Founding Freedom: Self-Government and Slavery in America

To recite the title of George William Van Cleve’s book, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic, is to beg the fundamental question regarding the American founding: did the framers of the constitution of 1787 establish a nation that would pursue the economic interests of whites at the expense of enslaving blacks, or did they create a regime of self-government based on a principle of human equality irrespective of race?  Everyone knows that the Constitution contains compromises regarding slavery, most famously one that counts 3/5ths of the total number of slaves (but not free blacks) in a given state towards representation in the House of Representatives.  But why was slavery protected at all in a nation born of a revolution declaring the self-evident truth that all men are created equal?  In the words of Samuel Johnson, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”

Van Cleve, Visiting Professor in Law and History at Seattle University School of Law, answers that protecting slavery was essential to the formation of the American constitution.  Specifically, “where slavery was concerned, the Union was based on a sectional compact” (11).  Van Cleve demonstrates that under the Articles of Confederation and Perpetual Union, “the slave states held a political veto over Confederation policy” (41).  So when it became time to frame a new national government, producing a stronger union of the American states required a bargain between the majority free states (where slavery was on the wane and slaves a small portion of the population) and minority slave states (where slavery was growing and in certain states or sections thereof slaves constituted a significant segment of the population).  Free states gained a strong commerce power for the federal government at the cost of denying to Congress the authority to ban slave imports until 1808.  Other slave provisions in the Constitution, like the fugitive slave clause, were accepted with few Northern complaints at the 1787 convention because all knew that without extending slavery’s lease on American life, there would be no American union.

Thus, drawing from complementary work done by Mark Graber, Van Cleve concludes that far from putting slavery “in the course of ultimate extinction” (as Abraham Lincoln interpreted the Founding), the constitutional framers produced “a slaveholders’ union,” where “slavery emerged from the Convention not only intact, but with a constitutionally protected political and legal path for its growth” (179).  Moreover, he puts a fine point on the argument that “the true price of union was the expansion of slavery, not just its protection where it existed” upon ratification of the Constitution (182).

But does this make the Constitution a “slaveholders’ union”?  Van Cleve argues that even in the New England states, white Americans were less concerned about abolition and more interested in protecting their own lives and property, and acted in ways that enabled southern slaveowners to protect what they considered property—namely, their slaves.  To the extent that the Constitution granted Congress little to no authority over slavery, the American union served to perpetuate the peculiar institution in ways that Van Cleve equates with passing the buck to later generations.  He gives short shrift to the reality of slavery’s existence prior to the Revolution of 1776, let alone the establishment of national independence and the machinery of self-government.  Van Cleve allows little room for the political prudence required to determine who would regulate slavery and how this would occur.

In addition, “to protect slave property” is not the same as to introduce slavery, or to justify it according to divine or natural law.  The political problem was what to do about self-government where slavery already existed.  This begs more discussion on his part given that the reticence to abolish slavery immediately upon separation from Great Britain has much to do with what Thomas Jefferson discussed during the crisis over Missouri’s admission into the Union.  Van Cleve quotes Jefferson’s famous 1820 letter to Massachusetts Representative (soon to become Maine Senator) John Holmes, but only to observe the sectional nature of the admission debate.  Nowhere does he recount Jefferson’s illustration of the predicament of the American slaveholder who finds himself balancing concern for survival with perception of the injustice of slavery: to wit, “we have the wolf by the ears, and we can neither hold him, nor safely let him go.  Justice is in one scale, and self-preservation in the other.”

This omission is all the more striking when one considers that Van Cleve deftly presents the sectional nature of slavery, for example, by way of population density (22-23).  He also shows that the “resistance to integrating blacks into society” was both a southern and northern disposition (70).  His description of the potential social and economic consequences of abolition that influenced how northern states approached emancipation (72) buttress Jefferson’s dilemma regarding emancipation.  Although Van Cleve cites Jefferson’s reference to slavery as “this great political and moral evil,” Van Cleve spends little time discussing the prevalence of this sentiment in America, and its significance in promoting gradual abolition in the North.  To be sure, there was a ready confluence of humanitarian and economic reasons for northern abolition (62-63).  But to read Van Cleve’s account as the definitive presentation of what the Founders wrought in 1776 or 1787 regarding slavery in the American republic would be to know well only a portion of the debate and its impact on the prospects for slavery in America’s future.

He does demonstrate that sober discussion of emancipation almost always entailed a consideration of the status of black freedmen vis-à-vis free whites.  Most thought colonization impractical, and equal citizenship for emancipated blacks detrimental to both whites and blacks.  The worst fear was a race war as the inevitable consequence of emancipating without colonization of blacks outside the American union.  But this only highlights what he omits in his characterization of Founders’ actions towards slavery.

We repeat Harry Jaffa’s observation about the Founders’ dealing with slavery: for the Founders to have grasped for more in terms of constitutional strictures against slavery would not be to gain more but to lose the whole thing (A New Birth of Freedom).

For Van Cleve, “The Constitution was an obstacle to ending black slavery in America” (270).  Well, that depends on what you compare it with.  To call the Constitution pro-slavery, even admitting the practical effects of the federal principle on the spread of slavery, is misleading, especially when you compare it with that of the Confederate States of America.  That constitution made explicit its protections of slavery, protections that were the logical outgrowth of arguments in favor of white supremacy.

For example, consider Vice President Alexander Stephen’s Cornerstone Speech of March 21, 1861, where he calls the Founders’ ideas “fundamentally wrong,” for they “rested upon the assumption of the equality of races.”  His account of the Founding era’s opinion of slavery was unequivocal: “It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away.”  He then praised the Confederate Constitution:

Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.  This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. 

Now that’s a slaveholders’ constitution.

The question becomes, how long could Americans have proceeded as a merely “secular republic,” politically acting as if consent or mere majoritarian politics were the summum bonum of American self-government?  Conceding that free blacks in the United States were treated as second-class citizens in the early days of the republic, could the rights even of white Americans have been secured for long if their politics were guided only by considerations of self-interest?

Lack of debate over the fugitive slave clause is evidence of Northern compromise with the Slave South regarding the new Constitution’s authority over slavery where it already existed, Van Cleve argues.  Simply put, the proposed Constitution was to be a political, not moral, union, as slavery would be treated under the Constitution as a local issue in terms of its morality and northern acceptance of state control over slavery as “the price of union” (176-77).

Van Cleve also overstates James Madison’s argument in the Federalist 10 to be precise, that “a solely political union governed by clashing interest groups could endure and preserve freedom” (182).  The context of Federalist 10 was the question of whether a continued union of the American states would better promote their political prosperity than each state going its own way or the more likely alternative of partial confederacies.  Madison did not intend that essay to speak for the entire Constitution’s merits, advantages, and structural improvements in the Articles of Confederation and Perpetual Union.  In fact, Madison completes his argument by returning in Federalist 51 to the question of tyranny and adding an extensive discussion of how separation of powers—and not simply the “extended republic” argument of Federalist 10—will offer the best chance of preventing tyranny and promoting justice.  Contrary to Van Cleve’s emphasis upon reading the proposed constitution of 1787 as a merely political and not moral union, Madison wrote: “Justice is the end of government.  It is the end of civil society.  It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.”

“Founding a slaveholders’ union,” according to Van Cleve, “was the price to be paid for designing a federal republic capable of creating an American continental empire in the face of persistent sectional divisions.”  He acknowledges that slavery would grow in the United States until “public opinion in Northern states altered to the point where the Northern states were willing to sacrifice politically to block it.”  That sacrifice, of course, eventuated in the Civil War.

In the end, the great political elephant in the room that is Van Cleve’s book is the principle of consent, whose practical political expression—public opinion—would always dictate the extent to which the principle of human equality would be secured.  Here the  role of statesmanship, looms large, demonstrating the moral resources required for any political union, any constitution, to produce political prosperity.

There’s no question that, as Lincoln put it, “the plainest print cannot be read through a gold eagle.”  Economic self-interest was never far from important political, even constitutional, issues that impinged on the future of slavery.  However, despite the fact that the last line of Van Cleve’s book affirms that the American regime was “a republic committed to human freedom” (275), he offers too few of their words and deeds along these lines to explain how they grew, admittedly by fits and starts, into a free people.

Reader Discussion

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on August 12, 2012 at 12:12:58 pm

"But why was slavery protected at all in a nation born of a revolution declaring the self-evident truth that all men are created equal?"

It seems clear to me that the Constitution only appeared to tolerate slavery in order to get slaveholder support for the break from England.

But otherwise the Constitution created some pretty subtle anti-slavery "sleepers." Here's a link to my short essay, "Lincoln as the Constitution's Slave Tax Enforcer:" http://www.lockeanliberty.org/2011/05/lincoln-as-the-constitutions-slave-tax-enforcer-1787-1861/

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Rick DiMare
on August 12, 2012 at 13:04:48 pm

Lucas, nice article. From a legal perspective, I argue that the Constitution only appeared to tolerate slavery to assure get support for the break from England, but secretly the Constitution is (and has proven to be) quite anti-slavery:


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on August 12, 2012 at 14:39:06 pm

One wonders what Van Cleve says about the absence of the word "slavery" in the Constitution, or the prohibition of slavery in the Northwest Ordinance. Lincoln's Cooper Union speech and Fredrick Douglass' account of the Constitution strongly argue the exact opposite meaning of the Constitution as the book reviewed.

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Rudy Hernandez
on August 12, 2012 at 16:59:41 pm

As he puts it, "Because some delegates such as Madison believed the Constitution should be facially neutral on the issue of slavery, and perhaps also to avoid arguments on the issue during northern ratification, slave states were forced to accept oblique (though transparent) language describing the institution at several places in the Constitution" (128). He adds that the lack of any explicit authority vested in Congress to ban slavery indicated that slavery would be protected under the Constitution of 1787. The Northwest Ordinance of 1787 is a much more complicated question in Van Cleve's account (see 153 ff). Short version: southern representatives in the Confederation Congress did not expect that Article 6 (the slavery ban) would apply to new states carved from that territory due to "equal footing" language in the Ordinance, whereby new territory-become-states would have the same authority over slavery (to ban or approve it) as the existing states possessed under the Constitution. In addition, expect for "political good faith," the Ordinance's validity was questionable to begin with, given that the Confederation Congress did not have authority to enact most of the Ordinance. Last, Van Cleve argues that southern states accepted the Ordinance in a quid pro quo for "the demise of the Spanish Treaty" affecting the Mississippi River and Spanish commerce (see 156-58).

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Lucas Morel
on August 12, 2012 at 20:54:26 pm

"He adds that the lack of any explicit authority vested in Congress to ban slavery indicated that slavery would be protected under the Constitution . . . "

This is incorrect. A phase-out of slavery was expected after ratification, or a kind of "whithering on the vine," particularly after the 1808 slave importation tax cap would expire under Article 1, Section 9, Clause 1.

But the biggest legal "sleeper" of all was the creation of two classes of taxation, a direct tax class on property "because of ownership" (in oneself and one's labor included) vs. the indirect tax class.

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Rick DiMare
on August 15, 2012 at 23:19:19 pm

To follow up on Rick DeMare's comment, note the unamendable bar in Article V on bans on slave importation. (Would this allow an expansive commerce clause interpretation? And could it, following Walter Berns' argument, be used to ban the slave trade among the several states?)

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Ken Masugi
on August 18, 2012 at 21:07:30 pm

Ken, thanks for bringing that Article 5 reference to my attention. I'm not familiar with Walter Berns' argument, but I think the Article 5 ban on anti-slavery amendments prior to 1808 was only meant to assure slaveholding states that no amendment would be allowed to interfere with a proposed 20 year phase-out period.

But it appears that slaveholders used this 20-year (low slave tax) period to actually increase slave importation, and the practice seemed to have gained so much momentum that the Civil War was ultimately necessary.

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Rick DiMare
on August 19, 2012 at 07:04:29 am

Excuse me if I don't respond to further comments. I often am not able to check this site. Is there any way to be notified of comments to this thread? (I provided my email address to each post, but I'm still not getting notified when comments are added.) Thanks.

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Rick DiMare
on September 24, 2012 at 02:16:48 am

Little Family structure. My gneifrirld grew up in a very poor neighborhood, but her grandparents raised her and expected a great deal from her. Today, she is a successful business owner and her IQ is off the charts.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.