The Founders and Slavery: Little Ventured, Little Gained

Yale Journal of Law & the Humanities Volume 13 | Issue 2 Article 3 January 2001 The Founders and Slavery: Little Ventured, Little Gained Paul Finkelman Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Paul Finkelman, The Founders and Slavery: Little Ventured, Little Gained, 13 Yale J.L. & Human. (2001). Available at: https://digitalcommons.law.yale.edu/yjlh/vol13/iss2/3 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Finkelman: Little Ventured, Little Gained The Founders and Slavery: Little Ventured, Little Gained Paul Finkelman* The American Founding is rightly celebrated for creating a republic that allowed great liberty to its citizens, provided democratic self-rule for those who were enfranchised, and guaranteed fundamental rights and freedoms to political and religious minorities. It even allowed easy access to citizenship for voluntary migrants from other nations.' No nation before ours, and relatively few since, has been able to achieve these results. The success of the political system became most apparent in 1801, when an opposition candidate, Thomas Jefferson, defeated an incumbent President, John Adams, and then peacefully took office. In his inaugural address Jefferson proudly proclaimed that Americans had "banished from our land that religious intolerance under which mankind so long bled and suffered" and promised it would not be replaced by "political intolerance." 2 He noted that "every difference of opinion is not a difference of principle," and that both his supporters and those of Adams were "brethren of the same principle."3 Indeed, offering up a theory of freedom of expression that the Supreme Court would not truly accept until the 1960s, 4 Jefferson declared that opponents of the Constitution should be free to speak out, that they might "stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." 5 Following a nasty and often personally vicious * Chapman Distinguished Professor of Law, University of Tulsa College of Law. I presented an earlier version of this essay at the Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition at Yale University. I thank the members of the Center, and especially David Brion Davis and Rob Forbes, for their comments. 1. See JAMES KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 173-249 (1978); see also PETER H. SCHUCK, CITIZENSHIP WITHOUT CONSENT: ILLEGAL ALIENS IN THE AMERICAN POLITY (1985); ROGERS W. SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP INU.S. HISTORY (1997). 2. Thomas Jefferson, Inauguration Address (Mar. 4, 1801), reprintedin THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 322 (Adrienne Koch & William Peden eds., 1944). 3. Id. 4. See Brandenburg v. Ohio, 395 U.S. 444 (1969). 5. Jefferson, supra note 2. Published by Yale Law School Legal Scholarship Repository, 2001 1 Yale Journal of Law & the Humanities, Vol. 13, Iss. 2 [2001], Art. 3 Yale Journal of Law & the Humanities [Vol. 13:413 campaign, Jefferson stood ready to embrace his political opponents: "We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists." 6 Unfortunately, this accommodation of political differences glossed over the fundamental contradiction of the Founding: The constitution for a free people protected slavery. I. FAILURE AT THE FOUNDING Although the Founders were successful in creating a republic based on democratic principles, in Lincoln's words, "conceived in liberty and dedicated to the proposition that all men are created equal," 7 they failed to confront fully, much less come to terms with, the fundamental contradiction of slavery in a republic based on liberty and selfgovernment. Instead, in 1787, while remaking the national compact, the Southern delegates at Philadelphia demanded special political protection for slavery in the Constitution. Some Framers from the North-what would become the free states-were uncomfortable with slavery, and a few protested a bit at the demands of the friends of slavery. But in the end they gave the slave owners at the Convention virtually everything they asked for.8 The success of the slave owners at the Convention was sweeping. Under the new Constitution, slaves would be counted for representation in Congress, thus augmenting the South's power in both the House of Representatives and the electoral college.9 The Constitution prohibited the free states from liberating fugitive slaves and instead required that runaway slaves be "delivered up" on demand of the owner. The new national government promised to suppress slave rebellions or insurrections. Although it empowered Congress to regulate international and domestic commerce, the Constitution prevented the national government from stopping the African slave trade or the domestic slave 6. Id. 7. Abraham Lincoln, Final Text, Address Delivered at the Dedication of the Cemetery at Gettysburg (Nov. 19, 1863), reprintedin 7 THE COLLECTED WORKS OF ABRAHAM LINCOLN 23 (Roy P. Basler ed., 1953). 8. In one area the proslavery Framers failed to get a concession because their demand was oblique and was never fully articulated. Late in the Convention, Charles Cotesworth Pinckney hinted that there should be a clause to protect the rights of masters to travel to free states with their slaves. This clause would have nullified the precedent in the English case, Somerset v. Stewart, 98 Eng. Rep. 499 (K.B. 1772), which had held that slaves brought to free jurisdictions were entitled to their liberty absent positive law that would keep them in bondage. In the last debate on the Privileges and Immunities Clause, "Genil. [Charles Cotesworth] Pinckney was not satisfied" and "seemed to wish some provision should be included in favor of property in slaves." 2 MAx FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 443 (rev. ed. 1966). However, Pinckney failed to make a proposal on this issue, and the clause was adopted without any change. For a full discussion, see PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY, FEDERALISM, AND COMITY (1981). 9. See infra Section V.C for a discussion of the electoral college and its relationship to slavery. https://digitalcommons.law.yale.edu/yjlh/vol13/iss2/3 2 Finkelman: Little Ventured, Little Gained 2001] Finkelman trade for at least twenty years.'0 Most important of all, the Constitution created a government of limited powers and precluded the national government from ending slavery in the states where it existed. Rarely in American political history have the advocates of a special interest been so s (...truncated)