The Founders and Slavery

[Rodney K. Smith]

This may be off topic, but the comments regarding slavery raise anew a topic
I have been wrestling with for the past few months -- the need for
reparations for the children of slaves.  As I taught equal protection and
affirmative action again this semester, I felt very strongly that the best
solution is reparations for children of slaves.   We have made reparations
or have otherwise compensated (admittedly in only a very partial manner)
various groups in this country (Native Americans, Native Hawaiians, Japanese
who were unjustly interned), and other nations are taking similar strides to
remedy injustices in their history, but we have not compensated slaves or
their children.  As I read Paul's comments regarding Jefferson, who only
went so far in the direction of doing justice for slaves, I felt that we are
guilty of a variant of the same sin of injustice.  We have acknowledged the
sin of slavery, but we have not provided compensation for those whom our
nation unjustly enslaved.  As an eternal optimist, I believe that we (it is
our generation's turn to wrestle with the issue) will do the right thing and
provide meaningful reparations for children of slaves and will be true to
the real principle behind the equal protection clause (I threw this in as an
effort to stay on topic).  The logistics of doing so are not easy, but the
issue itself is, despite inter-generational questions, in my opinion.  As an
aside, I am convinced that the time has come for our nation to build a
national slavery museum that would function much like the holocaust museum,
as a reminder to ourselves, our children and their children that depriving
another of his or her own dignity and life is destructive to all concerned.

rod smith
ualr school of law
  -----Original Message-----
  From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Paul Finkelman
  Sent: Tuesday, April 18, 2000 1:44 PM
  To: CONLAWPROF at listserv.ucla.edu
  Subject: Re: The Founders and Slavery


  Let me respond to Professor West  point by point.
  --
  Paul Finkelman
  Chapman Distinguished Professor of Law
  University of Tulsa College of Law
  3120 East Fourth Place
  Tulsa, OK  74104-2499

  918-631-3706
  Fax  918-631-2194
  paul-finkelman at utulsa.edu



  Tom West wrote:

    Paul Finkelman's account of the Founders on slavery is highly
    misleading, as I explain at length in Chap. 1 of my book
    _Vindicating the Founders_.
    Prof. Finkelman mentions several things that Jefferson failed to
    do, but he fails to mention the big things that Jefferson did to
    oppose slavery:

    in the Declaration of Independence second paragraph ("all men
    [not all whites] are created equal");


  Professor West is right that Jefferson, owning 150 people at the time, is
the main draftsman of the Dec. of Indep.  It is also clear that TJ made no
attempt to carry it out for his slaves or anyone else's.  Fine words, even
in public documents, have limited uses.  In 1863 Lincoln breathes new life
into Jefferson's words, but, given TJ's public and private record, it is had
to see how one can hand much on this one phrase in a long document.


    in the his anti-slavery paragraph of the Declaration, deleted not
    by him but by Congress because of complaints from SC and GA
    (slavery and the slave trade as "cruel war against human  nature
    itself, violating its most sacred rights of life and liberty");

  Professor West is simply wrong, flat out wrong, about this paragraph.
First, it is not antislavery.  It does not condemn slavery, but only the
slave trade.  It furthermore makes the somewhat silly argument that King
George III is responsible for the African slave trade,and implies that the
Virginians were forced to buy these slaves from the English.  The comparison
with tea might be worth while.  Up and down the coast of America the
colonists refused to allow tea to be landed in the colonies.  (Only in Mass
did they have to toss it in the water.)  Now, if the Virginians had been as
adamant about importing slaves, as they were about tea, they would have sent
the ships full of slaves on their way, or refused to buy them when they
landed.   They did neither.  The important point is that TJ does not attack
slavery, but only the trade.  Even Merrill Peterson, who is staunch a
defender of Jefferson as one can fine, writes that "the charge" in the
deleted passage "simply did not ring true.  And Jefferson's bloated rhetoric
gave it away."
  In the same clause that Professor West directs our attention to, Jefferson
also attacked the Kind for "exciting those very people to rise in arms among
us, and to purchase that liberty of which he has deprived them by murdering
the people upon whom he also obtruded them."  This is wild. Jefferson would
have us believe that the King of England was depriving all those slaves in
Va. of their liberty; not that say Jefferson himself was depriving them of
their liberty.  Furthermore, note that for TJ it is "murder" if slaves join
the British to put down the rebellion, and thereby gain their liberty; but
it is apparently not murder it the patriots kill British soldiers to gain
their own liberty and thus retain the power to enslave blacks.  A careful
analysis of this passage makes us wonder if Lewis Carroll and not Jefferson
actually wrote it.  It certainly underscores Samuel Johnson's comment "Why
do we hear the greatest yelps for liberty from the drivers of Negroes?"

  More interesting than the slave trade clause that was deleted is the
clause that remains that condemns George III for "exciting domestic
Insurrections among us."  This is a reference to Lord Dunmore's Proclamation
in Virginia that slaves who fought for the British would be free.  It is
curious that Jefferson who during the war was a member of the Continental
Congress, a state legislator, and then  Gov. of Va, never suggested that Va.
free slaves tofight for liberty; he refused to even enlist his own. He was
willing topledge his life, fortune, and sacred honor for liberty, but not
apparently offer the same liberty to his slaves so that they could all be
free together in a free country.


    in his proposal of a gradual emancipation law for Virginia;

  Unfortunately Jefferson NEVER proposed this.  I would simply urge
Professor West to read my discussion of it Slavery and the Founders so that
he will get it right. TJ chaired the legislative committee revising the
laws; he refused to bring the proposal to the floor; and then after he had
left the legislature he wrote in the Notes on the State of Virginia that the
proposal was going to be made at some time.  There is also no evidence that
it was Jefferson's proposal.

    in his 1784 proposal in Congress to outlaw slavery in the
    Western territories;

  Yes, but not until after 1800; here TJ would have banned slavery where it
was not, sometime in the future, but not before tens of thousands ofslaves
would have flooded into the area.  It would have been nice if TJ's proposal
had passed; it is one rare attempt on his part to stop slavery from
spreading west, inthe future. It is also worth noting he repudiates this
policy later in life.

    in his Notes on Virginia, where he published perhaps the most
    eloquent denunciation of slavery written in the founding era; he
    predicted that if a race war should erupt and end with the
    extermination of the whites, it would be a sign of divine justice ("I
    tremble for my country when I reflect that God is just");

  Understanding you are doing injustice is merely a first step to not doing
injustice. It is wonderful that in a book planned for private circulation,
in France and published first only in French, TJ would attack slavery in
this way; it would be more impressive if in his public capacity while hold
office almost continuously for about 35 years, he had done something
similar.  He did not.  Also, again, if one looks at his writing there TJ is
concerned about how whites are harmed by being bad masters, and not about
how slaves might be harmed.

    in his message to Congress during his presidency, proposing the
    outlawing of the slave trade (denouncing it in strong language)
    on the earliest date on which this became legal;

  again, Professor West continues to misunderstand the difference between
opposition to the slave trade (even the Confederacy banned the slave trade)
and opposition to slavery. While I would not accuses Jefferson of this, it
is worth noting that during the debate over the slave trade at the
Constitutional Convention many people noted that the Virginians, with a
surplus of slaves, would have a strong financial interest in ending the
African Trade, thereby driving up the price of the slaves they were selling
to the deep south and the southwest. As someone who sold slaves throughout
his life, Jefferson surely understood this.  I AM NOT, however, suggesting
that TJ was opposed to the trade because it was in his financial self
interest.  I have no doubt that 1) he found the slave trade repugnant; 2) he
believed that introducing more slaves into the United States would not be
helpful to the country in the long run.  BUT, there is a huge difference
between opposing the slave trade, as a majority of the US Congress did
(including many slaveowner) in the 1807 vote, and opposing slavery.

    and in many letters, such as one in 1809, when he wrote that
    whether or not blacks are as a group less intelligent than whites,
    it "is no measure of their rights. Because Sir Isaac Newton was
    superior to others in understanding, he was not therefore lord of
    the person or property of others."

  If Jefferson believed their rights were equal, then he should not have
been opposed to emancipating them.  But, as Prof. West notes in his very
next point, he does not see any place for them, except as slaves, in his
society.

    What Professor Finkelman does not understand is the reason for
    Madison's and Jefferson's hesitations re immediate emancipation.
    It had nothing to do with their supposed deism. They were
    concerned about what to do with the former slaves when they
    became free.

  Since neither Madison nor Jefferson proposed gradual emancipation, or even
private manumission of their own slavery and since they discouraged others
from freeing their slaves, it is hard to even imagine them being
immediatists.  As for what to do with their former slaves -- there were many
options, but Jefferson, blinded by his incredible racism, could see none of
them.  One option was to free them and treat them like the "equal" people
they were.  Professor West can't have it both ways.  If TJ really believed
in the Dec. of Indep. then freeing slaves is not a problem.  If on the other
hand, the real TJ is the racist we see in Notes on the State of Va. who goes
on for pages about the inferiority of blacks, then let's understand him for
what he was.

    They worried about race prejudice leading to continuing injuries
    on both sides.

  The injuries were mostly one sided -- whites injuring blacks.  Does
Professor West have any evidence of, for example, blacks enslaving whites,
whipping them, selling their children off; breaking up families, etc.?  It
is hard to figure out what the fear of freeing slaves was, except it might
lead to interracial sex and interracial children,which Jefferson opposed in
his letters and his writings, but of course we no in practice, in his
personal life,  he was not opposed to.

    They worried that a large number of free blacks might very well
    attack their former masters, as eventually happened in Haiti.
    (Jefferson: "we have the wolf by the ears: . . . justice is in one
    scale, self-preservation in the other").

  This is utter nonsense.  In Haiti the slave attacked their masters; their
masters killed them; it was a civil war which could have been avoided by
freeing the slaves.  Again, if one thinks about the "wolf by the ear" [not
ears] the analogy is misunderstood.  If one is riding the "wolf" and one
lets the wolf go, then the wolf will most likely run away.  It is only while
holding on to the wolf that the danger is present.  Thus, the
"self-preservation" is the self-preservation of the planter elite and their
society. If they free the slaves (justice) then their wealth is undermined,
they no longer have slaves at their beck and call, day and night, and they
will have to share political power with people they believe inferior to
themselves.   If they let the wolf (slavery) go, the slaves will have no
reason to attack their ex-masters; they are only a threat to their masters
while they are unjustly held as slaves.

    They were also worried about the bad habits the slaves had
    acquired in captivity that would make it hard for them to be
    citizens of a free country.

  I thought they were "equal" -- and like any other equal people they could
adapt; but if this was so, then why not educate slaves for freedom under
gradual emancipation programs, as Pennsylvania did?  TJ took no steps to
solve this problem; he discouraged steps by other people.  That is the crux
of the issue.  It is not that he was not in favor of immediate emancipation,
but that he does nothing to plan for future emancipation and opposes all
ideas on how to do it.

    Their idea (which many thoughtful anti-slavery Americans
    shared before the Civil War) was to free the blacks and send
    them to live in another country, but the practical difficulties of
    that plan were considerable.

  I cannot think of any serious abolitionists who favored expelling blacks
from the US. Lincoln (not an abolitionist) talked about it, but of course
acted in other ways to actually end slavery.  But, West's point would be
correct IF Jefferson had joined the American Colonization Society (as say
Justice Bushrod Washington or Senator Henry Clay did) and thus taken a stand
in favor of colonization. But, again TJ did not join the ACS, did not
contribute money to it.  Without doubt the ACS would have easily raised
enough money to transport all of TJ's 200 or so slaves toAfrica; it would
have been a great step toward that goal, if that was TJ's goal.  But, it was
not Had TJ joined the ACS his prestige . Again, we see other Virginians (as
I describe and detail in my own book) who set up the equivalent of a trust
to have their slaves work to pay off debts of an estate and then have the
slaves go to Africa.  TJ was a good lawyer, he could have done the same.  He
chose not to because he was not even in favor of colonization.  Nor

    Finally, Jefferson was personally never quite willing to do
    without the convenience of having slaves around to take care of
    his home and farm. For that he deserves blame. On the other
    hand, how many Americans today live up to their own principles
    in every respect?


  True enough. How many Americans have a monument for them in Washington?
How many are on the $2.00 bill.  I think it is reasonable to ask more from
our icons than that they are no better than the worst of their society.
Fact is, lots of Virginians DID free their slaves; lots of northerners voted
to end slavery, even while they owned slaves.  John Jay signed NY's Gradual
Emancipation Law and had been a slaveowner.  Franklin owned slaves and freed
them; Washington freed them in his will.  Edward Coles took his slaves to
Illinois and freed them.  John Randolph (Jefferson's kinsman) manumitted
hundreds of slaves in his will and provided land for them; Robert
"Councillor" Carter manumitted, while he was alive, more than 500 slaves,
giving them land and housing.    I do not think it unreasonable to ask where
the Master of Monticello was when this was going on? In fact, he was busy
writing letters to people like Coles urging him not to free his slaves.


    But the main point is this: after thousands of years of history in
    which slavery was considered more or less OK by everyone
    (including of course Africa), in 1776 a nation (in which slavery
    was legal in every state) was formed that explicitly denied that
    slavery was in principle just.
  it is not clear where this comes from?

    This is what led to the early emancipation in eight Northern
    states.

  true enough

    This is what led to thousands of individual acts of emancipation
    in the Southern states.

  I agree;

    Above all, this is what enabled Lincoln to organize a political
    party dedicated to stopping the expansion of slavery. Lincoln's
    action in turn led to the Civil War, whose conclusion was the
    abolition of slavery throughout the U.S. Without the work of
    Jefferson, Madison, and other Founders, this could not have
    been done.

  The last sentence is not without any strong historical foundation. To put
it another way, had Jefferson and Madison done a better job, slavery might
have been weakened in the South to thepoint where the civil war would have
been unnecessary.  It is hardly a great claim that TJ and Co. sent us on the
road the Gettysburg, Shiloh, and 600,000+ deaths.

    In the period leading up to the Civil War, a leading object of
    Southern writers was to attack Jefferson's view that slavery was
    wrong. Calhoun said we Southerners made a big mistake when
    we bought into that absurd idea. Alexander Stephens, the
    Confederate Vice-Pres, said in a widely reported speech that the
    U.S. was founded "on the assumption of the equality of races.
    This was an error. . . . Our new government," said Stephens, "is
    founded upon exactly the opposite idea; . . . that the negro is not
    equal to the white man, that slavery--subordination to the
    superior race--is his natural and normal condition."

    We owe gratitude to Jefferson and Madison, for enabling our
    country to stand up, fight for, and ultimately vindicate the
    principle of the equal rights of all races.

  Had TJ and Madison had their way, the concepts of the Kentucky and Va.
resolutions would have allowed for secession. As for equal rights for the
races, since Jefferson opposed them all his life, and denied blacks could be
equal, is is a bit of a stretch to make him into some sort of Civil Rights
activist.

    My earlier comment on freedom of association as a basic part of
    the Founders' understanding of  liberty still stands. I ask again:
    Why do we today no longer think this is a basic liberty?

  I am curious why Prof. West spent so much time on Jefferson and fails to
deal with my real question, which is how he is so certain he knows what is
in the minds of the founders, or how he can be so certain in a society that
is so different from theirs, that they would support his notion of imposing
one religion on another.  Furthermore, it is curious that he can praise
Jefferson (wrongly) for setting the stage for Civil Rights, and then not
have any problem with allowing employers to discriminate on the basis of
Religion, which is surely as important as race in creating an equal society.

    Tom West

    Thomas G. West
    Professor of Politics, University of Dallas and
    Senior Fellow, The Claremont Institute
    1845 E. Northgate
    Irving, TX 75062
    972-721-5278

  --


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