Republican senators and courage

Sen. Ben Sasse (R-Neb.) warns us that a “rotten seed” has taken root in the Republican Party, “nourished by treachery, poor political judgment, and cowardice.”

It will not be easy to eliminate treachery or improve judgment in the GOP. But, as we approach Donald Trump’s second impeachment trial, New York Times columnist Peter Beinart thinks he has a solution for the absence of courage. If we want “more Mitt Romneys and fewer Josh Hawleys,” writes Beinart, Americans should elect more senators “who are near the end of their political careers.” 

Beinart has a good, if pretty obvious, point. The desire for reelection is a strong incentive to adhere to the party line, and office holders are more inclined toward independence when they “worry more about how they will be judged by history than by their peers.” Beinart offers Thomas Hart Benton and Sam Houston as historical examples of senior senators who risked their careers to oppose slavery and reject secession, but he closes his essay very oddly with this quote from Massachusetts’s Daniel Webster: “I should indeed like to please you; but I prefer to save you, whatever be your attitude toward me.”

It is true that Webster was willing to displease his constituents, but he was actually speaking in support of slavery when he took that risk. 

The quotation is taken from Webster’s historic Seventh of March Address on the Senate floor, urging his colleagues to accept the Compromise of 1850, including the infamous Fugitive Slave Act, which was deeply unpopular in Massachusetts and across the North. He began by disclaiming any regional or partisan bias, rising to speak “not as a Massachusetts man, nor as a Northern man, but as an American.”

Webster then explained that Americanism required acquiescence to slaveholders. He condemned the refusal of many northerners to fulfill their “duties in regard to the return of persons bound to service who have escaped into the free States.” When it came to recapturing African Americans seeking freedom, Webster said, in the very speech quoted by Beinart, “the South, in my judgment, is right, and the North is wrong.” Delivering up “fugitives from service,” he added, was demanded as a matter of “honor and conscience.”

As a nominal opponent of slavery – having once called it a “great moral, social, and political evil” – Webster’s influence helped carry the day for the compromise measures, and the Fugitive Slave Act of 1850 was signed by President Millard Fillmore. Webster was rewarded with appointment as Fillmore’s secretary of state, a position then regarded as leader of the Cabinet in both foreign and domestic affairs. From that seat of power, Webster enthusiastically promoted the capture of fugitive slaves and the zealous prosecution of anyone who came to their assistance.

In 1851, fugitives living near Christiana, Pennsylvania, resisted a posse led by a federal marshal, resulting in the death of a slaveholder from Maryland. Although the actual fugitives had escaped, Webster ordered the roundup of dozens of suspects, both white and African American, and insisted they be charged with treason — a capital offense. Abolitionism, he said, was a “whirlwind of fanaticism,” and resistance to the Fugitive Slave Act was “treason, and nothing else.”

The prosecutions in the Christiana rebellion ultimately failed – the defendants had been only bystanders – but that did not dampen Webster’s determination to enforce the Fugitive Slave Act. The Fillmore administration soon returned over 100 alleged fugitives to the South, which Webster celebrated as “a triumph of law.”

Beinart was right about one thing. Support for the Fugitive Slave Act ultimately damaged Webster’s political prospects. He sought the Whig Party’s presidential nomination in 1852, but the party was badly split between northern and southern factions. Webster was able to muster only a small number of delegates, as the convention turned into a contest between Fillmore, the half-hearted incumbent, and Gen. Winfield Scott, who was nominated on the 53rd ballot. Scott was crushed in the general election by the “doughface” Democrat Franklin Pierce, a northern man with southern principles.

Webster died later in 1852. He did not live to see the southern states’ repudiation of his brokered compromise, when the 1854 Kansas-Nebraska Act allowed the spread of slavery into territories where it had been prohibited for over 30 years. The Whig Party disbanded before the 1856 election, leaving the Republicans to rise in its stead.

Webster evidently thought he was saving the Union at the cost of displeasing his anti-slavery constituents. In fact, he was condemning hundreds of African Americans (including an unknown number of legally kidnapped non-fugitives) to slavery, which only set the stage for greater conflict between North and South. Although Webster’s words may seem inspiring, his conduct provides no support for Beinart’s model of political integrity. He acted not out of courage, but rather to placate the slaveholding antecedents of today’s militias.

We have now seen a similar response among many congressional Republicans, who voted to overturn a free election even after the Capitol had been sacked by pro-Trump insurgents.

Although fairly young by Senate standards, Ben Sasse has risked his career by challenging the conspiracy mongers and riot-enablers in his own party. He is one of the few who recognize that, as in Webster’s time, appeasement only encourages the insurrectionists.

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and the author of “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial.”