…Happening this Thursday! When I visited the Abraham Lincoln Presidential Library & Museum as a high schooler just a few months after its grand opening in 2005, never in my wildest dreams could I have imagined that I’d ever give a presentation there someday. If you’re in the area, come on out for what will hopefully be an interesting and informative talk about Ulysses S. Grant’s life and how Americans have remembered him since his death in 1885. We’ll be on the library side of the Presidential Library and Museum.
The Emancipation Proclamation was issued by President Abraham Lincoln on January 1, 1863, and every year on social media there seems to be a renewed debate about the effectiveness of the proclamation, Lincoln’s motivations in issuing it, and how the act shaped the overall war effort. The strangest thing in this debate is the weird convergence of neo-Confederates and some historians who profess (incorrectly) that the EP didn’t free any slaves; that Lincoln didn’t do enough to try and end slavery during the war (although some of those same folks would be the first to claim that Lincoln was a tyrant who abused his presidential powers); and that the act was borderline meaningless. And so it was interesting to read a couple Twitter comments after historian Kevin Levin posted a picture on Twitter of areas throughout the south where the Emancipation Proclamation took effect and immediately free thousands of slaves. One academic complained that Lincoln’s proclamation was “public diplomacy” that didn’t go far enough in freeing the enslaved.
(In reality, the real act of “public diplomacy” was Lincoln’s famous letter to Horace Greeley on August 22, 1862, in which he proclaimed that his “paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery” while having already completed the writing of his preliminary Emancipation Proclamation).
True, the Emancipation Proclamation did not free all the slaves of the South, it did not apply to slave states still in the Union, and would it not have had any legal standing once the war ended. But it fundamentally changed the nature of the Civil War and made the abolition of slavery a war aim. More specifically, the act would spread and apply to more enslaved people as the U.S. Army reacquired control of areas within the Confederacy and essentially became an army of liberation. It also encouraged African Americans to enlist in the United States military, and it set the table for future legal actions to abolish slavery, most notably the 13th Amendment, which would make slavery’s abolition permanent after the end of the war. Finally, it also garnered support for the U.S. war effort internationally.
To appreciate the significance of the Emancipation Proclamation, therefore, means fitting it within a broader context of the larger legal process undertaken during the Civil War to abolish slavery within the United States. It was not an overly radical act that freed all slaves in both loyal states and the Confederate states, but conversely it was not a meaningless piece of paper that did nothing to effect a change in slavery’s future in the country. It was radical in a sense and extremely significant within the context of the American Civil War.
The American Presidents Series, first started by Arthur Schlesinger, Jr. and now continued by Sean Wilentz, offers readers a series of short, concise biographies of each U.S. president that are accessible to a wide audience. They are wonderful introductions into the character and political outlook of past presidents, and I have a number of these biographies in my library. The latest addition to my collection is historian Jean H. Baker’s biography of James Buchanan, and I can’t recommend it enough.
I learned a lot about Buchanan in this short volume. When past historians have chosen to assess Buchanan’s presidency and the coming of the American Civil War, they often portray him as a weak, ineffective leader who did too little to stop the onslaught of southern secession prior to Abraham Lincoln’s election to the presidency. Kenneth Stampp’s America in 1857: A Nation on the Brink, among other studies, hews to this standard interpretation. While Baker concurs that Buchanan’s response to secession was weak, she instead portrays him overall as an overwhelming figure whose domineering personality, unwillingness to compromise, and inability to take dissent seriously doomed his presidency from the start of his term in 1857. Despite proclaiming himself as the only non-sectional candidate who would promote the interests of the entire country during the 1856 presidential election (a claim that Ulysses S. Grant took seriously when he voted in his first presidential election that year), Buchanan was in fact a pro-South sectional candidate in his own right who downplayed the extent of Northern frustration with Southern proslavery demands. I was particularly struck by this passage:
Buchanan had long since chosen sides. Both physically and politically, he had only one farsighted eye, and it looked southward. Looking to the past and heralding the Democratic party’s eternal principles against the “isms” of free-soilism and anti-slaveryism, the president-elect was blind to what was happening in the North . . . despite his experience in politics, [he] read the opposition party as ephemeral as lighting bugs in August.
In his desire to end division between North and South, the president-elect moved beyond the tradition of permissible institutionalized antagonism between political organizations. The concept of loyal opposition, inherited from Great Britain, sanctioned criticism of administrations and the presentation of alternative policies. What it did not permit was the castigation of another party as disloyal and un-American, as Buchanan held the Republicans. In his years as president, Buchanan did a great deal to popularize the view that the Republicans were a threat to the South, thereby encouraging its secession from the Union when Abraham Lincoln was elected president in 1860 [p. 72].
Perhaps there is something for us to learn in Buchanan’s failure as a president. He was arguably one of the most qualified candidates based on his experience as a politician and diplomat for nearly forty years before his election in 1856, but his lack of leadership, vision, communication skills, or a sense of changing political circumstances in the 1850s doomed his tenure. As more white Northerners desired restrictions for slavery’s westward expansion into new territories, Buchanan came to view such a position as dangerous and an abridgement of constitutional rights. That most Northerners had no intention to touch slavery where it existed and held strong racial prejudices against blacks made no difference to him. Buchanan couldn’t handle differing interpretations of the constitution or dissent from his ideology, which in his mind meant that his enemies were not fellow Americans with a difference of opinion who were still worthy of respect, but traitors whose views had to be obliterated at all costs. The president’s rhetoric damaged any future compromise over slavery since any such agreement would be considered a threat to Southern honor.
In recent years an interpretation that might be best described as “emancipationist” has emerged to explain the motives of Abraham Lincoln and the Republican Party with regards to slavery at the beginning of the American Civil War. This interpretation—advanced by historians such as Adam Goodheart and James Oakes—argues that most Republican politicians at the beginning of the war conceived the conflict as a fight to end U.S. slavery. Remembering John Quincy Adams’s earlier claim that slavery could potentially be abolished as a military necessity during a time of war, these Republicans used the Civil War to seek a quick, deadly end to slavery as soon as shots rang out. In Freedom National: The Destruction of Slavery in the United States, 1861-1865, Oakes argues that “secession meant war and war meant immediate emancipation” in the minds of most Republicans.
Historian Daniel W. Crofts puts the brakes on this interpretation in his new book, Lincoln & The Politics of Slavery: The Other Thirteenth Amendment and the Struggle to Save the Union. In an exhaustive analysis of the secession crisis that emerged following Lincoln’s 1860 electoral victory, Crofts convincingly demonstrates that most Republicans—Lincoln included—had no intention of interfering with slavery where it already existed or turning the war into an emancipation crusade. They made repeated overtures to the South expressing these views, and they even worked to pass a proposed thirteenth constitutional amendment (with Lincoln’s blessing) promising that Congress could not “abolish or interfere” with slavery in the Southern states where it already existed. Crofts offers one of the first major analyses of the “other” thirteenth amendment and proves that the Republican party’s embrace of legal emancipation emerged only when the contingencies of war made the slavery’s abolition a necessary element for military victory over the Confederacy.
Lincoln & The Politics of Slavery is broken up into four parts. The first part focuses on anti-slavery thought before the Civil War and the limitations the Constitution placed upon any effort to abolish slavery throughout the country. While a small minority of abolitionists such as Gerrit Smith, Frederick Douglass, and Lysander Spooner argued that the Constitution was an anti-slavery document—particularly the Fifth Amendment’s clause against any person being deprived of “life, liberty, and property”—most abolitionists and less radical anti-slavery thinkers acknowledged that the Constitution protected slavery in the states where it already existed and could therefore do little beyond encouraging residents and political leaders in those states to voluntarily abolish it. The antebellum anti-slavery political movement populated by Whigs, Free-Soilers, and later Republicans therefore pushed to “denationalize” slavery. “Denationalization” called for the federal government to reject all responsibility for maintaining slavery where it already existed, leaving the matter to the slave states themselves. Where the federal government had jurisdiction, however, “denationalization” supporters called for the the abolition of slavery in Washington, D.C., no future slave states to be established from the western territories, the end of the interstate slave trade, and repeal of the 1850 Fugitive Slave Act.
The remaining three parts of the book focus on the aftermath of Lincoln’s 1860 election and the effort to assuage the concerns of white Southerners who believed the Republican Party would abolish slavery in the South. Republicans took several measures to address these concerns. Crofts argues that most Republicans believed themselves to be constitutional conservatives. They asserted that their anti-slavery beliefs squared up with the Founding Fathers, who considered slavery a national embarrassment. They hoped to block slavery’s future westward expansion and believed the institution would eventually die, just as the Founders had intended, but at the same time they accepted slavery where it existed and had no intentions of promoting immediate nationwide emancipation as had some of the more popular radical abolitionists like Douglass and Spooner had asserted. Moderate and conservative-minded Republicans like Lincoln even took steps to separate the party from the larger abolitionist movement and expressed their intentions to enforce every law in the book, including the hated Fugitive Slave Act.
Crofts shines in his detailed analysis of the origins of the “other” thirteenth amendment. Conciliatory Republicans like William Seward and Thomas Corwin pushed to have this amendment passed as a gesture to Southerners, particularly Southerners in the border states, to prove their intentions to not touch slavery in the South. Some Republicans even went farther by agreeing to allow New Mexico territory to be organized for the purpose of establishing one or more slave states. Not all Republicans were ready support this amendment, however. More radical Republicans like John Bingham, James M. Ashley, and Charles Sedgwick opposed any amendments or conciliation with the South, arguing that the Constitution should be enforced instead of amended. Lincoln himself encouraged Seward and Corwin’s efforts to gain support for the amendment and expressed his own support for it in his First Inaugural Address, saying that he considered “such a provision to now be implied by constitutional law.” Crofts masterfully analyzes these sharply intense debates within the Republican Party about the extent to which compromise was necessary to keep the Union together.
Another important goal for Crofts is assessing the way historians have previously analyzed Lincoln, the Republican Party, and slavery at the onset of the Civil War. Crofts critiques various scholars throughout the book itself and in a detailed historiographical analysis at the end of the book who have, in Crofts words, produced “history from the heart – history as we might like it to have been” (277). Doris Kearns Goodwin, Harold Holzer, Adam Goodheart, Oakes, and even the writers behind Stephen Spielberg’s blockbuster film on Lincoln are all taken to task for making Lincoln more radically anti-slavery than he really was. Oakes in particular receives a great deal of criticism from Crofts for mishandling primary source evidence and for downplaying the importance of the original thirteenth amendment as merely a “pointless” and “meaningless” gesture to appease angry Southern politicians.
Most of these critiques are fair, but Crofts overstates the degree to which contemporary scholars still view Lincoln as “The Great Emancipator.” Furthermore, Oakes’s scholarship, in the opinion of this reviewer, still does much to highlight how the end of U.S. slavery came about through a gradual, evolving process of emancipation during the war—as opposed to one singular moment with the Emancipation Proclamation—and why a “second” thirteenth amendment in 1865 abolishing slavery throughout the country was so necessary. Nevertheless, Crofts packs many punches in Lincoln & The Politics of Slavery and convincingly highlights the candidness of many leading Republicans in 1860 and 1861 to acknowledge their inability and unwillingness to abolish slavery in the states where it already existed.
Elizabeth Keckley (1818-1907) was a talented seamstress, dressmaker, and businesswoman who became the personal dressmaker and close friend of First Lady Mary Todd Lincoln during the Civil War. The story of Keckley’s rise to such a prominent position is remarkable. Born a slave in Virginia, she experienced the worst horrors of the institution during her formative years. Her earliest recollection of slavery was witnessing a seven-year-old boy being stripped from his mother’s arms and put into a slave auction to be sold away for profit. Her father was also sold away during her childhood, and Keckley herself was subject to whippings and sexual abuse during her childhood. While living in North Carolina she was the victim of a rape that produced her only child, a boy only referred to by Keckley as “Garland’s George.” While living in St. Louis in the 1850s Keckley managed to earn enough money through her seaming and dressmaking to purchase her freedom in 1855, and shortly thereafter she made her way to Washington, D.C. to start a very profitable dressmaking business before being hired by Mrs. Lincoln at the beginning of Abraham Lincoln’s presidency.
In 1868 Keckley published a memoir of her life entitled Behind the Scenes; or, Thirty Years a Slave, and Four Years in the White House. The book is part autobiography and part analysis of the Lincoln White House. In the aftermath of Lincoln’s assassination Mary Lincoln had run into financial difficulties and a poor reputation among the public. Keckley hoped to raise money for Mrs. Lincoln and counter criticisms against her by publishing details of the Lincolns’ inner family life, but circumstances took a sad turn following the book’s release. Behind the Scenes was roundly criticized as the public disapproved of Keckley’s publishing of Mary Lincoln’s private letters, and Keckley’s clients for her dressmaking business quickly ended their patronage. She closed her business, became destitute, and in later life lived in a home for the poor.
Readers of Behind the Scenes–both then and now–often focus on Keckley’s recollections of the Lincoln White House, and several theatrical plays about the Lincoln-Keckley relationship have been written in recent years. But her life trajectory from enslavement to prominent free person of color by the outbreak of the Civil War is gripping literature, and it is this story that I want to briefly focus on with this post. Historians, biographers, and other scholars, of course must proceed with caution when analyzing the words and themes embedded in a person’s autobiography or memoir. Statements that may at first come off as factual and self-evident are in many cases subject to uncertainty and interpretation by scholars assessing a person’s life story. Any reasoned interpretation requires a scholar to put a writer’s words into context and to understand the world in which that person inhabited, lest they turn themselves into armchair psychologists. I will try to avoid that here.
“How warm is the attachment between master and slave”
Keckley’s description of life as a slave in Behind the Scenes is simultaneously riveting and complex. In thebook’s preface she takes pains to warm readers that “if I have portrayed the dark side of slavery, I have also painted the bright side. The good that I have said of human servitude should be thrown into the scales with the evil that I have said of it.” She casts blame for slavery’s continuation and expansion in the United States not on the South, but on “the God of nature” (which is never clearly defined) and the Founding Fathers. In a later chapter Keckley recalls a conversation she had with a Northerner after the Civil War who expressed disbelief in the idea that she would be interested in the welfare of her former enslavers. Keckley responds that “you do not know the Southern people as well as I do–how warm is the attachment between master and slave.”
These are curious statements to make. Throughout the book the only “goods” of enslavement that she alludes to are her sense of industry and the relationship she maintained with her mother, two things she could have obtained in freedom. Certainly the relationship between master and slave wasn’t warm enough to prevent Keckley from working to purchase her freedom in 1855, nor would she have consented to reestablishing this relationship at any point after obtaining her freedom. After all, she herself paradoxically argues in the aforementioned preface that “a wrong was inflicted upon me; a cruel custom deprived me of my liberty, and since I was robbed of my dearest right, I would not have been human had I not rebelled against the robbery.” Indeed, who wouldn’t detest a system that sells your father away for cash and makes your body susceptible to rape and sexual assault without consequence to the aggressor?
Mercy for Jefferson Davis and the Confederacy
Keckley had been briefly employed by Varina Davis, wife of future Confederate President Jefferson Davis, prior to being hired by First Lady Mary Todd Lincoln. Davis had attempted to bring her South as the Davis family prepared for the secession crisis, but Keckley rejected this offer, stating that her allegiances were with the United States. Nevertheless Keckley speaks very highly of the Davis family and calls for Northerners to bestow mercy on Jefferson Davis, who was still imprisoned by U.S. forces when Behind the Scenes was published: “The years have brought many changes; and in view of these terrible changes even I, who was once a slave, who have been punished with the cruel lash, who have experienced the heart and soul tortures of a slave’s life, can say to Mr. Jefferson Davis, ‘Peace! you have suffered! Go in peace’.” What these “terrible changes” are that Keckley refers to remain a mystery to readers. Yet again a reader today can easily find these statements quite odd coming from a free woman of color who had been enslaved for the first thirty years of her life.
In a later passage Keckley recalls Abraham Lincoln saying on the day that he was assassinated that Confederate General Robert E. Lee was “a noble, noble brave man.” According to Keckley, “Mr. Lincoln was generous by nature, and though his whole heart was in the war, he could not but respect the valor of those opposed to him. His soul was too great for the narrow, selfish view of partisanship. Brave by nature himself, he honored bravery in others, even his foes.”
An important theme in Behind the Scenes
As the aforementioned quotes suggest, one of the driving themes of Elizabeth Keckley’s memoirs that might be overlooked sometimes is her argument in favor of sectional reconciliation between North and South, which in turn is informed by her identification as a proud Southerner. While Keckley strives to assure readers that she suffered under slavery and that she values her freedom, her hesitance to lay any sort of blame for the continuance and growth of slavery on pro-slavery Southern politicians or the South more generally reflects a desire to avoid what she describes as a “sweeping condemnation” of the entire region, a region that she calls home. While Keckley is not convincing in her efforts to point out “the bright side” of slavery, it is clear that she is anxious to demonstrate to readers that she refuses to play the role of victim, no matter how heinous the crimes committed against her during the days of slavery. And by pleading mercy for Jefferson Davis and portraying Abraham Lincoln as an admirer of Robert E. Lee and the valorous conduct of the Confederacy, Keckley suggests to her reading audience that sectional reconciliation is the correct path towards future prosperity for the United States. It was the path paved by Lincoln before his death, and it was the correct path going forward in Keckley’s eyes.
These are just a few observations I made after reading Elizabeth Keckley’s memoirs, which are truly fascinating. Any nineteenth century historian would benefit from reading them.
Last night, for better or worse, I decided to watch the first GOP debate in its entirety. I watched it partly for its entertainment value but mostly from a sincere desire to try and understand the arguments and characteristics of the candidates who claim to be competent enough to run the United States as our next President.
In the course of the debate candidate Mike Huckabee was asked a question about the military’s recent decision to lift its ban on transgendered troops. He gave a laughable response:
The military is not a social experiment. The purpose of the military is to kill people and break things. It is not to transform the culture by trying out some ideas that some people think would make us a different country and more diverse. The purpose is to protect America. I’m not sure how paying for transgender surgery for soldiers, sailors, airmen and Marines makes our country safer.
Cheers and clapping came from the party faithful in response to Huckabee’s comments, but this is simply bad history. The United States military has always been a social experiment whose actions have most certainly transformed our “culture.” Indeed, serving in the military and killing people and breaking things is itself a social experiment, right?
Take, for example, President Abraham Lincoln’s 1863 Emancipation Proclamation. A passage in the Proclamation proclaims that African Americans “will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.” Blacks were already serving with the Navy prior to Lincoln’s Proclamation (and have served in every American war since the Revolution), but the message signaled an important transformation within the ranks; ten percent of the military’s fighting force would be composed of United States Colored Troops by the end of the Civil War.
Some scholars such as Lerone Bennett and Michelle Alexander downplay the significance of the Emancipation Proclamation by saying that it didn’t free any slaves (which is false) or that its only significance lies in its utility as a war measure, but the vitriolic responses from some border state Unionists and the Confederate government at the time reflect a belief that the Proclamation was a radical social experiment that threatened law and order. Border State politicians and slaveholders wondered what would happen to their slaves; Kentucky troops fighting for the Union allegedly threatened to lay down their arms if abolition became a war aim and blacks enlisted in the military; and many white Northern troops who may have publicly accepted the changes wrought by the war still held private doubts about the fighting capabilities of blacks.
Confederate President Jefferson Davis also understood the radicalism of the Emancipation Proclamation and responded with fear and disgust:
We may well leave it to the instincts of that common humanity which a beneficent Creator has implanted in the breasts of our fellow-men of all countries to pass judgment on a measure by which several millions of human beings of an inferior race, peaceful and contented laborers in their sphere, are doomed to extermination, while at the same time they are encouraged to a general assassination of their masters by the insidious recommendation ‘to abstain from violence unless in necessary self-defense.’ Our own detestation of those who have attempted by the most execrable measure recorded in the history of guilty man is tempered by a profound contempt for the impotent rage which it discloses.
Davis believed that the Proclamation would encourage black-on-white violence in the South in the name of “self-defense” and that emancipation would ultimately lead to their extermination by giving them freedom, guns (for the men), and a place outside their “sphere.” The military is not a social experiment!
On January 1, 1861, the St. Louis Courthouse (now the Old Courthouse) hosted its final slave auction. Exactly two years later Lincoln’s Emancipation Proclamation encouraged those same slaves–people that could have been bought and sold as property–to enlist in the military. That’s radical. The abolitionist Frederick Douglass understood that the Proclamation had implications that went beyond military service when he asserted that blacks who enlisted had “earned the right of citizenship in the United States.” While I would argue that African Americans earned citizenship for other reasons in addition to military service, it is undeniable that their military service during the war played a significant role in shaping the fourteenth amendment (which gave all native-born and naturalized residents the right of citizenship) and the fifteenth amendment (which gave all men regardless of color the right to vote). The Emancipation Proclamation was a clear case of what we could call a “social experiment” that involved the military.
The military was also used as a social experiment in the twentieth century. Before desegregation in public facilities and schools throughout the South during the 1950s and 1960s, President Harry Truman issued Executive Order 9981 in 1948 ordering the military to integrate. Just like the Emancipation Proclamation, Truman’s order aroused claims of “social experimentation” within and without the military. Lieutenant General Edward Almond, for example, believed integration would be demoralizing to white soldiers. He actively fought to deny justly-earned medals to black soldiers during the Korean War and continued to lament the perceived ills of integration well into the 1970s. And of course we cannot deny the evolving role of women in the military as nurses, factory workers, administrators, and eventually combat soldiers in our current military.
When we take a look at the social transformations that have taken place in the U.S. military throughout its history we can safely conclude that the opposite of Huckabee’s claim is true – that the military has always provided a means of social change with profound consequences for the social, political, and cultural fabric of American society. Repealing “Don’t Ask, Don’t Tell” a few years ago continued this trend by allowing people the chance to serve in the military while openly gay, and now transgender people can enlist. Until I see some sort of empirical evidence suggesting that a military with transgendered people in the service puts my country’s national security at risk (which I highly doubt), I will gladly applaud and encourage their service in our military.
Addendum: Upon further reflection I think it’s important to further clarify that I do not mean to suggest that the military as an institution leans to the left of the political spectrum or that it embodies liberal or “progressive” ideals any more than it embodies conservative ideals. Rather, I am trying to suggest that the military has historically been targeted by activists because various social groups (including the aforementioned ones here) have earned expanded citizenship and suffrage rights through military service.
The meaning of citizenship in the United States has undergone significant changes throughout its history, and recent debates about who is and who isn’t a citizen and what rights citizens are entitled to demonstrate how citizenship remains contested today. Some of the most profound changes in U.S. citizenship took place in the years immediately before and after the American Civil War. For a long time my understanding of these changes was marked by the U.S. Supreme Court’s 1857 decision in the Dred Scott case and subsequent actions after the war by Congress through the Civil Rights Act of 1866 and the 14th Amendment to the Constitution that overturned the Dred Scott decision.
Dred Scott was a St. Louis slave whose master, Dr. John Emerson, had taken him into free soil for four years while serving as a U.S. Army doctor. Upon returning to St. Louis in 1843 and attempting to buy his freedom without success, Scott sued for his freedom in 1846. The case had many twists, turns, and appeals on its way to the Supreme Court, where Chief Justice Roger Taney declared that Scott was not entitled to his freedom and that “colored men,” whether free or slave, “had no rights which the white man was bound to respect.” People of color were not citizens of the United States and had no right to use the courts for legal recourse, according to Taney. The Civil Rights Act of 1866 departed from Taney’s premise by stating that all people born in the United States were entitled to be citizens “without regard to race, color, or previous condition of slavery or involuntary servitude” and that all citizens were entitled to equal protection of all laws. The text from the citizenship clause of the Civil Rights Act was later copied into the 14th Amendment before its passage in 1868.
A conservative Missourian who helped write the state’s pro-slavery Constitution in 1821 and served as a state legislator and U.S. Congressman during a lengthy career in politics, Bates unsuccessfully ran for the Republican nomination for President in 1860. President-elect Abraham Lincoln appointed Bates as Attorney General shortly after that year’s election, however, giving Bates immense power to write legal opinions on American law and governance as the Civil War broke out in 1861. One such issue arose in 1862 when a ship run by David M. Selsey, a free African American who served as master of the Elizabeth & Margaret, was detained off a New Jersey coast for a routine inspection for contraband goods. U.S. law at the time stipulated that ship masters must be U.S. citizens, but whether or not Selsey was considered a U.S. citizen as a free person of color was open for legal debate. U.S. Treasury Secretary Salmon Chase requested that Bates write a legal opinion in response to the question, “are colored men Citizens of the United States?” Bates’s response provides us a unique opportunity to study how a leading legal thinker grappled with the ambiguities of the U.S. constitution on the question of citizenship prior to the passage of the 14th amendment in 1868.
Bates began his opinion by pointing out that there existed no clear definition of citizenship in the United States:
Who is a citizen? What constitutes a citizen of the United States? I have often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase citizen of the United States. I find no such definition, no authoritative establishment of the meaning of the phrase, neither by a course of judicial decision in our courts nor by the continued and consentaneous action of the different branches of our political government. For aught I see to the contrary, the subject is now as little understood in its details and elements, and the question as open to argument and to speculative criticism, as it was at the beginning of the government. Eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word or the constituent elements of the thing we prize so highly.
Further complicating these efforts in the eyes of Bates were legal experts at the time who focused on the characteristics of who was entitled to citizenship without sufficiently exploring what rights constituted U.S. citizenship. Bates believed the constitution defined citizenship simply as an individual who was a part of the body politic. As a member of the body politic, citizens were obligated to pledge allegiance to the state in return for the state’s protection of the citizen’s well-being. Allegiance and protection: nothing more, nothing less. Moreover, Bates argued that citizenship did not guarantee voting rights, which were determined on a state-by-state basis prior to the war. Children, women, poor whites, and criminals in states throughout the country did not posses voting rights but were still considered citizens by the U.S. government. “Once a citizen, always a citizen,” argued Bates, “unless changed by the volition and act of the individual. Neither infancy nor madness nor crime can take away from the subject the quality of a citizen.” And although voting rights were determined on the state level, Bates proclaimed that citizenship rights were national. Citizens in one state could not suddenly lose their citizenship while in another one.
Bates did have opinions about who was entitled to citizenship, however. Citing Ancient, British, and French law in a partial rebuttal of Chief Justice Taney’s opinion in the Dred Scott case, Bates asserted that “whatever may have been said in the opinions of judges and lawyers, and in State statues about negroes, mulattoes, and persons of color, the Constitution is wholly silent upon that subject. The Constitution does not make the citizens (it is, in fact, made by them). It only intends and recognizes such of them as are natural [born citizens].” In other words, people born in the United States–regardless of their status in life–were automatically citizens who had earned the right to state protection according to the Constitution.
Although Bates contradicted himself by refraining from defining whether or not slaves could be considered U.S. citizens, he again criticized Justice Taney for assuming that free people could be considered as having no citizenship simply because of their skin color. To wit:
It is strenuously insisted by some that ‘persons of color,’ though born in the country, are not capable of being citizens of the United States. As far as the Constitution is concerned, this is a naked assumption; for the Constitution contains not one word upon the subject. The exclusion, if it exists, must then rest upon some fundamental fact which, in the reason and nature of things, is so inconsistent with citizenship that the two cannot coexist in the same person. Is mere color such a fact? Let those who assert it prove that it is so. It has never been so understood nor put into practice in the nation from which we derive our language, laws, and institutions, and our very morals and modes of thought; and, as far as I know, there is not a single nation in Christendom which does not regard the new-found idea with incredulity, if not disgust. What can there be in the mere color of a man . . . to disqualify him for bearing true and faithful allegiance to his native country, and for demanding the protection of that country? And these two, allegiance and protection, constitute the sum of the duties and rights of a ‘natural born citizen of the United States.’
In concluding his opinion on citizenship, Bates dismissed all judicial authority of the Dred Scott case. Since the defendant in the case made an abatement plea (an objection to a plaintiff’s claims because of a procedural error, in this case the error being that Dred Scott was not a citizen and therefore unable to file suit in court), the Supreme Court had no jurisdiction in the case and Taney’s opinion had no legal standing. Therefore, although Bates hesitated to comment on whether slaves had citizenship rights, he believed he had the legal standing to comment on the citizenship status of David Selsey and, by extension, free blacks. Having assessed legal precedents from past Western governments and the Constitution itself, Bates believed Selsey deserved state protection: “I give it as my opinion that the free man of color…if born in the United States, is a citizen of the United States, and, if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.” Free blacks were citizens of the United States according to Bates.
In our post-Civil War world birthright citizenship rights are often taken for granted and assumed to have existed since the Constitution’s creation in 1787. But the nature of citizenship was ill-defined by the Constitution before the Civil War, so much so that the nation’s Attorney General could not rely solely on his nation’s founding document and law books to guide his interpretation of citizenship. Edward Bates’s legal opinion provides important context and insight for understanding the evolving nature of debates about citizenship throughout American history.