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Slavery:
The Flaw in The Foundation of
The United States of America
WILLIAM R COX
4075725
U.S. Constitutional History
Professor Elizabeth Moneymaker
HIST. 556, K001, Spring 2010
The founding of the United States of America and the creation of its Constitution
is arguably, one of the most important events in the history of societal organization. The
Constitution itself represented a “novus ordo seclorum, a new order of the ages.”1 This
new order began a period in the history of man that was dedicated to the fulfillment of the
surpassed by the rights and liberties of individuals and the government depended upon
the consent of the governed not the ferocity of the governors. The founders created the
United States Constitution to protect and codify the “truths” enumerated in the
Declaration of Independence, “that all men are created equal; that they are endowed by
their Creator with certain inalienable rights; that among these are life, liberty, and the
pursuit of happiness;” however, the Constitution fell far short of living up to its purpose
considering the enormous contradiction or flaw the founders never addressed: slavery.2
Unfortunately, it would take the blood of a future generation, through the calamity
of the American Civil War to implement remedies that began to correct the egregious
flaw. The founding of the Republic contained the inherent flaw of slavery, which was
codified into the Constitution; however, the Constitution eventually prevailed and lived
up to its accolade of being a new order of the ages by fulfilling Mr. Jefferson’s promise in
the Declaration. The country expanded with the Louisiana Purchase and the Mexican
American War to become a continent sized Republic before the flaw was more than a
legislative compromise could handle. Even though the founders allowed the flaw of
1
Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention
Debates: The Clashes and Compromises That Gave Birth to our Form of Government,
ed. Ralph Ketcham (New York, NY: Penguin Putnam, 2003), 3.
2
Thomas Jefferson, "The Declaration of Independence," in American Scripture: Making
the Declaration of Independence (New York: First Vintage Books, 1998), 236.
2
slavery to survive the Constitutional Convention they indirectly provided for its demise
as witnessed by the adoption of the Thirteenth Amendment in 1865. Examining the issue
of slavery in the founding of the Republic, its survival for the first eighty years of the
Republic through legislative compromise and its eventual eradication after the bloody
Civil War illustrates that, although the founding of the nation purportedly stood for
freedom yet accepted the condition of slavery, the foundational document, the
understood without first identifying the ideological principles upon which the founding
generation based the Declaration of Independence and the Revolutionary War. The
Declaration of Independence, the subsequent defeat of the British, and the establishment
of the United States under a written constitution, and the French Revolution; is viewed by
most scholars as the crowing achievement of man during the Enlightenment era. The
Age of Enlightenment began with the 1688 Glorious Revolution in England, which
mandated that the King must share his power with an elected Parliament. Tyrannical
rulers, neither Papal nor those of the hereditary monarchial type, were no longer afforded
unquestioned authority; man’s future embraced reason and intellect rather than dogma
governmental arrangements.3
To Americans in 1776, John Locke was certainly one of the most important
the government and the governed. On the eve of the American Revolution
3
Isaac Kramnick, ed., The Portable Enlightenment Reader, ed. Isaac Kramnick (New
York: Penguin Books, 1995), xi.
3
Enlightenment philosophies were pervasive in the colonial society and “in pamphlet after
pamphlet the American writers cited Locke on natural rights and on the social and
governmental contract.”4 Most of the political philosophy that influenced the founders
was based upon Locke’s idea that men are endowed, or born with certain rights, that is
“to understand political power aright, and derive it from its original, we must consider
what state all men are naturally in, and that is, a state of perfect freedom to order their
actions and dispose of their possessions and persons as they see fit . . . without depending
Thomas Paine’s circular Common Sense offers perhaps the most effective
“all men being originally equals, no one by birth could have a right to set up his own
family in perpetual preference,” no man is born better than any other.6 Paine also
independence stating that “the sun never shined on a cause of greater worth . . . ‘Tis not
the concern of a day, a year, or an age; posterity are virtually involved in the contest, and
will be more or less affected, even to the end of time, by the proceedings now.”7 The
American founders political philosophy depended upon Locke’s idea that man is
naturally free and Paine exhorted Americans to begin the noble task of freeing mankind.
Yet, American political reality of 1776 witnessed hundreds of thousands of men and
women living in bondage, while their masters lamented the tyranny of King George and
4
Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA:
The Belknap Press of Harvard University Press, 1992), 27.
5
John Locke, "The Second Treatise of Civil Government," in The Portable
Enlightenment Reader, ed. Isaac Kramnick (New York: Penguin, 1995), 395.
6
Thomas Paine, "Common Sense," in 46 Pages Thomas Paine, Common Sense, and the
Turning Point to Independence (Philadelphia, PA: Running Press, 2003), 164.
7
Ibid., 171.
4
exclaimed, that all me are born equal and should be free. This intellectual contradiction,
men who owned slaves demanding their natural right to freedom from a tyrannical
The national debate about American slavery appeared in the second Continental
Congress as it outlined the colonial grievances against King George in the Declaration of
Independence. Thomas Jefferson excoriated King George in his draft version of the
Declaration on the issue of slavery. Jefferson offered in his draft that King George
“waged cruel war against human nature itself, violating it’s most sacred rights of life &
liberty in the persons of a distant people, who never offended him, captivating and
carrying them into slavery in another hemisphere, or to incur miserable death in their
transportation . . . the Christian King of Great Britain, determined to keep open a market
where MEN should be bought & sold, has prostituted his negative for suppressing every
legislative attempt to prohibit or to restrain this execrable commerce . . .”8 In fact, by the
time the second Continental Congress debated the Declaration of Independence, many
founders and their colonial governments were grappling with the incompatibility of a free
the slaves.
The colonial government of Massachusetts had attempted to end the slave trade as
early as 1767; in 1771 and again in 1774 the legislature voted to end the practice only to
be vetoed by the governor. Likewise, early efforts to limit slavery and the slave trade
were attempted by Connecticut, Pennsylvania, Delaware and the most radical of all
Rhode Island, declared that any slave imported within its borders would automatically
8
Jefferson, "The Declaration of Independence," 239.
5
become free.9 Unfortunately, the Continental Congress eliminated Jefferson’s damning
critique of King George’s Atlantic slave trade participation. According to Jefferson the
congress removed his critique, “in complaisance to South Carolina and Georgia.”10 Even
though the southern states were committed to slavery, in April of 1776 Congress voted to
prohibit the importation of any slaves into the thirteen colonies.11 On July 4, 1776
America declared to the world that “all men are created equally,” they have “certain
inalienable rights,” that government derives its “power from the consent of the
governed,” and that “the history of the present king of Great Britain, is a history of
tyranny over these states,” with these words monarchial despotism was headed toward
the ash heap of history; conversely, slavery was moving towards more debate and its first
established that a man, by virtue of being a slave, was only three fifths a whole person.12
seclusion with that object of overthrowing the government that had been established by
the Articles of Confederation, a government that had successfully united the thirteen
colonies in the overthrow of the great British Empire. The “firm league of friendship”
that had been established by the thirteen colonies for the “common defense . . . security
of their liberties, and their mutual and general welfare,” had proven to be less than
adequate by 1787.13 The political and economic outlook seemed bleak in 1787, with the
9
Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA:
The Belknap Press of Harvard University Press, 1992), 245.
10
Pauline Maier, American Scripture: Making the Declaration of Independence (New
York: Vintage Books, 1998), 146.
11
Bailyn, The Ideological Origins of the American Revolution, 246.
12
Jefferson, "The Declaration of Independence," 236.
13
Congress of the United States, "Articles of Confederation 1777," in The Anti-Federalist
6
nation unable to repay its debts to foreign nations or its citizens and with occasions of
civil unrest occurring in several states, the mutual admiration and cooperation that existed
during the fight for independence had vanished and was replaced with competition and
exploitation. It was within this context that the delegates arrived in Philadelphia.14 The
delegates faced a difficult task in addressing all the issues confronting America, primarily
because each state had maintained its own sectional issues and had jealously regarded its
own interests since the 1776. When the Continental Congress was debating the Articles
interests became readily apparent and portended future contention when “South
Carolina’s Thomas Lynch, Jr., sternly advised his fellow congressmen on July 30, 1776,
that ‘if it is debated whether . . . slaves are [our] property, there is and end of the
confederation.’”15 Arguably, the delegates in Philadelphia viewed their task as saving the
new independent nation rather than correcting the flaw of slavery; however, slavery
that, in many ways, prophesied the next eighty years of congressional activity.
The delegates to the Constitutional Convention produced the document that, once
ratified by all states, would create the structure of a new republic that consisted of a
central federal government, yet maintained and guaranteed the continued existence of the
state governments. The delegates created the new federal government giving due
Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York:
Signet Classics, 1986), 357.
14
Carol Berkin, A Brilliant Solution: Inventing the American Constitution (New York:
Harcourt, Inc, 2002), 4-7.
15
Akhil Reed Amar, America's Constitution: A Biography (New York: Random House ,
2006), 26.
7
political liberty could only exist when “there is no abuse of power . . . and to prevent this
abuse it is necessary from the very nature of things that power should be a check to
power,” therefore, the delegates designed three separate yet equal branches of
branch.16 Each of these separate branches established by the first three articles of the
established in Article I, was directly impacted by apportionment, in that each slave was to
House. The presence of slaves in the south, as much as half the population of Virginia
and more than half in South Carolina in 1775, increased the proportional membership in
favor of the southern states thereby further protecting southern sectional interests.17 The
increased southern membership in the House in turn directly impacted the Executive
The delegates devised an election system that provided for electors from each
state to determine the President every four years. The electors were allocated based upon
the number of Senators and members of the House of Representatives, the three-fifths
apportionment of slaves gave the south another advantage that ultimately resulted in nine
of the first twelve Presidents hailing from slave states.18 Article III created the federal
judiciary and established that part of the duties of the President was the appointment of
judges, which history has shown, typically are aligned ideologically with the President
16
Baron de Montesquieu, "The Spirit of Laws," in The Portable Enlightenment Reader,
ed. Isaac Kramnick (New York: Penguin Books, 1995), 412.
17
Benson Bobrick, Angel in the Whirlwind: The Triumph of the American Revolution
(New York: Penguin Group, 1997), 39.
18
The White House, The Presidents, http://www.whitehouse.gov/about/presidents
(accessed August 5, 2010).
8
that appointed them; therefore, a proslavery President meant a proslavery judiciary. The
debate over the constitution resulted in two additional measures demanded by the slave
states, first Article I forbid congress from interfering with slave importation until 1808
and secondly, Article IV mandated that escaped slaves be returned. The nation that
exhorted the rights and equality of man in 1776, hypocritically codified the bondage of
man in 1787; however, the delegates willingness and ability to compromise allowed the
infant nation to not only survive but by bringing together the North and South they
created a Union that would expand in short order dominate the continent and with the
While the delegates to the Constitutional Convention were debating the make up
of the new federal government, the Second Continental Congress addressed the
Ordinance. This ordinance would become the blueprint for future territories and states as
the nation raced to the Pacific in the coming nineteenth century. Where the new
excluded,” from the territory.20 The first foray of the new nation into expansion seemed
to have placed slavery on the road to extinction; however, Thomas Jefferson’s acquisition
in 1803 of a section of land, that he described as “larger than the whole U.S.,” coupled
with the emergence of short staple cotton would ignite the slavery debate like never
before.21
19
Amar, America's Constitution, 19-21.
20
Edmund S Morgan, The Birth of the Republic 1763-89, 3rd Edition, ed. Daniel J
Boorstin (Chicago, IL: The University of Chicago Press, 1992), 115.
21
Gordon Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New
York, NY: Oxford University Press, 2009), 369.
9
By 1819 the Missouri territory, which had been carved from the greater Louisiana
Purchase land, had obtained the necessary inhabitants to petition for statehood through an
enabling act of Congress. Congress’ enabling act for Missouri statehood faced an
the Union that no additional slaves could be imported and that all slave children born
after Missouri’s admission into the Union should be free at the age of twenty-five. With
his proposal, Tallmadge fired the first shot in a legislative and rhetorical battle that would
transcend the next four and a half decades. The legislative compromise that eventually
passed became known as the Missouri Compromise, the sides agreed to admit Missouri
as slave state, Maine as a free state, and construct and arbitrary line along the southern
Missouri border so that any future states admitted south of the line would be slave and
While the Missouri debate illustrated the creative ability of America’s legislators
and the machinations of politics, it also pointed out the growing differences between the
North and the South, differences that were only increasing.22 Cotton had become the
economic life for the south, with thousands of farm families and plantation owners
migrating form eastern farms into the southwest’s rich virgin soil, the production of
cotton in the United States exploded increasing ten fold from 1800 to 1820 and
astonishingly, by 1850 the U.S. produced sixty eight percent of the world wide cotton
supply. Southern economic survival and growth depended upon cotton, as cotton grew so
did southern reliance on slave labor, and as reliance on slave labor grew the more
22
Daniel Walker Howe, What Hath God Wrought, ed. David Kennedy (New York, NY:
Oxford Univeristy Press, 2007), 147-155.
10
intractable the south became on the slavery issue.23 The Missouri Compromise
forestalled the contention surrounding slavery until further territorial expansion would
The expansion of the country to become an Atlantic to Pacific empire was finally
achieved with the annexation of Texas and the territorial conquests of the Mexican
American War. This expansion brought the divisive slavery issue, again to the floor of
Congress, this time in the form of California. In 1849, California requested admission to
the Union as a free state. Allowing enabling legislation to go forward for California, as a
free state, would upset the balance of power in the legislature that had been maintained
since the Missouri Compromise. Senator Henry Clay proposed an omnibus bill to the
congress in 1850 that would attempt to settle the contentious issues surrounding not only
California’s admission to the Union, but the fugitive slave law, the organization of the
territory won from Mexico, the boundary of Texas and the status of slavery in the
Washington D.C. After articulate and acrimonious debate from each side, Clay’s bill
went down to defeat after six months of debate and negotiations. Shortly after Clay’s
omnibus bill’s defeat, Senator Stephen Douglas took up the cause of compromise and by
August had passed a bill concerning the Texas boundary, a bill for the admission of
California, a bill establishing a territorial government for New Mexico, and a bill that
provided for the enforcement of the fugitive slave law. Many celebrated the compromise
as an end to the sectional problem posed by slavery; however, Utah and New Mexico had
been organized without any restriction on slavery, in essence, the definitive nature of the
Missouri Compromise had been replaced by the ambiguous notion that would become
23
Ibid., 125-129.
11
known during the Kansas Nebraska debate as popular sovereignty.24 Salmon Chase
prophetically remarked that, “the question of slavery in the territories has been avoided.
Senator Douglas introduced the Kansas-Nebraska Act in January 1854 for the
purpose of organizing the territories west of Missouri. The act sought to resolve the issue
of slavery by officially repealing the Missouri Compromise of 1820 and replacing it with
popular sovereignty, that is letting the people decide if the territory should be free or
slave. The act was passed in May of 1854 and both pro-slavery and anti-slavery settlers
rushed into the territory in an attempt to sway the elections and, thereby determine slave
status. The rivalry between the two sections eventually turned violent as they battled for
supremacy throughout the state. The “bleeding” of Kansas and the Kansas-Nebraska act
did little if anything to settle the strife of slavery in the territories, if it accomplished
anything; it promoted a split in the Democratic Party while solidifying the new
politician, named Abraham Lincoln, from Illinois that he reentered the political arena.
Lincoln like many from the North believed that the founders had put slavery on
the path of ruin with the abolition of the slave trade, the Northwest Ordinance and the
closed western territories to slavery, dependent upon the will of the locals. In view of the
perceived intimidation and fraud occurring in Kansas, anything could happen under
popular sovereignty. Lincoln continued to speak out against the Kansas-Nebraska Act,
24
David M Potter, The Impending Crisis 1848 - 1861, ed. Henry Commager and Richard
Morris (New York: Harper & Row, 1976), 90-115.
25
Ibid., 116.
26
Ibid., 164-176.
12
pointing out in a speech in Peoria that it was Thomas Jefferson himself that desired the
territories does not constitute a radical departure from American political tradition stating
that “the spirit of seventy-six and the spirit of Nebraska, are utter antagonisms.”27
Lincoln faced Douglas famously in the contest for the Illinois Senate seat in 1858
where they continued the argument over slavery and the efficacy of popular sovereignty
as a method for determining a state or territories slave status. Douglas won the Senate
seat; however, Lincoln won political experience and a wider and more national following.
Lincoln also infused morality into politics, he implied that “there were certain moral lines
even majorities could not cross, certain transcendent and foundational truths which no
vote could repeal, and some preferences which, . . . no passion could justify,” slavery was
wrong even if the self interested voters deemed it appropriate.28 Lincoln’s moral clarity
about slavery and the role of the majority, as well as many other republicans, had been
The Dred Scott case purported that congress had no authority whatsoever under
the Constitution to determine the status of territories as being either slave or free. Chief
Justice Taney further argued that slavery was no different from any other property and
that not only did congress lack the “power to exclude slavery from a territory, but that
slave property could not be excluded,” that is, slaves could be taken anywhere in the
Union and remain the property of their master, no matter if in slave state or free state,
slave territory or free territory.29 The decision of the Taney Court illustrates the executive
27
Mark Neely, Abraham Lincoln and the Promise of American: The Last Best Hope of
Earth (Cambridge, MA: Harvard University Press, 1995), 37.
28
Allen Guelzo, Lincoln and Douglas: The Debates that Defined America (New York:
Simon & Schuster, 2008), xx.
29
James McPherson, Battle Cry of Freedom: The Civil War Era, ed. C Vann Woodward
13
power in appointing judges, “by the time of the Dred Scott case, slave states, with less
than one-third of the nations free population, claimed five of the nine judicial circuits—
and thus a clear majority of Supreme Court seats.”30 Ultimately, the Congress and the
states would mitigate the morally repugnant Dred Scott decision by utilizing the power
the founders provided by adopting the Thirteenth Amendment to the Constitution, the
ideology of Montesquieu to check the power of power had been utilized and “we the
The Thirteenth Amendment abolished slavery of any kind in the United States and
its territories and it provides Congress with the power to enforce said abolition with
whatever, legislation is deemed necessary.31 The amendment was instituted and ratified
in 1865; however, President Lincoln had issued his Emancipation Proclamation two years
earlier. Lincoln’s Proclamation was an act taken under his power as commander in chief
of the military that liberated all slaves that inhabited any areas that were under rebellion.
The foundational truth that slavery was a moral stain on the republican fabric of the
bayonets.”32 The nation finally, though bloodied by the calamitous nightmare of Civil
War, had taken a giant step towards living up to Thomas Jefferson’s declaration “that all
men are created equal; that they are endowed by their Creator with certain inalienable
rights; that among these are life, liberty, and the pursuit of happiness.”33 The flaw of the
founding had been washed from the fabric of the nation with the blood of those who fell
14
in the Civil War.
The founders of the United States created a nation based upon the ideology of
individual liberty, that man was by nature free and should only be subject to a
Declaration of Independence and codified within the establishment of the new federal
government through the Constitution of the United States, yet, the hypocritical flaw of
slavery remained. The government and political leaders struggled through debate after
debate to offer legislation that could possibly settle the sectional strife that began to split
the country into sectional disarray. With the expansion of the country through the
Louisiana Purchase, the annexation of Texas and the Mexican American War, slavery
became the intractable problem that continued to divide the nation. Ultimately,
legislative compromise was insufficient to the task of correcting the execrable flaw of
slavery, which would be made worse thanks to an unduly pro-slavery Supreme Court.
An examination of slavery and its impact during the founding of the nation, the survival
of the institution of slavery for the first eighty years through legislative compromise and
its ultimate abolition through the blood of war proves, that although hypocritical, in that
the condition of slavery continued, the founding of the United States was based in
freedom, and the foundational document, the Constitution, really was a new order for the
ages.
15
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The Belknap Press of Harvard University Press, 1992.
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Harcourt, Inc, 2002.
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York: Penguin Group, 1997.
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16
edited by Isaac Kramnick. New York: Penguin Books, 1995.
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Richard Morris. New York: Harper & Row, 1976.
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17