November 23, 2010
Frequent readers may remember that an important tenet of my property teaching philosophy is that the struggle over property rights has a central place in history. I've argued that we might undersell the importance of property rights by focusing so intensively on the doctrinal trees that we miss the political-economic forest.
One way I like to discomfort my students, and bring into stark relief the historical importance of property rights, is by examining the emancipation of slaves through the lens of the Takings Clause.
The Takings Clause may seem (and, I think, is) a somewhat callous and inadequate lens through which to view the abject horror of slavery, but that's exactly how some framed the issue 150 years ago. In a debate on the Senate floor, Henry Clay (for one) argued that emancipation of slaves would be a taking of private property, requiring just compensation of the slave owners. Anticipating the reply that emancipation could not be a taking because humans could never have legitimately been property, Clay said (I like to imagine coolly), "That is property which the law says is property."
In both my first year course, and my Comparative Property Rights seminar, I make my students debate that proposition. I ask them simply: Is it true? Most say no. So then I ask: If law can't tell us what is property, then what can? No one, myself included, seems to be able to answer that.
All that is a prelude to telling you that for the past few weeks, the New York Times has been running a wonderful feature, Disunion, which provides a day-by-day analysis, using primarily contemporary accounts, of the descent into the Civil War immediately preceeding and following Lincoln's election in 1860. For history buffs like me, it's fascinating. I find myself more eagerly concerned about the daily news from November 1860 than the news on the front page.
The news from this week (minus 150 years) has been particularly ominous. Southern state legislatures are meeting to 'discuss' secession in the wake of Lincoln's election, but the extreme rhetoric of the meetings leaves no doubt that horrible violence is at hand. Members of the cabinet of the sitting President are preparing to join them. The federal government is teetering.
Meanwhile, President-elect Lincoln has remained maddeningly silent. Finally, the pressure becomes unbearable, and through Illinois Senator Lyman Trumbull, Lincoln attempts to reassure the South: "when Trumbull told the crowd that under Lincoln, all the states will be left in complete control of their own affairs, including the protection of property, those in the know believed they were hearing the words of the president-elect." The meaning of Lincoln's pledge to protect property was unmistakable. Lincoln was attempting to tell the South that, in Clay's words, that was property which the law said was property -- including human beings. For Lincoln's admirers, that pledge may come as a shock. He was not yet fully committed to emancipation.
But, of course, nothing Lincoln could say or do would reassure the Southern legislatures. They didn't trust him or the abolitionists who supported him. War was on the horizon. Within five years of that week in November, 600,000 Americans would be dead.
As I like to say to my students, when it comes to property rights, damn right, there will be blood.
Interestingly, in hate-laced rhetoric that resonates today, secessionists cast Lincoln and Vice President-elect Hamlin as something 'other' than bona fide Americans. Southern media and politicians constantly accused Hamlin in particular of having “black blood in him,” or being descended from Native Americans. One Southerner wrote to Lincoln, offering to buy the "intelligent mulatto boy" Hamlin from him.
The Disunion series is a fantastic teaching tool on lots of levels, but it is a treasure trove on the historical centrality of property rights. Check it out.
Mark A. Edwards
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Thanks for the very interesting note on property, the takings clause and slavery. It seems to me to ask whether it is true that property is what the law says it is has only one answer. It's true. That is certainly so in realism. Whether that ought be the case is another matter.
Posted by: Tom Roberts | Nov 27, 2010 8:27:09 AM
Thanks, Tom. I know you've written a lot about takings -- I'm curious whether you've ever used emancipation as a takings issue in your teaching.
Posted by: Mark A. Edwards | Nov 28, 2010 5:22:22 PM