SLAVERY AND THE FOUNDERS

Leading black scholars such as John Hope Franklin say the framers of the Constitution were racist because they approved a document in which a black person was regarded as three-fifths of a human being. Others, such as the late Supreme Court justice Thurgood Marshall, charge Washington, Jefferson, and Madison with establishing a regime “defective from the start” because they endorsed the proposition that “all men are created equal” while permitting slavery.

Are the founders guilty as charged?

Let us consider the evidence fairly, beginning with the notorious “three- fifths” clause. To the modern mind, this is the most troubling piece of evidence against the founders. And yet it should not be, for the clause itself has nothing at all to say about the intrinsic worth of blacks. The origins of the clause are to be found in the debate between the Northern states and the Southern states over the issue of political representation.

The South wanted to count blacks as whole persons, in order to increase its political power. The North wanted blacks to count for nothing — not for the purpose of rejecting their humanity, but in order to preserve and strengthen the anti-slavery majority in Congress.

It was not a pro-slavery Southerner but an antislavery Northerner, James Wilson of Pennsylvania, who proposed the three-fifths compromise. The effect was to limit the South’s political representation and its ability to protect the institution of slavery. Frederick Douglass, the black abolitionist, understood this; he called the three-fifths clause “a downright disability laid upon the slaveholding states,” which deprived them of “two-fifths of their natural basis of representation.”

And so a provision of the Constitution that was anti-slavery and pro-black in intent as well as effect is today cited to prove that the American founders championed the cause of racist oppression.

There is no question that the Constitution both recognizes and sanctions slavery, which implies that the framers were, as contemporary critics charge, motivated not by enduring ideals of equality but by crass self-interest.

That the founders were self-interested men of their time, it is impossible to deny. Thomas Jefferson owned some 200 slaves and did not free them. Yet the case of Jefferson is revealing, for far from rationalizing plantation life by adopting the usual Southern arguments about the happy slave, Jefferson vehemently denounced slavery as inconsistent with justice. Jefferson recognized that blacks were not slaves “by nature,” but only by convention. Although he provisionally agreed with the scientific view of his time that blacks were inferior to whites in mental ability, Jefferson expressed his wish that black accomplishment prove him wrong. Moreover, he denied that possible black intellectual or civilizational inferiority justified enslavement: “Whatever be their talents, it is no measure of their rights.”

Given Jefferson’s firm condemnation of slavery, a view shared by most of the framers, why didn’t these men move rapidly to free their slaves and insist upon a Constitution that would immediately secure equal rights for all?

To answer this question, we must recognize the practical dilemma faced by the framers in Philadelphia. The founders understood full well that a society, in order to be democratic, must secure the consent of the governed. Thus there could be no justification whatever for ruling another human being without his consent. Blacks are human beings, and in possession of natural rights. Slavery is therefore against natural rights and should be prohibited. But how?

Here is where Jefferson and the founders faced two profound obstacles. The first was that virtually all of them recognized the degraded condition of blacks in America and understood it posed a formidable hurdle to granting blacks the rights of citizenship. By contrast with monarchy and aristocracy, which only require subjects to obey, self-government requires citizens who have the capacity to be rulers. Was a group that had been enslaved for three centuries ready to assume the burden of democratic self-rule?

Jefferson was also aware of the existence of intense and widespread white prejudices against blacks which, whatever their cause, seemed to prevent the two alien peoples from coexisting harmoniously on the same soil. Madison, who shared this view, developed a plan for the U.S. government to raise money to repatriate blacks to Africa.

These so-called colonization schemes seem bizarre today, but in the 18th century they were supported by many abolitionists, white as well as black. Lincoln himself echoed Jefferson’s concerns, and prior to the Civil War he endorsed colonization as a way for blacks to live free and unmolested in a country of their own.

The deference of Jefferson and the American founders to popular prejudices strikes many contemporary scholars as an intellectual and political scandal. Some suggest that popular convictions simply represented a frustrating obstacle that the founders should have dealt with resolutely and uncompromisingly.

But in a democratic society of the sort the founders were trying to construct, the absence of the people’s agreement on a fundamental moral question of governance is no mere technicality. The case for democracy, no less than the case against slavery, rests on the legitimacy of the people’s consent. To outlaw slavery without the consent of the majority of whites would be to destroy democracy, and thus to destroy the very basis for outlawing slavery itself.

The men gathered in Philadelphia were in a peculiar intellectual and moral predicament. For them to sanction slavery would be to proclaim the illegitimacy of the American Revolution and the new form of government based on the people’s consent — yet for them to outlaw slavery without securing the people’s consent would have the same effect.

In practical terms as well, the choice facing the men gathered in Philadelphia was not to permit or to prohibit slavery. Rather, the choice was either to establish a union in which slavery was tolerated or not to have a union at all. Any suggestion that Southern states could have been persuaded to join a union and give up slavery can be dismissed as preposterous. Historian Eugene Genovese confirms the obvious: “If the Constitution had not recognized slavery, the Southern states would never have entered the union.”

Thus the accusation that the founders compromised on the Declaration’s “all men are created equal” principle for the purpose of expediency reflects a grave misunderstanding. The founders were confronted with a competing principle also present in the Declaration: Governments derive their legitimacy from the “consent of the governed.” Both principles must be satisfied, and where they cannot be, compromise is not merely permissible but morally required.

The framers found a middle ground not between principle and practice, but between opposition to slavery and majority consent. Not only are these closely related principles, but in a philosophic sense they are the same principle. How did the framers seek to mediate between their rival claims? By producing a Constitution in which the concept of slavery is tolerated in deference to consent, but not given any moral approval in recognition of the slave’s natural rights.

Nowhere in the document is the term “slavery” used. Slaves are always described as “persons,” implying their possession of natural rights. The founders made concessions to slavery as a matter of fact but not as a matter of right. In addition, the framers produced a Constitution that refuses to acknowledge the existence of racial distinctions, and in so doing produced a document that transcended its time.

None of the supposed contradictions contemporary scholars have located in the American founders were unrecognized by them. Many of the framers justified their toleration of slavery on prudential grounds, for in the 1770s and 1780s they had reason to believe that slavery was losing its commercial appeal. They were wrong, because Eli Whitney’s invention of the cotton gin in 1793 (which the founders could not possibly have anticipated) revived the demand for slavery in the South.

Even so, the test of the founders’ project is the practical question: Did the American founding strengthen or weaken the institution of slavery? The intellectual and moral ferment that produced the American Revolution, historian Gordon Wood argues, should be judged by its consequences. Before 1776, slavery was legal in every state in America. Yet by 1804 every state north of Maryland had abolished slavery either immediately or gradually; Southern and border states prohibited further slave importations from abroad; and Congress was committed to outlawing the slave trade in 1808, which it did. Slavery was no longer a national but a sectional institution, and one under moral and political siege.

“Before the revolution, Americans like every other people took slavery for granted,” Wood writes. “But slavery came under indictment as a result of the same principles that produced the American founding. In this sense, the prospect of the Civil War is implicitly contained in the Declaration of Independence.”

Abraham Lincoln not only perceived the framers’ dilemma, but knew that he had inherited it. The principle of majority rule is based on Jefferson’s doctrine that “all men are created equal,” yet what the political philosopher Harry V. Jaffa has called the “crisis of the house divided” arises when the majority denies that “all men are created equal” and in so doing denies the basis of its own legitimacy.

Lincoln was presented with two concrete options: working to overthrow democracy, or working to secure consent through persuasion. Conscious that he too must defer, as the founders did, to prevailing prejudices, Lincoln nevertheless sought to neutralize those prejudices so they did not become a barrier to securing black freedom. In a series of artfully conditional claims — “If God gave [the black man] little, that little let him enjoy” — Lincoln paid ritual obeisance to existing racism while drawing even racists into his coalition to end slavery. He made these rhetorical concessions because he knew that the possibility for securing anti-slavery consent was far better in his time than in the 1780s.

In one of the clearest commentaries on the Declaration, Lincoln observed:

They intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral development or social capacity. They defined with tolerable distinctness in what respects they did consider all men created equal — equal in certain inalienable rights. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. . . . They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit.

By working through rather than around the democratic process, Lincoln justified the nation’s faith in the untried experiment of representative self- government. In vindicating the slave’s right to rule himself, Lincoln also vindicated the legitimacy of democratic self-rule.

Lincoln’s position came to be shared by Frederick Douglass, who had once denounced the Constitution but who eventually reached the conclusion that it contained anti-slavery principles. “Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered,” Douglass said. Slavery, he concluded, was simply a “scaffolding to the magnificent structure, to be removed as soon as the building is completed.”

It took a civil war to destroy slavery, and with it much of the infrastructure and economy of the South. More than half a million whites died in that war, “one life for every six slaves freed,” historian C. Vann Woodward reminds us. But for Lincoln as for Douglass, the greatest white and black statesmen of the time, the triumph of the union and the emancipation of the slaves represented not the victory of might over right, but the reverse. Justice had won out over expediency, and the principles of the American founding had at long last prevailed.

Black History Month is a good time to step aside from the divisive contemporary debates about race and reflect on how much better this country is for blacks and other minorities than at any time in the past, and to give credit to those who made this progress possible. For their role in producing a charter for a society immeasurably better than the one in which they found themselves, the framers deserve our respect and gratitude.

Dinesh D’Souza, John M. Olin fellow at the American Enterprise Institute, is author of The End of Racism.