American Public University

Slavery:
The Flaw in The Foundation of
The United States of America

August 22, 2010

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

Enlightenment philosophies. An era where the power of despotic tyrants would be

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

Constitution, really was a “novus ordo seclorum.”

The evolution of slavery, within the context of the Constitution, cannot be

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

and superstition, everything was to be subjected to critical examination, especially

governmental arrangements.3

To Americans in 1776, John Locke was certainly one of the most important

philosophers of the Enlightenment, particularly on the subject of the relationship between

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

upon the will of any other man.”5

Thomas Paine’s circular Common Sense offers perhaps the most effective

declaration of revolutionary political thought, as well as the importance of the revolution,

“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

encouraged colonial Americans by pointing out the importance of their future

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

monarch, did not go unnoticed or unattended by the founders.

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

nation continuing the egregious institution of slavery, by attempting to extend liberty to

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

repeated injustices and usurpations in direct object the establishment of an absolute

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

great political compromise in the Constitutional Convention of 1787, that unbelievably

established that a man, by virtue of being a slave, was only three fifths a whole person.12

The delegates to the Constitutional Convention of 1787 convened in secrecy and

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

of Confederation and the Declaration of Independence the desire to protect sectional

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

would continue as a contentious issue requiring unbelievable creativity and compromise

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

consideration to political thought of the era, especially Montesquieu’s argument that,

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

government, an executive branch, a judicial branch, and a unique bi-cameral legislative

branch.16 Each of these separate branches established by the first three articles of the

Constitution were impacted by the slavery debate. The House of Representatives,

established in Article I, was directly impacted by apportionment, in that each slave was to

be considered three-fifths a person when determining the apportioned membership in the

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

branch established under Article II.

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

expansion more compromise and debate was demanded.19

While the delegates to the Constitutional Convention were debating the make up

of the new federal government, the Second Continental Congress addressed the

mechanics of territorial expansion and adopted a framework known as the Northwest

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

Constitution codified slavery in contradiction to the founding values, the Northwest

Ordinance avoided the contradiction by establishing that “Slavery was permanently

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

unbeknownst obstacle in the name of James Tallmadge, a member of the House of

Representatives from New York, who proposed as a condition of Missouri’s admission to

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

north of the line would be free.

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

bring it back to the Congress for further debate.

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.

It has not been settled.”25

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

Republican Party.26 The Kansas-Nebraska legislation so enraged a little known Whig

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

Missouri compromise; however, the Kansas-Nebraska act effectually opened former

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

prohibition of slavery in the Northwest Territory; therefore, disallowing slavery in 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

influenced if not inflamed by the recent Dred Scott case.

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

people” checked the power of the Supreme Court.

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

Nation would soon be resolved by a “military act, backed explicitly by federal

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

(New York: Oxford University Press, 1988), 176-178.

30
Amar, America's Constitution, 215.
31
Linda R Monk, The Words We Live By: Your Annotated Guide to the Constitution
(New York: Hyperion , 2003), 205.
32
Guelzo, Lincoln and Douglas, 172.
33
Jefferson, "The Declaration of Independence," 236.

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

government to which he voluntarily consented. These ideals were established in the

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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16
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17