AMERICA'S FOUNDING FATHERS: SAINTS OR SINNERS?

Peter Radan (11 October 2018)

The American Revolution was led by a generation of men who are now almost universally referred to as ‘the Founding Fathers’. This moniker was coined by one of America’s least great heads of state, President Warren G Harding when, as a Senator from Ohio, in his 1916 address to the Republican Party National Convention, he said:

"We ought to be as genuinely American today as when the founding fathers flung their immortal defiance in the face of old world oppressions and dedicated a new republic to liberty and justice."[i]

The expression ‘the Founding Fathers’, with what Richard Bernstein describes as ‘its attendant aura of sanctity’, has led Americans to regards these ‘godlike’ men with a ‘reverence associated with biblical patriarchs or patron saints’.[ii] Parallels can be drawn between them and Christianity’s ‘Church Fathers’, many of whom became saints. Just as the latter set the theological and scholarly foundations of Christianity around the text of the Holy Bible in the several centuries following the crucifixion of Jesus Christ, America’s Founding Fathers provided the political and economic foundations for America’s ‘bible’, the Constitution, which was their crowning achievement. It is thus hardly surprising that Pauline Maier entitled her detailed study of the Declaration of Independence, American Scripture[iii] and Catherine Drinker Bowen entitled her account of the Constitutional Convention,Miracle at Philadelphia.[iv] As Robert Bellah has written in relation to the American Revolution, ‘the Declaration of Independence and the Constitution were the sacred scriptures and [George] Washington the divinely appointed Moses who led his people out of the hands of tyranny’.[v]

The immediate origins of the Constitution can be traced to the Declaration of Independence of 4 July 1776 by which thirteen British colonies in North America declared their independence from the British and ignited a secessionist war that led to their emergence as independent States in 1783. Delegates from 12 of these States prepared a draft constitution in Philadelphia in 1787 which was ratified by eleven of them in 1787-88. These eleven States became the United States of America when the Constitution came into operational effect in March 1789.[vi]

But, did Harding’s Founding Fathers create, as he claimed, a new republic ‘dedicated … to liberty and justice’? Are they deserving of the reverence that they have been accorded? The answer to second question, very much depends upon the answer to the first. I will look at each question in turn.

A Republic Dedicated to Liberty and Justice?

The Declaration of Independence famously declared, as a ‘self-evident’ truth’, ‘that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, [and] that among these are Life, Liberty and the pursuit of Happiness’. However, it is clear that, according the Constitution, African Americans were not created equal and therefore not endowed with the rights of ‘Life, Liberty and the pursuit of Happiness’. Most African Americans at the time were slaves. Thus, George Mason, a slaveholding delegate to the Philadelphia convention from Virginia, referred to slaves as a ‘peculiar species of property, over and above other species of property common to all the States’,[vii] and William Paterson, referred to them as ‘property, & like other property entirely at the will of the Master’.[viii] Although the words ‘slave’ and ‘slavery’ do not appear in the Constitution, the ‘peculiar institution’ was one of its central features.

The Philadelphia Constitutional Convention

The Constitution had three major provisions dealing with slavery, and fewwould disagree with the comment, made in 2008 by the then Senator Barack Obama, that their effect was that the America’s founding document was ‘stained by the original sin of slavery’.[ix]

The first of these constitutional provisions was the three-fifths clause. By its terms ‘all other Persons’, the euphemism for slaves, were to be counted as three-fifths of a person for the purposes of representation to the House of Representatives and direct taxation. The important consequence of this provision was that slaves were counted, albeit fractionally, as people for the purpose of determining the number of electoral districts in the House of Representatives, but were not entitled to vote in the election of their members. As Hugh Hughes, a staunch opponent of the ratification from New York,satirically observed during the ratification debates, the representation of slaves in the three-fifths clause was there to compensate the slaves for their enslavement.[x]

A further aspect of the three-fifths clause is its reference to ‘the whole Number of free Persons’. This expression was indicative of the meaning of ‘People’ referred to in the Constitution’s Preamble in which it was declared that ‘We the People of the United States … do ordain and establish this Constitution’. The reference to ‘the whole Number of free Persons’ in the three-fifths clause suggests that the framers of the Constitution did not have in mind slaves as being within the ‘People’ who established the Constitution.[xi] This was confirmed in 1857 in the Supreme Court decision in Dred Scott v Sandford,[xii] where Chief Justice Taney, in delivering the opinion of the court, said:

"In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument."

In the wake of Taney’s pronouncement, on the eve the 1860 elections that led to his appointment as President Abraham Lincoln’s Secretary of State, William H Seward observed that the Supreme Court had ‘pronounced that … this constitution of ours is not a constitution of liberty, but that it is a constitution of human bondage’.[xiii]

The Constitution’s second slavery provision dealt with fugitive slaves. It stipulated that runaway slaves could not be granted their freedom and that their owners were entitled to recapture them. Federal fugitive slave legislation in 1793, made more draconian in 1850, effectively denied captured African Americans any due process rights. So-called personal liberty laws enacted by various non-slave states that sought to grant due process rights to captured African American were declared unconstitutional in 1842 by the Supreme Court in Prigg v Pennsylvania.[xiv] In delivering the opinion of the court, the centrality of the Constitution’s fugitive slave clause was detailed by Justice Story when he said:

"If the Constitution had not contained [the fugitive slave] clause, every non-slaveholding state in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters; a course which would have created the most bitter animosities, and engendered perpetual strife between the different states. The clause was, therefore, of the last importance to the safety and security of the southern states; and could not have been surrendered by them without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it; a proof at once of its intrinsic and practical necessity."[xv]

The effect of the decision in Prigg v Pennsylvania was summarised by Justice Grier in the Supreme Court decision of Moore v Illinois,[xvi] when he said that ‘any State law or regulation which interrupts, impedes, limits, embarrasses, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service, is void’.

As George William Van Cleve has noted, the significance to the Founding Fathers of the Constitution’s fugitive slave issue was to be found in the reality that ‘controlling fugitive slavery … served the congruent sociopolitical interests of the various states’.[xvii] For slave states the interest was obvious – the protection of what they regarded as their property. In relation to northern states that were moving towards abolition of slavery, Van Cleve describes their interest as follows:

"For them the clause served several purposes: it prevented an influx of runaway slaves whose presence white taxpayer majorities often objected to on racist grounds or believed would result in unwanted social costs such as increased poor-relief taxes and discouragement of white immigration."[xviii]

The Constitution’s third slavery provision was the slave trade clause which stipulated that Congress could not pass legislation prohibiting the international slave trade until 1808. At the time of the Constitutional Convention there was widespread support for the abolition of the international slave trade. A significantfactor in southern slave states accepting the slave trade was the reality that the long-term future of slavery was not threatened by an eventual ban on the slave trade due to the positive growth in slave numbers through natural increase, which, in Virginia, was in excess of the natural increase in the white population.[xix]

Although Congress did ban the international slave trade, as of the start of 1808, the legislation did not bring an end to the slave trade, largely because it was not enforced with any real vigor by the federal government.[xx] It continued right up to the outbreak of the Civil War, with New York being the major American center through which this trade was conducted.[xxi] Indeed, according to W E B DuBois, by the 1850s its extent effectively amounted to ‘a reopening of the slave-trade’.[xxii] It has been estimated that around 50,000 slaves were illegally imported in the United States in the period following the 1808 legislation and prior to 1861.[xxiii]

It should also be noted that the Constitution’s slave trade clause did not prohibit the trade in slaves between the states of the Union. The scope for the slave trade within the Union was dramatically enhanced as a result of territory gained as a result of the Louisiana Purchase in 1803, with slave states lobbying hard to ensure that the trade in American-owned slaves was permitted in the new territory. The interstate trade in slaves was pivotal in supplying a labor force in the new slave states that emerged out of the Louisiana Purchase territory and the later incorporation of Texas in 1845, where, as David L Lightner observes, ‘technological innovations made short-staple cotton a viable cash crop throughout [that region which] … could be met only by transferring vast numbers of African Americans from slavery’s older, more northerly strongholds’. Estimates of the number of slave movements, either by sale or hire, that resulted from the interstate trade in slaves during the antebellum period put the figure at around 1,100,000, with about 80 per cent of that volume occurring in the period 1829-1859.[xxiv]

Given the slavery provisions discussed above, did the Constitution create a republic dedicated to liberty and justice?

On one side of the argument are to be found the opponents of slavery, and in particular, the more radical wing of the pre-Civil War abolitionist movement, the most notable of its members being William Lloyd Garrison, who, in 1843, famously labelled the Constitution as ‘a covenant with death, and an agreement with hell’.[xxv] According to radical abolitionists, the Constitution was, at its core, a pro-slavery document. They sought to establish this with the publication, in 1844, of The Constitution a Pro-Slavery Compact, a pamphlet complied by Wendell Phillips which extracted pro-slavery parts of the proceedings of the Constitutional Convention. Indeed, pro-slavery advocates in the southern slave sates welcomed, and agreed with, Phillips’ assessment. Thus, in a November 1847 letter to John C Calhoun, a former Vice-President and then senator from South Carolina and the South’s most prominent defender of slavery, John A Campbell, a pro-slavery Alabama politician and future justice of the Supreme Court, wrote as follows:

"Garrison and Phillips say that the Constitution … is a pro-slavery contract – containing powerful and stringent securities for the slaveholder. Phillips has written quite an able pamphlet to prove this – a pamphlet we might circulate to great advantage excluding a few paragraphs."[xxvi]

Scholars, especially in recent decades, have come to accept Garrison’s critique of the Constitutional Convention and the Constitution it produced.[xxvii] Illustrative of what Lawrence Goldstone refers to as the Dark Bargain[xxviii] that led to what David Waldstreicher has labelled Slavery’s Constitution[xxix] and which created what George William Van Cleve has called A Slaveholders’ Union,[xxx] is James T Kloppenberg’s assessment of the Founding Fathers’ achievement at the Constitutional Convention:

"Although the assumptions undergirding slavery were being questioned as debates about liberty and equality churned sentiments during the 1770s and 1780s, those challenges failed to dislodge a practice centuries old. The convention’s failure to address the evil of slavery directly gave legitimacy to the institution… . It naturalized oppression and inequality, fixing in place a regime of white supremacy that encouraged white males to see all nonwhites, including not only slaves but also free blacks and Indians, as their inferiors. … The convention … produced a document that made possible the emergence of … a culture of domination, dependency, and inequality."[xxxi]

However, defenders of the Constitution argued that a compromise with slavery was necessary in order to secure the agreement of slave states to constitutional bargain struck at Philadelphia and its eventual ratification. An exemplar of this necessity-based argument was Abraham Lincoln, who voiced it on many occasions. For example, in one of his debates in 1858 with Stephen Douglas during his unsuccessful campaign for election to the Senate, Lincoln said:

"When our Government was established, we had the institution of slavery among us. We were in a certain sense compelled to tolerate its existence. It was a sort of necessity. We had gone through our struggle and secured our independence. The framers of the Constitution found the institution of slavery amongst their other institutions at that time. They found that by an effort to eradicate it, they might lose much of what they had already gained. They were obliged to bow to necessity."[xxxii]

A good deal of the scholarly literature accords with this view,[xxxiii] a recent example being that of Sean Wilentz who asserts that the Founding Fathers ‘tried to design a Constitution that would bridge the divisions [between the states] and keep the house from falling down’.[xxxiv]

The telling word in Wilentz’s assessment is ‘tried’. For indeed, although the Constitution did temporarily ‘keep the house from falling down’, it came apart in 1861 and it took four years of bloody civil war to put it back together again, in what has been aptly referred to as the ‘Second American Revolution’,[xxxv] the crowning achievement of which was the constitutional abolition of slavery. It is ironic that the single bloodiest day of the American Civil War, the Battle of Antietam, took place on 17 September 1862, the seventy-fifth anniversary of the signing of the draft Constitution at the Constitutional Convention.

Saints or sinners?

Whether or not the Constitution’s concessions to slavery were, as Lincoln asserted, a matter of ‘necessity’, is contested, even by those who view the Constitution as essentially pro-slavery. On the one hand, Gary B Nash has argued that the significant anti-slavery sentiment that existed at the time and which was voiced by many of the delegates to the Philadelphia Convention was such that the abolition of slavery could have been achieved then.[xxxvi] On the other hand, Paul Finkelman has argued that there was no possibility that a single unified union would have resulted if the Constitutional Convention had acted to abolish slavery. Rather, he contends that there would have been two separate unions created, one with and one without slavery.[xxxvii]

However, there is no doubt that many at the time predicted that a great national tragedy awaited the union that was created by the Constitution. Thus, Gouverneur Morris, a delegate to the Philadelphia Convention from Pennsylvania, predicted that the three-fifths clause would lead to slave states gaining power at the national level and that the growth of slavery would ‘inevitably bring on a war with Spain for the Mississippi’.[xxxviii] George Mason, a delegate from Virginia, towards the end of the Convention astutely observed that ‘by an inevitable chain of causes & effects providence punishes national sins, by national calamities’.[xxxix] The national calamity foreseen by Mason was more directly articulated by Samuel Hopkins, a prominent abolitionist and theologian, who, in January 1788, wrote that he feared that ‘civil war will not be avoided’.[xl] These men knew then what John C Calhoun pithily observed in 1837 in a speech in the Senate, that ‘abolition and Union [could not] co-exist.[xli]

James Madison - "The Father of the Constitution"

Even though many of the delegates to the Philadelphia Convention, including slaveholders, saw slavery as an evil, the constitutional agreement that they reached on the issue of slavery was one that favored the desire, as expressed in the Constitution’s Preamble, ‘to form a more perfect union’ and dismissed any progress towards the abolition of the ‘necessary evil’[xlii] that was slavery. This is best exemplified in the personage of James Madison, a slaveholding delegate from Virginia. He was one of the most influential delegates at the Philadelphia Convention and is widely regarded as the ‘Father of the Constitution’. Although at the Philadelphia Convention Madison referred to slavery as ‘the most oppressive dominion ever exercised by man over man’[xliii]and realized that slavery was an injustice, he was also of the opinion that ‘the two races cannot co-exist, being free & equal’.[xliv] Thus, unsurprisingly, at the ratification debate in his home state of Virginia he declared that as ‘great as the evil [of slavery] is, a dismemberment of the Union would be worse’.[xlv] As Noah Feldman pointedly notes, for Madison ‘[t]he principle of abolition might be good, but the reality was not to be taken seriously’.[xlvi]

There is no doubt that the Constitution was the result of various compromises agreed to at the Constitutional Convention and, as Avishai Margalit notes, it can be conceded that in any functioning political system a willingness to compromise is necessary. However, as he goes on to say, a line has to be drawn when it comes to a ‘rotten political compromise’, which he sees as ‘an agreement that establishes or maintains an inhuman political order based on systematic cruelty and humiliation as its permanent features’ and as one in which ‘usually the party that suffers the cruelty and humiliation is not a party to the agreement’. In his view the ‘Great Compromise’ of 1787 that was the Constitution, crossed that line.[xlvii]

If, as Akhil Reed Amar, one of America’s leading constitutional historians claims, ‘slavery was the original sin of the New World Garden, and the Constitution did more to feed the serpent than to crush it’,[xlviii] then America’s Founding Fathers were not saints, but sinners.

Just like the rest of us.

Endnotes

[I] Quoted in R B Bernstein, The Founding Fathers Reconsidered, Oxford University Press, 2009 at 3-4.

[ii] Bernstein, note i above, at 5, 117, 140.

[iii] Pauline Maier, American Scripture: Making the Declaration of Independence, Alfred A Knopf, 1997.

[iv] Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787, Back Bay Books, 1987.

[v] Robert N Bellah, ‘Civil Religion in America’ (1995) 134 Daedalus 40 at 47.

[vi] North Carolina, in November 1789, and Rhode Island, in May 1790, subsequently ratified the Constitution and joined the Union.

[vii] Max Farrand (ed), The Records of the Federal Convention of 1787, Revised Edition in Four Volumes, Volume 1, Yale University Press, 1966 at 581.

[viii] Farrand, note vii above, at 561.

[ix] Quoted in Bernstein, note i above, at 175.

[x] David Waldstreicher, Slavery’s Constitution: An Account of the United States’ Government’s Relations to Slavery, Hill & Wang, 2009 at 130.

[xi] The Honorable Thurgood Marshall, ‘The Constitution’s Bicentennial: Commemorating the Wrong Document?’ (1987) 40 Vanderbilt Law Review 1337 at 1338.

[xii] Dred Scott v Sandford 60 US 393, 407 (1857).

[xiii] William H Seward, ‘The National Idea; Its Perils and Triumphs’ 3 October 1860, in George E Baker (ed), The Works of William H Seward, Vol IV, Houghton, Mifflin & Co, 1884 at 353.

[xiv] 41 US 539 (1842). In Abelman v Booth 62 US 509 (1859) the Supreme Court reaffirmed the unconstitutionality of state personal liberty laws.

[xv] Prigg v Pennsylvania 41 US 539, 611-612 (1842).

[xvi] 55 US 13, 21 (1852).

[xvii] George William Van Cleve, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic, University of Chicago Press, 2010 at 168.

[xviii] Van Cleve, note xvii above, at 172.

[xix] Alfred H Conrad & John R Meyer, ‘The Economics of Slavery in the Ante Bellum South’ (1958) 66 Journal of Political Economy 95 at 112; Van Cleve, note xvii above, at 103-104.

[xx]Paul Finkelman, ‘Regulating the African Slave Trade’ (2008) 54 Civil War History 379 at 401; David F Ericson, Slavery in the American Republic: Developing the Federal Government, 1791-1861, University of Kansas Press, 2011 at 171.

[xxi] Anne Farrow, Joel Long & Jennifer Frank, Complicity: How the North Promoted, Prolonged and Profited from Slavery, Ballantine Books, 2006 at 124-125; Alan J Singer, New York and Slavery: Time to Teach the Truth, State University Press of New York, 2008 at 94-98; John Strausbaugh, City of Sedition: The History of New York City During the Civil War, Twelve, 2016 at 20-22, 119-123.

[xxii] W E Burghardt Du Bois, The Suppression of the African Slave-Trade to the United States of America, 1638-1870, Longmans, Green, and Vo, 1904 at 180.

[xxiii] David Eltis, ‘The US Transatlantic Slave Trade, 1644-1867: An Assessment’ (2008) 54 Civil War History 347-378 at 353; George Anastaplo, Reflections on Slavery and the Constitution, Lexington Books, 2012 at 91.

[xxiv] David L Lightner, Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War, Yale University Press, 2006 at 5-6.

[xxv] Quoted in Don E Fehrenbacher, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery, Oxford University Press, 2001 at 39.

[xxvi] ‘From John A Campbell’, 20 November 1847, in J Franklin Jameson (ed), Correspondence of John C Calhoun, Government Printing Office, 1900 at 1143.

[xxvii] Staughton Lynd, Class Conflict: Slavery and the United States Constitution, The Bobbs-Merrill Co, 1967; William M Wiecek, ‘The Witch at the Christening: Slavery and the Constitution’s Origins’ in Leonard W Levy & Dennis J Mahoney (eds), The Framing and Ratification of the Constitution, Macmillan Publishing Co, 1987 at 167-184; Juliet E K Walker, ‘Whither Liberty, Equality or Legality? Slavery, Race, Property and the 1787 American Constitution’ (1988-1989) 6 New York Law School Journal of Human Rights 299; Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed, M E Sharpe Inc, 2001; 2010; Matthew Mason, ‘A Missed Opportunity? The Founding, Postcolonial Realities, and the Abolition of Slavery’ (2014) 35 Slavery & Abolition 199; George Kateb, Lincoln’s Political Thought, Harvard University Press, 2015 at 114.

[xxviii] Lawrence Goldstone, Dark Bargain: Slavery, Profits, and the Struggle for the Constitution, Walker & Co, 2005.

[xxix] David Waldstreicher, note x above.

[xxx] George William Van Cleve, note xvii above.

[xxxi] James T Kloppenberg, Toward Democracy: The Struggle for Self-Rule in European and American Thought, Oxford University Press, 2016 at 407-408.

[xxxii] Abraham Lincoln, Speech at Springfield, Illinois’, 17 July 1858, in Roy P Basler (ed), The Collected Works of Abraham Lincoln, Vol II, Rutgers University Press, 1953 at 520.

[xxxiii] See, for example, Donald E Lively, The Constitution and Race, Praeger, 1992 at 5; George Anastaplo, ‘Slavery and the Constitution: Explorations’ (1989) 20 Texas Tech Law Review 677 at 708-715; Bernard Bailyn, Faces of the Revolution: Personalities and Themes in the Struggle for American Independence, Alfred A Knopf, 1990 at 221; Don E Fehrenbacher, note xxv above, at 36; Herbert J Storing, ‘Slavery and the Moral Foundations of the American Republic’ in Joseph M Bessette (ed), Toward a More Perfect Union: Writings of Herbert J Storing, The AEI Press, 1995 at 138; Michael J Klarman, The Framers’ Coup: The Making of the United States Constitution, Oxford University Press, 2016 at 303-304;

[xxxiv] Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding, Harvard University Press, 2018 at 5.

[xxxv] James M McPherson, Abraham Lincoln and the Second American Revolution, Oxford University Press, 1991 at 22; David J Bodenhamer, The Revolutionary Constitution, Oxford University Press, 2012 at 172.

[xxxvi] Gary B Nash, The Forgotten Fifth: African Americans in the Age of Revolution, Harvard University Press, 2006 at 69-88.

[xxxvii] Paul Finkelman, ‘The Founders and Slavery: Little Ventured, Little Gained’ (2001) 13Yale Journal of Law & the Humanities 413 at 415.

[xxxviii] Farrand, note vii above, at 604.

[xxxix] Max Farrand (ed), The Records of the Federal Convention of 1787, Revised Edition in Four Volumes, Volume 2, Yale University Press, 1966 at 370.

[xl] Quoted in James T Kloppenberg, note xxxi above, at 574.

[xli] John C Calhoun, ‘Remarks on Receiving Abolition Petitions’, 6 February 1837, in Clyde N Wilson (ed), The Papers of John C Calhoun, Volume XIII, 1835-1837, University of South Carolina Press, 1980 at 394.

[xlii] For key extracts on the debate over slavery see John P Kaminski (ed), A Necessary Evil? Slavery and the Debate Over the Constitution, Madison House Publishers, 1995.

[xliii] Farrand, note vii above, at 135.

[xliv] James Madison, ‘To Marquis de Lafayette’, November 1826, in Gaillard Hunt (ed),The Writings of James Madison, Vol IX, 1819-1836, G P Putnam’s Sons, 1910 at 265.

[xlv] John P Kaminski & Gaspare J Saladino (eds), The Documentary History of the Ratification of the Constitution, Volume X, Ratification of the Constitution by the States, Virginia [3], State Historical Society of Wisconsin, 1993 at 1339.

[xlvi] Noah Feldman, The Three Lives of James Madison: Genius, Partisan, President, Random House, 2017 at 164.

[xlvii] Avishai Margalit, On Compromise and Rotten Compromises, Princeton University Press, 2010 at 54-61.

[xlviii] Akhil Reed Amar, America’s Constitution: A Biography, Random House, 2005 at 20.