party has become and the party of Franklin Pierce and James Buchanan, and even places north of a certain line are allowed to have slavery in Kansas, in bleeding Kansas. When that happens, when the Democrat party starts to aggressively push a pro-slavery agenda, a man named Lincoln, who had left politics, pretty much, comes back in, gets sucked in, in the 1850s. And eventually will lead an anti-slavery party, a very different kind of Republican party, to victory in 1860, 61. His election is in some ways ironic. He wins in the electoral college. He gets less than 40% of the, of the popular vote nationwide. But he basically sweeps the north, except for New Jersey and maybe one or two other places. But pretty much fills an inside straights. Wins, basically, in all the the, the northern states. And, and is elected president through the electoral college. Even though that electoral college had been designed at Philadelphia and redesigned in the 12th Amendment, in some ways, to accommodate and even favor slavery through the three-fifths clause. And what is his platform? Is he pro, he is the first openly anti-slavery President in American history. Until then, all your Presidents have basically been either Southerners, or Northern men of Southern sympathies, that's the phrase. People like James Buchanan from Pennsylvania, Franklin Pierce from New Hampshire, who Democrats, Jackson's party. And even though they're from nor, the North, north of the Mason-Dixon line, they basically danced the slaveocrats too. And they basically are appealing to the base of their party. And the base of their party, which is the dominant political party in Antebellum, America. The base of that party is a southern base. So all your presidents before Lincoln are basically southerners or northern men of southern sympathies, and Lincoln is openly anti-slavery. The first openly anti-slavery president in American history. And what's his anti-slavery agenda? Is that he's going to get rid of slavery in the southern states, now, not at all. He's not an immediate abolitionist. indeed, he's, he says I'm not sure that the federal government has power to get rid of slavery, where it it exists in, in the states. That's a states' rights issue. His agenda is much more modest than that. Read my lips, "No New Slavery" is basically his motto. In other words, let's try to exclude slavery from the territories. And let's get more, in the territories, if we exclude slavery, which Dred Scott says you see you can't do. Dred Scott has proclaimed Lincoln's party's platform basically unconstitutional. Dred Scott has said, preposterously, in 1857, that slavery must be allowed into the territories. Lincoln's part Republican party says no, no slavery in the territories. And we will thereby put slavery, this is Lincoln's phrase, on a path of ultimate extinction. Eventually, these free territories will join the union on, on equal footing as free states. And eventually now, the free states will outnumber the slave states. And eventually, slavery instead of expanding, will begin to contract. And I think the hope is, eventually states on the border, will gradually eliminate slavery, as many Northern states had already done, and maybe the Federal government could give some sweeteners to the remaining states saying if you get rid of slavery, we'll compensate you for the, the financial dislocation. So that's Lincoln's plan, it's a, it's a 100 year plan, he, he announces in the 1850's is, if you adopt my plan, I think we can get rid of slavery, In 100 years or more, and so he, it's, it's not an immediate emancipation, immediate abolition in this plan at all, and Lincoln's being realistic because in the places where slavery has been abolished, in some of the northern states, places like Pennsylvania, places like New York, New Jersey. The abolition of slavery had been a gradual affair. And even in Connecticut, where they didn't have very many slaves, it took generations to basically get rid of the small amount of slave holding that exists. And even in New Jersey, it took generations. The basic idea of emancipation state by state was, let's end in the northern states. Let's end slavery as a system, without freeing individual slaves. And here's how we can do it. We can say, after July 4th of next year, with the legislature will pass law, after July 4th of next year, everyone who is born to a slave mother, will be an indentured servant for 25 years, the first 25 years, and free thereafter. Everyone who is now a slave, will die a slave. And everyone who's born after July 4th will, in effect, be indentured, enslaved, for the first 25 years, but free after that. And then, basically, with the passage of time, the slaves die, the the indentured servants reach maturity. They eventually are free. Their children are free. Eventually, slavery ends. But existing slave masters basically get $0.95 on the dollar or something like that. They basically get the benefit of their investment for a very long time. The future is given to freedom, but the present is conceded to slavery. That's the Lincolnian compromise, slavery is wrong, but we can't get rid of it immediately, cause so much of our economy and society are based on it, so let's put it on a path of ultimate extinction, and the way we do that is first by eliminating slavery, by saying no new slavery in the territories. That's Lincoln's vision, it's very gradual, it's not anything like what eventually happens. What eventually happens is we're going to get rid of slavery everywhere, immediately, without compensation, you know, within 5 years of Lincoln's election, and in the next lecture, I'll tell you how that happened, so stay tuned. [BLANK_AUDIO] [MUSIC]
