IV. The Founding and Slavery: The Memory of Our Original Sin


Many Americans are uncomfortable with the connection between slavery and the founding of the nation. Over the years politicians, judges, lawyers, teachers, and even professional historians offered us a comfortable myth. The myth asserts that after the Revolution slavery was dying and that, had it not been for the cotton gin, slavery would have died out easily and simply. If the Founders truly believed this, then they were correct in doing nothing aboutslavery at the Constitutional Convention. The myth further tells us that the Founders saw slavery as a potential powder keg--which might explode if they tried to deal with it. Their strategy was to ignore slavery and wait for it to collapse under its own economic dead weight. They could safely secure the Union knowing the evil would just go away. Thus, the myth tells us, the Framers rightly ignored slavery.

Under this analysis, the Founders did not betray America by failing to face up to America's greatest problem; instead, history betrayed the Founders, by allowing the cotton gin to save slavery from economic collapse. It is not the failure of the framers, or the unwillingness of all Americans to face the enormity of the problem, that set the stage for secession and civil war. Rather, in an ironic twist for a society that has always been driven by invention and "progress," it is technology that doomed the United States to civil war.

Serious historical scholarship demonstrates that slavery was profitable throughout the colonial period and that slavery remained profitable in the wake of the Revolution. Robert McColley, for example, found that in the 1780s and 1790s, before the invention of the cotton gin, slave prices in Virginia were high. Similarly, in Maryland, where cotton could not be grown, the trade in slaves was brisk both before and after the invention of the gin. In Baltimore, throughout the early national period, slaves were inhigh demand as servants, skilled laborers, and for various jobs in the maritime industry. The Framers did not need such analysis however. They had the words of their fellow delegates. Late in the Convention during a debate over the slave trade, General Charles Cotesworth Pinckney observed that a prohibition of the slave trade would be "an exclusion of South Carolina from the Union." As he had made clear at the beginning of his speech, "S. Carolina and Georgia cannot do without slaves." John Rutledge and Pierce Butler of South Carolina added similar sentiments, as did Abraham Baldwin of Georgia and Hugh Williamson of North Carolina.

In the end we cannot ignore the fact that the Framers in 1787 built a government that protected slavery at every turn. They left their children and grandchildren with a proslavery legacy that was not easily eradicated. During the ratification struggle a number of Antifederalists complained about the Constitution's concessions to slavery. A New Yorker complained that the Constitution condoned "drenching the bowels of Africa in gore, for the sake of enslaving its free-born innocent inhabitants." A Virginian who was skeptical about slavery thought the slave trade provision was an "excellent clause" for "an Algerian constitution: but not so well calculated (I hope) for the latitude of America." But the slave trade was only part of the problem. Three opponents of the Constitution in Massachusetts noted that the Constitution bound the states together as a "whole" and "the states" were "underobligation. . . reciprocally to aid each other in defense and support of every thing to which they are entitled thereby, right or wrong." Thus, they might be called to suppress a slave revolt or in some other way defend the institution. They could not predict how slavery might entangle them in the future, but they did know that "this lust for slavery, (was) portentous of much evil in America, for the cry of innocent blood, . . . hath undoubtedly reached to the Heavens, to which that cry is always directed, and will draw down upon them vengeance adequate to the enormity of the crime."

The events of 1861-1865 would prove the three Massachusetts antifederalists of 1788 correct. Only after a civil war of unparalleled bloodshed and three constitutional amendments could the Union be made more perfect, by finally expunging slavery from the Constitution. As we enter the 21st Century it is clear that the cost of slavery for our national culture--and our Constitution-- has perhaps not yet been paid. Perhaps some of the debt must still be paid in the coin of the realm, with investments in education, cultural institutions like museums and monuments, and in the creation of real economic opportunity for all Americans. But, before we contemplate such payments, we must first come to terms with our history, our culture, and the proslavery origins of our Constitution and our nation.

[a1]. Chapman Distinguished Professor of Law, University of Tulsa Collegeof Law.