The Founders and Slavery

[Richard Dougherty]

Marty Lederman asks about the connection between the Founders' views on slavery and the question of associational rights.  If I might, Tom West didn't say anything about slavery when he raised the original question; that came from the response.  He may wish to draw that connection, but his point, which hasn't been addressed (except by way of criticizing Jefferson on slavery), is why we draw the distinction between religious rights of
association and other rights of association, allowing one form of "discrimination" but disallowing others.  No necessary conclusion follows; we (or, more properly, Congress, or the courts) may decide that there is no basis for allowing such religious distinctions, since we don't allow them for any other category (say, wishing to employ only Red Sox fans), or we could go in the other direction, and say that since we allow such
distinctions in association for religious purposes, we should also allow it for other purposes (say, even, employing only Yankee fans).
I am assuming the response has something to do with the purpose or function of the association, but that's what I would like to see spelled out.  Tom's question, I take it, concerns what seems to be the peculiar character of the associational right as presently protected.
(By way of disclosure, I am a colleague of Tom's, and though we don't agree on some important things we do agree on other important things. Is that sufficiently vague?)
Richard Dougherty
University of Dallas

Lederman, Marty wrote:

> In the category of O. Henry endings:
>
> Tom West has written a very interesting and impassioned post demonstrating how Jefferson and Madison should be understood to have condemned slavery and laid the groundwork for its abolition, and why "[w]e 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."  His conclusion, however, is baffling, if I understand it correctly:
>
> "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?"
>
> His "earlier comment" on freedom of association was that we do *not* "protect[] freedom when we deny the basic freedom of employers to hire the people they want, as opposed to the people
> the government believes, in its infinite wisdom, it would be better for them to hire."  In other words, that employers should be permitted freely to discriminate on the basis of race, sex, religion, etc.
>
> Am I missing something?  The founders' opposition to the practice of slavery leads inexorably to the conclusion that employers should be permitted to discriminate on the basis of race/sex/religion/etc. in hiring their employees?
>
> Marty Lederman
>
> -----Original Message-----
> From: Tom West [mailto:tomwest at ACAD.UDALLAS.EDU]
> Sent: Tuesday, April 18, 2000 11:42 AM
> To: CONLAWPROF at listserv.ucla.edu@inetgw
> Subject: The Founders and Slavery
>
> 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");
>
> 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");
>
> in his proposal of a gradual emancipation law for Virginia;
>
> in his 1784 proposal in Congress to outlaw slavery in the
> Western territories;
>
> 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");
>
> 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;
>
> 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."
>
> 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.
>
> They worried about race prejudice leading to continuing injuries
> on both sides.
>
> 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").
>
> 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.
>
> 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.
>
> 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?
>
> 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.
>
> This is what led to the early emancipation in eight Northern
> states.
>
> This is what led to thousands of individual acts of emancipation
> in the Southern states.
>
> 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.
>
> 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.
>
> 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?
>
> 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