Category Archives: History

The Supreme Court Has Never Been a Level Playing Field

Posted on by

The Constitution deserves less respect. So does the Supreme Court. After reviewing the Court’s history as an impediment to progress, Ian Millhiser of Vox argues that “the judiciary is structurally biased in favor of conservatives:

The Court was the midwife of Jim Crow, the right hand of union busters, the dead hand of the Confederacy, and now is one of the chief architects of America’s democratic decline….

Decisions like Dobbs, which commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. [Justice Samuel] Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.

In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals.

But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to develop policies and implement decisions [in favor of] significant social reform,” at least when those reforms aren’t also supported by elected officials.

This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).

Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only one in 85 African American students in the South attended an integrated school.

The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.

No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.

Much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.

Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”

And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart [a decision that overruled Congress and allowed products made by child labor to cross statelines] was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.

There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.

Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.

So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.

This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.

Simply put, the Supreme Court has not served the American people well. It’s time to start treating it that way.

Unquote.

A similar point can be made regarding the US Senate. Senators who want to leave everything as it is can use the filibuster to kill legislation much more easily than Senators can use it to pass legislation.  

How Democracy May Survive the Constitution

Posted on by

Among our democracy’s enemies, foreign or domestic, is a document ratified in 1789: the United States Constitution. The power the Constitution gives to the states, its provisions that favor minority rule, and the difficulty of amending it may allow the Republican Party to institute authoritarian, one-party rule, all the while claiming to respect “the supreme law of the land”. 

Two law professors, Ryan Doerfler and Samuel Moyn, argue that it’s time to do something about our broken Constitution: 

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past.

Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.

In making calls to regain ownership of our founding charter, progressives have disagreed about strategy and tactics more than about this crucial goal. Proposals to increase the number of justices, strip the Supreme Court’s jurisdiction to invalidate federal law or otherwise soften the blow of judicial review frequently come together with the assurance that the problem is not the Constitution; only the Supreme Court’s hijacking of it is. And even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism.

Since the Supreme Court began to drift right in the 1970s, liberals have proposed better ways of reading the Constitution. [Meanwhile,] the conservative Federalist Society engaged in a successful attempt to remake constitutional law by brainstorming ideas, creating networks of potential judges and eventually helping to guide the selection of President D____ T____’s nominees…. With the death of Ruth Bader Ginsburg, the consolidation of right-wing control of constitutional law and the overturning of Roe and other disasters this term — the damage has only worsened.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action.

Sometimes reclaiming the Constitution is presented as a much-needed step toward empowering the people and their elected representatives. In a new book, the law professors Joseph Fishkin and William Forbath urge progressives to stop treating constitutional law as an “autonomous” domain, “separate from politics.” In contrast with earlier efforts among liberals, which, as Jedediah Purdy put it in a 2018 Times guest essay, put forward a “vivid picture of what judges should do with the power of the courts,” such exercises in progressive constitutionalism call on Congress and other nonjudicial actors to claim some amount of authority to interpret the Constitution for themselves

It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.

No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of anti-politics. It requires the substitution of claims about the best reading of some centuries-old text or about promises said to be already in our traditions for direct arguments about what fairness or justice demands.

It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.

By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.

After failing to get the Constitution interpreted in an egalitarian way for so long, the way to seek real freedom will be to use procedures consistent with popular rule. It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now.

In a second stage, though, Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears.

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “council of revision” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.

In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

What the Hell Is Their Problem?

Posted on by

I mean, what’s going on with these people?

Theda Skocpol, a sociologist and political scientists, explains the roots of right-wing resentment in America in this interview from The Atlantic:

Starting in 2008, a widely circulated conspiracy theory was that Barack Obama was not actually born in America…. Proof of this theory was never a requirement for subscribing to it; you could simply choose to believe that a Black liberal with a Muslim-sounding middle name was not one of us….

The country has not changed much…. Now, as then, you can take the right’s scramble for evidence of fraud with a grain of salt, she told me. The election deniers who say they are perturbed by late-night ballot dumps or dead people voting are actually concerned with something else.

“‘Stop the Steal’ is a metaphor,” Skocpol said, “for the country being taken away from the people who think they should rightfully be setting the tone.” More than a decade later, evidence remains secondary when what you’re really doing is questioning whose vote counts—and who counts as an American…..

Elaine Godfrey: Tell me what connection you see between the Tea Party movement that you studied and the T____-inspired Stop the Steal effort.

Theda Skocpol: There’s a definite line. Opinion polls tell us that people who participated in or sympathized with the Tea Party … were disproportionately angry about immigration and the loss of America as they know it. They became core supporters of T____. I’m quite certain that some organizations that were Tea Party–labeled helped organize Stop the Steal stuff.

T____ has expanded the appeal of an angry, resentful ethno-nationalist politics to younger whites. But it’s the same outlook.

Godfrey: So how do you interpret the broader Stop the Steal movement?

Skocpol: I don’t think Stop the Steal is about ballots at all. I don’t believe a lot of people really think that the votes weren’t counted correctly in 2020. They believe that urban people, metropolitan people—disproportionately young and minorities, to be sure, but frankly liberal whites—are an illegitimate brew that’s changing America in unrecognizable ways and taking it away from them. Stop the Steal is a way of saying that. Stop the Steal is a metaphor. And remember, they declared voting fraud before the election.

Godfrey: A metaphor?

Skocpol: It’s a metaphor for the country being taken away from the people who think they should rightfully be setting the tone. [Pennsylvania gubernatorial candidate] Doug Mastriano said it in so many words: It’s a Christian country. That doesn’t mean we’ll throw out everybody else, but they’ve got to accept that we’re the ones setting the tone. That’s what Hungary has in mind. Viktor Orbán has been going a little further. They’re a more muscular and violence-prone version of the same thing.

People [in Wisconsin] in 2016 who were otherwise quite normal would say, There’s something wrong with those votes from Milwaukee and Madison. I’d push back ever so gently and say, Those are big places; it takes a while to count the votes. I’d get a glassy-eyed stare at that point: No, something fishy is going on.

They feel disconnected from and dominated by people who have done something horrible to the country. And T____ gave voice to that. He’s a perfect resonant instrument for that—because he’s a bundle of narcissistic resentments. But he’s no longer necessary.

Godfrey: Elaborate on that for me.

Skocpol: He’s not necessary for an authoritarian movement to use the [Republicans] to lock in minority rule. The movement to manipulate election access and counting is so far along. I think it’s too late, and we’re vulnerable to it because of how we administer local elections.

What’s happened involves an interlocking set of things. It depends not just on candidates like T____ running for president and nationalizing popular fears and resentments, but also on state legislatures, which have been captured, and the Supreme Court. The Court is a keystone in all of this because it’s going to validate … manipulations that really are about locking in minority rule. In that sense, the turning point in American history may have happened in November 2016.

Godfrey: The turning point toward what?

Skocpol: Toward a locking-in of minority rule along ethno-nationalist lines. The objective is to disenfranchise metro people, period. I see a real chance of a long-term federal takeover by forces that are determined to maintain a fiction of a white, Christian, T____pist version of America.

That can’t work over the long run, because the fastest-growing parts of the country are demonized in that scheme of things. But a lot of things liberals do play into it: Democrats are the party of strong government, and they’re almost as fixated on the presidency as T____ists are…. The hour is late. This election this fall is critical.

Godfrey: Why so?

Skocpol: We’ve got about five pivotal states where election deniers—the culmination of the Tea Party–T____pist strand of the [Republican Party]—are close to gaining control of the levers of voting access and counting the results. If that happens, in even two of those places, it could well be enough. The way courts are operating now, they will not place limits on much of anything that happens in the states.

Godfrey: So what would you say is on the ballot in 2022?

Skocpol: The locking-in of minority authoritarian rule.

People talk about it in racial terms, and of course the racial side is very powerful. We had racial change from the 1960s on, and conservative people are angry about Black political power. But I wouldn’t underestimate the gender anger that’s channeled here: Relations between men and women have changed in ways that are very unsettling to them…..

This is directed at liberal whites, too. Tea Partiers talked about white people in college towns who voted Democratic the way the rulers of Iran would speak of Muslims that are liberal—as the near-devil.

Godfrey: What are the roots of that resentment?

Skocpol: The suspicion of cities and metro areas is a deep strand in America. In this period, it’s been deliberately stoked and exploited by people trying to limit the power of the federal government. They can build on the fears that conservatives have—about how their children leave for college and come back thinking differently. As soon as you get away from the places where upper-middle-class professionals are concentrated, what you see is decay. People see that. They’re resentful of it.

Anti-immigrant politics is very much at the core of this. Every time in the history of the U.S., when you reach the end of a period of immigration, you get a nativist reaction. When the newcomers come, they’re going to destroy the country. That’s an old theme in this country.

Godfrey: The 2016 election was surrounded by a lot of discussion about whether T____’s supporters were motivated by racism or economic anxiety. What’s your view on that?

Skocpol: That whole debate tends to be conducted with opinion polls. I’m in a minority, but I don’t find them very helpful for understanding American politics…. In American politics, everything is about the where.

If you drive into a place in Iowa or Nebraska where immigration is happening, it’s changed the shops downtown, it’s changed the language, it’s changed the churches, it’s changed the schools. And people’s jobs have changed—so it’s also about economics. In our 2011 interviews, Tea Party members were angry about immigrants. I’m not saying everybody in those communities is angry at newcomers, but it creates tensions that rabble-rousing politicians can take advantage of.

We know that T____ supporters, Stop the Steal supporters, are much more likely than other Republicans and conservatives to resent immigrants and fear them. In my 2017–2019 period of research, I visited eight pro-T____ counties. Tea Party types were just furious about immigrants. T____’s emphasis on immigration interjected the idea that the debate is about what the nature of America is.

T____ism is nativism. It’s also profoundly resentful of independent women, and it’s resentful of Black people whom it considers out of place politically. T____channeled that and fused it into one big, angry brew.

Godfrey: How organic have these movements been? At a certain point, we heard a lot about how the Tea Party movement became a Koch-funded operation, not a true grassroots movement.

Skocpol: The Tea Party was not created by the Koch brothers; it was taken advantage of by the Kochs. But the Kochs were not anti-immigrant. The Tea Partiers really were. The Kochs didn’t control the results. The Kochs didn’t select D____ T____. They didn’t even like him. Marco Rubio was their guy. The Chamber of Commerce crowd wanted a Bush. Both were easily dispatched by T____.

Republican leaders could have done something—and they still could. The real story is about Republican Party elites and their willingness to go along with what they’ve always known was over the top. That’s a mystery that’s a little hard to completely solve. A lot of the opportunists think they can ride that tiger without it devouring them, even though sometimes it does. But nobody seems to learn…..

The War Between the States Continues in November

Posted on by

Today’s first post dealt with the prelude to the Civil War. This one deals with the Civil War’s unresolved division. From Mark Danner for The New York Review of Books:

Amid the blaring, pulsating hype of American culture, every election is routinely proclaimed the most important in our lifetime. Now the flood of heart-stopping news this summer—the Uvalde school massacre, the overturning of Roe v. Wade, the January 6 revelations—has brought us face to face with an exceptional problem: What if this one really is? What if this time, like the boy who cried wolf, we find ourselves screaming that the emergency is real—and no one pays attention?

The 2022 election will be the first held in the shadow of an attempted coup d’état—a nearly successful and still-unpunished crime against the state. It will be the first held after a Supreme Court decision that not only uprooted a half-century-old established right but that threatens the rescinding of other rights as well. And it will be the first in which it is clear that, from Republican legislators’ relentless efforts to change who counts the votes, the very character of American governance is on the ballot.

American voters have not confronted so grave a choice since 1860. Now as then, two dramatically different futures are on offer. By undermining the right to privacy, the Supreme Court’s Dobbs decision not only allows government to force women to carry pregnancies to term—as more than half the states will likely soon do—but foreshadows a country in which a state or the federal government can deny people contraception or indeed the right to love or marry whom they choose. By limiting the regulation of firearms, the Bruen decision ensures that increasing numbers of Americans, including children in classrooms, worshipers in churches, and marchers on the Fourth of July, will die in shootings. By calling into question how votes are counted—or whether they should matter at all—the January 6 coup and the persistent “Big Lie” behind it augur a country where the candidate fewer Americans voted for not only can become president (as he did in 2000 and 2016) but can be awarded the electoral votes of a state not as the choice of its people but as a diktat of its legislature.

This America of the future will be an ever more authoritarian place where government maintains the right to intervene in personal decisions, even the most intimate—except when it comes to firearms, in which case anyone, young or old, sane or unbalanced, can go about as heavily armed as a combat soldier. The coming election can either accelerate the country’s move toward this kind of authoritarianism or begin to slow it down. If any election cried out to be nationalized—to be fought not only on the kitchen-table issues of inflation and unemployment but on the defining principles of what the country is and what it should be—it is this November’s.

It is no accident that the last time an election was fought this way was also the last time the party holding the White House gained congressional seats in the midterms. Following the September 11 attacks George W. Bush’s Republicans made ruthless use of nationalism and, above all, fear. “Americans trust the Republicans,” Karl Rove told his colleagues, to keep “our families safe.” Though terrorists had killed thousands of Americans on their watch, the Republicans turned around and denounced Democrats as soft on terror. To vote for Democrats—even for heroic veterans like Senator Max Cleland of Georgia, who had lost three limbs in Vietnam—was to vote for Osama bin Laden. The argument was shameless, savage, deeply unfair. It was anything but subtle. And it worked.

Two decades later the United States is again at risk, not from foreign terrorists but from domestic extremists who are working to insert government power between Americans and their most private decisions and who would fundamentally alter the way they choose their leaders. Justice Clarence Thomas in his Dobbs concurrence was forthright enough to state the implications of that decision for the right to contraception, same-sex relations, and marriage equality. The January 6 committee in its well-orchestrated hearings has begun to bring home to Americans the danger posed by the Big Lie for the next presidential election. Still, despite these clear signs of a darker future, for many voters the danger remains unfocused and distant.

Under the threat of this darkness, Democrats have a duty to make crystal clear to voters what is at stake in November. In midterm elections especially, Americans must be given a persuasive reason to vote—a task that is much harder for a party that won the White House only two years before. This year voters are apprehensive about inflation and other lingering effects of the pandemic and demoralized that Democrats, with their narrow majorities, have failed to achieve much of what they promised.

But the January 6 committee, the overturning of Roe v. Wade, and the Uvalde school shooting have put stark and frightening issues prominently before the public, and if presented clearly and persistently they have a strong potential to drive voters to the polls—especially younger voters, who were so vital to the Democrats’ midterm gains in 2018, and who now, after Democrats failed to pass their climate agenda, desperately need a reason to turn out. This election must be about safeguarding the country they know and the freedoms and rights they cherish. Democrats from President Biden on down need to present these issues clearly and unapologetically:

If you don’t want a government that can force you to carry an unwanted pregnancy to term—vote!

If you don’t want a government that can deny you contraceptives—vote!!

If you don’t want a government that can tell you with whom you can make love and whom you can marry—vote!!

If you don’t want a government that will do nothing to protect your child from a troubled teenager with an assault rifle—vote!!

If you don’t want a government that can ignore the people’s voice at the polling place—vote!!

If you don’t want a government that will do nothing about rising temperatures and the danger they pose to all of us—vote!

. . . During the past months the specter of an increasingly autocratic America has raised its head. Voters who cast their ballots for Democrats must be in no doubt about what they are voting for: the freedom to love and marry whom they wish, the freedom to decide when they want to bear children and to keep those children safe from gun violence—and the certainty that they will go on having a real voice in choosing who leads them. They must be reminded that these rights and freedoms are at risk, that a very different future looms. The most important election of our lifetime is coming. The emergency is upon us. If we are truly to meet it, we must first make bold to say so.

The War Between the States, Then and Now

Posted on by

In the final paragraphs of Heirs of the Founders, H. W. Brands summarizes the critical years that preceded the Civil War and reminds us — as if we need reminding — of the deep division that remains:

The deaths of Calhoun, Clay and Webster appeared less uncannily timed than the same-day deaths of Jefferson and Adams on the fiftieth anniversary of the Declaration of Independence. Nothing could match that earlier coincidence. But if the passing of the two founders in 1826 had symbolized the end of the first generation of America’s nationhood, the demise of the three senators amid the controversy surrounding the Compromise of 1850 marked the end of the second.

The founders had won freedom for America and created the Union of the states; their heirs had confirmed freedom and guided the Union through four decades of crisis. Neither group felt that its task was complete; American self-government was always a work in progress. Jefferson had shuddered at what the fight over the Missouri Compromise portended; Clay, Calhoun and Webster understood that the Compromise of 1850 might purchase time but guaranteed no final resolution of the struggle between the sections.

In their deaths the country honored the three as it had not always done in their lives. Henry Clay became the first American to lie in state in the Capitol; his funeral train took the long way to Lexington, looping north to Philadelphia and New York before turning west. Hundreds of thousands of mourners lined the route and paid their respects as the black-veiled car rolled by. …

The honors accorded John Calhoun were fittingly sectional. His remains were carried to Richmond; thousands journeyed to the Virginia capitol to pay their respects. Another train took him to Charleston, where thousands more viewed the casket in the city hall. He was interred in a churchyard not far from the harbor.

Daniel Webster, having died in his home, was buried there and required no transport. But half of Massachusetts, it seemed, clogged the railways and roads to Marshfield to acknowledge their debt to the state’s most famous adopted son.…

Americans felt great loss in the aftermath of the three deaths, but the nation required several years to determine just what the loss entailed. The Whig party fell to pieces, deprived of the leadership of Clay and Webster. A successor coalition, taking the name of Jefferson’s party, organized Northern Whigs and free-soil Democrats into a new Republican party, which was explicitly antislavery and effectively anti-Southern. The ghost of Henry Clay shook his head in sorrow, while John Calhoun’s specter nodded grimly at this fulfillment of his prophecy of escalation against the South.

The sectional contest took a bloody turn after Stephen Douglas pushed a bill through Congress repealing the Missouri Compromise, the more swiftly to settle Kansas and Nebraska. John Calhoun’s shade again nodded, this time in approval. Slaveholders poured into Kansas from neighboring Missouri; antislavery activists rushed to counter them. The result was an irregular war between zealots of the two sides. Among the antislavery militants was the charismatically monomaniacal John Brown, who led a band of followers in a brutal murder of several pro-slavery settlers.

While Kansas bled, the federal courts heard a case involving a slave named Dred Scott. The eventual verdict by the Supreme Court confirmed John Calhoun’s judgment that slaveholders could not be barred from taking their slaves into the federal territories. The Missouri Compromise had been unconstitutional all along.

The South celebrated; many in the North despaired. But the South was the side despairing after John Brown and a larger band of antislavery militants staged a raid on the federal arsenal at Harpers Ferry, Virginia, with the aim of inciting a slave rebellion. The mission failed; the rebellion never materialized. Brown was captured, tried and executed. Yet in much of the North he was treated as a martyr, one who did what other abolitionists simply talked about. The South was aghast: a murderer made into a saint? Never had the gulf between North and South yawned wider.

Within weeks of the tenth anniversary of the Compromise of 1850, Abraham Lincoln was elected president on a Republican ticket and a Republican platform. Lincoln received not a single electoral vote from a Southern state. Southerners interpreted the outcome as proof that the federal government was irretrievably in hostile hands. South Carolina finally made good on John Calhoun’s repeated threats to secede. Six other slave states followed. When Lincoln resisted secession and attempted to resupply Fort Sumter in Charleston’s harbor, the Civil War began—within rifle shot of Calhoun’s grave.

In battling the legacy of Calhoun, Lincoln looked to Henry Clay and Daniel Webster. Lincoln had been born in Kentucky while Clay was launching his career; he took notes on Clay’s climb to national prominence as he himself calculated how to advance in the political world. Lincoln called Clay “my beau-ideal of a statesman, the man for whom I fought all my humble life.” When Lincoln learned, in Springfield, Illinois, that Clay had died, he organized a memorial for his hero and insisted on giving the eulogy. “Mr. Clay’s predominant sentiment, from first to last, was a deep devotion to the cause of human liberty, a strong sympathy with the oppressed everywhere and an ardent wish for their elevation,” Lincoln said.

To be sure, Clay had countenanced slavery. “Mr. Clay was the owner of slaves. Cast into life where slavery was already widely spread and deeply seated, he did not perceive … how it could be at once eradicated, without producing a greater evil, even to the cause of human liberty itself.” Yet Clay’s tolerance was nothing more than a temporary nod to reality. “He was ever, on principle and in feeling, opposed to slavery.” Lincoln accepted Clay’s pragmatic belief that progress came in steps. And he endorsed unreservedly Clay’s central conviction that the Union was the prerequisite of all that America had done and could do on behalf of liberty.

Lincoln didn’t know, as he concluded his eulogy for Clay, how aptly his prayer for Clay would become a prayer for himself. “Henry Clay is dead,” Lincoln said. “His long and eventful life is closed. Our country is prosperous and powerful. But could it have been quite all it has been, and is, and is to be, without Henry Clay? Such a man the times have demanded, and such, in the providence of God, was given us….”

Where Henry Clay furnished Lincoln the philosophy of democratic politics, Daniel Webster gave him the words…. He edited Webster’s formulation of democracy—“the people’s government; made for the people; made by the people; and answerable to the people”—into “government of the people, by the people, and for the people.” And when, in the same Gettysburg address, Lincoln tied the fate of liberty, by then including freedom for the slaves, to that of the Union, he echoed Webster’s ringing affirmation: “Liberty and Union, now and forever, one and inseparable!”

The equation of liberty and the Union was the central article of faith of Webster and Clay, and of Lincoln. It was what separated them from John Calhoun, who perceived liberty—for the states, and specifically for slaveholders in the Southern states—as increasingly threatened by the Union. Liberty and Union, said Clay and Webster. Liberty or Union, said Calhoun.

This was what the struggle came down to during the lives of the three. And it was the heart of the struggle they bequeathed to the next generation of Americans. Lincoln and the Union army, at great cost, assured the triumph of Clay and Webster over Calhoun and the Confederacy.

Yet the struggle persisted. Slavery was its most salient aspect at the midpoint of the nineteenth century, but the contest between the states and the national government had hinged on other issues at other times: freedom of speech in 1798, war powers in 1814, the tariff in 1833. So it wasn’t surprising that the struggle outlived slavery. Clay and Webster, with Lincoln’s help, won the argument that the Union must be unbroken, but Calhoun’s insistence on the need for balance between the states and the nation found adherents on matters that ranged, during the next several generations, from civil rights and business regulation to school funding and the environment.

The struggle originated with the founders. It continued with their heirs. It is with us still.