Founding Brothers (14 page)

The southern
position might more accurately be described as “deep southern,”
since it did not include Virginia. Its major advocates were South Carolina and
Georgia, and the chief burden for making the case in the Constitutional
Convention fell almost entirely on the South Carolina delegation. The
underlying assumption of this position was most openly acknowledged by Charles
Cotesworth Pinckney of South Carolina—namely, that “South Carolina
and Georgia cannot do without slaves.” What those from the Deep South
wanted was open-ended access to African imports to stock their plantations.
They also wanted equivalently open access to western lands, meaning no federal
restrictions on slavery in the territories. Finally, they wanted a specific
provision in the Constitution that would prohibit any federal legislation
restricting the property rights of slave owners—in effect, a
constitutional assurance that slavery as it existed in the Deep South would be
permitted to flourish. The clearest statement of their concerns came from
Pierce Butler and John Rutledge of South Carolina. Butler explained that
“the security the southern states want is that their Negroes may not be
taken from them.” Rutledge added that “the people of those States
will never be such fools as to give up so important an interest.” The
implicit but unmistakably clear message underlying their position, which later
became the trump card played by the next generation of South Carolinians in the
Nullification Crisis in 1832, then more defiantly by the secessionists in 1861,
was the threat to leave the union if the federal government ever attempted to
implement a national emancipation policy.
²³

Neither side
got what it wanted at Philadelphia in 1787. The Constitution contained no
provision that committed the newly created federal government to a policy of
gradual emancipation, or in any clear sense placed slavery on the road to
ultimate extinction. On the other hand, the Constitution contained no
provisions that specifically sanctioned slavery as a permanent and protected
institution south of the Potomac or anywhere else. The distinguishing feature
of the document when it came to slavery was its evasiveness. It was neither a
“contract with abolition” nor a “covenant with death,”
but rather a prudent exercise in ambiguity. The circumlocutions required to
place a chronological limit on the slave trade or to count slaves as
three-fifths of a person for purposes of representation in the House, all
without ever using the forbidden word, capture the intentionally elusive ethos
of the Constitution. The underlying reason for this calculated orchestration of
noncommitment was obvious: Any clear resolution of the slavery question one way
or the other rendered ratification of the Constitution virtually
impossible.

Two specific compromises illustrate the tendency to fashion
political bargains on slavery that simultaneously disguised the deep moral
division within the Convention and framed the compromise solution in terms that
permitted each side to claim victory. The first enigmatic bargain concerned the
expansion of slavery into the West and actually occurred in the Confederation
Congress that was also meeting in Philadelphia. One of the last and most
consequential acts of the Congress was to pass the Northwest Ordinance in July
of 1787. Article Six of the ordinance forbade slavery in the territory north of
the Ohio River, a decision that could plausibly be interpreted as the first
step toward a more general exclusion of slavery in all incoming states (the
Jefferson proposal of 1784). On the other hand, the ordinance could also be
read as a tacit endorsement of slavery in the southwestern region (which
eventually proved to be the case). In any event, the passage of the Northwest
Ordinance was a blessed event for the delegates at the Constitutional
Convention, in part because it removed a potentially divisive issue from their
agenda, and in part because the solution it posed could be heard to speak with
both a northern and southern accent.
²⁴

The second
bargain can, with considerable justice, be described as the most important
compromise reached at the Constitutional Convention, even more so than the
“Great Compromise” between large and small states over
representation in the Senate and House. It might more accurately be called the
“Sectional Compromise.” No less an authority than Madison
considered it the most consequential of all the secret deals made in
Philadelphia: “An understanding on the two subjects of
navigation
and
slavery,
” Madison explained, “had
taken place between those parts of the Union.” The bargain entailed an
exchange of votes whereby New England agreed to back an extension of the slave
trade for twenty years in return for support from the Deep South for making the
federal regulation of commerce a mere majority vote in the Congress rather than
a supermajority of two-thirds. As with the Northwest Ordinance, both sides
could declare victory; and the true victors would only become known with the
passage of time. (John C. Calhoun would subsequently conclude that if the Deep
South had regarded this bargain as a wager on the future, it was a losing
bet.)
²⁵

The debates in the ratifying conventions of the respective states only
exposed the irreconcilable differences of opinion that the Constitution had so
deftly bundled together. In Massachusetts and Pennsylvania, for example,
opponents of the Constitution objected to the implicit acceptance of
slavery’s persistence, represented by the three-fifths clause and the
twenty-year extension of the slave trade. Supporters assured them, however,
that these partial and limited concessions only reflected the fading gasps of a
dying institution. James Wilson of Pennsylvania predicted that emancipation was
inevitable “and though the period is more distant than I could wish, yet
it will produce the same kind of gradual change for the whole nation as was
pursued in Pennsylvania.” As for the western territories, Wilson was
certain that Congress “would never allow slaves in any of the new
states.” Luther Martin, on the other hand, came out against the
Constitution on the grounds that the protections afforded slavery “render
us contemptible to every
true friend
of liberty in the world.”
Martin was perhaps the first public advocate of the “covenant with
death” interpretation of the Constitution, as well as the first former
delegate to denounce the Sectional Compromise as a corrupt bargain. But in a
close vote, his Maryland colleagues rejected his reading of the document as
excessively pessimistic.
²⁶

Meanwhile,
down in South Carolina the assurances afforded slavery that so troubled Martin
of Maryland struck many delegates as inadequate. Charles Cotesworth Pinckney
helped win the day for ratification with his own gloss on the true meaning of
the compact:

We have a security that the general government can never
emancipate them, for no such authority is granted and it is admitted, on all
hands, that the general government has no powers but which are expressly
granted by the Constitution, and that all rights not expressed were reserved by
the several states.… In short, considering all circumstances, we have
made the best terms for the security of this species of property it was in our
power to make. We would have made better if we could; but on the whole, I do
not think them bad.
²⁷

The
fullest and most intellectually interesting debate occurred in Virginia. As the
most populous state with both the largest slave population (292,000) and the
largest free-black population (12,000), Virginia’s demographic profile
looked decidedly southern. Only South Carolina had a higher density of blacks
(60 percent to Virginia’s 40 percent). But Virginia’s rhetorical
posture sounded distinctly northern; or perhaps more accurately, the political
leadership of the Old Dominion relished its role as the chief spokesman for
“the principles of ’76,” which placed slavery under a
permanent shadow and seemed to align Virginia against the Deep South.
Jefferson, it must be remembered, had proposed the abolition of slavery in all
the western territories. Madison, though he eventually endorsed the
three-fifths clause, acknowledged his discomfort with the doctrine, confessing
that “it may appear to be a little strained in some points.” Most
significantly, the Virginians were adamantly opposed to the continuation of the
slave trade. Both Madison and his colleague George Mason denounced the
Sectional Compromise in the Constitutional Convention that prolonged the trade;
and Mason eventually voted against ratification in part for that very reason.
On the surface, at least, Virginia seemed the one southern state where the
ideological contagion of the American Revolution remained sufficiently potent
to dissolve the legacy of slavery.
²⁸

Upon closer
examination, however, Virginia turned out to resemble the fuzzier and more
equivocal picture that best describes the nation at large and that the
Constitution was designed to mirror. For beneath their apparent commitment to
antislavery and their accustomed place in the vanguard of revolutionary
principles, the Virginians were overwhelmingly opposed to relinquishing one
iota of control over their own slave population to any federal authority.
Whether they were living a paradox or a lie is an interesting question. What is
undeniably clear is that the Virginia leadership found itself in the peculiar
position of acknowledging that slavery was an evil and then proceeding to
insist that there was nothing the federal government could do about it.
Mason’s vehement opposition to the slave trade rested cheek by jowl with
his demand for a constitutional guarantee to protect what he described as
“the property of that kind which we have already.”

Virginia’s true position was less principled than it looked. Its
plantations were already stocked with slaves, so opposition to the slave trade
made economic sense, as did opposition to emancipation. Mason thought that the
Constitution had it exactly wrong: “they have done what they ought not to
have done”—that is, extended the life of the slave
trade—“and have left undone what they ought to have
done”—that is, explicitly prohibited federal interference in what
he called “our domestic interests.” Edmund Randolph made it
abundantly clear at the Virginia ratifying convention just what “domestic
interests” Mason had in mind. Randolph in his own roundabout way had come
over to support ratification, so he needed to counter Mason’s
apprehensions about slavery. “I might tell you,” he apprised his
Virginia colleagues,
“that the Southern States, even South Carolina
herself,
conceived
this property to be secure,”
and that
except for Mason “not a member of the Virginia delegation had
the
smallest suspicion of the abolition of slavery.
” Virginia, in short,
talked northern but thought southern.
²⁹

I
F ONE WISHED
to generalize, then,
about the situation that obtained in 1790 at the moment of the congressional
debate over the Quaker petitions, the one thing that seemed clear concerning
slavery was that nothing was clear at all. The initial debate in February had,
in fact, accurately reflected the competing and incompatible presumptions about
slavery’s fate in the American republic, with one side emphasizing the
promissory note to end it purportedly issued in 1776, the other side
emphasizing the gentlemen’s agreement to permit it reached in 1787, and a
middle group, dominated by the Virginians, straddling both sides and counseling
moderation lest the disagreement produce a sectional rupture. Both sides could
plausibly claim a core strand of the revolutionary legacy as their own. And all
parties to the debate seemed to believe that history, as well as the future,
was on their side.

Like a lightning flash in the night, the initial
exchange on the floor of Congress in February of 1790 had exposed these
divisions of opinion before a national audience for the first time. On March 8
the committee was prepared to submit its report, thereby assuring that the
controversy would not go away or get buried in some parliamentary graveyard.
Representatives from the Deep South rose to express their outrage that the
forbidden subject was again being allowed into public view. William Loughton
Smith pointed up to the antislavery advocates who had stacked the galleries
“like evil spirits hovering over our heads.” James Jackson actually
made menacing faces at the Quakers in the gallery, called them outright
lunatics, then launched into a tirade so emotional and incoherent that
reporters in the audience had difficulty recording his words. The gist seemed
to be that any decision to receive the committee report was tantamount to the
dissolution of the union.
³⁰

These
threatening harangues managed to delay matters, but the Deep South lacked the
votes. On March 16 the committee was ready to make its report to the House.
First Jackson and then Smith were also prepared with their response, which
turned out to be the fullest public exposition of the proslavery position yet
presented in the United States. In fact, virtually every argument that southern
defenders of slavery would mount during the next seventy years of the national
controversy, right up to the eve of the Civil War, came gushing forth over the
next two days.
³¹

Jackson
spoke first and held the floor for about two hours. He could not believe that a
dignified body of sober-minded legislators were allowing these “shaking
Quakers” with their throbbing consciences to control the national agenda.
One of the petitioners, an infamous do-gooder of uncertain sanity named Warner
Mifflin, had actually acknowledged that his antislavery vision had come to him
after he was struck by lightning in a thunderstorm. The Congress had been
elected to steer the ship of state through rough and uncharted waters, not to
take aboard a crew of dazed dreamers bent on sailing to the Promised Land but
inadvertently destined to sink the ship on its maiden voyage.