Reflection and Choice

Posted: Aug 14, 2006 12:04 AM

 Editor's Note: The following is an excerpt from Bill Bennett’s latest book, America: The Last Best Hope, released last month. The book can be purchased here.

Most discussion of the Constitution and religion today focuses naturally on the First Amendment, but the original Constitution contained a powerful provision that receives less attention. Article VI, Section 3 states: “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This was a revolutionary breakthrough for religious liberty, one of the most advanced statements in the world—then or even now.

Maryland’s John Carroll, a Catholic, had noted that “the American army swarmed with Roman Catholic soldiers.” How could the new government justify denying them full civil rights? Similarly, Jewish Americans had participated in the struggle for independence, notably Hayim Solomon, who had arranged loans for the Continental Congress and helped save Washington’s army from starvation. By banning religious tests for office, the Constitution assured that religion would never be a bar to any able American serving the new republic.

But what about slavery? “Persons held to service or labor.” That is the awkward phrase the Constitution uses to describe slaves. After the fight over large state/small state representation, the treatment of slavery became the greatest source of conflict. Very early, a clash occurred over this “peculiar institution.” The Founders’ reticence in dealing with this explosive topic came from their belief, as Madison pointed out, that it was “wrong to admit in the Constitution the idea that there could be property in men.” At the time of the Constitutional Convention, slavery existed in nearly all of the states—and had existed since they were founded. Massachusetts had abolished slavery and four states—New Hampshire, Rhode Island, Connecticut, and Pennsylvania—were in the process of doing so. Emancipation was advancing in New York and New Jersey. The Founders believed that slavery was on the path to extinction. Ninety percent of slaves lived in the South.

The Founders were born into a society that permitted slavery. Connecticut’s Roger Sherman called the slave trade “iniquitous.” New York’s Gouverneur Morris, a brilliant orator and a representative of great wealth, stood stoutly on his wooden leg and denounced slavery in the harshest terms. This “nefarious institution” was “the curse of heaven in the states where it prevailed,” he said, ignoring the fact that his own New York still permitted slavery. He compared the slave states with the free regions. Slavery is characterized by misery and poverty, but the free regions (actually, states with relatively few slaves) were characterized by “rich and noble cultivation.”

This was brave talk from a man who was a close friend to George Washington. Sitting silently in the chair, Washington was America’s most prominent slaveholder. But Morris was hardly alone in his disdain for slavery. Washington’s good friend and neighbor, George Mason, was also a slaveholder. Still, Mason expressed the enlightened prevailing opinion of the Upper South: “Slavery discourages arts and manufactures. The poor despise labor when performed by slaves. Slavery prevents whites from immigrating and produces the most pernicious effects on manners.” Those were the practical reasons. Mason went further: “Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country!” Mason passionately called for the general government to prevent the increase of slavery.

High-minded as they were, these noble arguments ran into a stone wall of resistance. “Interest alone is the governing principle of nations,” South Carolina’s John Rutledge answered coolly. Morris, Mason, and Madison did not move him with their moral case against slavery. Just as bluntly, Rutledge said that any attempt to interfere with slavery in the states would result in the South’s refusing to ratify the Constitution. Once, again, the threat of disunion loomed.

Faced with this impasse, the Founders carefully crafted a Constitution that avoided even mentioning slavery, Africans, or the slave trade. It dealt with slavery by talking around the subject. First, it based representation in the House of Representatives on a three-fifths formula carried over from the Articles of Confederation. The Constitution required a census to count the whole number of free persons, to exempt “Indians not taxed,” and to count “three-fifths of all other Persons.” Second, they compromised on abolishing the African slave trade by permitting Congress to outlaw it, but only twenty years after ratification of the Constitution. Third, the Constitution required states to return to their states of origin all “persons held to service or labor” in another state. In effect, this was a fugitive slave clause.

Volumes have been written about these compromises with the existence of slavery. Some have claimed that by compromising with this hated institution, the Founders surrendered all moral claims to being defenders of liberty and human rights. Foreigners laughed when England’s Samuel Johnson asked: “How is it that we hear the loudest yelps for liberty among the drivers of Negroes?” Some even argue that they voided the philosophy of the declaration that “all men are created equal.”

It is clear that all but a tiny few of the delegates to the Constitutional Convention morally disapproved of slavery. It is equally clear that not a word of the Constitution would have to be changed if the states continued to emancipate the slaves on their own.

Even some of the compromises with slavery can be seen in this light. For example, the Three-Fifths Compromise was a mere mathematical formula, advanced by Northern delegates, and was never intended as a statement that the Founders thought slaves to be less than fully human. After all, they referred to slaves as persons. Who, after all, wanted slaves counted fully for purposes of representation? Slaveholders. This would artificially increase their representation in the House of Representatives and as well in the electoral college. Also, and this cannot be stressed enough, the Three-Fifths Compromise provided an incentive for states to continue the emancipation process. When a state freed its slaves, it would get increased representation in the House of Representatives. And, because each state’s electoral vote was based on its number of representatives, the state that abolished slavery would also be rewarded in the selection of the president.

Madison, we know, was deeply downcast over the failure of the delegates to outlaw the African slave trade immediately. He thought it “dishonorable to the American character.” Yet the choice was not between ending or not ending the slave trade. If the Founders had not accepted a twenty-year delay in banning the trade, South Carolina and Georgia would have stayed out of the Union and there would have been no ban at all on this “execrable traffic.” The virtue of this compromise was that it clearly and unequivocally spelled the end of the slave trade in the not too distant future.

The fugitive slave clause was a bitter pill Northern delegates had to swallow. They did so only because they sincerely believed the Constitution would not have been ratified without it.

In A New Birth of Freedom, Harry Jaffa explains some of the understanding that led even such antislavery men as Abraham Lincoln to accept, albeit grudgingly, the Constitution as it was originally written in 1787:

Lincoln’s reasons for fidelity to the fugitive slave clause of the Constitution resemble, but are not identical to, those for honoring the right of each state to order and control its own domestic institutions. In both instances it is the law of the Constitution, and fidelity to the Constitution is a sine qua non for the continued existence of the Union. . . . The general assumption, which Lincoln shared, was that a government as powerful as the one established in the Constitution would not have been ratified without the fugitive slave clause. . . . But Lincoln also believed that the strengthening of the government of the Union added enormously to the prosperity of the Union, which in turn strengthened the Union itself. . . . The concession to slavery in the fugitive slave clause was ultimately, he thought, in the interest of the slaves themselves.

Small wonder that no less a passionate advocate for freedom than ex-slave Frederick Douglass could later say of the Founders’ handiwork in Philadelphia: “Now, take the constitution according to its plain reading, and I defy the presentation of a single proslavery clause in it. On the other hand it will be found to contain principles and purposes, entirely hostile to the existence of slavery.”

Benjamin Franklin was also dissatisfied with the slavery compromises. He wasn’t big on equal representation of the states either. But in the closing hours of the convention, he used his famous wit to try to soothe raw nerves. He quoted the high-born French lady who said: “I don’t know how it is, sister, that I meet with nobody but myself that’s always in the right.” He shared with his fellow delegates a British writer’s description of the “only” difference between the Anglican and Roman Catholic churches: “The Church of Rome is infallible and the Church of England is never in the wrong.” Franklin went on to make the serious point that the older he grew, the more he doubted his own judgment and the more regard he had for the opinions of others.