Slavery and the Founders

Race and Liberty in the Age of Jefferson

Paul Finkelman

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317520245
• Edition: 3
• Topic: Storia
• Subtopic: Primordi della storia americana

In Slavery and the Founders, Paul Finkelman addresses a central issue of the American founding: how the first generation of leaders of the United States dealt with the profoundly important question of human bondage. The book explores the tension between the professed idea of America as stated in the Declaration of Independence, and the reality of the early American republic, reminding us of the profound and disturbing ways that slavery affected the U.S. Constitution and early American politics. It also offers the most important and detailed short critique of Thomas Jefferson's relationship to slavery available, while at the same time contrasting his relationship to slavery with that of other founders. This third edition of Slavery and the Founders incorporates a new chapter on the regulation and eventual (1808) banning of the African slave trade.

———— One ————

Making a Covenant with Death

Slavery and the Constitutional Convention

William Lloyd Garrison, the great nineteenth-century abolitionist, thought the Constitution was the result of a terrible bargain between freedom and slavery. The American states were, in Garrison’s words, united by a “covenant with death” and “an agreement with Hell.” Garrison and his followers refused to participate in American electoral politics, because to do so they would have had to support “the pro-slavery, war sanctioning Constitution of the United States.” Instead, under the slogan “No Union with Slaveholders,” the Garrisonians repeatedly argued for a dissolution of the Union.¹

Part of their opposition to continuing the Union stemmed from their desire to avoid the corruption that came from participating in a government created by the proslavery Constitution. But their position was also at least theoretically pragmatic. The Garrisonians were convinced that the legal protection of slavery in the Constitution made political activity not only futile, but actually counterproductive. Traditional political activity created popular support for the constitutional order, which in turn strengthened the stranglehold slavery had on America. In 1845 Wendell Phillips pointed out that in the years since the adoption of the Constitution Americans had witnessed “the slaves trebling in numbers—slaveholders monopolizing the offices and dictating the policy of the Government—prostituting the strength and influence of the Nation to the support of slavery here and elsewhere—trampling on the rights of the free States, and making the courts of the country their tools.” This experience proved “that it is impossible for free and slave States to unite on any terms, without all becoming partners in the guilt and responsible for the sin of slavery.”²

The Garrisonians argued that by participating in politics they were strengthening slavery by supporting the Union and the Constitutional order. Furthermore, since the political system and the Constitution were stacked in favor of slavery, it was a pointless waste of their time and money to try to fight slavery through electoral politics. The Garrisonian critique of the Constitution logically led to the conclusion that the free states should secede from the union. Garrisonians thus rallied to the slogan of “No Union with Slaveholders.”

It is easy to dismiss this argument more than a century and a half after it was first made. After all, we know that secession was a reactionary, proslavery movement that failed. But, in the 1830s and 1840s, the idea of a northern secession, as a way of destroying slavery, made some sense. The fugitive slave clause of the Constitution, for example, gave a master the right to hunt down a slave anywhere in the United States. Under the regime of the fugitive slave law, supported by a constitutional provision, slavery was a national institution.³ But what would happen if the Garrisonians accomplished their goal, and the North left the Union to form a nation based on freedom instead of slavery? It would be like moving the Canadian border to the Mason-Dixon line. Suddenly, slavery would be threatened in Kentucky and Virginia because slaves could now escape to a free country just by crossing the Ohio River.

Garrison believed that such a change in political boundaries would prove fatal to slavery. As slaves crossed the Mason-Dixon Line or the Ohio and Mississippi Rivers into freedom, slavery would be weakened in the Upper South. Committed slave owners would move further south, which would further weaken slavery in the Upper South. Eventually Kentucky, Maryland, Delaware, and even Missouri might give up slavery and seek to join the free country. Pressure on Virginia would increase. Slavery, and hundreds of thousands of slaves, would be forced into the Deep South, where whites would become a desperate minority. Ultimately the institution would fall, perhaps after a series of rebellions in a region with a huge black majority, but just as likely simply from the weight of its own isolation.

Part of this theory was based on the notion that slavery was inherently unstable, needing force to be viable. The United States government provided that force, spending its resources to hunt fugitive slaves and, when necessary, suppress rebellions. Even when rebellions were put down by the local militia, those militias were armed by national government. The South also benefited from the strength of the northern economy. Southerners like James Henry Hammond of South Carolina thundered that “cotton is king” and declared “No, you dare not make war on cotton. No power on earth dares make war upon it.”⁴ But, as the Garrisonians saw it, without the North and the proslavery Constitution, the South was little more than a prosperous producer of commodities, devoid of industry and capital, lacking in population, arms, and manpower to hunt fugitive slaves and suppress rebellions. In the end, it was the proslavery bargain, and the North’s contractual obligation under the Constitution to protect slavery, that made the system viable.

The Garrisonians did not necessarily see the Constitution as the result of a deliberate conspiracy of evil men; rather, they understood it to be the consequence of political give-and-take at the Convention of 1787. Indeed, before the publication of Madison’s convention notes, the Garrisonians were not disunionist and, while unhappy with the Constitutional protections of slavery, were not yet ready to condemn the whole document. Some even argued that the Constitution favored liberty. However, the publication of The Madison Papers, which included Madison’s notes on the Convention, convinced Garrison and his followers that the Constitution was in fact proslavery. Rev. Samuel J. May, for example, recalled that “the publication of the ‘Madison Papers’ … I confess, disconcerted me somewhat. I could not so easily maintain my ground in the discussions which afterwards agitated so seriously the Abolitionists themselves—some maintaining that the Constitution was, and was intended to be, proslavery.”⁵

Thus, in The Constitution, A Pro-Slavery Compact; or, Selections from the Madison Papers, Wendell Phillips analyzed “that ‘compromise,’ which was made between slavery and freedom, in 1787; granting to the slaveholder distinct privileges and protection for his slave property, in return for certain commercial concessions upon his part toward the North.” Using Madison’s papers, Phillips argued that “the Nation at large were fully aware of this bargain at the time, and entered into it willingly and with open eyes.”⁶

Phillips both exaggerated and understated the nature of the relationship between slavery and the Constitution. Some of those at the Convention “entered into” the bargain with great reservations, and many at the ratifying conventions may indeed have not seen the full extent of the “bargain.” On the other hand, the bargain involved more than commerce and slavery: it concerned the very creation of the Union itself.

Other nineteenth-century antislavery leaders disagreed with the Garrisonians. Salmon P. Chase, the most successful antislavery politician, fought throughout the antebellum period to convince his colleagues, the judiciary, and northern voters that the Constitution was really antislavery. Despite his creative perseverance, Chase’s efforts failed. The United States Supreme Court almost always protected slavery in the cases it heard. Likewise, almost all American presidents and their cabinet officers protected slavery in foreign and domestic politics. Perhaps most frustrating to the political abolitionists was the fact that some of their most brilliant allies in the crusade against slavery—the Garrisonians—agreed with their enemies on the meaning of the Constitution. Thus, one Ohio Liberty Party man ruefully noted after reading Wendell Phillips’ pamphlet on the Constitution: “Garrison, Phillips, and Quincy; Calhoun, Rhett, and McDuffie; all harmoniously laboring to prevent such a construction of the Constitution as would abolish slavery.”⁷

A careful reading of the Constitution reveals that the Garrisonians were correct: the national compact did favor slavery. A detailed examination of the Convention of 1787 explains how the Constitution evolved in this way. Both the text of the Constitution and the debates surrounding it help us understand that the “more perfect Union” created by this document was in fact fundamentally imperfect.

Slavery in the Constitutional Structure

The word “slavery” appears in only one place in the Constitution—in the Thirteenth Amendment, where the institution is abolished. Throughout the main body of the Constitution, slaves are referred to as “other persons,” “such persons,” or in the singular as a “person held to Service or Labour.” Why is this the case?

Throughout the debates, the delegates talked about “blacks,” “Negroes,” and “slaves.” But the final document avoided these terms. The change in language was clearly designed to make the Constitution more palatable to the North. In a debate over representation, William Paterson of New Jersey pointed out that under the Articles of Confederation Congress “had been ashamed to use the term ‘Slaves’ & had substituted a description.” This shame over the word “slave” came up at the Convention during the debate over the African slave trade. The delegates from the Carolinas and Georgia vigorously demanded that the African trade remain open under the new Constitution. Gouverneur Morris of Pennsylvania, furious at this immoral compromise, suggested that the proposed clause read: the “Importation of slaves into N. Carolina, S— Carolina & Georgia” shall not be prohibited. Connecticut’s Roger Sherman, who voted with the Deep South to allow the trade, objected, not only to the singling out of specific states, but also to the term “slave.” He declared he “liked a description better than the terms proposed, which had been declined by the old Congs & were not pleasing to some people.” George Clymer of Pennsylvania “concurred” with Sherman. In the North Carolina ratifying convention, James Iredell, who had been a delegate in Philadelphia, explained that “the word slave is not mentioned” because “the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned.” Thus, southerners avoided the term because they did not want unnecessarily to antagonize their colleagues from the North. As long as they were assured of protection for their institution, the southerners at the Convention were willing to do without the word “slave.”⁸

Despite the circumlocution, slavery was sanctioned throughout the Constitution. Five provisions dealt directly with slavery:⁹

Article I, Section 2, Paragraph 3. The three-fifths clause provided for counting three-fifths of all slaves for purposes of representation in Congress. This clause also provided that, if any “direct tax” was levied on the states, it could be imposed only proportionately, according to population, and that only three-fifths of all slaves would be counted in assessing what each state’s contribution would be.

Article I, Section 9, Paragraph 1. Popularly known as the “slave trade clause,” this provision prohibited Congress from banning the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit” before the year 1808. Awkwardly phrased and designed to confuse readers, this clause prevented Congress from ending the African slave trade before 1808, but did not require Congress to ban the trade after that date. The clause was a significant exception to the general power granted to Congress to regulate all commerce.

Article I, Section 9, Paragraph 4. This clause declared that any “capitation” or other “direct tax” had to take into account the three-fifths clause. It ensured that, if a head tax were ever levied, slaves would be taxed at three-fifths the rate of whites. The “direct tax” portion of this clause was redundant, because that was provided for in the three-fifths clause.

Article V, Section 2, Paragraph 3. The fugitive slave clause prohibited the states from emancipating fugitive slaves and required that runaways be returned to their owners “on demand.”

Article V This article prohibited any amendment of the slave importation or capitation clauses before 1808.

Taken together, these five provisions gave the South a strong claim to “special treatment” for its peculiar institution. The three-fifths clause also gave the South extra political muscle—in the House of Representatives and in the electoral college—to support that claim.

Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some provisions that indirectly guarded slavery, such as the prohibition on taxing exports, were included primarily to protect the interests of slaveholders. Others, such as the guarantee of federal support to “suppress Insurrections” and the creation of the electoral college, were written with slavery in mind, although delegates also supported them for reasons having nothing to do with slavery. The most prominent indirect protections of slavery were the following:

Article I, Section 8, Paragraph 15. The domestic insurrections clause empowered Congress to call “forth the Militia” to “suppress Insurrections,” including slave rebellions.¹⁰

Article I, Section 9, Paragraph 5. This clause prohibited federal taxes on exports and thus prevented an indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice, and eventually cotton.

Article I, Section 10, Paragraph 2. This clause prohibited the states from taxing exports or imports, thus preven...