- Law Cases
by KrisAnne Hall, blogging at KrisAnneHall
(Feb. 1, 2013) — While defending the Constitution I am met often with two questions: 1) If the founders were so great and the Constitution such a great document, why did it preserve slavery? 2) Why did the Constitution treat black people as 3/5th a person? The answers to these questions are rather simple when fact and truth are employed. To understand the truth, we start with some basics…
In June of 1776 the Lee Resolution was ratified and was the legislative action that authorized the Declaration of Independence. This Resolution was a three step process to declaring independence from Great Britain and establishing a union of States:
“Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign Alliances. That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.”
The Colonies knew that once they became thirteen independent and sovereign States and formed alliances with foreign nations to break free from the hold of Great Britain, the most important thing they could do would be to form a union of States. If they failed to form a union, everything that they sacrificed for independence would have been in vain. They had just bankrupted themselves, invited foreign nations onto their soil. Failure to unite could result in their servitude once more. A union would mutually protect their sovereignty from external attack.
As Thomas Jefferson correctly stated, the Constitution would have to be ratified by the “whole American people.” The framers needed all the States to consent. Immediately after the revolution, the victors could have very well attempted to force the other States to unite. However, they never intended to form the union by force, as they never intended to keep it together by force. James Madison said, in a letter to Robert Walsh (27 Nov. 1819) that “the Constitution was ‘the result of mutual deference & Concession’.” They knew the only way to form a lasting union, a union based upon Liberty, was to do so by consent.
Understanding that the formation of the union of States was the most important thing they could do left them with a dilemma. There were societal and cultural differences between the States. One such difference existed in the institution of slavery and many saw it as a great evil but recognized that the successful formation of the new nation was the only way to see it abolished.
“Great as the evil is, a dismemberment of the Union would be worse. If those States should disunite from the other States for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.” –James Madison, Virginia Ratifying Convention, 15 June 1788
Slavery was an imposition placed upon the colonists by the demand of Great Britain. Col. Mason describes this source and its problem during the Federal Convention (22 Aug. 1787):
“This infernal traffic originated in the avarice of British Merchants. The British Govt. constantly checked the attempts of Virginia to put a stop to it.”
This created an addiction to this labor in many states. Judge Pendleton observed during the Debate in South Carolina House of Representatives (1788) “that only three States, Georgia, South Carolina, and North Carolina, allowed the importation of negroes. Virginia had a clause in her Constitution for this purpose, and Maryland, he believed, even before the war, prohibited them.”
However, Madison also pointed out during the Debate in the Virginia Ratifying Convention (15 June 1788) that there were even “a few slaves in New York, New Jersey, and Connecticut: these states would, probably, oppose any attempts to annihilate” slavery.
How could the States overcome their differences on this subject and agree on enough to form this union? The framers of this nation had an advantage. They knew a few things to be absolutely true and these things would provide the solution to their dilemma.
The framers of this nation knew their history, they had studied governments and how people interact in society throughout history and they knew the principles of Liberty. They KNEW that they could not plow new fields overnight; they understood that they could not reform society with one move. But they KNEW they were forming a REPUBLIC and NOT a democracy.
A democracy is mob rule; it is tyranny in public form. Jefferson said, “173 despots would surely be as oppressive as one.” With a democracy, the majority of the people would always oppress the minority. Liberty would never prosper and grow. The force of the majority would always maintain the minority in servitude. By creating a republican government, they were able to provide minorities with a society changing voice. This voice would ensure not only the survival of Liberty but also its expansion.
The framers’ very words prove they were pushing for an end to slavery. That bit of history has been conveniently concealed. The framers were incorporating into the Constitution Article 1 Section 9, a provision that would provide the means to end slavery in 1808 by putting an end to the slave trade once and for all.
Justice James Iredell stated during the Debate in North Carolina Ratifying Convention (26 July 1788):
“It was the wish of a great majority of the Convention to put an end [to slavery] immediately; but the states of South Carolina and Georgia would not agree to it. Consider, then, what would be the difference between our present situation in this respect, if we do not agree to the Constitution, and what it will be if we do agree to it. If we do not agree to it, do we remedy the evil? No, sir, we do not. For if the Constitution be not adopted, it will be in the power of every state to continue it forever. They may or may not abolish it, at their discretion. But if we adopt the Constitution, the trade must cease after twenty years, if Congress declare so, whether particular states please so or not; surely, then, we can gain by it. This was the utmost that could be obtained. I heartily wish more could have been done. But as it is, this government is nobly distinguished above others by that very provision. Where is there another country in which such a restriction prevails? We, therefore, sir, set an example of humanity, by providing for the abolition of this inhuman traffic, though at a distant period.”
In order for a Republic to function properly, there must be equal representation. If there is a way to manipulate the number of representatives allotted to a State, then that would be another avenue for one party to seize the power of another. Representation was to be established through population and controlled through the popular vote. Incorporating the slave population in order to determine the number of representatives was causing some states to cry foul.
The slave owners wanted to classify slaves as “property” to avoid the application of rights to them as “persons,” but wanted to also classify them as “persons” for the purpose of establishing representation. The objection was that the States with greater slave populations would get greater representation, but since only “freemen” could vote, greater representation would be consolidated into fewer people. The large slave owners would almost assuredly control the vote in the State. This skewed representation could delay the desired end to slavery significantly.
The framers solution to this dilemma was the 3/5th Compromise which, along with article 1 section 9, would help to further the of end slavery. The 3/5th Compromise did not, as popular education teaches, count each slave as 3/5th of a person. It allowed the slave owners to only count 3/5th of the entire slave population for purpose of representation. By limiting the representative power of the slave owners, the framers knew that establishing a nation where all men are created equal would be possible.
The framers knew that by creating the union they would ensure the survival of Liberty. They understood through the establishment of the Republic they would guarantee the minority populations a society changing voice. They believed through compromise they had done everything that they could have possibly done to limit the growth of slavery and the power of slave owners and still create a union. But they were persuaded through a study of their own history that if Liberty is given the proper fertile ground, it always prospers and grows. They were convinced that Liberty was contagious!
Roger Sherman, a delegate from Connecticut to the Federal Convention (22 Aug. 1787) observed “that the abolition of slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat (sic) it.” Oliver Elsworth, also a representative from Connecticut very confidently stated, “Slavery in time will not be a speck on our country. Provision is already made in Connecticut for abolishing it. And the abolition has already taken place in Massachusetts.”
The final insurance for the cultivation of Liberty was established through the Amendment process. The framers realized that they had not achieved everything they wanted. They also wanted to ensure that as Liberty grew, it could also be protected through expansion of the Constitution. By offering the Amendment process, these expansions of Liberty could become permanent. The Amendment process prevents the Constitution’s interpretation to be based upon the whim of the current culture. Without the process of permanently amending the Constitution, the people of this nation would be subject to temporary interpretations. The prevailing party or culture would beget a conservative interpretation today, a liberal interpretation tomorrow, a socialist interpretation the next… subjecting the people to an ever-vacillating standard and leaving the people never really knowing the security of their rights.
It is unquestionable that slavery was detested by many at the formation of our Constitution; only revisionists are served by denying this truth. But the formation of the union was essential to the preservation of Liberty and the end of slavery. Without the union these independent, sovereign States would be able to continue the practice of slavery without any national consequence. The Constitution did not preserve slavery, it was the source of its demise.
It is to be hoped, that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves. James Madison, Import Duty on Slaves, House of Representatives 13 May 1789
It’s about time we stop rewriting history and start teaching our children the truth. Revisionists have had their way too long and the value of Liberty and the importance of our Constitution have been the greatest causalities. If we want to preserve Liberty, we must know what our framers knew: We must preserve the Constitution to preserve Liberty. The destruction of the Constitution, leaves us unmoored from the anchor of truth and subjects to the whim of the sovereign.