Don E. Fehrenbacher (1920–1997)

This book is the most thorough study of a single court case that you can find anywhere. To really understand the Dred Scott case, you have to understand the history, the politics, the law, and the people involved. Fehrenbacher nails all four. Nowhere will you find a more lively discussion of the ins and outs of obiter dictum and federal jurisdiction nor a more revealing analysis of the people central to the drama: Roger Taney, Stephen Douglas, etc. A must read for all students of American history, law, and politics.… (altro)

This book is essential for anyone trying to understand the federal government’s approach to slavery, both before and after the Civil War.

In this detailed and masterful review of every Congressional action related to slavery from the foundation of the new nation up through Reconstruction, Fehrenbacher makes several contentions. One is that the Constitution itself was neutral on the question of slavery. Two is that the Southerners needed federal protection for their institution, so that contrary to being “states rightists” on this issue, they were strong nationalists. Three is that “the policy of the federal government down through the years…had been predominantly supportive of slavery.” Four is that Lincoln’s election was seen at the time as deeply revolutionary, in spite of Lincoln’s professed cautious and centrist attitudes, because of the fear that Republicans, unlike earlier parties, would no longer kowtow to the South and allow the federal government to continue to support slavery as in fact it always had. And finally, Fehrenbacher observes that on a meta level, a deep racism permeated the nation from the very beginning, which acted against any meaningful effort to put reins on slavery. In fact, even many antislavery activists, from abolitionists to Free-Soilers to Republicans, were more concerned with white rights than with black wrongs.

Two contradictions characterized the slavery discussion at the nation's founding. One was the Declaration of Independence, with its noble sentiments expressing the belief that all men are created equal. The other was the treaty of peace with Great Britain, which contained a clause explicitly identifying slaves as a form of property (for which Americans wanted compensation to the extent that Britain provided a promised freedom and emigration to those who fought with her against the colonies).

Regarding the Declaration of Independence, there is much to be said in favor of the argument made by Lincoln’s rival, Steven Douglas, that when the Founders wrote “we the people” they were referring to white propertied men like themselves. And in fact, most of them owned slaves, so how could they mean otherwise?

Yet, Lincoln was able to punch a logical hole in this argument. In 1858 he noted: “Where will it stop? If one man says it does not mean a Negro, why may not another say it does not mean some other man?” [This became painfully evident in the 1896 Supreme Court case Plessy v. Ferguson, which established the “separate but equal doctrine.” Homer Plessy was not allowed to sit in the “white”section of the train even though he was only one-eighth black, and literally could not be physically distinguished from a white person in any way.]

As for the treaty with Britain that marked the end of America’s colonial period and the beginning of the United States, a great deal of chauvinistic rivalry and leftover resentment from the war helped to exacerbate differences between the parties. Moreover, many ex-colonists, in particular Virginians with their plantation lifestyles, were deeply in debt. George Washington, as President, was adamant that slaveholders be compensated for their losses; he himself was one of those who lost “property.” After the Revolution, America “energetically pressed” the claims of slaveholders against Britain through its principal spokesmen, John Adams, Gouverneur Morris, John Jay, and Thomas Jefferson.

Other issues relating to slavery bedeviled the country from its outset. Fehrenbacher notes that in 1780, slaves composed one-sixth of the population. Those formulating the Constitution needed to come up with an acceptable plan to assess the wealth represented by their labor. The “three-fifths compromise” (i.e., that each slave counted for three-fifths of each free white person) had no racial meaning, according to Fehrenbacher. Rather, it reflected the belief that slaves were less productive than free persons and thus ought to be counted fractionally as indicators as wealth. [Southerners knew full well that free blacks who worked for themselves and their families worked hard; the canard that blacks were “lazy” was promulgated mainly after the Civil War during the Reconstruction period to justify the strict black codes put into place, as well as to serve as justification for Southerner’s treatment of slaves.] When another compromise between Northerners and Southerners became necessary for determining representation in Congress, the three-fifths number seemed as good as any, especially since it had already won agreement in another context.

Fehrenbacher denies the validity of the so-called “historical necessity doctrine.” This is the idea that the Fugitive Slave Act of 1793 (passed overwhelmingly by Congress and signed into law by President George Washington) was necessary to gain the southerners’ consent to union. Fehrenbacher calls this doctrine a “proslavery constitutional myth originating in northern ambivalence rather than southern conviction.” Yet everything he reports in his careful history of this and subsequent “genuflecting before southern sensibilities” would seem to indicate otherwise. Certainly northern ambivalence, indifference, and even racism are well documented, but so is southern intransigence. He also admits, “over the decades, the federal government had effectively become a proslavery instrument by means of multiple little decisions and unconscious drift.” (Indeed, in the conduct of foreign policy generally, Fehrenbacher notes that “from 1789 to 1861, the federal government habitually assumed the role of a protector, and sometimes spoke even as a vindicator, of slavery.”) And he gives extensive coverage to Southern Congressmen objecting to any legislation that might serve as an “entering wedge” to further encroachments by the North on slavery.

What were some of the factors contributing to Northern ambivalence? One was “the fact that leading public figures like Washington and Jefferson were slave owners [which] lent moral prestige to the institution and discouraged criticism of it.” Racism and racial fears played another part. (In a sobering section of the book, Fehrenbacher reports how in some states and the District of Columbia, “free blacks were assumed to be [and treated as] slaves unless they could prove otherwise…” Since often they were not allowed to testify on their own behalf, this was no simple matter.) And of course a desire to preserve the Union was always paramount; most northerners simply did not care about black rights as much as they cared about Union.

Fehrenbacher includes an interesting discussion on Lincoln’s religious beliefs and why he thought God was on the side of the North. In a speech in Cincinnati Lincoln averred, “I hold that while man exists, it is his duty to improve not only his own condition, but to assist in ameliorating mankind.” To Lincoln, “saving the Union” was intrinsically connected to the elimination of slavery. Every concession he made to a border state, to racism, to taking it slow, was taken deliberately as part of a plan to make sure he, as the instrument of God’s will, would be able to save a Union worth saving.

There are many more insightful analyses in this book: the conflict in Kansas before the war; positions taken over the years regarding the African slave trade; various slave rebellions and the white reaction; the goodhearted but wrongheaded strategies of Salmon Chase and William Seward; tactics taken by various states and their courts both North and South; and much more.

The book doesn’t end with the Civil War; Fehrenbacher covers enough of the Reconstruction period to apprise the reader that “an enduring racial prejudice ensured that the caste spirit of the slaveholding republic lived on into the new age.” Black codes in the South had the goal of ensuring “that black workers remained a powerless source of reliable plantation labor.” The story ends in 1890, when “whites concentrated on deepening the degradation of African Americans” and serious lynching took over parts of the nation.

The Slaveholding Republic is not necessarily for novices (some prior knowledge is presumed), but readers with some background in antebellum history will find it richly rewarding.… (altro)

1852 The Dred Scott Case: Its Significance in American Law and Politics, by Don E. Fehrenbacher (read 15 May 1984) (Book of the Year) (Pulitzer History prize in 1979) This is a truly great and magisterial book. It is simply fabulous and a joy to read. It covers fairly familiar ground, which I just went through last year when I read Allan Nevins' book. But this book covers the Dred Scott case so much more ably, and I found myself agreeing with everything in it. A poll taken in 1974 by the ABA Journal to determine milestones in American legal history resulted in the following, after the Declaration of Independence and the Constitution: 1. Marbury v. Madison; 2. Warren Court; 3. U.S. v. Nixon; 4. Miranda v. Arizona; 5. Brown v. Board of Education; 6. Dred Scott v. Sandford. Pre-Civil War history is fascinating and this book is an excellent one, full of lots of super-interesting things.… (altro)