Raw Judicial Power VIII: Cotton is King

In the previous posting in this series we saw that, as a result of the perceived necessity of preserving chattel slavery, a conflict was built into the new country. Following the Civil War, in his study of the United States, The American Republic (1865) Orestes Brownson would characterize this conflict as being between the rising industrial capitalism of the North, and the agrarian capitalism of the South.

Economically speaking, the 19th century was characterized by a shift toward capital-intensive production, and away from labor-intensive production. There were some anomalies, such as the invention of the cotton gin. The cotton gin made human chattel slavery economically viable by increasing dramatically the speed at which cotton could be processed. This removed a bottleneck in production. (Parke Pierson. "Seeds of conflict," America's Civil War, September 2009, Vol. 22, No. 4, 25.) As David Christy argued in Cotton is King (1855), this increased the demand for slave-cultivated cotton. It gave the illusion that the economic wellbeing of the United States and the British Empire depended on the continuance of slavery, just as today the widespread illusion is that prosperity depends on the wage system and massive government debt.

Usually, however, advancing technology results in elimination of direct human labor in the production process. This phenomenon accelerated in the 20th century, and is a virtual pandemic in the 21st. Even as productivity is measured in terms of labor hours, human labor has become more important as the basis for justifying the redistribution of purchasing power than as a factor of production.

As technology advances, jobs begin to disappear at a rate faster than new ones are created. Exacerbating the problem is the shift away from small, widely distributed ownership, to highly concentrated ownership. As capital instruments increase in cost, the assumption that only existing accumulations of savings can be used to finance new capital formation causes ownership of the capital to become increasingly concentrated at an accelerating rate.

Within the past savings paradigm, "capital breeds capital." While valid only within the rigidly applied if fallacious principles of the Currency School of finance that rely on income from capital being diverted to reinvestment, this causes increasing concentrations of wealth. Locked into the past savings assumption, and absent State redistribution through inflation or the tax system, the great mass of people will be forced into destitution and dependency as their labor becomes less valuable in the production process relative to capital.

Crosskey's thesis in Politics and the Constitution was that the new Constitution of 1789 set up not a federal or federated system, per se, but a unified system of law binding on the individual states and all "commerce" (a term not restricted to mere business in the 18th century, but extending to all gainful activity.) between them, with the end of protecting each person's natural rights. In accordance with the principle of subsidiarity, states kept autonomy in local matters, but (to oversimplify somewhat) no state could pass a law that contradicted the unified system established by the Constitution.

Slavery, of course, was an exception to this general principle. Thus slavery was to a large degree responsible for undermining the system that Crosskey saw the Founding Fathers envision — hence the importance of measures that come across to us today as equivocations, such as the "Missouri Compromise" of 1820. These were efforts to make a system containing an inherent contradiction work, much like the "just wage" based on need is an inherently contradictory expedient to make a system based on past savings operable within marginally acceptable parameters. The contradiction of slavery, like the wage system, was a denial of natural rights, explicit and tacit, within a system based on a declaration of universal applicability and inalienable character of natural rights.

The choice appeared to be clear. In order for the United States to be preserved as a unified system as the Founding Fathers envisioned, the contradiction would have to be removed. The alternative would be to invoke "the judgment of heaven" on the new country, as George Mason predicted. (Robert A. Rutland, George Mason: Reluctant Statesman. Baton Rouge, Louisiana: Louisiana State University Press, 1961, 86-89.) This meant that the country would have to be either all slave, or all free, just as Abraham Lincoln declared in his "House Divided" speech. (Republican State Convention, Springfield, Illinois, June 16, 1858.) There could not, at one and the same time, be a middle ground where natural rights to life, liberty, or property were both protected and denied.

During the period between the adoption of the Constitution and the Civil War, however, the operation of the federal government had been minimal, almost to the point of actual neglect. As de Tocqueville noted in the 1830s,

"In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centers in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation participates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate." (Alexis de Tocqueville, "The Principle of Sovereignty of the People in America," Democracy in America, I.iv.)

This principle of subsidiarity came to be interpreted as proving that "states' rights" were superior over those of the federal government. The correct view is that each level of government, as well as the individual citizens, has its proper sphere of action within a uniform system of law.

The Constitution of the United States was being grossly misinterpreted in order to maintain an egregiously unjust system. It could not last, and matters were about to come to a head in one of the three most infamous cases in the history of the United States Supreme Court: Scott v. Sandford, the "Dred Scott case."

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