Tania Tetlow
Excerpted Wrom: BIPBARHDMNNSKVFVWRKJVZCMHVIBGD
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 *12
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. |