Day: April 7, 2008

The Constitution and Slavery

We the people… whenever we see it, we ask ourselves who they were. We ask ourselves about slavery. Just like the Founders did.

 

For people who are often accused of “not caring” about slavery, the Founders spilled a lot of ink arguing about it. Just as the Declaration of Independence dealt with slavery, so did the Constitution. People still thought and hoped slavery was just about to die on its own. But since it hadn’t died, yet, the same problem arose as had arisen in 1776: how do we deal with slavery when founding a nation on natural rights?

 

Well, the answer is to get rid of slavery. So why didn’t they?

 

Because the slaveholding states threatened to break up the Union if slavery was abolished. The question at the time was, do you want an imperfect United States or no United States at all? The states in which slavery was protected, where slavery was crucial to the state economy and social structure (almost all southern states), were serious in their answer. They were not about to remain part of a union that abolished slavery.

 

When you look at all the demands slave states made at the Constitutional Convention, you see both how radically they would have changed the United States, and how hard antislavery delegates had to fight to control them. Slaveholding states wanted to maintain or expand the slave trade (keep slave ships going to and from Africa) and hopefully take it over and run it themselves, supplying the world with enslaved people. They wanted no federal restrictions on slavery in the western territories, and a specific section of the Constitution prohibiting any federal restriction of the rights of slaveholders—that is, a guaranty that slavery would not just be allowed, but allowed to flourish. It was clear that the southern states would leave the union if a national emancipation policy was ever attempted. See Joseph Ellis’ fantastic book Founding Brothers: The Revolutionary Generation for a full examination of this.

 

So we see that it wasn’t so much “the Founders” or “uncaring northerners” or even “the Constitution” that allowed slavery to exist. It was a concrete group of southern slaveholding delegates and politicians, led by James Madison, who threatened to leave the Union and destroy it if slavery was not protected.

 

We know that organizing representation to Congress was the biggest headache facing the delegates, and slavery was part of it. The solution of the three-fifths clause, which counted three-fifths of the number of enslaved Americans as population, is shameful. But antislavery delegates accepted it, relying on the imminent death of slavery to make the question moot, and again, unwilling to sacrifice the entire experiment of America over slavery. Their feeling was, get the nation stabilized, and then we can perfect it. We see that as a cop-out, but at least it came after 12 years of constant churn and effort. We often lose our collective will today after much less time and almost no effort at all.

 

While slavery was protected from abolition by the Constitution, and the slave trade could not be abolished for 20 years after ratification (1808), the document itself never uses the word slavery. Why? Because people were embarrassed and ashamed to put that word into the Constitution. Because they knew it was wrong. Just as the Declaration put in Happiness instead of Property, the Constitution put in interests instead of slavery.

 

The Constitution was written; now it had to be ratified by popularly elected state legislatures. And here’s where we see that it wasn’t a small group of rich white wig-wearers who dictated the course of American history.

 

The American public was utterly passionate about the Constitution. They weren’t going to just ratify whatever they were given. And they weren’t going to let the issue get strangled in red-tape and delay. In short, they didn’t leave it to the politicians. In Pennsylvania, when the state assembly fell short of a quorum to call a state ratifying convention, a mob dragged two assemblymen from their homes to the State house, forcing them to stay while the assembly voted.

 

Americans also clamored for a Bill of Rights. Why? Because they wanted those original natural rights to be explicitly protected by the new government. Americans were not pretending to carry the revolution from the battlefield to the legislature; they were really doing it.

 

With human rights on their minds, Americans faced the compromises over slavery. Most were not happy with them. But in the end, most Americans agreed that the experiment was not worth abandoning over slavery. Again, we recognize this as a failure today, knowing that it would take a civil war to end slavery, but it is actually true that in 1787, many antislavery (and some proslavery) Americans believed slavery would die out within a generation. And what would guarantee that process more firmly than establishing a democratic union? What good would it do to insist on abolishing slavery now, thought people in 1787, thus driving the southern states out of the union? That way, slavery was guaranteed to go on in the south, in whatever nation was created there. But if those southern states were coaxed into the democratic union, slavery would end. Northern states were passing gradual emancipation acts; so would the south.

 

The Constitution was ratified, but it was close. The nation was established. It was a remarkable achievement. We’ve seen that the nation really was founded on revolutionary ideals, and that all those ideals were not betrayed by the Founders. The inclusion of slavery in the new nation was a problem and a mistake, but it was not the result of apathy or complacence. Slavery was protected because the Founders, and most Americans, could not bear to destroy the nation by abolishing slavery and losing the southern states of the union.

 

Today, we think that would have been preferable. Why not just lose the south and create a free union with the states that were left? It would have been better. But in reality, if the southern states had seceded in 1787, the likelihood of the remaining states banding together was small. We’ve seen that the states had only the loosest ties with each other, and almost no loyalty to each other. If some left, others would go, too, unable to resist the lure of individual sovereignty. Americans at the time knew this.

 

The Constitution sums up the achievements of the Founding Generation, both the men in the paintings and the people at large. No people had ever formed a working government based on natural rights before. Hammering out ways to guaranty fair representation to the government, prevent government tyranny, and protect individual rights was blood, sweat, and tears difficult. Ending slavery, so insidiously entwined in southern American life and northern American commerce, “was a challenge on the same gigantic scale as these achievements.” [Ellis 108] It was not done in one generation, not even a generation so remarkable as the Founding Generation. But the wheels were set in motion. A person born in 1787 could live to see the Civil War fought, and slavery ended; the span of one long life was all it took to finally make good on the Constitution’s promise of liberty and equality.

 

So. Can you be proud of the Founders of your nation? Yes. Absolutely. They did the impossible. And by Founders I mean all Americans, not just the men in the paintings. The Founding Generation. The challenge of creating the United States was mind-boggling. We take it for granted today. We take the intelligence and creativity and passion and struggle of the Founding generation for granted. As if the rules were clear and they just had to write them down.

 

But America is exceptional. An exception to all rules. We were the first people to found a long-term working government dedicated to the preservation of natural rights. Today as I write, nations with this form of government are still in the minority. It’s very hard to live up to the principles of natural rights. We fail at it all the time. But we do also succeed at it. And we have a responsibility to do so.

The Constitution: harder than it looks

We kind of hate the Constitution today. We wish it wasn’t so elastic. It allows for so many interpretations; we wish it would just tell us what to do. But of course the only reason it’s a viable document is that it doesn’t tell us what to do.  It gives us a framework of justice to apply to specific instances, and it’s not the document’s fault if we sometimes use its safe space for evil. That’s our fault. We make that choice.

 

“We the People, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of this liberty to ourselves, and to our posterity do ordain and establish this Constitution, of the United States of America.”

Most of us are familiar with this long sentence. Perhaps you, like me,  learned it on Schoolhouse Rock, and prefer to sing it. But by now, you may see the revolutionary principles and ground-breaking ideals in it more clearly.

 

After years of trying not to have a real centralized government, and years of trying to put state interests below national interests while keeping individual interests above national and state interests, we get this line. We, the people (not the states) of America, realize that if we want to make this experiment work, and if we want to experience the best government ever attempted in human history, we have to create and honor a binding legal document that establishes a unified, federal government.

 

The year is 1787. The Articles of Confederation have been in place for 10 years. The Revolutionary War ended in 1783, so we have been an independent nation for just four years. All in all, Americans have been in turmoil for 12 years. This is the point at which most new governments fall apart and the descent into civil war and terror begins. But we fulfilled the principles of our revolution, and peacefully assembled delegates to work together to write a new Constitution.

 

Even that majority of Americans who did not want a powerful central government were persuaded that it was necessary to keep the states from dissolving the union. They sent delegates to Philadelphia to figure out how to create a government strong enough to protect its people, but bound enough by principles of natural rights not to turn to tyranny.

 

These delegates were not the famous men who signed the Declaration. Adams was not there; Jefferson was not there. The delegates were mostly unknowns; lawyers, farmers, businessmen. They were not professional politicians. But they were those well-read, revolutionary Americans the rest of the world marveled at. Those men produced a great document because they put themselves second to the ideal of America. They had their moment of absolute power and used it to enshrine natural rights.

 

We all remember learning about the debates over how to make sure big and small states were equally represented in Congress, the federal government. We feel bored, again because we know how it ended, and the solution is so obvious, it just seems stupid to waste time reading about how they took so long to figure it out.

 

But the point of those debates about representation is not what ideas were tossed around, and which idea finally won out. It’s that the debates happened at all. We’ve already established that most revolutionary governments quickly implode. Here, faced with a real problem, with no clear answer (despite all our hindsight insisting it was clear), delegates to the convention insisted on figuring out what the best solution was,  on coming up with a solution that really lived up to the principles of the revolution. Instead of saying “We can’t fix this; there’s no solution that everyone will agree on”, and getting out their guns and starting a civil war, these delegates put themselves through hours of philosophical debate in a stiflingly hot room until they fulfilled the trust put in them.

 

The Founders didn’t “know” that the average American had to consent to this government for it to work; they decided that the average American had to do so, and they subordinated themselves to that purpose. And so they created, as delegate Peirce Butler said, “not the best government they could devise, but the best the people would receive.”

 

The Articles of Confederation: Not Totally Lame!

The problem the Founders grappled with when writing the Articles of Confederation was how to create a workable government without authorizing a tyranny. How do you keep life, liberty, and happiness for all while subjecting all to a central authority which must make general laws?

 

We’re so used to hearing about this struggle that it bores us, because we know the problem was eventually solved by the Constitution. It’s like knowing how a book ends before you read it. There’s no suspense for us. No tension. Plus, with hindsight, the solutions the Constitution came up with seem so obvious. But think about it. Usually  new governments struggle not with how to make everyone happy, but with individuals fighting for power. Each revolutionary leader is fighting to establish his faction, to grab power. The people are just a labor source, mob power, or cannon fodder.

 

But in America, the argument, struggle, and problem was not how to get power but how to give it away. How to have a workable government that didn’t trample people’s natural rights. The Founders would not take the easy way out and just give someone power to tell the people what to do. They wouldn’t even allow an executive branch to be created, because they were afraid if power was represented by the body of one person, he would become a dictator not only from his own greed, but because the people themselves would gladly give up their rights to a powerful leader. The Founders resisted the urge to fall back on the familiar.

 

And all this in a time of war. The Revolution was not going well in 1777, when the Articles of Confederation were written. If ever there was a time when people might be forgiven for assigning power to one person who could unify and lead them, it was then. But even in this time of ultimate crisis, when the federal government was broke and could not pay Washington or his army, the men who were dying for the independence of America, the Founders would not institute unfair taxes, would not assign an executive, would not give up on trying to establish a fair government, would not give up on the ideals of revolution. War is usually the ultimate excuse for abuse of power, or failure to live up to high ideals. Not for the Founders.

 

And, when the Founders finally had the Articles of Confederation, and saw that they just didn’t create the best government for the people, they came back and went through the whole agonizing process again, and wrote a new set of rules—the Constitution. That’s dedication. That’s inspiration. That’s stamina.

 

So instead of seeing a string of half-assed failures leading up to the Constitution, we should see a gritty resolve to make the dream a reality that no amount of hardship could weaken.

Slavery and the Declaration

Let’s look at the underpinnings of the system of government the Founders created. First, one more look at the Declaration (see Truth v. Myth: The Declaration of Independence), because I said we’d come back to Locke and the line we changed to “life, liberty, and the pursuit of happiness.” Locke (1632-1704) was the person who really formulated a theory of government based on natural rights (emphasis on theory—he never thought it could be put into practice).

 

In 1689 and 1690, he published two treatises on government. In them, he stated that “Reason…teaches all Mankind…that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.” You can see the “life, liberty, and pursuit of happiness” kernel here.

 

Of all the possessions that a person could have, property was most important to Locke. Now, property meant something different to Locke than it does to us. It didn’t mean things or land that were owned. For Locke, property basically meant the work a person is able to do. Your body is your own property, and the work you are able to do belongs to you and you alone. The only reason to accept government is if that government pledges to protect your right to do the work you want to do, and your right to the profits from that labor. If your government won’t do that, you have the right to rebel against it.

 

[You’d think Locke was anti-slavery, right? No. Unbelievably, he was not. That’s because his thinking about property extended only to educated, non-poor people. Like many educated people at the time, Locke believed that the poor and uneducated were dangerous, and could never be turned into thinking, free people. The best thing for them was to be put to work serving those who were actually free, thinking people. Locke proposed that poor children should be put to work at the age of three, basically in conditions of slavery. There were calls by Enlightenment thinkers to enslave 200,000 poor English and Scots people in Britain—the same number of people who were at that time enslaved in Virginia. See Edmund Morgan’s great book American Slavery, American Freedom for more on this.]

 

So Locke’s principles were summed up as Life, Liberty, and Property. And the Founders were basing their declaration of independence from Britain on Locke’s principle, that a government that did not allow those natural rights could be overthrown. So why doesn’t the Declaration say “that among these are, Life, Liberty, and Property”?

 

Because of slavery. Anti-slavery Founders did not want to write “Property” into the foundation of the new nation because they knew that Locke’s definition of property as the right to work was unique to him. No one else thought of property that way. They thought of property as things you buy and sell and own. Slaveholding Americans included human beings in this definition of property. So if the Declaration stated that property was a natural right, then slaveholders would be able to say that slavery was not only protected by the Declaration, but was one of the very foundation stones of the United States.

 

But the anti-slavery Founders couldn’t come out and say this, or slaveholding delegates would leave Philadelphia, and there would be no Declaration, no United States. So they cleverly chose to focus on a different Lockeian idea: happiness.

 

To Locke, happiness was not pleasure, but being free to pursue an ideal as you see fit. For example, an athlete who devotes her life to training and competition, always striving for perfect form and high achievement, breaking and setting new records, is pursuing an ideal, and therefore to Locke, she is experiencing happiness. Everyone has the right to pursue whatever ideal appeals to them. They should not be prevented from doing so, by being forced to do meaningless work where perfection means nothing, and they should not be forced into pursuing an ideal they don’t care about. Happiness is a commitment to a passionate perfection of being.

 

So the anti-slavery Founders put in happiness instead of property, thus avoiding sanctioning slavery as a natural and inalienable right. Because Americans did care about slavery, and there were many who wanted to get rid of it, and enough Founders who either wanted to get rid of slavery or who were too ashamed of their pro-slavery stance to allow for the substitution of happiness for property. There’s the first blow to the idea that “no one cared” about slavery, and that the Founders betrayed all revolutionary principles by allowing slavery.

 

The basic problem Americans faced for the next 85 years is made plain here. Anti-slavery Americans could not fight the war or create the nation without pro-slavery Americans. Of course Americans, including the Founders, saw that slavery was a violation of natural rights. And that did matter to them. But here was the catch: if you insisted on banning slavery, there would be no United States; if you allowed slavery, there wouldn’t be the United States you really wanted.

 

Why didn’t non-slaveholding Americans just say screw it, if I can’t have the United States I really want, I don’t want any United States at all? First, because that was a lot to throw away, especially after a devastating war for independence that seemed to have been won only by the will of God. Second, because many antislavery Americans felt that slavery would soon be a non-issue.

 

So many slaveholding Americans were inspired by the ideals of the Declaration—the Spirit of ’76—that they talked openly of getting rid of slavery. There was real momentum during the war to get rid of slavery, even amongst slaveholders, that lasted until after the Constitution was written. Even slaveholders were inspired by what the new nation was trying to do. They admitted that slavery was morally wrong, and out of keeping with the ideals of the Revolution. “Slavery is a Moral, and political Evil,” wrote James Madison in 1790; “and …Whoever brings forward …some [plan] for the Gradual Emancipation of Slaves, will deserve Well of his Country.” [Ellis 114]  In 1782, the Virginia legislature passed a law allowing slaveholders to free the people they were enslaving if the slaveholders wished to do so. By 1790, over 12,000 enslaved Americans had been freed. [Ellis 90]

 

It was really only a progressive segment of slaveholders, mostly in Virginia, who held these views. But as Virginia went, so went the South, and it seemed feasible to hope that slaveholders were almost ready to let go of slavery on their own. Therefore, anti-slavery Founders believed there was no point pushing hard for abolition. That would just cause friction and get slaveholders angry. It would sabotage the cause. If anti-slavery Americans just waited, in a very short time slaveholders would end slavery on their own, peacefully. The whole slave system was dying of cancer; there was no need to shoot it.

 

So the Founders put in Happiness and left out Property and looked forward to a time, just a few years away, when slavery would disappear, dying under the weight of its own shame.