Defending the Constitution: Why the Founders Couldn’t Abolish Slavery

March 29, 2021 Updated: March 31, 2021

Commentary

This is the third in a series of essays defending our Constitution against unfair accusations from so-called progressives. The first essay rebutted the charge that the Constitution discriminated against women. The second corrected the claim that the three-fifths compromise was motivated by racism.

This essay responds to incessant efforts to link the Constitution with slavery.

Why a Key ‘Progressive’ Claim Is Deceptive

“Progressives” base some of their case on the fact that perhaps 25 of the Constitution’s 55 framers (drafters) were slaveholders.

But this statistic is deceptive. The constitutional convention also included influential opponents of slavery. John Dickinson had inherited bondsmen, but freed them all. Benjamin Franklin, James Wilson, and Gouverneur Morris, among others, were abolitionists. Even among the minority who held slaves, some, such as James Madison, favored gradual emancipation. There was much criticism of slavery at the Constitutional Convention, and only the South Carolina delegates offered even a tepid defense.

Another reason the statistic is deceptive is that the framers composed only a tiny slice among the 2,000-or-so Founders. The Founders also included leading participants in the constitutional debates, such as Noah Webster of Connecticut and Tench Coxe of Pennsylvania, as well as the elected delegates to the state conventions that ratified the Constitution. Relatively few of these people owned slaves.

Slavery Seemed Headed for Extinction

Why then, didn’t the Constitution abolish or curb slavery?

One reason is that issues of “property” were seen as matters of state law rather than federal. A more important reason was that slavery seemed to be on the path to early extinction.

The English-speaking peoples were the first major demographic group in history to abolish slavery—a fact the “woke” crowd always overlooks. This process was well underway when the Constitution was written. In 1772, the English Court of King’s Bench had decided Somerset v. Stewart, which banished slavery from the English homeland. Soon after American Independence, 10 of the 13 states abolished the slave trade and one (North Carolina) imposed steep taxes upon it. Several states also began general emancipation. Five granted the vote to free African Americans.

That’s why Constitutional Convention delegate Roger Sherman of Connecticut remarked that “the abolition of slavery seem[s] to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat it.” His Connecticut colleague, Oliver Ellsworth—later chief justice of the United States—predicted that “Slavery in time will not be a speck in our Country.” Tragically, they didn’t foresee the invention of the cotton gin.

Compromise Was Necessary for Unity

Still, it was clear that the elite in a few states were clinging to slavery and wouldn’t approve a Constitution that curbed it. South Carolina delegate Charles Cotesworth Pinckney said: “If himself & all his colleagues were to sign the Constitution & use their personal influence, it would be of no avail towards obtaining the assent of their Constituents. S. Carolina & Georgia cannot do without slaves.”

The framers were forced to conclude that a Constitution curbing slavery couldn’t unify the country and might even fail the nine-state ratification threshold.

Only Unity Would Prevent War

Why was unity so important? Because the probable result of disunion would be never-ending war on the American continent.

The common cause against Great Britain tied together colonies that never had much to do with each other—but by 1787, this connection was unraveling. The Confederation Congress was widely ignored. Rhode Island and Connecticut were in a creditor-debtor spat that threatened resort to arms. Many spoke of dividing the country into several confederations, with some states remaining entirely independent.

On the costs of disunity, European history was instructive. The previous 150 years had witnessed about 70 European wars (in addition to rebellions), and the results were horrific. The Thirty Years’ War, which ended in 1648, may have killed, directly or indirectly, as many as 8 million people. The War of the Austrian Succession (1740–48) resulted in perhaps half a million casualties; the Seven Years’ War (1756–63) caused perhaps a million.

That was why Gov. Edmund Randolph introduced his Virginia Plan by emphasizing that the current system couldn’t protect against foreign invasion, couldn’t prevent states from provoking foreign powers, and couldn’t prevent interstate conflict. To do that, a stronger government was necessary.

The Constitutional Debates Emphasized Unity

During the public debates on the Constitution, an important part of the advocates’ successful argument was the need for unity to avoid war. Although I believe modern writers rely too heavily on “The Federalist Papers” when searching for constitutional meaning, those essays do offer a good sample of the arguments for unity.

John Jay, who had served as the Confederation’s foreign secretary, wrote in Federalist No. 4:

“But the safety of the people of America against dangers from foreign force depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed that there are pretended as well as just causes of war.

“One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. … In the formation of treaties, it will regard the interest of the whole.

“It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.”

But …

“Leave America divided into thirteen or, if you please, into three or four independent governments—what armies could they raise and pay—what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defense?”

In Federalist No. 5, Jay outlined the danger of warfare among the American states themselves, and in Federalist No. 6, Alexander Hamilton carried the argument further:

“If these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other. … To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.”

In Federalist No. 41, Madison pointed out that European nations would intervene to turn American states against each other:

“The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge.”

Madison summarized in Federalist No. 45: “The union … [is] essential to the security of the people of America against foreign danger [and] essential to their security against contentions among the different states.”

So before criticizing the Founders for permitting the states to allow slavery, we must understand the choice they faced: tolerating a vile institution that was (then) dying anyway or consigning the American continent to perpetual warfare at a cost of millions of lives and incalculable misery.

Parting Shots

The “progressive” crowd attacks the Constitution in part because some slaveholders advocated it. But slaveholders were at least as prominent among the Constitution’s active opponents. By the “woke” crowd’s own reasoning, their criticism is tarred by antifederalist slaveholders such as Virginia’s Richard Henry Lee and North Carolina’s Willie Jones.

Finally: The claim that the Founders should have abolished slavery at all costs—no matter how horrible the results—ill becomes those who accept, or even promote, evils such as street violence, government attacks on freedom, and infanticide. Such people should reassess their own conduct before railing against the Founders.

Robert G. Natelson is a former constitutional law professor, constitutional historian, and senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He is the author of “The Original Constitution: What It Actually Said and Meant“ (3rd ed., 2014).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.