by Zon Fiar
A look into the Constitution and the glaring contradiction with slavery
|***Author's note: Although a bit lengthy, I think this a good look into the Constitution and the problem of slavery. A more complete version with an annotated bibliography can be found at http://www.fuelforthebrain.blogspot.com***
The United States Constitution is thought to be one of the better constitutions crafted in the world. The rights that it evokes to its people unparalleled. Yet there is a glaring contradiction inherent to the very creation of it that makes it perhaps one of the most flawed in history. This inherent contradiction is the claim made in the Declaration of Independence, of which is the foundation of the Constitution, of “life, liberty and the pursuit of happiness,” with an apparent condoning of slavery, if never really mentioning it outright, then by not admitting its existence and how it should be dealt with. This is perhaps one of the great faults of the founding Fathers that is never truly addressed. That they would purposefully leave over the delegation of rights and responsibilities that revolve around slavery to a later generation, virtually washing their hands of it, not caring for what consequences may come of it years down the road. Historian Staughton Lynd accurately portrays the founding Fathers when they created the Constitution, as well as what they knew they were not dealing with: “It would be more accurate to say that almost without exception the Fathers felt that slavery was wrong and almost without exception they failed to act decisively to end it.” The consequence, of course, was the Civil War and the racial inequality and injustice that continued to grow because of the acceptance of such an institution. In order to understand where and how such a contradiction could be allowed to exist I intend to analyze and deconstruct liberty and property and come to an understanding of why the founding Fathers of the United States allowed slavery to exist.
According to historian Clinton Rossiter the new republic followed the rights of man, which flow from the law of nature. These rights are:
The right to life, which carries with it the power of self-preservation; the
right to liberty, to act as one pleases without external restraint; the right
to property, to use and dispose of the fruits of honest industry; the right
to happiness, or at least to pursue it on equal terms with other men;
and the right to free conscience, to reach out for God without the
permission or even help of any other man.
Additionally, James Madison wrote that “the diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government.” The idea of the rights of man, therefore, was the mentality that went into the creation of the United States Constitution, as the Declaration of Independence virtually mimics: “life, liberty and the pursuit of happiness.” Since the “right to life”, the “right of liberty”, the “right to pursue happiness”, and the “right to free conscience” are all very similar, for one cannot have any of the other, essentially, without the other, I will boil them down to the “right of liberty” and focus on this right. This, of course, leaves over the “right of property”, which will be my other primary focus.
Both of these rights were hotly debated, and both were thought to be essential to one another and a working, functioning government: “that such a government affords the most ready and effectual remedy for all injuries done to persons and the rights to property.” Injuries done to persons could be any of the aforesaid rights of man, showing the paring of liberty and property to one another during the Constitutional debate between the Anti-Federalists and the Federalists.
The rights of liberty have a fairly straightforward and self-explanatory definition. “Liberty, in the Founder’s understanding, ‘protect[s] the exertions of talent and industry and secur[es] to them their justly acquired fruits’.” Furthermore, it was thought that liberty was defined by a certain amount of restraint. This restraint is the restraint that is put on natural liberty when you take part in a civil society, thus the liberty that we live under is considered to be civil liberty. That natural liberty is “that [you] may do what [you] please,” in order to “secure some liberty” to “surrender in trust of the whole of it,” thereby “sacrific[ing]” it for the whole of the community. Liberty, therefore, is something that every person is born with, and something that, in becoming a member of a society, is sacrificed, in the most generic of ways, in order to ensure that liberty is upheld. One benefit of liberty, or as some suggest the other way around, is that property can be secured.
Property was put on a pedestal in the colonies because it was an ideal that could not be captivated upon while under the kingship of George III of England. This illusive concept took hold in the colonies because of the distance between the colonies and the mother country, not to mention the abundance of land available that sparked the interest in attempting to secure property as a right. In the Anti-Federalist/Federalist debate that was going on during the making of the Constitution it was thought that the United States, being a free country, would be more amenable to the rights of property if they were secured and normalized under constitutional law: “In the Gazette of the 23d instant, I ascertained from the state of other countries and the experience of mankind, that free countries are most friendly to commerce and to the rights of property.” This, then, would make property the first and foremost of rights, one that would be coveted by the citizens of the United States.
The Fathers of the Constitution (here on out referred to simply as ‘Fathers’) “believed in the rights of man, and especially in the right of private property,” which shows the importance that property plays in relation to the rights that the “rights of man” hold. The right of property was so contested that “Maine at this moment [is] on the eve of separation from [the United States]” with the “reason of these things is, that for the security of the property of the community.” Colonies were so threatened by the prospect of not being able to hold property that they almost refused to join the United States, which, again, shows the power of property and its importance. A Supreme Court decision of 1795 established property within the American society, stating that “‘The right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man... No man would become a member of a community in which he could not enjoy the fruits of his labor and industry. The preservation of property is a primary object of the social compact’.” This, of course, would be one of the reasons that would lead to the Civil War because the slaves were not “enjoy[ing] the fruits of his honest labor and industry”.
Irony then enters into the situation when they began to consider slaves as both men and property, which inherently contradict one another. Slaves were, in fact, “‘bartered, deeded, devised, pledged, seized, and auctioned. They were awarded as prizes in lotteries and raffles; they were wagered at gaming tables and horse races. They were, in short, property in fact as well as law’.” John Adams wrote in his diary his notes on the debates of the Articles of Confederation, of which touched upon slaves. “Negroes [are] a species of Property – personal Estate,” and again that “Negroes are Goods and Chattells [sic], are Property.” Africans were, strictly speaking, considered as nothing more than a piece of property, and thus had no rights. Chief Justice Taney of the Supreme Court said, “all blacks were ‘never thought of or spoken of except as property’.” This was extremely important for slaveowners to establish because they had to make sure that in no way will a slave be able to claim any rights that could prevent him or her from working, or from the owner losing his property. Also, though, the slave owner wanted to consider the slave as a man, at least enough so that he could use his slave to help gain representation. Slaves were thought to have a personality, which, at the time, only men were thought to have, and yet the state looked to gain representation for slaves. A publicist of the time observed that “‘So far as it may hold the master and slave, as individuals, morally responsible to the state in their mutual relation, it so far recognizes the personality of the slave, and changes the property into a relation between persons’.” Furthermore, it was necessary to establish that slaves were human beings because they could commit crimes unto other people or property, and thus needed a reasoning to be held responsible. “Thus, slaves were considered persons by the criminal law,” and held accountable, but did not have the protection of laws.
In the “Federalist No. 54”, either Hamilton or Madison struggled with the concept of a slave, a piece of property, as being considered a man as well. He starts by stating that “Slaves are considered as property, not as persons,” but struggles with this idea when it comes to terms of the government. He says that “the true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property.” To accurately convey what was being concluded it is necessary to quote this next passage in its entirety:
The slave is no less evidently regarded by the law as a member of the
society, not as a part of the irrational creation; as a moral person, not
as a mere article of property. The federal Constitution, therefore,
decides with great propriety on the case of our slaves, when it views
them in the mixed character of persons and of property. This is in fact
their true character bestowed on them by the laws under which they
live; and it will not be denied, that these are the proper criterion;
because it is only under the pretext that the laws have transformed the
negroes into subjects of property, that a place is disputed them in the
computation of numbers; and it is admitted, that if the laws were to
restore the rights which have been taken away, the negroes could no
longer be refused an equal share of representation with the other
In every single one of the “rights of man” the African was denied. He himself was not thought to be considered among the “men” of the Declaration of Independence and the Constitution. In the Supreme Court case of Prigg vs. Pennsylvania (1842), Maryland’s argument was that “‘slaves are not parties to the Constitution’”, and Pennsylvania, the defending party, agreed with them that “‘‘we the people’ does not embrace them’.” Such wholesale disavowing of the African race from the Constitution was one of the stepping stones towards the Civil War because it was one of the first cases that came before the Supreme Court that forced them to consider what the founding Fathers had intended. Again, and perhaps even more decisive of a decision and even more of a profound interpretation of what the founding Fathers had intended, is Chief Justice Taney’s decision in the case Dred Scott vs. Sandford (1857). He went to great lengths to assure that the African American would have no rights in the United States. In his lengthy opinion he not only set down that slaves were not a part of the notion of men in the Constitution, because “‘he was bought and sold, and treated as an ordinary article of merchandise and traffic,’” but also that “blacks, ‘even if free,’ had not been ‘looked upon as citizens by the contracting parties who formed the Constitution’.” Taney even went further than simply denying slaves any rights, but he denied free blacks as well any rights as a man and citizen of the United States. Such an interpretation could be made because the Fathers did not attempt to define slavery at all and, as before stated, had left future generations with the responsibility of handling the slavery situation.
One of the main reasons why the Fathers did not attempt to deal with this problem is because “any scheme of emancipation ran the risk of undermining property, of increasing the powers of government, and thus of endangering the very foundations of liberty.” I have already established the importance of the rights of property and of liberty, which leads to another fear that the Fathers had: “increasing the powers of government”. This was a great fear of theirs because it was a real and present one. England had exerted itself so heavily on the American colonies that it was ever present, always lurking in the shadows. The Fathers wanted to in no way make the Constitution and country that they were creating resemble the oppressive and domineering country that they had just liberated themselves from. This is perhaps the only solid reason, the only solid fear that seems a reasonable explanation for why they did not deal with slavery at the creation of the Constitution. Nonetheless, no matter how real the fear, the rights and ideals that the Fathers expressed and wanted to uphold should have outweighed the fear of resembling England.
Turning back to the right of property. Property was the first and foremost of rights. Rhetorician Kenneth Burke explains this best when he describes a treaty that fascist Italy made with neighboring countries with the idea, at least on paper, that all the signatories were equal. Yet the “realities of the political and economic situation” gave Italy more power, thus making them “‘foremost among the equals’.” This, too, can be applied to the “rights of man”, especially in terms of the United States, because, although the “rights of man” are all considered equal, the “rights of property” was the “‘foremost among the equals’.” This played out in such a way that if property rights ever head butted another of the rights, then the other rights would give way to the “rights of property” because it had the most power, the most influence, the most sway on the minds of Americans. This is further illustrated at the U.S. Constitutional convention of 1787. Abolitionist Gouverneur Morris states that “Life and liberty were generally said to be of more value, than property,” and that “an accurate view of the matter would nevertheless prove that property was the main object of society.”
Property was considered the first among equals because it “was supposedly the foundation of liberty.” Liberty, it would seem, is subservient to property, that without property rights there wouldn’t be the chance opportunity to enforce the rights of liberty, no matter the costs. Additionally, Historian Edward J. Erler writes that property is “‘the great fence to liberty’,” which shows the importance that property had in regards to liberty.
When it came into contrast, that is property and liberty, property won out most of the time. This is even the case where the owner of a slave has moral objections, not caring to part with their property: “there are a number of other evidences, direct and indirect, of the attachment Virginians had to this species of property, their occasional moral and practical objections to slavery notwithstanding.” This is heavily apparent because the property that they would lose if slaves were emancipated would cripple them enormously. “Almost always, where a Virginian was wealthy, most of his wealth was contained in the value of his slaves.” Oftentimes families were wealthy not because of the land that they owned, but rather by the amount of slaves that they owned, which outweighed monetarily, usually, the land, tools and animals combined.
In fact, the value of slaves as property was so important that black slave owners of the time valued their slaves more than they did protecting their fellow race from forced labor. The institution of black slave owners was large as Historian Larry Kroger writes that “the institution of black slave owning was widespread, stretching as far north as New York and as far south as Florida, extending westward into Kentucky, Mississippi, Louisiana, and Missouri.” This contrast is necessary to look at because it illustrates that this is not merely a Caucasian phenomenon in the United States. That, rather, the principle of property and slavery is a phenomena that breaches all races, is a phenomena that is recognized by all races no matter the inequality that may be present. To backtrack a little would suffice in a necessary background for African slaveholders.
Africans have been practicing slavery for hundreds of years, perhaps thousands, in their own societies, and slavery was a societal norm. “‘Many West African tribes, for example, allowed enslavement not only of people from other tribes, but also of the members of the same tribe’,” therefore showing that slavery is not something that was thrust upon them as an entirely unique experience. Slavery practiced in Africa was, though, oftentimes more benevolent, not so brutal as the slavery found in the United States. The slavery of Africa would resemble the African American slaveholders that resided in the north, say, more so than it did in the south.
The African American slaveholders in the north were prone to manumit their slaves a lot more than they would in the south. This is evident because a lot of times they themselves, in the north, were manumitted by their owner, thus creating a much more benevolent feeling between slave owner and slave: “this change of heart is seen... as the direct influence of 18th century white-run manumission societies in Maryland.” In the north where abolitionist societies were more prevalent, as well as there being more laws that worked on the slave’s behalf, such as the complete abolition of slavery in Massachuchets and New Hampshire, you would find slaves that would purchase their relatives and manumit them, or would continue purchasing slaves with the intention of manumitting them. This process, again, was a lot different than the African American slave owners that resided in the south.
In the south, African American slave owners had to buy their freedom, more often than not, instead of being given their freedom through manumission. This is often the case because the south believed in slavery as an institution wholeheartedly, as well as put great stock in slaves as a source of wealth and income. Because of this undercurrent when slaves became free, usually from buying their own freedom, they would turn around and continue buying slaves in order to build their own property and wealth in order to establish themselves, which is starkly in contrast with the more benevolent slaveholders in the north. One example is “Elias Collins a free person of color,” who owned 831 acres of land and cultivated rice with 34 slaves, and was going to purchase a “gang of slaves” to run the recently purchased 3,500 acres of land. He passed away shortly after purchasing the land and was not able to buy the required slaves. Elias Collins is a middle ground example, for there were many other black slave owners who had over a hundred slaves to their name. Also, black slave owners in the south treated slaves more like the white slave owners of the south, with more force and violence, driving them hard every day in order to increase their own wealth.
Property also played a much larger role in the dynamics of a community that held strong racial prejudices. If a free black purchased slaves then he would be accepted more readily into the white run society, “if only on the fringe.” The more wealthy black slaveholders were allowed much more ground and, oftentimes, were considered white simply because they were wealthy. So the holding of property plays a huge role in American societies from the Revolutionary War to the Civil War. James Pendarvis, a mulatto, “was a free person of color and a slaveowner from St. Paul’s Parish in [the] Charleston District,” and owned 113 slaves that worked a plantation which contained 3,250 acres of land. He married a white woman, and his two daughters married white men as well. “Clearly the wealth of [Pendarvis] appears to be the dominant factor which facilitated his entrance into the white world.”
After taking a look at property and its value, it is necessary to see where the two, liberty and property, and thus slave and property, truly do come in conflict, where the two come head to head and the measures taken to deal with it. An English observer wrote of Americans: “How is it that we hear the loudest yelps for liberty among the drivers of negroes?” This question is the most commonly asked question and stated criticism of the United States. How could they cry so much for liberty when they themselves were enslaving Africans? The answer, obvious in some areas and not so obvious in others, is that property was the first among equals, that property was the “main object of society”. Additionally, “The fundamental principle behind the Revolution, the natural rights of mankind, stood starkly as the antithesis of slavery.”
Historian Edmund S. Morgan observed the paradox and stated that “the rise of liberty and equality coincided with the rise of slavery; in effect, Americans ‘bought their independence with slave labor’.” This is the most short and concise answer that I could find, and one that I hold entirely true. The Fathers were grappling with the creation of a new nation, starting one from scratch and trying to be the most free and acceptable of any other country. In so doing they were appeasing each colony that was joining the Union. It is inevitable that there would be conflict in the creation of the Constitution because each state had different interests. For example, South Carolina and Georgia had much more agrarian interests, and thus the need for slave labor, than, say, New York, which focused more on importation and skilled labor.
In order for the Union to work there had to be concessions that would appease the colonies enough so to prevent them from not joining the Union. There are several major compromises, if they could be called such, which would pave the way for the creation of the Union. First, and perhaps the most widely known, was the acceptance of a three-fifths clause that would allow a slave’s owner representation of him. This was hotly debated, as Gouverneur Morris expressed his opinion at the U.S. Constitutional Convention of 1787:
The admission of slaves into the Representation when fairly explained
comes to this: that the inhabitant of Georgia and S.C. who goes to the
Coast of Africa, and in defiance of the most sacred laws of humanity
tears away his fellow creatures from their dearest connections & damns
them to the most cruel bondages, shall have more votes in a Govt.
instituted for protection of the rights of mankind, than the Citizen of Pa
or N. Jersey who views with laudable horror, so nefarious a practice.
This hotly contested subject of the Constitutional Convention gives way to two observations. One, that the southern states would gain more representation than the northern states, and thus hold more political power. Two, that by allowing a three-fifths clause into the Constitution the Fathers were thereby conceding that slavery was a viable institution, that it was acknowledged, and thereby put their stamp of approval on it. Rossiter notes: “What the Convention did about slavery is beyond dispute: at four scattered points in their charter the Framers confirmed its existence in opaque language.” Again, this was absolutely necessary in order to create a working Constitution accepted by both eastern (i.e. northern) states as well as the southern states. A contemporary of the time, Rufus King, “observed that the three-fifths clause ‘was, at the time, believed to be a great [concession] and has proved to have been the greatest which was made to secure the adoption of the constitution’.”
Another concession made to appease the colonies was the Northwest Ordinance. The Northwest Ordinance is a pivotal concession for both the north as well as the south, depending on which of the two was viewing it. For the north it guaranteed that there wouldn’t be slavery in the northwest states, but this also guaranteed that the federal government could not prohibit slavery in the southwest states: “to the South it may have seemed the end of the national government’s attempt to prohibit slavery South of the Ohio.” This was allowed because “North as well as South hoped for political allegiance of at least some of the Northwest states. The clause on slavery could be presented to Southern ratifying conventions as a guarantee of property and to Northern ratifying conventions as a bar to the creation of new slave states.” The south allowed this concession because they believed that the northwestern states would invariably be slave states because they would be predominantly agrarian and, in fact, there were many families that had already traveled to this region with slaves and the intention of continuing slavery. Nathan Dane wrote a revealing letter to Daniel Webster in reference to the Northwest Ordinance: “‘that exception had my full assent, because slavery had taken root in it, and it was then probable it would be settled principally by slaveowners’.” The balance was tough, as both sides thought that they had the upper hand.
Other minor compromises were more tactical than anything else. The Constitution itself rarely mentions the words slave and slavery, and at that only when an Amendment was added abolishing the institution. Originally the Fathers had incorporated the words slave and slavery into the Constitution, but later decided against using them. This had a twofold reason. The first is that the Constitution is supposed to represent the United States as a country. Especially as a new nation it had to work to gain the respect of other foreign countries, and if slave and slavery were incorporated into the Constitution, no matter that it was practiced, than that would demean the lofty ideals that it was trying to uphold, as well as undermine the authority that the United States would have. Secondly, “The change in language was clearly designed t make the Constitution more palatable to the North.” The north, in turning a blind eye to slavery, needed at least for it to not be flaunted in front of them in the very Constitution that they were going to ratify.
As much as we view the founding Fathers in hindsight and accuse them of not dealing with the slavery issue at the time, we can in now way judge them. Rossiter states that “any determined step against slavery in the Constitution – assuming any Framer was disposed to take it – would have been a sheer act of political quixotism.” The founding Fathers’ main goal was to establish a working government and protect a certain amount of rights. Thomas Jefferson wrote concerning slavery and the Constitution: “But as it is, 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.” At this they accomplished what they set forth to do. Ultimately what it comes down to is that the founding Fathers did not address slavery because that was, perhaps, the one issue that would have shattered the Union and dissolved any chance of creating a unified country and sound Constitution.
What, then, were the unintended consequences of not abolishing slavery, of not siding with liberty over property instead of the other way around? The “rights of man”, and thus the “law of nature”, has most assuredly been violated, and to men that do not obey this law will “come sadness and adversity”. The “sadness and adversity” definitely comes to the United States, culminating in the form of the Civil War. One of the first signs can be seen is in a letter from a Congressman in regards to Missouri: “without any restriction or limitation as to slavery, giving them complete legislative power over life, liberty, and property, which power cannot now, constitutionally, be taken without their consent: as well might a law granting an incorporation, be annulled.” Without addressing the issue congress has set forth a precedent that will continue to be used to challenge the Constitution, in this case Missouri challenging the federal government in regards to slavery.
The Latimer Law is an ironic example because it is something that came about from the local police and justices trying to uphold the law. What is the state for if they can’t uphold the law? This is perhaps an isolated example of a law prohibiting the state from helping the rendition of fugitive slaves, but it shows the irony that is the Constitution and the American justice system.
But a more poignant example is the creation of the Kansas State Constitution that followed the lead of Chief Justice Taney. Taney, to recall, felt that blacks, whether slave or free, had no rights whatsoever in the United States because they were “bought and sold” and were “never thought of or spoken of except as property”. Kansas used this Supreme Court decision to draft their own Constitution that was extreme to say the least. It stated: “‘The right of property is before and higher than any constitutional sanction and the right of the owner of a slave... is as inviolable as the right of the owner of any property whatever’.” The Missouri case cited above and this case are two examples where individual states were attempting to override the federal government, were attempting to make their own Constitution supercede that of the whole nation.
The ultimate and most horrific of unintended consequences would then culminate in the Civil War. The Civil War, in hindsight, was absolutely inevitable as the rights of property clashed with the rights of liberty. That the north would begin to solidify into a unified section, one that wants to abolish slavery, and that the south would solidify into a unified section, one that wants to reinforce slavery, seems to be something that happened entirely on its own. What is important to also mention is that the need for war seemed necessary because the south wanted to secede from the Union, conveniently when the balance of power had transferred to the northern states. Historian Allan Nevins assesses the dynamic of sectionalism:
the two sections were competing for power; that a momentous transfer
of power had just occurred; and that it held fateful consequences
because it was involved with the issue of slavery, taking authority from a
section which believed slavery moral and healthy, and giving it to a
section which held slavery immoral and pernicious.
Historian Paul Finkelman states the situation matter of fact: “Slavery, of course, was at the center of that sectionalism.”
Although there were many unintended consequences of the Revolutionary War, invariably unavoidable, the most important and poignant of which was the Civil War. In not denying slavery’s right to exist in the United States the founding Fathers set up a stage for disaster, one of which could not be avoided without dissolving any chance of creating a sound and stable country. That upholding property and liberty, all the while maintaining slavery, was so hypocritical, especially in hindsight, should not be taken for granted, because there was a huge majority of people who wanted to uphold slavery at all costs. Again, this led to the Civil War because they refused to allow slaves to become emancipated and the institution abolished, which culminated in the sectionalism that so dominated politics just before the Civil War started. President Lincoln said it best when he described why slavery had to be abolished. He didn't attempt to pretend that liberty was the heart of the issue, but rather focused on the heart of the problem as property. Lincoln “often spoke of the heart of slavery as the denial of property rights” because by denying a slave their liberty you are denying them the ability to obtain property. The founding Fathers knew that they had to uphold property rights above all else, which was why they could not abolish slavery. President Lincoln knew that he had to uphold property rights above all else, which was why he knew he had to abolish slavery. In the end we have turned full circle and acknowledged completely and utterly that the “foremost among the equals” was, and still is, the rights of property.