In the midst of tumult over Snowden and the NSA, DOMA, and congressional dithering, let’s all take a deep breath and remember the 19th century when things were every bit as complicated and exasperating. Brenda Wineapple, author of the forthcoming Ecstatic Nation, celebrates America’s never-ending debate—and progress.
This year on the Fourth of July, that quintessentially American holiday, when we consume pie by day and contemplate fireworks by night, there will be those who sigh in frustration, others in relief. Congress seems interminably deadlocked over whether “aliens” deserve American citizenship, while the Supreme Court recently struck down the Defense of Marriage Act. Or maybe we’ll just scratch our heads in disbelief at Edward Snowden’s unmatriculated ability to elude the watchful eye of the very Big Brother he sought to expose.
As it happens, though, at no time was there more sighing or scratching of heads than in the middle of the 19th century, when the unalienable rights enshrined in the Declaration of Independence—and the freedoms named in the Bill of Rights—were practiced, argued, and even fought over, often all at once.
Take the matter of religion, or what might pass for it: In the spring of 1848, the sisters Maggie and Kate Fox claimed that they could communicate with the dead through a code of tapping sounds only they could decipher; 150 years earlier, they might have been hanged as witches, not treated as celebrities who, before long, would for a small fee conduct séances at Barnum's Hotel in New York City. And there was a new religion, Mormonism, or the Church of Jesus Christ of Latter-day Saints, which was rumored to practice polygamy. Yet though they were persecuted not a little, the Mormon leader Brigham Young was appointed the very first governor of the Utah Territory in 1850 and then again in 1854—until President James Buchanan considered waging war against their outré community in his failed attempt to suppress it.
Take our beloved freedom of speech: on July 4, 1854, Henry David Thoreau protested the recent arrest of the fugitive slave Anthony Burns, who had been seized in Boston under the terms of a recently passed and much-despised Fugitive Slave Act. Several men had tried to free Burns and had failed. Burns was promptly sent back into slavery by federal marshals. Thoreau was disgusted. “The law will never make men free; it is men who have got to make the law free,” he said, exercising free speech in much the way William Lloyd Garrison had when he called the United States Constitution a covenant with death and an agreement with hell. He was, of course, referring to the so-called three-fifths clause that permitted Southern states to count slaves as three-fifths of a person. But just nine years later, and two weeks after the Fourth of July, the first federally authorized black infantry regiment in the North, the Massachusetts 54th, heroically lead a column of black and white troops in a doomed assault on Fort Wagner in Charleston Harbor. Black men were now brave Union soldiers, fighting hard for a far more perfect Union. They would indeed be free—a constitutional amendment would see to that—but not without the tragic war that cost upward of 750,000 lives.
And then there were the women: In the summer of 1848, in upstate New York (not far from where the Fox sisters had lived), a group of women (and men) gathered in Seneca Falls and signed a Declaration of Rights and Sentiments to affirm that all men and women are created equal and that women, as the equal of men, deserved at least the right to vote. Of course, by the end of the Civil War, it seemed to many women that black men were created more equal than they, for the 14th Amendment to the Constitution did not and would not give women that right. And indeed women could not cast ballots legally until the next century. And then think of Native Americans, or what the 19th century called “Indians” (another kind of “alien”) whose hunting grounds were invaded and food supply destroyed. Make them citizens, Sen. Charles Sumner cried. Exterminate the brutes was the frequent answer.
Was this trial by military court justified in wartime, even though the civil courts were functioning?
Then, there is the right to due process (think Guantánamo), trial by jury, and the protections against unlawful search and seizure. These too were hotly contested. Lincoln suspended the writ of habeas corpus in the spring of 1861, and on July 4, 1861, he told Congress that the South's rebellion against the United States had justified his action. His opponents argued that he was trampling on civil liberties, and when in 1863 Union General Ambrose Burnside arrested the outspoken war critic Clement Vallandigham (Burnside and his soldiers broke into his Vallandigham’s home without a warrant), there was another fracas, particularly since Vallandigham was tried by a military commission, not a civil court, and one presided over by Burnside himself. Was this trial by military court justified in wartime, even though the civil courts were functioning? And what about the matter of Vallandigham's right to free speech? Were his anti-war and racist tirades seditious, and did they threaten to prolong the war? Or, put another way, what is the relationship between, say, the freedom to speak and the need for national security?
Sound familiar? Of course it does. The good news is that these knotty issues are still being debated and that a continuing, ardent debate is itself the paradoxical legacy of freedom—a more perfect Union in progress—whether one is heaving a sigh in relief at the actions of a courageous Mr. Lincoln or (sigh again) at a Mr. Snowden.