Excerpted from: Slavery: a Crisis of Conscience , 3 Loyola Journal of Public Interest Law 1-46, 6-16 (Fall 2001) (240 Footnotes)
The moral arguments condemning slavery so obvious to us today did not elude the founders. While it is comforting that the founders did not indulge in a practiced ignorance, the very consciousness of their choice indicts their involvement in the tragedies that followed. I start here by giving a very brief overview of the governmental decisions on slavery made during the founding period, sketching the historical debate on the strength of the practical and political barriers to emancipation, and then focusing on the rhetoric of the founders and their own descriptions of the necessity of their choices.
A. POLITICAL BARGAINING
As the colonies struggled to define their nationhood, the framers of a new constitution found themselves confronting the issue which seemed both antithetical to the ideals of the recent revolution and essential to the perceived economic needs of some who threatened to refuse to join the proposed union. Most members of the Constitutional Convention shared a 'tepid anti- slavery sentiment,' and almost every framer outside of South Carolina and Georgia spoke in opposition to slavery. The unapologetic slaveholders of the lower South, however, threatened disunion if their 'property' rights and huge economic stake in slavery were not protected. Proslavery forces used arguments of economic self-interest tinged with cynicism about other rights. Charles Pinckney, a delegate from the deep South, opposed a Bill of Rights because, '[s]uch bills generally begin with declaring that all men are by nature born free. Now, we should *6 make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves.' The antislavery impulses of the majority would bend to the higher good of unification.
In return for greater national control over commerce and trade, northern states (which had legal slavery, although it was not so central to their economies) agreed to delay any potential legislation on ending the slave trade. Article V removed this provision from the realm of amendment for twenty years. Article IV, Section 2 provided for the returning of fugitive slaves. The framers also made their most infamous compromise: to count slaves as three-fifths of a person for purposes of both taxation and representation. The South's demand to count its non-voting slaves as population to increase its voting power in the House was eclipsed only by its unwillingness to be taxed on these same people. Madison defended the compromise in the Federalist Papers somewhat reluctantly: 'Let the compromising expedient of the Constitution be mutually adopted which regards [slaves] as inhabitants, but be debased by servitude below the equal level of free inhabitants; which regards the slave as divested of two fifths of the man. ' The national government never did levy a tax *7 based upon population, thus the three-fifths compromise served to aggrandize southern political power without costing its taxpayers a cent.
The framers refused to name slavery as such in the Constitution and instead referred to slaves as 'person[s] held to Service or Labour.' The framers' reference to slaves as 'persons' shows both their willingness to recognize slaves as persons, and their embarrassment about naming the institution in the Constitution.
The issue of the slave trade quickly resurfaced in the first Congress. In 1790, the Pennsylvania Abolition Society submitted a petition seeking to levy the constitutionally allowable tax of $10 on the importation of slaves in order to discourage the slave trade. The House voted 43-11 to send the issue to a committee, which reported back that Congress did indeed have the power to regulate the slave As southern representatives filibustered on the issue, northern support slipped and the measure died.
During this debate, slavery apologists repeatedly invoked the agreement which forged the Union. Representative Smith described this agreement sarcastically: 'We therefore made a compromise on both sides, we took each other with our mutual bad habits and respective evils, for better or worse, the northern states adopted us with our slaves, we adopted them with their Quakers. ' There was a threatening tone to the debate. Many representatives from the lower South promised their intractability on the issue, and elaborated on the length to which *8 they would defend themselves. When Representative Scott expressed his moral indignation at slavery and declared that if he were a federal judge, 'I am sure that I would go as far as I could, ' Representative Jackson responded with a threat, 'I believe his judgment would be of short duration in Georgia, perhaps even the existence of such a judge might be in danger.'
The upper South eased manumission laws in the 1780s, but quickly hardened them again in the 1790s after the revolutions in France, and especially, in Haiti. The specter of slave revolt terrified slaveholders often seriously outnumbered by their slaves. In 1787, the Northwest ordinance prohibited slavery in the Midwest, although it did not emancipate existing slaves. In 1807, after the delay mandated by the Constitution, Congress banned the importation of slaves. These limited steps effectively isolated slavery to the South and half of the Mid- Atlantic area.
B. MISSED OPPORTUNITY?
Historians debate the feasibility of emancipation during the ideological glow of the post-revolutionary era and before the hardening of racial attitudes during the succeeding decades leading up to the war. It is tempting to believe that the moment of decision-making about national identity and ideals presented the best opportunity to avoid later disasters. Thomas Jefferson warned, without naming slavery, that 'once that Revolutionary moment of collective determination passed, the people will forget themselves, but in the sole faculty of making money, and will never think of uniting for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier, till our rights shall revive or expire in a convulsion.'
*9 The historian Gary Nash argues that the Revolutionary period offered a moment of possible redemption for the founders. Antislavery feeling was at a pinnacle. The lower south was weak politically and represented very little population with which to threaten disunion; South Carolina and Georgia had no other viable options. After the Revolution, it was doubtful that any former colony would want to return to England's control, and the threat from Indians and the neighboring Spanish colony of Florida should have ensured their reluctant acceptance of almost any condition to join the United States. Nash argues that various proposals offered at the time for a gradual purchased emancipation and resettlement of freed slaves in the west were feasible.
Other historians dispute these claims, casting serious doubt on the popular strength of antislavery rhetoric. David Brion Davis writes that the moment of emancipation could not have come with the revolution unless the slaves themselves had become involved as a significant military force. Historians, Davis argues, have too often underestimated the economic strength of slavery during the Revolutionary period, exaggerated the force of antislavery sentiment in the Upper South, and minimized the obstacles that abolitionists faced even in the northern states.
The nation stands condemned for lacking the collective determination to end slavery. For an individual assessing the possibilities of emancipation, however, the task must have seemed nearly impossible. The degree of federal power necessary to accomplish any kind of meaningful emancipation would have seemed unattainable and ill-advised to the founders. As an economic bulwark of half the country, its abolishment would have created a credible threat to the union.
These 'what if's' play an important role in judging the types of choices made by our early government, but they depend for *10 proof on historical evidence of popular beliefs, political power, and economic possibilities, which I do not address here. Instead, I look to the rhetoric of the elite and the ways that they described their ideological plight through pragmatic concerns.
C. CRISIS OF CONSCIENCE
The moral struggle in the 1770s and 80s played out during an era of unusually conscious decision-making. The debate contained a remarkable degree of candid self-assessment, measuring the reality of slaveholding against the powerful rhetoric of freedom and equality. As Patrick Henry summed up the problem:
Would any one believe that I am Master of Slaves of my own purchase! I am drawn along by ye general Inconvenience of living without them; I will not, I cannot justify it. However culpable my conduct, I will so far pay my devoir to Virtue, as to own the excellence & rectitude of her Precepts & to lament my want of conformity to them. The political elite suffered an ethical crisis (or at least acute discomfort) because they knowingly violated the fundamental rights that they had so proudly fought for.
We tend to paint history with the broad brush of inevitability. We thus devalue the efforts and courage of those who fight for change, and lull ourselves into the belief that progress merely happens. 'It is the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually time is neutral. It can be used either destructively or constructively.' The founders chose slavery. We may understand their choice in terms of the economic, social, and political forces, that informed their decision, but recognizing 'historical positivism' is essential to accepting responsibility as a nation for the resulting allocation of burdens and benefits still now in place.
D. THE EXAMPLE OF THOMAS JEFFERSON
Thomas Jefferson is cited frequently in the historical scholarship on slavery because he spoke often and well about its *11 moral and political implications. He eloquently expressed the self-acknowledged hypocrisy and ambiguity of the founding generation. He owned 154 slaves in 1794, freeing only 10% of them, and only after he died. He favored emancipation, but by buying slaves from their owners and preserving property rights. Both pro and anti-slavery forces laid claim to his writings for Civil War propaganda, with equal authority.
Jefferson's original draft of the Declaration of Independence pilloried the King for vetoing colonial attempts to end the importation of slaves. It was struck out after objection from South Carolina.
[The King] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation hither. 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. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he also obtruded them: thus paying off former crimes committed against the LIBERTIES of one people, with crimes which he urges them to commit against the LIVES of another. The omitted paragraph shows both Jefferson's desire to put aside the slave trade with other imperially determined marks of tyranny and the fear of slaves, which would restrain him. Unfortunately for the historical force of his accusation against the English, however, the United States would wait to put off banning the slave trade for thirty years after Jefferson wrote this document.
Jefferson's Declaration of Independence, and the rhetoric of the Revolution, made masterful use of the language of 'inalienable rights' and equality, along with explicit complaints of the English 'enslavement' of the colonies. The hypocrisy of such statements did not escape notice; blacks themselves reminded the nation of the implications of the claim of fundamental rights.
Indeed, Jefferson seemed to understand the role slavery played in measuring the nation's, and his, soul. He wrote in his Notes on the State of Virginia:
Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange in situation, is among possible events: that it may become probable by supernatural interference! His fear arose both from the inevitability of divine retribution, and most of all from the possibility that the 'exchange of situation' might come by earthly means, as it did in Haiti and France.
Instead of urging action, however, he expressed the cautionary gradualism which would characterize the passivity of his position.
The Almighty has no attribute which can take side with us in such a contest.--But it is impossible to be temperate and to pursue this subject through the various considerations of policy, of morals, of history natural and civil. We must be contented to hope they will force their way into every one's mind. I think a change already perceptible, since the origin of the present revolution. The spirit of the master is abating, that of the slave rising from the dust, his condition mollifying, the way I hope preparing, under the auspices of *13 heaven, for a total emancipation, and that this is disposed, in the order of events, to be with the consent of the masters, rather than bytheir extirpation. Thomas Jefferson, unfortunately, counted himself among the believers in the inevitability of progress. 'It is an encouraging observation that no good measure was ever proposed, which, if duly pursued, failed to prevail in the end.' He wrote this to a young man concerned about the delay of real freedom, and counseled him against any immediate personal action. 'I hope then, my dear sir, you will reconcile yourself to your country and its unfortunate condition.' Jefferson did so.
While the historian Winthrop Jordan argues that racism accounted for Jefferson's passivity ('[i]t was neither timidity nor concern for reputation which restrained him. . .[but] genuine doubts' about blacks,) David Brion Davis insists that Jefferson's primary motive was a lack of courage, 'icy caution,' and the 'genuine conviction that his power to do good depended on maintaining his reputation, or in other words, his social identity.' This basic conservatism resulted from his obvious economic stake in slavery, the fear of drastic change, and fear of slaves themselves.
Much of Jefferson's writing contains a palpable sense of fear. His vision of a new order was constrained by his recognition of the depth of black anger and the power of white racism:
Why not retain and incorporate the blacks into the state, and thus save the expense of supplying, by importation of white settlers, the vacancies they will leave? Deep rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of injuries they have sustained; new provocations; the real distinctions which nature has made; and many other circumstances which will probably never end but in the extermination of the one or the other race. *14 Jefferson, as a slaveholder, understood the paralyzing fear of losing control of a slave filled with righteous anger. 'We have a wolf by the ears, and we can neither hold him, nor safely let him go. Justice is on one scale, and self-preservation in the other.' He took the idea of self-preservation very seriously, and cautioned, 'if something is not done, and done soon, we shall be the murderers of our own children.' He projected a Dostoevsky-like image of the wrongdoer trapped in a prison of guilt and fear, fed by his own knowledge of the fate he deserves. Jefferson could imagine no other path than to preserve his power over those he had so wronged.
E. THE PROBLEM OF HYPOCRISY
Jefferson's protectiveness of his way of life and property, helps to explain the era's embarrassed hypocrisy about open violation of Revolutionary ideals. Justice Curtis hopefully argued in his Dred Scott dissent that the framers meant to act someday on their promises. But more cynical forces, the power of fear and the pull of interest, pointed the course of history elsewhere. A southern representative in the First Congress bluntly explained the interests involved, describing slavery as 'so ingrafted into the policy of the southern states, that it could not be eradicated without tearing up by the roots their happiness, tranquility and prosperity--that if it were an evil, it was one for which there was no remedy, and therefore, like wise men, they acquiesced in it.' Ideological inconsistencies that pit belief against personal wealth tend to bend belief.
Perhaps, as the historian Edmund Morgan suggests, slaveholders called so loudly for freedom from tyranny because they wanted never to experience what their own slaves did, creating 'a special appreciation of the freedom dear to republicans, because they saw every day what life without it could be like. ' 'Southerners,' Jefferson wrote to the Marquis de Castellux, are 'jealous of their own liberties but trampling on those of others.'
*15 The degree of utter 'astonishment' (as Patrick Henry called it), at the disparity between word and deed varied by the individual. George Washington, for example, spoke at times unflinchingly of the enslavement of Americans by the British. 'The crisis is arrived when we must assert our rights, or submit to every imposition that can be heaped upon us, till custom and use shall make us tame and abject slaves, as the blacks we rule over with such arbitrary sway.' But the hypocrisy of such remarks did not escape him, and he did free all of his slaves, if only upon his and his wife's death. He announced in 1786, as the owner of 216 slaves, that he would never buy another. With some discomfort he bought more slaves, but tried through various technicalities to have others make the actual purchase.
Focusing on this moment of crisis about slavery requires us to face basic questions about the meaning of hypocrisy. Which do we judge more harshly-- ignorance and racism or the conscious, agonized choice to do the wrong thing? Usually, we deem hypocrisy the worse sin. The continuing popularity of Justice Taney's characterization of the founders as honest racists, not hypocrites, rests on the power of his argument that the founders were 'incapable of asserting principles inconsistent with those on which they were acting. ' We want to believe Taney because it seems more important that the founders were consistent and true to their beliefs and yet read a whole people out of the human race, then to admit that their decision rested on 'ye general Inconvenience of living without' slaves.
Taney's misreading of slavery's role in the ideological roots of the country creates two somewhat paradoxical problems. His historical argument assigns too little blame, as if the political actors made their choices out of mere ignorance, and only passively evolving notions of humanity could and did lead to freedom. And it gives them too little credit for the strength of their commitments. Acknowledging a failure to live up to one's values, while holding onto those values, is more brave and more *16 hopeful, than merely shifting the belief to fit the action. Racism represented the escape from guilt to which the nation would quickly turn, but this period of honest sinfulness says much both about the strength of the founders' commitments and the weakness of their resolve.
The way in which the founders struggled with the interaction of their beliefs and actions reveals more than mere hypocrisy. The Constitution is an expression of the commitments of its framers and ratifiers--commitments to be developed and lived up to over time. True devotion to a commitment means both honest acknowledgment of its binding nature and a willingness to make careful choices that do not represent shortsighted selfishness. These commitments represent more than mere majoritarian expressions of will at a particular moment. They are promises to and by the 'people', the individuals who are to be governed by the nation.
The framers made a decision both to hold onto the idealism of the Revolutionary and Founding periods and to admit their own weakness and sinfulness. As Patrick Henry perfectly summed up, 'However culpable my conduct,I will so far pay my devoir to Virtue, as to own the excellence & rectitude of her Precepts & to lament my want of conformity to them. ' In a perverse way, the founders' hypocrisy shows how strongly they believed in inalienable rights. They were not yet willing to lie to themselves about the acceptability of slavery. '[I]nconsistency is a small price to pay for greatness.' The contortion of belief represents the abandonment of its true fulfillment, while an honest violation can prove temporary.
Unfortunately, Jefferson helped to lead the march to racism, the rhetorical pacifier of moral qualms about slavery.