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What Does the Flag Mean?

U.S.C.T. and the Symbolism of the Flag in the Civil War

The flag of the United States of America is the perennial symbol of the nation, but its meaning is constantly under debate. Recently, several major media incidents have questioned the true value of the Stars and Stripes—specifically whether the flag symbolizes racism or freedom.[1] Certain high-profile activists and revisionists claim that since the American flag flew over the nation while slavery remained active, it still condones racism today.

Such a perspective, interestingly, is not entirely unheard of in our nation’s past. Several years before the Civil War, great abolitionist leader Frederick Douglass (himself an escaped slave) summarized the sentiments of black Americans towards the federal banner at that time, saying:

“While slavery exists, and the union of these states endures, every American citizen must bear the chagrin of hearing his country branded before the world as a nation of liars and hypocrites; and behold his cherished national flag pointed at with the utmost scorn and derision.”[2]

As long as slavery was permitted and protected by the Union flag Douglass carried an attitude similar to those of recent critics. However, Douglass’s statement is conditional upon the existence of slavery, thereby suggesting that abolition would elevate the symbolic nature of the flag and improve its reception by black Americans.

History reveals that Douglass was correct. Throughout the Civil War the men of the United States Colored Troops and those closely associated with the fight for freedom began to see the national flag in a different and positive light. Their patriotism and sacrifice redeemed the meaning of the flag, changing its reception in the black community from a symbol of slavery to one of liberty.

The journey of the flag and the black community during the Civil War largely began once black units were formed after the military opened its ranks to all people. Following custom, the Colored Troops, like many white units, received both a regimental and national flag, often from their local town, before going off to war.

For example, when the 20^th US Colored Regiment was sent out of their native New York, Charles King, the son of Founding Father Rufus King, bestowed, “the flag of the Union and of Liberty to the first regiment of colored troops that has marched from this city to defend both.”[3] One paper considered the scene so important that an engraving was made, saying that, “no scene of the war has been more striking or significant.…[as] the flag of the country waved over them in benediction.”[4]

In his speech, Charles King imbued the national flag with a special meaning before passing it into the protection of its freshly “sworn defenders and guardians.”[5] King relates the flag’s significance to that of their shared faith, explaining that:

“The religion to the flag is second only to the religion of the altar.…Hence he who is false to his flag is false to his altar and his God.”[6]

To imply a spiritual significance to the defense of the flag most certainly would have affected the listeners. He went on to explain that by joining the military and risking their lives for those still bound by slavery, they not only elevate the flag but themselves also. Declaring that:

“When you put on the uniform and swear allegiance to the standard of the Union, you stand emancipated, regenerated, and disenthralled—the peer of the proudest soldier in the land.”[7]

The speech received a warm reception by both the citizens in attendance and the soldiers of the 20^th Colored Regiment. The officer in charge received the flag saying:

“This beautiful banner symbolizes our country. It is this that makes death glorious beneath its starry folds—it is this that rouses the feelings of outraged honor when we see it trailed in the dust. How base and how dead to all sense of honor, must that wretch be whose brow burns not with shame and rage at the dishonor of the flag of his country.”[8]

Furthermore, in the lunch and procession following the presentation the soldiers of the 20^th praised the speeches of Charles King and Col. Bartram, reflecting on how, “that flag is a big thing, boys.”[9] The men were beginning to see the Union flag not as the banner which had allowed slavery and oppression, but rather as the standard by which they could personally advance freedom’s cause.

The 20^th were far from the only black soldiers to recognize the symbolic significance of receiving the national flag. For example, the 29^th Regiment out of Connecticut enjoyed a bestowal ceremony, where, “to the surprise of the regiment we were presented with the United States national colors, which greatly pleased the boys.”[10] The 1^st African Descent Regiment from Iowa were also presented with “a beautiful silk national flag” by the women of their state, “which was carried through the storms of battle, and returned at the close of the war to the State.”[11]

Most notably, however, the 1^st South Carolina Volunteer Regiment (later the 33^rd Colored) revealed their elevated affection to the national flag on many occasions. One evening a month before the Emancipation Proclamation went into effect, several men from the 1^st began to give speeches to encourage the troops. Their commanding officer, Col. Thomas Higginson (a pastor and abolitionist) recorded the speech of Corporal Prince Lambkin, who was, “one of our color-guard, and one of our ablest men.”[12] Lambkin told his fellow slaves-turned-soldiers:

“Our masters they have lived under the flag, they got their wealth under it, and everything beautiful for their children. Under it they have ground us up, and put us in their pocket for money. But the first minute they think that ol’ flag meant freedom for we colored people, they pulled it right down, and run up a rag of their own. [Immense applause.] But we’ll never desert they ol’ flag, boys, never; we have lived under it for eighteen hundred sixty-two years [sic], and we’ll die for it now.”[13]

The speech was remembered by the Colonel as, “one of the few really impressive appeals for the American flag that I ever heard.” Less than a month after Lambkin’s speech, the 1^st South Carolina were presented the national flag on the day, “Lincoln’s immortal proclamation of freedom was given to the world.”[14] Col. Higginson explained that after receiving the large silk flag:

“Then followed an incident so simple, so touching, so utterly unexpected and startling, that I can scarcely believe it on recalling, though it gave the keynote to the whole day. The very moment the speaker had ceased, and just as I took and waved the flag, which now for the first time meant anything to these poor people, there suddenly arose, close beside the platform, a strong male voice (but rather cracked and elderly), into which two women’s voices instantly blended, singing, as if by an impulse that could no more be repressed than the morning note of the song-sparrow: “My Country, ‘tis of thee, Sweet land of liberty, Of thee I sing!”
People looked at each other, and then at us on the platform to see whence came this interruption, not set down in the bills. Firmly and irrepressibly the quavering voices sang on, verse after verse; others of the colored people joined in; some whites on the platform began, but I motioned them to silence. I never saw anything so electric; it made all other words cheap; it seemed the choked voice of a race at last unloosed. Nothing could be more wonderfully unconscious; art could not have dreamed of a tribute to the day of jubilee that should be so affecting; history will not believe it; and when I came to speak of it, after it was ended, tears were everywhere. If you could have heard how quaint and innocent it was!
Just think of it! The first day they had ever had a country, the first flag they had ever seen which promised anything to their people, and here, while mere spectators stood in silence, waiting for my stupid words, these simple souls burst out in their lay, as if they were by their own hearths at home! When they stopped there was nothing to do for it but to speak, and I went on; but the life of the whole day was in those unknown people’s song.”[15]

The men of the 1^st South Carolina bravely bore those flags throughout the war and, after victory, recalled with pride that, “it has never been disgraced by a cowardly faltering in the hour of danger, or polluted by a traitor’s touch.”[16] The success of the black divisions was measured, both by themselves and others, by their steadfast protection of the national flag through unflinching heroism and endless courage.

Nothing displays this more clearly than the numerous moments of bravery by black soldiers protecting the flag. No less than seven African Americans received the Medal of Honor for valiantly defending the national flag in battle.[17] The most famous example remains that of Sgt. William Carney who, though wounded twice, led the Massachusetts 54^th through the Battle of Fort Wagner despite the overwhelmingly desperate situation.[18]

Additionally, several men at the Battle of Chaffin’s Farm received the Medal of Honor for not allowing the colors to touch the ground. Sgt. Alfred B. Hilton took up both the flag and the regimental standard once the original color bearers were shot. Thereafter, when Hilton himself was severely wounded, Sgt. Christian Fleetwood caught the national flag before it fell to the ground, and carried it through the rest of the fight—with General Butler himself allegedly witnessing their bravery.[19]

Such noble actions, however, were far from rare in the black units. At the Battle of the Crater the 43^rd Colored Regiment gave ample proof of this for, “as each brave color bearer was shot down, another and another would immediately grasp the National emblem, all riddled with balls and plant it further on the enem[y’s] line,” until the flag was, “almost entirely cut up by the fire, and the Color Staffs splintered and broken.”[20] The list of heroic deeds in defense of the flag extends well beyond the few stories mentioned above, a fact which led USCT veteran and Civil War historian George Washington Williams to rejoice that, “the one flag of a great nation will float as the sovereign symbol of a free and united people.”[21]

The officers of these units particularly were struck by the devotion black troops showed to the flag under which so much oppression had been so recently practiced. For example, Lieutenant Joseph G. Golding of the 6^th Colored Infantry recalled that his men bravely fought and nobly sacrificed, “to the utmost, even to the laying down of their lives for us, for the flag, [and] for the perpetuation of the grandest nationality the sun shines upon.”[22] That unit specifically suffered a 57% casualty rate throughout the War. Similarly, when the 33^rd USCT mustered out at the end of the war, their commanding officer, Lt. Col. Trowbridge, explained in his final order that as a result of their efforts:

“Millions of bondsmen have been emancipated, and the fundamental law of the land has been so altered as to remove forever the possibility of human slavery being established within the borders of redeemed America. The flag our fathers, restored to its rightful significance.”[23]

Trowbridge explicitly applauds the USCT for helping to redeem the national symbol, elevating it finally to the standard which the Founding Fathers had envisioned.

A natural result following the tireless devotion of the soldiers to the flag was that the nation as a whole also began to judge the flag by the way the government pursued liberating the slave population and the treatment of the African American soldiers. A major issue surrounded the revelation that Confederates would mistreat, brutalize, and kill the black troops if they were captured through the course of the war. One officer remarked that, “they fought with ropes round their necks,” because for them it was either victory or death.[24]

In response to the tragedy of Fort Pillow and the growing evidence that black prisoners were systematically treated horribly, an article in Harper’s Weekly demanded retaliation on the honor of the national flag. The author concluded that:

“After due delay, if the Government should find that the natural suspicion of foul play is correct, then if its retaliation is not swift, sure, and deadly, if the rebels are not taught, as by fire, that every man who fights beneath the national flag is equally protected by the people whose sovereignty that flag symbolizes, we are simply unworthy of success.”[25]

Through the course of the Civil War the status of the flag and the meaning it carried directly corresponded to the issue of abolition and equal rights.

After the war, the black men who fought under the American flag and were freed by that banner reflected this redeemed symbolism through both word and deed. Significantly in the years immediately following, many of the newly elected black congressmen pointed to the brave service of the USCT and their valiant defense of the national flag as evidence of their patriotism and rights.

One of the first to do so was Representative Richard Harvey Cain. A prominent pastor as well as one of the first African Americans elected to national office, Cain explained in a speech supporting increased civil rights that he had hoped to fight in the War due to his desire to, “vindicate the Stars and Stripes.”[26]

For the redemption of the flag, Cain, and thousands like him, sought to serve under that standard in order to effect such a change. Speaking on behalf of the black community which elected him, Cain explained:

“We propose to identify ourselves with this nation….We will take the eagle as the emblem of liberty; we will take that honored flag which has been borne through the heat of a thousand battles.[27]

Now, after the Civil War, the national flag finally stands as a suitable symbol for his constituents. Cain suggests that the Star-Spangled Banner rightfully encompasses both black and white, concluding that:

“Under its folds Anglo-Saxon and Africo-American can together work out a common destiny, until universal liberty…shall be known throughout the world.”[28]

In the following session of Congress, another black Representative—John Roy Lynch—confirmed Cain’s sentiments through his defense of the Civil Rights Act of 1875. Born into slavery and freed only through the Emancipation Proclamation, Lynch’s perspective on the flag carries significant weight as he was once enslaved under its authority, then freed by it. In an eloquent expression Lynch proclaimed:

“I love the land that gave me birth; I love the Stars and Stripes. This country is where I intend to live, where I expect to die. To preserve the honor of the national flag and to maintain perpetually the Union of the States hundreds, and I may say thousands, of brave, and true-hearted colored men have fought, bled, and died. And now, Mr. Speaker, I ask, can it be possible that that flag under which they fought is to be a shield and a protection to all races and classes of persons except the colored race? God forbid!”[29]

Such a sentiment poignantly reflects the increasing veneration and regard for the national flag due to the results of the Civil War. Lynch had been born into slavery under the national standard, then liberated by those fighting for it, and now is himself defending the newfound meaning of the flag through the very institution of Congress which once had so powerfully operated against him.

Similarly, the continued importance of the aforementioned Medal of Honor recipient Sgt. Christian Fleetwood in the national black society gives valuable insight into how drastically the communal reception of the flag had changed on account of the war. Fleetwood’s bravery brought him public recognition to such a degree that he was, “known from one end of the Country to the other.”[30]

Settling into the Washington DC area once peace had been achieved, he capitalized on his influential standing and used his fame to train the next generation of black Americans to see the nation and flag the way he did. In addition to advocating for the role of African Americans in the military, he even formed and trained a black cadet corps. Fleetwood’s effort eventually led to the formation of the first black National Guard unit—paving the way for later units.[31]

However, perhaps Frederick Douglass, with whom we began, most resoundingly displayed how the actions of the USCT and the end of slavery redeemed the symbolism of the national flag and its reception by black Americans. Once abolition became an official war goal, Douglass began, in his own words, “to persuade every colored man able to bear arms to rally around the flag, and help save the country and save the race.”[32]

After victory and the successful emancipation of all slaves, the famed orator relates a story of sailing on the USS Tennessee specifically noting that for the first time he could rejoice to finally live, “under the national flag, which I could now call mine, in common with other American citizens.”[33]

In a later speech, Douglass ventures even further and announces that that the national flag truly is, “a glorious symbol of civil and religious liberty, leading the world in the race of social science, civilization, and renown.”[34] Douglass, like many others, realized that the American flag of 1865 was radically different than the one of 1855—its destiny proved one not of derision, as first believed, but rather of deliverance.

Ultimately, the brave sacrifices from the United States Colored Troops, and those who stood alongside them, successfully redeemed the symbolism of the Stars and Stripes—purging from its folds any sanction of slavery. America could now march into the next era under a unified flag fulfilling the promise of the Founding Fathers that all men were created equal.

Furthermore, the reception of national standard in the black community was revolutionized. Leaders like Douglass, Fleetwood, Lynch, and Cain all rallied to the flag instead of railing against it. After generations of steadfast resolve and four years of unimaginable courage, the entire nation—black and white—could join with the men of the 20^th and confidently say: “that flag is a big thing.”[35]

Endnotes

[1] Cf. Julie Spankles, “Chris Pratt Is in Hot Water for This Controversial T-Shirt & the Internet Has Thoughts,” Yahoo Lifestyle, July 17, 2019, https://www.yahoo.com/lifestyle/chris-pratt-hot-water-controversial-184007706.html (accessed February 19, 2020); Bill Chappell, “Nike Pulls Shoes Featuring Betsy Ross Flag Over Concerns About Racist Symbolism,” National Public Radio, July 2, 2019, https://www.npr.org/2019/07/02/737977542/nike-pulls-shoes-featuring-betsy-ross-flag-over-concerns-about-racist-symbolism (accessed February 19, 2020).

[2] Frederick Douglass, My Bondage and My Freedom (New York: Miller, Orton, and Mulligan, 1855), 438.

[3] “The Twentieth U.S. Colored Regiment,” Harper’s Weekly, March 19, 1864, 178.

[4] “The Twentieth U.S. Colored Regiment,” Harper’s Weekly, March 19, 1864, 178.

[5] “Twentieth U.S. Colored Regiment—Reception by the Union League—Speeches of Charles King and Colonel Bartram—Departure for the Seat of the War.” First Organization of Colored Troops in the State of New York, To Aid in Suppressing the Slaveholders’ Rebellion (New York: Baker and Goodwin, 1864), 16.

[6] “Twentieth U.S. Colored Regiment—Reception by the Union League—Speeches of Charles King and Colonel Bartram—Departure for the Seat of the War.” First Organization of Colored Troops in the State of New York, To Aid in Suppressing the Slaveholders’ Rebellion (New York: Baker and Goodwin, 1864), 16.

[7] “Twentieth U.S. Colored Regiment—Reception by the Union League—Speeches of Charles King and Colonel Bartram—Departure for the Seat of the War.” First Organization of Colored Troops in the State of New York, To Aid in Suppressing the Slaveholders’ Rebellion (New York: Baker and Goodwin, 1864), 17.

[8] “Twentieth U.S. Colored Regiment—Reception by the Union League—Speeches of Charles King and Colonel Bartram—Departure for the Seat of the War.” First Organization of Colored Troops in the State of New York, To Aid in Suppressing the Slaveholders’ Rebellion (New York: Baker and Goodwin, 1864), 18.

[9] “Twentieth U.S. Colored Regiment—Reception by the Union League—Speeches of Charles King and Colonel Bartram—Departure for the Seat of the War.” First Organization of Colored Troops in the State of New York, To Aid in Suppressing the Slaveholders’ Rebellion (New York: Baker and Goodwin, 1864), 19.

[10] J. J. Hill, A Sketch of the 29^th Regiment of Connecticut Colored Troops (Baltimore: Daugherty, Maguire, and Co., 1867), 21-22.

[11] Joseph Wilson, The Black Phalanx: A History of the Negro Soldiers of the United States (Hartford: American Publishing Company, 1897), 223, here.

[12] Thomas Higginson, The Writings of Thomas Wentworth Higginson (Cambridge: The Riverside Press, 1900), 3.149, here.

[13] Thomas Higginson, The Writings of Thomas Wentworth Higginson (Cambridge: The Riverside Press, 1900), 3.31, here. Higginson records the speech in the original spoken dialect, but the spelling has been updated above.

[14] Susie King Taylor, Reminiscences of My Life in Camp with the 33d United States Colored Troops, Late 1^st S. C. Volunteers (Boston: Susie King Taylor, 1902), 48-49.

[15] Thomas Higginson, The Writings of Thomas Wentworth Higginson (Cambridge: The Riverside Press, 1900), 3.54-56, here.

[16] Susie King Taylor, Reminiscences of My Life in Camp with the 33d United States Colored Troops, Late 1^st S. C. Volunteers (Boston: Susie King Taylor, 1902), 48-49.

[17] Cf., “Who Were These Heroes?” Negro History Bulletin 23, no. 3 (1959): 50-70.

[18] George Washington Williams, A History of the Negro Troops in the War of the Rebellion, 1861-1865 (New York: Harper and Brothers, 1888), 199-202.

[19] Walter Beyer, and Oscar Keydel, Deeds of Valor: How America’s Heroes Won the Medal of Honor (Michigan: The Perrien Keydel Company, 1901), 434-435; James Clifford, “Christian Fleetwood.” On Point 13, no. 3 (2007): 21-24.

[20] Jeremiah Marion Mickley, The Forty-Third Regiment United States Colored Troops (Gettysburg: J. E. Wible, 1866), 74-75.

[21] George Washington Williams, A History of the Negro Troops in the War of the Rebellion, 1861-1865 (New York: Harper and Brothers, 1888), 199-202, 236-237, 326, 333, 336-337.

[22] Candice Zollars, “6^th U.S. Colored Infantry: They Laid Down Their Lives for the Flag,” Military Images 33, No. 3 (2015): 28.

[23] Susie King Taylor, Reminiscences of My Life in Camp with the 33d United States Colored Troops, Late 1^st S. C. Volunteers (Boston: Susie King Taylor, 1902), 48.

[24] Thomas Higginson, The Writings of Thomas Wentworth Higginson (Cambridge: The Riverside Press, 1900), 3.337-338, here.

[25] “Treatment of Captured Colored Soldiers,” Harper’s Weekly, August 15, 1863, 515.

[26] The Congressional Record Containing the Proceedings and Debates of the Forty-Third Congress, First Session (Washington: Government Printing Office, 1874), 2.566.

[27] The Congressional Record Containing the Proceedings and Debates of the Forty-Third Congress, First Session (Washington: Government Printing Office, 1874), 2.903.

[28] The Congressional Record Containing the Proceedings and Debates of the Forty-Third Congress, First Session (Washington: Government Printing Office, 1874), 2.903.

[29] The Congressional Record Containing the Proceedings and Debates of the Forty-Third Congress, Second Session (Washington: Government Printing Office, 1875), 3.945.

[30] Roger D. Cunningham, “‘His Influence with the Colored People Is Marked:’ Christian Fleetwood’s Quest for Command in the War with Spain and Its Aftermath.” Army History, no. 51 (2001): 23.

[31] James Clifford, “Christian Fleetwood.” On Point 13, no. 3 (2007): 21-24.

[32] Frederick Douglass, The Life and Times of Frederick Douglass Written by Himself (Hartford: Park Publishing Company, 1882), 382.

[33] Frederick Douglass, The Life and Times of Frederick Douglass Written by Himself (Hartford: Park Publishing Company, 1882), 456.

[34] Frederick Douglass, The Life and Times of Frederick Douglass Written by Himself (Hartford: Park Publishing Company, 1882), 471.

[35] “Twentieth U.S. Colored Regiment—Reception by the Union League—Speeches of Charles King and Colonel Bartram—Departure for the Seat of the War.” First Organization of Colored Troops in the State of New York, To Aid in Suppressing the Slaveholders’ Rebellion (New York: Baker and Goodwin, 1864), 19.

America’s Exceptional History of Anti-Slavery

Recently the idea of American Exceptionalism has been ridiculed in academic and political circles with entire books dedicated to the purpose of tearing down any thought of an ethical America.[i] Much of this recent shift centers around America’s record on slavery. For instance, organizations such as the New York Times have started initiatives declaring that the “true founding” was not until the introduction of slavery 1619[ii] and that the “founding ideals were false” due to the existence of slavery.[iii]

The shift to a negative perspective of America largely stems from the revisionist school of history beginning in the 1960’s and culminating with Howard Zinn’s monumental 1980 People’s History of the United States. This book popularized the historiographical approach of doing “history from the bottom up,” which means telling the story of America through the interpretive lens of oppression. A fellow activist historian of Zinn’s, Staughton Lynd explains the fundamental premises underlying this approach in his Doing History from the Bottom Up. In their interpretive model, “was founded on crimes against humanity directed at…enslaved African Americans,” and therefore must be evil.[iv]

Such anti-American revisionism forgets that America’s record of anti-slavery actually is exceptional compared to the rest of the world. Rarely do revisionists remember that over half of the American states had passed laws abolishing slavery by 1804, nearly thirty years before William Wilberforce effected the similar results in England. This wide-scale abolitionism was planted by the Biblical beliefs of several early colonies, was watered by the advocacy and action of the patriots during the American Revolution, and finally brought forth fruit through the establishment of a Constitutional Republic designed to advance liberty and defend the ideals of the Declaration.

A careful review of the colonial anti-slavery context, the development of abolitionist thought during the War for Independence, and the staunch leadership of the pro-freedom Founding Fathers reveals how America led the way in abolishing slavery. Instead of the modern academic narrative which attempts to debunk American exceptionalism, history shows that America was exceptional in their struggle for emancipation.

As mentioned earlier, by 1804 all of the New England states as well as Vermont, New York, and New Jersey had either completely abolished slavery or enacted positive laws for the gradual abolition of it. This is four years before the Federal Congress ends the slave trade, and almost three decades before England votes to follow suit and abolishes slavery. The American wave of emancipation constituted the largest group of people who had voluntarily freed their slaves up to that point in modern history.

The 1810 census documents that the total population of those states—Massachusetts (Maine included), New Hampshire, Rhode Island, Connecticut, Vermont, Pennsylvania, New York, and New Jersey—stood at 3,486,675.[v] This was approximately 48% of the total population, slave and free, of the United States at that time. Although not entirely free of slavery due to the gradual emancipation laws in states such as New York and New Jersey, the total percentage of the population waiting for emancipation was only 0.9% in states originally a colony. So, by 1804 half of America had succeeded in passing laws for the abolition of slavery, and only six years later they had been 99% effective in accomplishing that goal. Nobody else in the world was anywhere close to what those Northern States had succeeded in doing—in this America was exceptional.

Massachusetts itself has the honor of being the only state to have totally abolished slavery by the time the first census was completed in 1790, and Vermont was not far behind with only seventeen slaves left to be liberated by their laws.[vi] Massachusetts also receives distinction for passing potentially the earliest anti-slavery law in the American colonies within the 1641 enactment of the Massachusetts Body of Liberties. The tenth capital crime in that legal code stated that, “if any man stealeth a man or mankind, he shall surely be put to death. Ex. xxi.16.”[vii] Taken from the Bible as evidenced by the scriptural citation, manstealing was interpreted by the New England colonists to include what they considered improper enslavement—later it was to expand to all vestiges of slavery.

Blackstone describes manstealing as, “the forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another.”[viii] Going further to say, “this is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships.”[ix]

This law was not simply an empty letter either, and when the first instance of manstealing occurred in 1646 the General Court of Massachusetts was vigorous in its prosecution. The record explains that:

The General Court, conceiving themselves bound by the first opportunity to bear witness against the heinous and crying sin of man stealing, as also to proscribe such timely redress for what is past, and such a law for the future as may sufficiently deter all others belonging to us to have to do in such vile and most odious courses, justly abhorred of all good and just men, do order that the negro interpreter, with others unlawfully taken, be, by the first opportunity, (at the charge of the country for present,) sent to his native country of Ginny, and a letter with him of the indignation of the Court thereabouts, and justice hereof, desiring of honored Governor would please put this order in execution.[x]

Interestingly, the Court chose to go farther than the law necessarily required, deciding to send back the slaves at the cost of the community. After making arrangements for the liberated slaves, the General Court then, “appointed a committee to examine witnesses and draw up the case about Captain Smith and Mr. Kezar killing stealing, and wronging of the negroes, etc.”[xi] This response to the arrival of a slave ship is markedly different than when the first one arrived on the shores of Jamestown, and it indicates an entirely different culture which from an extremely early period looked down upon the slave trade.

Their reliance upon the Bible to begin to understand their relationship to slavery led New Englanders down a dramatically different path than both the Southern colonies and the world. Instead of viewing enslavement as a natural product of race, they understood it arose out of either personal misfortunes (such as debt) or bad choices (such as crime). The New England slaves therefore attained levels of rights unheard of practically anywhere else.

The Puritans’ idea of a “Bible commonwealth” relied upon the Mosaic laws for much of their own statutes concerning servitude. Therefore, slaves had an increased level of social status with rights including the right to own property, testify in court against white men, wives could not be compelled to testify against their husbands, had legal standing to sue which included suing their masters for freedom.[xii] Additionally, enslaved people had the equal procedural rights within the courtroom which, together with the right to sue, led many slaves to advocate for freedom through the New England government.[xiii]

The wider context of slavery both domestically and globally makes North America’s record even more exceptional. First it must be noted that slavery has existed within every culture historically documented. In fact, the story of American slavery begins long before Christopher Columbus ever dreamed of sailing across the ocean sea. The native tribes he discovered all had slaves and on a whole it is estimated that 20 to 40 percent of native populations were slaves, making the native Americans on par with the slave empires of Greece and Rome.^[xiv] This native American tradition of slavery continued uninterrupted by colonization, and by 1860, 12.5% of the population in the Indian Nations were black slaves, equaling one slave for every eight Indians.[xv]

Expanding the scope of inquiry even wider, throughout the nearly 400 years of the trans-Atlantic slave trade 12,521,337 Africans were taken to be slaves around the world. Only a small minority of that number ever embarked to the areas that would become the United States—305,326 to be exact, totaling 2.4%.[xvi] For comparison, Spain and her territories received 1,061,524 slaves during that same period representing nearly 8.5%, and France only barely received more with 11% (1,381,404). Next was Great Britain with 3,259,441 slaves taken from Africa, meaning that over one quarter (26%) of all slaves sourced from the African continent were intended for English lands. That, however, pales in comparison to Portugal and Brazil, where 5,848,266 enslaved humans were shipped—nearly 47% of the total number. Even the Netherland had more stake in the trans-Atlantic slave trade than America did, themselves accounting for 554,336 and 4.4%.[xvii]

What is more, slavery both globally and in America was never simply white on black. Just as every people group has owned slaves, every people group has correspondingly been enslaved. Prior to the 1700s there were more white slaves globally than there were black slaves.[xviii] In fact, early records from Massachusetts reveal that in December of 1738 several white men were sentenced to slavery for a variety of crimes. One had been an indentured servant who physically assaulted the man he was working for, and then “did conspire also against the life of his said whole common wealth,” and two others for theft alongside breaking and entering.[xix] The next year the Massachusetts court similarly sentenced another white criminal to slavery for attempted rape.[xx]

In addition to white slavery in America, Americans themselves were sold into slavery in the Barbary Coast of North Africa after being captured by Muslim slave traders. Charles Sumner, the famous abolitionist and founder or the Republican party, documented that fourteen men from Boston and Philadelphia would fetch $34,792 in the African slave market of 1785.[xxi] Beyond just the American sailors, the Muslim Barbary Pirates conducted extensive slave raids along the European coast, meaning that:

“Between 1530 and 1780 there were almost certainly a million and quite possibly as many as a million and a quarter white, European Christians enslaved by the Muslims of the Barbary Coast.”[xxii]

Just as there were white slaves both in America and the world, there also were black slave masters. Carter Woodson, often considered the “Father of Black History,” conducted a close study of the 1830 census data in order to investigate rates of free blacks who themselves owned slaves. His research revealed that, out of those free blacks who were eligible to own slaves (head of households living in states which would later join the Confederacy), 16% of them owned black slaves.[xxiii] Certain states, however, stand out in their relatively high frequency. South Carolina for instance saw 43% of eligible free black people own slaves, 40% in Louisiana, 26% in Mississippi, 25% in Alabama, and 20% in Georgia.[xxiv] Such statistical data simply shows just how varied the institution of slavery was throughout both history and the American story—far from the monolithic image presented by revisionists.

With so much of the world having been embroiled with slavery and the slave trade for hundreds of years, it makes the actions of America not only unique but remarkable. By the time the 18^th century began, many of the northern colonies began passing laws which established duties on importing slaves. The intent was for such acts cut away the slaver’s profit margin and therefore making it economically undesirable to import slaves into those regions. In 1700 elements of the Massachusetts citizenry petitioned the legislature for restrictive duty on slaves “to discourage the bringing of them” of forty shillings.[xxv] The next year the colony sought to set a limit to the period of slavery that a person could serve, and in 1705 they were successful in obtaining a four-pound import duty.[xxvi] Rhode Island had passed a slightly smaller duty two years earlier of a still substantial three-pounds.[xxvii]

Other colonies such as New York and Pennsylvania attempt to pass even more restrictive bills regulating the slave trade into relative non-existence but many of their efforts were vetoed by the authority of the Crown.[xxviii] The Royal veto of anti-slavery measures, often because of the economic benefit which England derived from the global trade, became a common response to colonial attempts at restricting slavery.

Nearly seventy years later such practices nearly made it into the Declaration of Independence after appearing in Thomas Jefferson’s draft and being approved by Benjamin Franklin and John Adams. The grievance against the slave trade was the longest out of all of them, occupying the better part of a page in addition to having the most words underlined or capitalized outside of the title. The grievance in the draft reported to Congress read as follows:

He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of distant people, who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation tither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king of Great Britain. Determined to keep open a market where Men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce.[xxix]

Many other Founding Fathers agreed with Jefferson—in fact, the majority of Founding Fathers agreed with him. Only two states voted against the grievance thus keeping it out of the final Declaration of Independence.

(It should also be noted that although many today claim that when the Declaration states that “all men are created equal” the Founding Fathers really meant to say “all white men are created equal,” Jefferson himself explicitly identifies slaves as men and thereby included in the American promise.)

With over a century of anti-slavery activity, it should come as no surprise to see a dramatic increase in manumissions and widespread emancipation during and immediately following the War for Independence. From 1790 to 1810 the number of free blacks in America increased from 59,466 to 108,395, displaying a growth rate of 82%. The next decade saw that number expand another 72% to 186,446.[xxx] While the number continued to grow albeit at a lower rate of growth in the years leading up to the Civil War, those first two decades of the American Republic saw the strongest rate of voluntary emancipation ever recorded up to that time. It is this period which Arthur Zilversmit calls the First Emancipation.[xxxi]

John Adams, an attorney prior to becoming a politician, recalled the environment of emancipation during those years saying:

“I was concerned in several Causes, in which Negroes sued for their Freedom before the Revolution.…I never knew a Jury, by a Verdict to determine a Negro to be a slave—They always found them free.”[xxxii]

During the Revolution itself many slaves who fought for freedom from England also achieved freedom from slavery, being manumitted on account of their service. William Whipple, signer of the Declaration and General under Washington, freed his slave, Prince Whipple during campaign after realizing the incongruity of his own actions.[xxxiii] Another veteran of the Revolutionary War, a slave named Prime, was actually re-enslaved after the war but, with the help of anti-slavery advocates, he successfully petitioned for his emancipation, winning his freedom not only on the battlefield but in the courtroom as well.

Upon examining this period, renown historian Benjamin Quarles remarked that the War for Independence and the environment leading up to it empowered the black population with the tools and personal agency to reach for their freedom as Americans. He writes that the slaves, “gave a personal interpretation to the theory of natural rights and the slogans of liberty and independence,” and many white leaders who were awakening to the injustice helped them in that greater revolution.[xxxiv]

This brief examination of the overarching facts and context concerning America’s early history with slavery shows that the story is infinitely more nuanced than the revisionist narratives propagated by Zinn, Lynd, and the New York Times. The real history, however, reveals that America’s record for anti-slavery is exceptional when placed in the context of the world at that time. Instead of presenting a view of history as if it Jamestown won the ideological battle for America, historians today must realize that the tree of slavery was choked out by the tree of liberty. That the ideas of Plymouth overcame those of Jamestown.

The story of the northern colonies, when properly told, shows that America was among the first places in the world to lead a successful fight against slavery in both word and deed. Furthermore, the anti-slavery Founding Fathers paved the path which many of the global abolitionist followed in the decades to come. America ought not to be remembered as a land of oppression but rather one of liberation. The New World has been the frontier of freedom from the beginning, being the first to struggle for emancipation and find large-scale success. Those small American Republics, carved out of the wilderness, showed a level of civilization unheard of at that early period, passing anti-slavery and abolition laws before virtually anywhere else in the world. America was indeed exceptional—a seedbed of liberty for themselves and the rest of the world.

[i] Andrew Bacevich, The Limits of Power: The End of American Exceptionalism (New York: Holt Paperbacks, 2009); Godfrey Hodgson, The Myth of American Exceptionalism (New Haven: Yale University Press, 2010).

[ii] “The 1619 Project,” The New York Times (accessed December 5, 2019), https://www.nytimes.com/interactive/2019/08/14/magazine/1619-america-slavery.html

[iii] Nikole Hannah-Jones, “Our Democracy’s Founding Ideals were False When They were Written,” The New York Times (December 5, 2019), https://www.nytimes.com/interactive/2019/08/14/magazine/black-history-american-democracy.html

[iv] Staughton Lynd, Doing History from the Bottom Up: On E. P. Thompson, Howard Zinn, and Rebuilding the Labor Movement from Below (Chicago: Haymarket Books, 2014), xii.

[v] Aggregate Amount of Each Description of Persons Within the United States of America, and the Territories Thereof (Washington: 1811), 1.

[vi] The American Almanac and Repository of Useful Knowledge for the Year 1858 (Boston: Crosby, Nicholas, and Company, 1858), 214.

[vii] Francis Bowen, editor, Documents of the Constitution of England and America, from Magna Charta to the Federal Constitution of 1789, (Cambridge: John Bartlett, 1854), 72.

[viii] William Blackstone, Commentaries on the Laws of England (London: A. Strahan and W. Woodfall, 1795), 4.218-219.

[ix] Ibid., 4.219.

[x] Nathaniel Shurtleff, Records of the Governor and Company of the Massachusetts Bay in New England (Boston: William Whites, 1853), 1.168.

[xi] Ibid., 1.176.

[xii] Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North (Chicago: The University of Chicago Press, 1968), 19.

[xiii] Ibid.

[xiv] Fernando Santos-Granero, Vital Enemies: Slavery, Predation, and the Amerindian Political Economy of Life (Austin: University of Texas Press, 2009), 226-227.

[xv] Joseph Kennedy, Preliminary Reports on the Eighth Census, 1860 (Washington DC: Government Printing Office, 1862), 11.

[xvi] “Trans-Atlantic Slave Trade – Estimates,” Slave Voyages, https://www.slavevoyages.org/assessment/estimates (accessed December 6, 2019).

[xvii] Ibid.

[xviii] Philip Morgan, “Origins of American Slavery,” Organization of American History Magazine of History, Vol. 19, No. 4 (July 2005), p. 53

[xix] Nathaniel Shurtleff, Records of the Governor and Company of the Massachusetts Bay in New England (Boston: William Whites, 1853), 1.246.

[xx] Ibid., 1.269.

[xxi] Charles Sumner, White Slaves in the Barbary States (Boston: William D. Ticknor and Company, 1847), 32.

[xxii] Robert Davis, “Counting European on the Barbary Coast,” Past &Present, No. 172 (August 2001), 118.

[xxiii] Thomas J. Pressly, “‘The Known World’ of Free Black Slaveholders: A Research Note on the Scholarship of Carter G. Woodson,” The Journal of African American History 91, no. 1 (2006): 85.

[xxiv] Ibid.

[xxv] Zilversmit, The First Emancipation, 51.

[xxvi] Ibid.

[xxvii] Ibid.

[xxviii] Ibid., 47-49.

[xxix] Thomas Jefferson, The Works of Thomas Jefferson, edited by Paul Leicester Ford (New York: G. P. Putnam’s Sons, 1904), 210-211.

[xxx] Kennedy, Preliminary Reports, 7.

[xxxi] Zilversmit, The First Emancipation.

[xxxii] Collections of the Massachusetts Historical Society (Boston: Massachusetts Historical Society, 1877), 401-402.

[xxxiii] William Nell, Colored Patriots of the American Revolution (Boston: Robert Wallcut, 1855), 198.

[xxxiv] Benjamin Quarles, “The Revolutionary War as a Black Declaration of Independence,” Slavery and Freedom in the Age of the American Revolution, edited by Ira Berlin (Charlottesville: The University Press of Virginia, 1983), 285.

*Originally published: April 6, 2020

* This article concerns a historical issue and may not have updated information.

People of Faith During COVID-19

Throughout both American and world history, the Church has arisen and become a much-needed leader in times of crisis. The COVID-19 pandemic provides us another such opportunity to be a shining light to people and communities. Gratefully, we have seen many churches across the nation rolling up their sleeves and taking the lead in extending God’s love to others and truly helping those in need during this difficult time.

We’ve compiled a list of actions that people of faith have taken to meet community needs in a practical way. Please use it to take action and serve others.

Help those laid off from work.
Some churches can financially bless workers who have been laid off by offering them jobs around the church, giving a one-time monetary gift, dropping off a load of groceries and paper-goods, bringing them a gas gift card, or helping them network within the church body to find and provide opportunities for those individuals to take on new jobs, even limited or part time opportunities, working from home. You can also provide them with lists of local resources like food pantries or places that offer free meals. Up to forty percent of all jobs are related to the service industry, and this area has been hit particularly hard in recent days, so this segment of the population may especially need help.
Meet the needs of widows.
Remember the widows, and especially elderly widows, within the community. Call them and ask how you can help meet their needs. Help limit the need for them to leave their homes and be exposed to the virus. Offer to drop off groceries, meals, medications, and so forth—or have groceries delivered. Have someone from the church mow their lawn or shovel snow from their driveway (weather dependent, of course). Have someone offer to drive them to any appointments they might have.
If they have children, drop by a goodie bag for the kids that might have games or puzzles or things that they can do during this time off from school. If you have people in your church who are willing to babysit, consider asking if they would offer a day of babysitting services for these families for free.
Help the elderly.
Consider setting up a hotline for the elderly to call if they need food or medications. Volunteers can deliver these essentials to their house or utilize grocery store delivery services. Check to see if assistance is needed in taking them to doctor appointments. Identify the needs of the elderly in your community and work together as a church body to meet them. While nursing homes are being extremely cautious, call your local nursing home and ask for the activity director and find out if you can bring them games or books or puzzle books.
Sanitize and disinfect public spaces.
If you have people with hazmat certifications, ask the city, governments, hospitals, schools, parks, if your church can assist cleaning a public space.
Support small businesses.
Due to the hysteria, countless businesses are suffering financially during this time – especially small businesses! Consider encouraging your congregation to buy gift cards to local restaurants or businesses right now that can be used later and help financially alleviate some of their current losses. If it’s a local restaurant, consider submitting a large order that can be delivered to families in need of help.
Assist working parents.
Many families have children who must now stay home from school while the parents are still working. Consider donating a day of babysitting or offering volunteers from the church to babysit for parents who cannot stay home with their children.
Create Family Activity Kits.
Consider putting together activities for families while they are home. Some ideas include boxes with Scripture readings, instructions for some fun games, worship songs, devotionals, snacks for the kids, and notecards to write encouraging notes to others that can be picked up from the church. Consider having the childrens’ pastor or leader create a special video lesson just for the kids that they can watch at some point during the week.
Help the homeless.
Consider purchasing food from restaurants and delivering it to homeless shelters or food banks, take them a bag of non-perishable food and toiletry items, or give them a gift card to a local grocery store.
Donate blood!
Many blood drives have been canceled because of the coronavirus and blood banks are in need of donation! Call your local blood bank and find out what they need and put the word out to your church members!
Activate people to keep praying.
Keep a running list of people and their specific needs and regularly distribute them to parishioners, encouraging your church to pray for them. People in your church could adopt a nursing home to pray for or those with weak immune systems, government officials who are making critical decisions, or someone suffering from COVID-19 in your community. While offering prayers are important, keeping them going is even more important.
Serve healthcare workers.
Many healthcare works will be very busy in the coming weeks, and many are placing themselves directly in harm’s way, giving tireless hours. Consider how you could help healthcare workers you are already in relationship with while they work more during this time. You could offer to babysit their children, provide a meal, or simply send them a note of encouragement. Find out what their needs are and help meet them so they can in turn help those who are ill.
Utilize the giftings in your church!
Do you have someone who knows how to make homemade hand sanitizer? Ask them if they’d be willing to make some to pass out to those in need. Do you have people who babysit? Ask them if they’ll donate their services. Do you have mechanics? Ask if they can help with oil changes for those who have been laid off or for the widows/single parents/elderly. Do you have counselors? Ask if they’ll donate some sessions for those who need help or encouragement! Ask the youth group to write encouraging notes that can be passed out to first responders and medical workers, along with goodie baskets (with pre-packaged food or items like pens and highlighters and notepads so as not to cause concerns about germs!). This isn’t dependent on church leadership, but rather on the leadership involving those in their congregation who can and will help!

We will not fear during the time because we hold to the promises and truth found in the Word of God.

“For God hath not given us the spirit of fear; but of power, and of love, and of a sound mind.” – 2 Timothy 1:7
“Have I not commanded you? Be strong and of good courage; do not be afraid, nor be dismayed, for the Lord your God is with you wherever you go.” – Joshua 1:9
“Fear not, for I am with you; Be not dismayed, for I am your God. I will strengthen you, Yes, I will help you, I will uphold you with My righteous right hand.” – Isaiah 41:10

We encourage you to read what CS Lewis and Martin Luther said about panic and pandemics in their day.

If a brother or sister is naked and destitute of daily food, one of you says to them, “Depart in peace, be warmed and filled,” but you do not give them the things which are needed for the body, what does it profit? Thus also faith by itself, if it does not have works, is dead. – James 2:15-17

The State of Judicial Selections: The Missouri Plan and How it Fails

Introduction

Since much public policy is now created by the judiciary, the federal judicial system in America receives increasingly more attention from politicos, pundits, and reporters. Federal judicial appointments are often closely watched, as are cases at the US Supreme Court. Yet despite the attention, the original intent of the judiciary is not well understood today. And ironically, although 90 percent of all cases are heard at the state rather than the federal level,[i] the role and operation of the state judicial system is almost completely overlooked. With so much resting on state courts, how those judges are selected is undeniably important. Texas has recently become a center of attention for this issue.

Texas currently selects its judges by a vote of citizens through popular elections, but some want this to change. Due to the rise of Democratic voters in the larger urban areas of the state (such as Dallas and Houston), some Republican-leaning groups are urging a move away from allowing the people to choose their judges. Instead they urge the adoption of what has become known as the “Missouri Plan” (also known as “Merit Selection” or “Assisted Selection”), which eliminates contested judicial elections. However, as will be documented below, this so-called “Merit Selection” is based on subjective personal opinions rather than any objective standard of measurement. Instead of advancing well-prepared constitutional judges to seats, the “Missouri Plan” consolidates power into the hands of an unelected and unaccountable group of administrators, making the state judiciary more partisan and polarized.

Before examining the results of Merit Selection in other states, how does the plan work? While there is some difference in the way various states employ this system, the overarching details are similar. A small group of undemocratically appointed commissioners of supposed elite legal “experts” choose a tiny handful of nominees for a particular judgeship. The governor then picks one of those privately-selected nominees to become judge, and that largely ends the process.

But who are these “experts” that choose a state’s judges for the people of that state? In some states, the members of that small nominating commission are appointed by the governor, but usually the private state bar, legal associations, the legislature, the governor, and sometimes sitting judges split the choice of commissioners. Nearly 75% of the board members end up being lawyers,[ii] which has become such a problem that some states have passed laws limiting the number of attorneys that may be appointed. Texas is now being urged to accept this system as a replacement for having voters choose the judges who will rule over them.

Texas, The Nation, And Various Other Methods

A prominent group arguing for this shift is Texans for Lawsuit Reform (TLR), an organization that has achieved many good things in the past, including major substantive tort reform. On its website, TLR explains why Texans should no longer be allowed to choose their judges:

Texas is one of only a few states that elects its judges.[1] Because there are often so many judges on the ballot and because these are often lower-profile election contests, many Texans simply don’t have enough knowledge about the candidates for judicial office to make informed decisions. Many voters cast their votes for judges based on party affiliation or name recognition, since they have no knowledge of the relative merits of the candidates. Historically, this has led to groups of long-serving, competent, experienced judges being swept out of office based on nothing other than partisan affiliation.[iii] (emphasis added)

Their aim is to prevent larger blue cities from electing an increasing number of Democrat judges rather than Republican ones by moving Texas away from democratically contested elections. But before examining whether adopting the Missouri Plan (or any of its derivatives) would be good for Texas, it is worthwhile to review the six different types of state judicial selection systems currently in use.

Nonpartisan Elections:

Used by 15 states, this is the most popular method. These are contested races in which judicial candidates do not formally identify with any official party—Democrat, Republican, or otherwise. This is done in hopes of encouraging voters to look deeper into the candidates’ actual record on issues and past a simple party designation. (The first non-partisan judicial election took place in 1873.[iv])

The Missouri Plan (Assisted Appointment, Merit System)

The second most popular system is the Missouri Plan, with a total of 14 states employing it at the State Supreme Court level. Begun in Missouri in 1940, it expanded rapidly, but since 1994 states have stopped adopting it, opting instead to retain their older systems.[v]

Gubernatorial Appointment

Also known as the federal model, the governor makes judicial appointments that then go before the legislative branch for confirmation. This method is currently used by 10 states, especially in the New England area. Originally, every new state that entered the Union after 1789 adopted the federal model but by the mid-to-late-1800s, most had moved to popular elections. In fact, since 1847, Hawaii has been the only state to enter the Union and select the federal model; the rest have opted for some form of citizen elections.[vi]

Partisan Elections

In 1832, Mississippi first moved away from the federal model and adopted partisan elections. New York followed suit in 1846, and then most of the rest of the nation.[vii] By the time the Civil War was fully underway, 70 percent of the states used contested partisan judicial elections,[viii] but some have since chosen other elections.

Hybrid

California, Maryland, and New Mexico use a hybrid system that merges the Missouri Plan with elements of the federal model—notably legislative confirmation. This retains at least a portion of the original constitutional checks and balances, but like the full-blown Missouri Plan, it often utilizes methods that keep the process of choosing judges excluded from the public.

Legislative Appointment

Used only in Virginia and South Carolina, this is the least common system. The legislature selects judges in a manner similar to the way Senators were chosen for the US Senate prior to the addition of the 17^th Amendment to the Constitution in 1913, and has the option of reappointing those judges once their initial term has been completed.[ix]

The Philosophy Behind the Missouri Plan

With the push to adopt the Missouri Plan/Merit Selection in Texas, it is important to examine whether it justifies abandoning longstanding citizen voting traditions. Supporters offer two primary reasons for adopting a new system.

The first argument was presented above by Texans for Lawsuit Reform (TLR): “Texans simply don’t have enough knowledge” to make “informed decisions.”[x] This premise leads them to conclude that an unelected body of supposed experts (on whom TLR hopes to have substantial influence) is more likely to choose the type of judges TLR would prefer to have on the bench.

In one regard, TLR is absolutely right that an educated citizenry is vital for a healthy and vigorous political life. As Thomas Jefferson affirmed, “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.”[xi]

Signer of the Declaration Samuel Huntington agreed, declaring:

While the great body of freeholders are acquainted with the duties which they owe to their God, to themselves, and to men, they will remain free. But if ignorance and depravity should prevail, they will inevitably lead to slavery and ruin.[xii]

But if the problem TLR is trying to solve is citizen ignorance, the solution is citizen education, not reducing their rights and increasing an already over-bloated and unaccountable government bureaucracy. Informing citizens may not be the shortest or easiest route to their objectives, but it is undoubtedly the best for preserving political freedom.

The second argument for the Missouri Plan is that Merit Selection will stop corruption. Supporters allege that judicial corruption occurs because elections not only invite special interest money but they make judges too accountable to the people. As one group explained, “justices should be freed from wondering if their rulings will affect their job security.”[xiii] Proponents believe that if both money and the people are removed from the process, there will be less corruption.

Of course, this argument ignores the fact that the appointing commissioners also have their own vested interests and personal opinions as to how things should go in the judiciary, and they will select candidates accordingly. And if the concern is that special interest groups are “buying off” judges through donations, giving more political power to an unelected body is not the solution. There is no direct accountability for that body, their biases are not transparent, and recourse is difficult if not impossible to achieve, which increases rather than reduces opportunities for political malfeasance.

At its base, the Missouri Plan violates three core constitutional principles originally set forth by the Framers of our documents.

Three Fundamental Constitutional Principles the Missouri Plan Violates

1. Accountability

The first question that should always be asked with any political decision is, “How does this measure affect our liberty? —does it increase or reduce the rights and power of the citizenry?” If any part of the government is made less accountable, that proposal will be destructive of constitutional integrity.

Revolutionary patriot and signer of the Declaration Elbridge Gerry affirmed, “The origin of all power is in the people, and they have an incontestable right to check the creatures of their own creation.”[xiv] Whenever the people lose their ability to hold governmental bodies accountable for the execution of their public trust, it is a fundamental infringement on the rights of the people.

Defenders of the Missouri Plan claim their system does provide methods of recourse for the people, but even a cursory glance shows that the committee selection process is perhaps the least accountable system of all. The logic is so backward that one of the groups actively promoting this plan strangely argues that it is good “because concentrating power in one decision maker promotes greater accountability”[xv]

The lessons of history are clear and its voices of experience unanimous: whenever power becomes more concentrated, it generates increased autonomy, decreased accountability, and diminished freedom.

2. Preserving Constitutional Checks and Balances

Proponents of the Missouri Plan claim that citizen accountability over the judiciary is retained through judicial retention elections. (A retention election is one in which only the name of the sitting judge is on the ballot. A citizen simply votes yes or no for that judge, and if enough citizens vote no, then that judge is removed and the commission will select someone else to be judge.)

Not surprisingly, under this system the incumbent is reelected more than 99 percent of the time.^[xvi] The reason for this is simple: in a contested election there is an opponent to point out and publicize what the incumbent has done wrong; without this, citizens rarely know that a wrong has occurred. (By the way, if citizens are too uneducated to make the initial selection of a good judge, why do proponents believe they will make a wiser choice in a retention election?)

Despite claims to the contrary, Merit Selection is not a neutral system that chooses the best judges. To the contrary, it can be even more partisan and polarizing than popular elections. As an example, in Missouri from 1995 to 2008, Democrats received just over half of the general election vote, but of judges selected by the Merit System who made political contributions, 87 percent of them donated to the Democrat party.[xvii] Clearly, judges chosen by Merit Selection accurately reflects the beliefs of those who chose them, not the beliefs of the voters in the state they are to judge.

3. Maintaining Judicial Oversight

America’s concern with having judges not directly accountable to the people can be traced back to well before the American War for Independence. For example, in 1765, after years of living under British appointed judges, Founding Fathers like Samuel Adams began advocating for increased judicial accountability.[xviii] Consequently, when the Declaration of Independence was penned, four of its 27 grievances addressed judicial abuses, specifically lamenting that the King had “made judges dependent on his will alone for the tenure of their office and the amount and payment of their salaries.” This was Britain’s version of a “Merit Selection” system.

The Constitution sought to correct this by greatly limiting the power of the Judicial Branch. As Federalist 78 affirmed, the judiciary in America:

has no influence over either the sword or the purse—no direction either of the strength or of the wealth of the society—and can take no active resolution whatever. It may truly be said to have neither force nor will.… [T]he judiciary is, beyond comparison, the weakest of the three departments of power.…[and] the general liberty of the people can never be endangered from that quarter.[xix] (emphasis added)

Jefferson explained why the Judiciary should never be independent from the people:

It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also…. Independence can be trusted nowhere but with the people in mass.[xx]

In fact, he specifically argued that if the people were to be left out of any branch, it definitely should not be the judiciary:

We think, in America, that it is necessary to introduce the people into every department of government….Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making them.[xxi]

Because the impact from an unaccountable judiciary can be so substantial, it was intentionally designed to be what the Federalist Papers had called “the weakest branch.” At the federal level, judges were to be kept in check by the threat of impeachment, and unlike today, that was not an empty threat during the Founding Era. A number of judges were impeached and removed due to improper judicial behavior, including offenses such as rudeness to witnesses, profanity in the courtroom, judicial high-handedness, and judicial activism.[xxii]

Joseph Hopper Nicholas (who served in the federal Congress under Presidents John Adams and Thomas Jefferson) led several of the judicial removal efforts. When some objected that the judiciary should be more independent, he warned:

Give them [judges] the powers and the independence now contended for and.…your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure.…If all this be true—if this doctrine be established in the extent which is now contended for—the Constitution is not worth the time we are now spending on it. It is—as it has been called by its enemies—mere parchment, for these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.^[xxiii]

Massachusetts understood this, and its state constitution made the point that all three branches—including the judiciary—were to be accountable to the people. (Ratified in 1780, the Massachusetts constitution is still in use today, making it the only active constitution in the world older than the US Constitution.) Written by notables such as John Adams, John Hancock, Sam Adams, and others, it declared:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority—whether Legislative, Executive, or Judicial—are their substitutes and agents and are at all times accountable to them. [xxiv] (emphasis added)

Today an “independent judiciary” (meaning one unaccountable to the people or any other branch) has become the standard advanced by anti-constitutional Progressive groups such as Open Society (Soros funded), the Brennan Center for Justice, and the Equal Justice Initiative. Groups like these join TLR in their claim that the American people can’t be trusted to choose the right judge through regular elections and therefore a Merit Selection system such as the Missouri Plan is needed. (These groups fully understand that it is easier for them to influence or take over a small appointing commission than the full electorate of a state.)

Conclusion

In summary, the primary arguments for “Merit Selection” are: (1) the people lack the capacity to “appoint for themselves judges and officers” (Deuteronomy 16:18), and (2) elections, which make judges accountable, cause judges to become too political. The Founding Fathers believed the opposite on both points.

Concerning the first, Thomas Jefferson pointed out that if voters are ill-informed, the remedy certainly is not to reduce their involvement with the judiciary:

When the Legislative or Executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.[xxv]

Concerning the second point (that judges should not be directly accountability to the people), signer of the Constitution John Dickinson queried “what innumerable acts of injustice may be committed—and how fatally may the principles of liberty be sapped—by a succession of judges utterly independent of the people?”^[xxvi] Abraham Lincoln likewise affirmed that if judges are given the final word without accountability to the people, then “the people will have ceased to be their own rulers, having…resigned their government into the hands of that eminent tribunal.”[xxvii]

If America is to remain a strong constitutional republic, we must protect the safeguards established by our forefathers to disperse power and authority. The safest repository was and always will be the citizens—and if the citizens lack proper knowledge, the correct solution is citizen education, not a return to the same authoritarian practices the British once employed against our colonial ancestors.

Thomas Jefferson reminded us of the fundamental principle of American government that should guide our considerations in the question of whether a system such as the Missouri Plan is worthy:

[T]he will of the majority—the natural law of every society—is the only sure guardian of the rights of man. Perhaps even this may sometimes err, but its errors are honest, solitary and short-lived. Let us then, my dear friends, forever bow down to the general reason of the society. We are safe with that, even in its deviations, for it soon returns again to the right way.[xxviii]

The American experiment rests upon the basic premise that we would rather suffer from the ignorant errors of the people than the deliberate machinations of a political elite. To voluntarily surrender the rights of the people for fear they might vote for the wrong party is to betray both today’s citizens as well as the great historical sacrifices made in order for Americans to make their own political choices.

The creation of a body of unelected bureaucrats deciding who will be the people’s judges weakens liberty, politicizes courts, and reduces accountability. In Texas (as well as the rest of America), the Missouri Plan/Merit Selection should be rejected. _▀