The American founding period lasted from 1775 to 1791, although one might (and many have) extended it a decade or so in either direction, or both directions, without any serious protest. The question of black slavery was a major public issue in those years, but not a predominant issue. In the minds of the colonists, several issues were more urgent.
There was the Revolutionary War itself, a long and difficult struggle with a formidable occupying power. The war was a civil war, pitting English against English, and many of the English Americans remained loyal to ‘King and Country.’ The revolutionaries fought most immediately for themselves, not for their slaves. The British attempted to exploit slavery for military advantage, signing black troops to fight against the colonists (Countryman 162). Unlike the 1861-65 civil war, slave emancipation during the Revolutionary War would have been a clear-cut advantage for the cause of natural-rights republicanism.
The colonial English resisted the ever-increasing tendency toward landlordism and tenancy, the lack of free trade, taxation without representation—all features of an imperial system in which merchants and traders were crushed in other places, such as Ireland and India (Countryman 12, 49, 52). The passions, fears, and ambitions of the colonists were concentrated on those evils and on resistance to them. Insofar as they thought about the slaves at all during the war, they thought of them as a potential menace to their own freedom—rather as they thought of Amerindians, many of whom also allied with the British.
Just as arduous as the war, in its own way, was the intellectual and political task of founding the world’s first commercial republic based upon the philosophy of natural rights and the principle of popular sovereignty—two not-necessarily-compatible materials. This entailed working out these doctrines in practice, under circumstances largely unknown to the European writers who had formulated the theory. The extensive literature on the old form of republicanism—the mixed regime—was of dubious value to the Founders, who did not live in a society with a titled aristocracy or (after 1781) a monarch (Wood, Creation, 217-222). Understandably, the Founders made mistakes. The Articles of Confederation (for example) failed, but retained many partisans. Working out the complex issues of union vs. states’ rights, real vs. virtual representation, ‘corruption’ vs. ‘citizen virtue’ consumed considerable energy.
That is, the dual effort of first vindicating rights on the battlefield and then attempting to secure them in the political struggles following independence was aimed at ending ‘slavery’ or the threat of it for the colonists. Under the circumstances, it is not surprising that chattel slavery seemed a less urgent concern.
Having said this, however, it is then important to unsay it, at least to some degree. Slavery surely was a major issue during the founding period, if under the surface more often than not.
Judith Shklar has marshalled substantial evidence showing that the colonists often contrasted their freedom with slavery. It is impossible not to see that this motif had resonance; even if it was a rhetorical trope, it was rhetoric used too often not to have been judged to have a strong effect on Americans. The freedom-slavery dichotomy of course had preoccupied the colonists on many occasions, and for a long time. Kathleen M. Brown details the decades-long struggle in Virginia simply to define the relations of blacks, free and slave, to the whites. The paternalism of “genteel, restrained authority of [planters’] household” (361) may have been materially stable but it was “anxious,” psychologically precarious (see also Greene 95). In the lower South, where over two-thirds of the population consisted of slaves, the precariousness must have been more than psychological (Greene 143). In particular, South Carolina planters actually managed to dominate and block the economic advance of merchants, artisans, and small farmers, deliberately and firmly establishing themselves as the dominant political and economic actors in the state (Countryman 164-165).
By 1750, under the influence of Locke, paternalism itself was under attack (Wood, Radicalism, 147). But without patriarchy or at least paternalism, how else is slavery to be justified? That is, the very ideology that worked to free white colonial men from white imperial men undermined the household authority of white men. By the beginning of the founding period, the precariousness of slaveholding had been upgraded to the status of a principled anxiety. Jefferson’s fulminations in the first draft of the Declaration of Independence against the alleged English imposition of slaves upon Americas—an attempt to externalize the evil for the sake of a worthy political object—would not have been conceivable without the prior moral, natural-rights critique of paternalism and slavery. The reaction of Jefferson’s fellow Continental Congress representatives to this line of argument suggests that the Founders deliberately subordinated the slavery issue to the immediate problem: unity in opposition to the British Empire. To defeat British rule in America, the revolutionaries needed South Carolina and Georgia to be with them, not against them.
The year 1787 saw two careful attempts simultaneously to recognize the dilemma posed by slavery and to limit slavery’s reach. Edward Countryman remarks that the Constitution and the Northwest Ordinance were framed at more or less the same time, plausibly contending that this was likely to have been no accident (191). The Convention delegates set a time limit on the slave trade, compromised on Congressional representation with the three-fifths rule, and established the fugitive slave provision. In William H. Riker’s judgment, the northern and middle Atlantic states could have imposed an antislavery provision, but did not want South Carolina and Georgia to reject the Constitution—the same scenario as that in 1776. My own view is that the stakes were larger. Virginia barely ratified the Constitution, even with the clauses countenancing slavery. Without such provisions, ratification was highly unlikely. In other key states—particularly Massachusetts and New York—the issue of slavery was no impediment to ratification but the issue of state self-government was. It is one thing to end the slave trade—a legitimate power of any national government. It is another thing to ratify a constitutional law that would permit the federal government to reach into each state and confiscate property, causing (in those states where slaves were numerous) a potentially serious threat to the white minority. An antislavery provision would have been object lesson number one for every Anti-Federalist in the country, whether pro-slavery or anti-slavery.
Without Virginia and South Carolina (at a minimum) the United States would have been prey to the divide-and-conquer strategies of Britain, France, even Spain. The natural rights of the white population would have been threatened while the natural rights of the black population would in no way have been secured. The choice of the Founders boiled down to this: Shall we secure our own natural rights, abolish slavery in the states amenable to abolition, and (not incidentally, as Riker shows) obtain the Congressional power to pass navigation acts by a simple majority, thus insuring northern-middle Atlantic dominance in that area? Or shall we split the Union, thereby putting our own rights at hazard, and let ourselves in for intra-American trade wars? It could not have been a difficult decision to make. It was a decision that confirms the sense that black slavery was indeed a major public issue for the Founders, but not the overriding issue. ‘Slavery’ in the sense of the potential loss of natural and civil rights by the dominant whites was of course the issue for the Founders, and they acted in accordance with that not-inconsiderable concern.
While I take the moral passion of William M. Wiecek and many others seriously, I regard his argument as overdrawn. “The framers’ generation considered slavery to be entwined with human progress”? The farther south one went, the more likely that they did, but the major Founders from Virginia north did not. Quite the opposite: Jefferson and many of the others too-optimistically regarded ‘progress’ as likely to leave slavery in the dust. Slavery was “wholly compatible with the American constitutional order”? The Constitution was “permeated” with slavery? Not wholly: the Constitution recognized slavery and delimited it; the Northwest Ordinance barred it from the western territories. Slavery was “an integral part of the legal order of nearly every colony by the time of the American Revolution”? Then why did so many states abolish it within their borders by a decade or so after the Convention? Slavery was designed for “race control” not labor control? Then why were slaves imported? Did Americans bring Africans here in order better to control them? What for? Race control is possible without slavery, as the post-Reconstruction South would demonstrate, and as English and other European imperialists were demonstrating throughout the founding period. Race control once blacks were in North America could have been achieved by driving them away, as was done with Amerindians (who were rather more formidable militarily than blacks could have been at that time). It makes more sense to say that slavery was primarily for labor control; the Amerindians perished under slavery, and whites would stand for it. Hence the use of blacks, and hence the ‘need’ of race control for the purpose of labor control. The key Founders recognized that such labor control was wrong, inconsistent with natural-rights principles except in the temporary, attenuated sense that no one realistically assumes that all human beings in all times and places are prepared to assume the civil rights and responsibilities they will need to defend their natural rights effectively.
The Founders established a commercial republic in order to secure natural rights for the dominant white population. But precisely because those rights were understood as natural, and therefore inherent in all human beings, inevitable questions and criticisms arose, somewhat sotto voce during the founding period, but with increasing insistence as the country survived and prospered. The principles of commerce, as conceived by the Founders, following Adam Smith, wedded the labor theory of value (contra patriarchy) with the right of each person to the fruits of his/her labor. Modern republicanism maintained that natural rights are best secured by self-government, which, among other things, means real, not virtual representation in ruling institutions. Both the commercial and the republican principles of the new regime empowered elites that needed ever-widening constituencies in order to compete for positions of authority. the scope of civil/political rights thus widened, first encompassing factory workers in the early decades of the nineteenth century, then the slaves, and finally women. In each case, the principle of ‘No taxation without representation’—that virtual representation is inadequate security for natural rights–became increasingly evident to a critical mass of Americans, ‘elite’ and ‘non-elite.’ That the problem with respect to blacks was more severe than the problem with respect to workers and women may be seen in the need for a second civil war to begin to settle it. The very intractability of the problem, and the Founders’ understanding of that intractability, explains why they did not undertake to solve it in their day, nationwide. They had indispensable preliminary work to do. In the meantime, the Founders did abolish slavery where it could be abolished, and they kept it out of the northwest territories. Retrospectively, one can always wish for more. But, as the Founders’ contemporary and political enemy Dr. Samuel Johnson remarked on another topic, “If wishes were horses, beggars would ride.” The Founders did secure natural rights for ‘themselves and their posterity,’ instituting the regime most likely to eradicate slavery in places where it had gained a firm foothold.
Works Cited
Appleby, Joyce: Liberalism and Republicanism in the Historical Imagination. Cambridge: Harvard University Press, 1992.
Brown, Kathleen M.: Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia. Chapel Hill: University of North Carolina Press, 1996.
Countryman, Edward: The American Revolution. New York: Hill and Wang, 1985.
Greene, Jack P.: Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture. Chapel Hill: Unversity of North Carolina Press, 1988.
Riker, Jack P.: The Art of Political Manipulation. New Haven: Yale University Press, 1986.
Shklar, Judith N.: Redeeming American Political Thought. Chicago: University of Chicago Press, 1992.
Wiecek, William M.: “‘The Blessings of Liberty’: Slavery in the American Constitutional Order.” In Goldwin, Robert A. and Kaufman, Art, eds.: Slavery and Its Consequences: The Constitution, Equality, and Race. Washington: The American Enterprise Institute for Public Policy Research, 1988.
Wood, Gordon S.: The Creation of the American Republic, 1776-1783. New York: W. W. Norton and Company, 1992 [1964].
Wood, Gordon S.: The Radicalism of the American Revolution. New York: Alfred A. Knopf, 1992.
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