John Kelly, compromise, the Dred Scott decision, and the Corwin Amendment
The Washington Post has already written about what historians think of Kelly’s thoughts, their assessments ranging from “dangerous” to “kind of depressing.”
But the truth is, the panicky months before the Civil War were full of attempts to compromise with the rebellious South.
The most popular proposal, by far, was a constitutional amendment that would have irreversibly immortalized slavery as a feature of the United States.
And although supporters of this compromise — up to and including Abraham Lincoln and most of Congress — did fail to pull it off, it wasn’t for lack of trying.
There is a link to criticisms of Kelly by two historians, Historians respond to John F. Kelly’s Civil War remarks: ‘Strange,’ ‘sad,’ ‘wrong’
which includes:
“I would tell you that Robert E. Lee was an honorable man,” Kelly said. “He was a man that gave up his country to fight for his state, which 150 years ago was more important than country. It was always loyalty to state first back in those days. Now it’s different today. But the lack of an ability to compromise led to the Civil War, and men and women of good faith on both sides made their stand where their conscience had them make their stand.”
“That statement could have been given by [former Confederate general] Jubal Early in 1880,” said Stephanie McCurry, a history professor at Columbia University
The first Washington Post article makes much of the proposed Corwin amendment, but fails to mention the Supreme Court decision in Dred Scott in 1857, which noted the provisions of the Missouri Compromise of 1820 were unconstitutional, being beyond Congress's power to enact.
Thus, by 1857, the Supreme Court foreclosed compromise by Congress on dividing up slavery in the territories. Congress had no power. There was a "lack of ABILITY to compromise" as to slavery in states formed FROM territories.
The Corwin amendment was about states:
“No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of people held to labor or service by the laws of said State.”
In the Constitution as enacted, there was no power of Congress to abolish or to interfere with slavery. The Corwin Amendment would block a potential future amendment that gave Congress such power. But a potential future amendment could repeal an enacted Corwin amendment.
The timeline of the Washington Post articles omits a few details. By December 24, 1860, South Carolina had already seceded. By February 1, 1861, seven southern states had seceded. Four more would later secede, making 11 out of 33 states gone. Any amendment giving Congress power to abolish slavery (as hypothetically anticipated by the Corwin amendment) would have difficulty passing muster of 3/4 of the 33 states of 1860 , especially including the slave-allowing border states. But that balance was close to tipping.
Further, as to the text "irreversibly immortalized," the Corwin Amendment was about the power of Congress, not about the power of the states to amend the Constitution, as was done in the actual 13th Amendment.
The historians critical to Kelly acknowledge that Kelly's view was once advanced by historians:
Blight described Kelly’s argument in similar terms as McCurry — an “old reconciliationist narrative” about the Civil War that, in the past half a century or so has “just been exploded” by historical research since.
Also note the comments of dmdmd:
Kind of stumped as to what the problem was with Kelly's statement (?)
* “I would tell you that Robert E. Lee was an honorable man,” - Yes, most all of his contemporaries on both sides of the war felt this was so. He never supported succession and he was quite clear about it.
* “He was a man that gave up his country to fight for his state, which 150 years ago was more important than country. It was always loyalty to state first back in those days. Now it’s different today. - Also true.
People were much more loyal to their states than to the county in pre-Civil War days. This also widely acknowledged
* "But, the lack of an ability to compromise led to the Civil War, and men and women of good faith on both sides made their stand where their conscience had them make their stand.” - Also a true statement. There were innumerable compromises that could have been made to solve the problem of slavery including a phase out period. Unfortunately the pig-headed rich slave owners of the South and the unyielding abolitionists of the North each had no interest in supporting a compromise. Both sides were moral absolutists who believed that they were right and everyone else was wrong.
Yes, the War was about slavery at it's core but, the fighting broke out because of a lack of flexibility and an unwillingness to compromise on each side. The rich South was morally bankrupt but, even many of the Northern leaders wanted nothing to do wit some of the radical abolitionists (just ask old John Brown).
One also recalls text within the letter of Lincoln to Greeley on August 22, 1862 :
My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.
Separately, in passing as to Custer, commenter cdr mcbragg wrote of Custer:
By the 1960s he was, in keeping with the then current mood, he was portrayed as a raving madman and psycopath. An example of this is the ridiculously inaccurate movie "Little Big Man". By the 1980s, Custer's reputation had been rehabilitated and he was viewed in a more nuanced way as an aggressive, somewhat vainglorious, but competent officer.
Prior to getting surrounded, Custer had ordered an attack on an Indian encampment occupied by women and children (Wikipedia: As Reno's men fired into the village and killed, by some accounts, several wives and children of the Sioux leader, Chief Gall). The Indians later retaliated against Custer's force.
UPDATE as to Robert E. Lee from crossroads:
On June 13, 1865, Lee wrote to Grant, outlining the situation. He had sought to comply with Johnson’s proclamation, but he had also learned about the indictment. What was his status? Was he still protected by the terms he signed at Appomattox? After all, he was still a prisoner of war (Johnson had not declared the war at an end). He was willing to stand trial, but if he was protected under the terms of the surrender agreement, then he wanted to file for pardon under the new proclamation … which included signing a loyalty oath (called an amnesty oath).
Grant endorsed the pardon application. He also told Lee that in his opinion the terms of the surrender remained intact. To Stanton he asked that the grand jury indictment be quashed. It would be bad policy, he claimed, to prosecute for treason those people who had complied with the terms of the surrender.
Andrew Johnson was not willing to grant the general his wish. The two men discussed the matter, and the president gave in after Grant threatened to resign his commission.
Eventually Lee signed an amnesty oath dated October 2, 1865, that served as a loyalty oath. It was not acted upon. Only when Johnson issued another proclamation on Christmas Day, 1868, was Lee included in an amnesty, although President Gerald R. Ford pardoned him in 1975.
link: https://cwcrossroads.wordpress.com/2013/08/16/lee-davis-oaths-and-pardons/
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