A review of A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic, by George William Van Cleve and The Fiery Trial: Abraham Lincoln and American Slavery, by Eric Foner
Political theorists and historians have always had an uneasy relationship. When theorists develop elegant explanations of the American Founding or the American Civil War, for example, the historians rebuke them for getting crucial things wrong by failing to immerse themselves in the historical details where the true understanding of events can be found. George William Van Cleve and Eric Foner are both eager to correct mistaken theories and theorists. Their new books do indeed provide us with a wealth of facts that are crucial for a full understanding of the place of slavery in the thought of the American Founders and in the mind of Abraham Lincoln. In the end, however, they also engage in the suspect activity of political theorizing, and their theories do not always fit the facts they themselves have revealed.
Van Cleve, a legal scholar and historian who teaches at the University of Seattle Law School and in the University of Virginia history department, presents in A Slaveholders' Union a mountain of facts to show that the issue of slavery was never far from the founders' minds. Indeed, he argues, at key points in the founding period the issue of slavery decisively shaped the outcome of events. He believes both North and South feared an end to slavery, and each was complicit in establishing institutional arrangements that would not only perpetuate it, but also encourage its massive expansion. As he points out, "By early 1820…there were ten states with substantial slave populations, double the number of such states at the time of the Revolution. There were more than two and a half times as many slaves in America as there had been when the Revolution began." Moreover, "slavery emerged from the Revolution stronger as a political institution than it had been within the British Empire just prior to the Revolution."
According to Van Cleve, the 1772 decision of the King's Court in Somerset's Case that declared slavery to be illegal in Britain placed slavery on the road to ultimate extinction. Although the decision left slavery in place in the colonies, it created ever-increasing pressure for abolition throughout the empire. Once the American colonies separated from Britain, however, there was no central authority capable of attacking slavery. The central government under the Articles of Confederation posed no threat to the institution, and actually supported it by leaving authority over the practice of slavery with the states.
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The heart of his analysis, however, focuses on the treatment of slavery at the Constitutional Convention. Beginning with the convention's decision to allow one vote per state during its deliberations, the slave interests won on most key issues, he contends. The delegates' embrace of the Connecticut Compromise, including a Senate where each state was equally represented regardless of population, guaranteed the subsequent, and notorious, "three-fifths" compromise to augment Southern power in the House of Representatives. Van Cleve acknowledges that there was no attempt to provide a constitutional guarantee to protect slavery in perpetuity, but argues that none was necessary. The South had such an advantage because of the configuration of the Senate and House that parchment guarantees protecting slavery would have been gratuitous.
Moreover, the convention never seriously considered the idea that slaves were persons whose rights might be protected by the Constitution. The only question it debated, according to Van Cleve, was whether or not slave property would be taxed. Even though the convention eventually decided to allow a taxation scheme based on the three-fifths compromise, he argues that the decision was irrelevant because there was never any intention of implementing such a tax.
What's more, by allowing the slave trade to continue for 20 years after the Constitution's ratification, the framers insured an adequate supply of slaves for generations to come. The debate over the slave trade was primarily between states such as Virginia, that had a surplus of slaves and thus wanted to limit foreign importation sooner, and states such as South Carolina, seeking to bring in more slaves as cheaply as possible. Finally, the fugitive slave clause, the Constitution's only major provision to support federal intervention in domestic slavery, committed even Northern states to protect the property rights of slaveholders.
The conclusion that the founders defended and extended the slaveholding republic is inescapable for Van Cleve, and he prosecutes the case ably. Like most prosecutors, however, his interest in competing theories begins and ends with his desire to discredit them. He is not above choosing his facts selectively, pointing to the rapid growth of the slave population after the Revolution, for example, without mentioning that the relative size of the white and black populations in America remained constant between 1790 and 1820, or that the percent of free blacks actually doubled in this period. Though he notes that the number of states with substantial slave populations doubled between 1790 and 1820, he fails, again, to place that fact in context—a context that would, at the very least, complicate his argument. In reality, the number of free states went from five to twelve during those 30 years, whereas the number of states that allowed slavery increased by only four.
Van Cleve does his best to diminish the importance of abolition in the Northern states, concentrating on the racist attitudes of many Northern whites, the limited rights of free blacks already living in those states, and the legal barriers against free blacks attempting to migrate into them. This is the truth, but not the whole truth. Van Cleve's argument certainly does not settle the case that America was moving to make slavery permanent and ineradicable in the first three decades under the Constitution. However halting or incomplete the abolition movements in those dozen free states, they were a clear sign that a growing portion of the citizenry was turning against slavery.
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The author's interpretation of the 1787 debates inside Independence Hall is even more tendentious. From his perspective there are no mixed motives, only selfish ones. Thus, support for free labor reveals only the bigotry of Northern white workers. Restrictions on the slave trade and the refusal to provide an explicit constitutional sanction for slavery are cynical or empty gestures. The republican guarantee clause is meant only to quash slave rebellions. The argument for equal representation of the states in the Senate has no other purpose but to protect slavery. The three-fifths compromise is a complete victory for the South. Anti-slavery arguments are always disingenuous or irrelevant, but any argument linking the Constitution to bigotry or self-interest always turns out to be the "most likely" explanation.
In spite of all the details, then, Van Cleve manages to create a flat and simplistic portrait of the founding. He doesn't reduce the world to good guys and bad guys; in his view there are no good guys. No American at the dawn of the republic is moved or even troubled by the evil of slavery.
Van Cleve is so eager to explain the Constitution's concessions to slavery in terms of defending the property rights of slaveholders that he ignores the fact that each of these provisions speak of slaves as "persons." Slaveholders would eventually find it necessary to repudiate this claim, but it could not so easily be struck out of the American Constitution or the American mind. The recognition of the fact that slaves were persons was at least in part responsible for the growing number of free states, the increasing number of free blacks, and the growing pressure against slavery that ultimately led to the Civil War and emancipation.
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Eric Foner, a Columbia University historian, has more sympathy for Abraham Lincoln than Van Cleve has for the founders. As a result, his Fiery Trial, which won the Pulitzer Prize in history earlier this year, provides a more sophisticated and accurate treatment of its subject than Slaveholders' Union. Foner's Lincoln is a good if flawed individual, indispensable to the political processes that culminated in the abolition of slavery. He praises Lincoln's ability to learn over time, and argues that by the end of his life Lincoln had overcome many of his early prejudices. Unlike Van Cleve's founders, who possess only base motives, Foner sees Lincoln as a mixture of considerable virtues and a few vices. Nonetheless, he is unable to hide a slight impatience with Lincoln's delay in recognizing the full truth of human equality and developing a political program that would fulfill that vision.
Foner rejects the notion that Lincoln was "a man with no deep convictions of his own, whose shifting policies and outlook arose entirely from forces outside his control." Instead, he suggests, "Much of Lincoln's career can fruitfully be seen as a search for a reconciliation of means and ends, an attempt to identify a viable mode of antislavery action in a political and constitutional system that erected seemingly impregnable barriers to effective steps toward abolition." Foner traces Lincoln's opposition to slavery back to his days in the Illinois legislature, noting, "When Lincoln criticized slavery as unwise and unjust, abolitionism could not have been weaker or more unpopular in Illinois." As late as the 1850s, Foner argues, it required great courage to defend the proposition that slaves had rights, but Lincoln "would not retreat from his insistence that the principles enunciated in the Declaration of Independence applied to every human being."
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Lincoln's principled arguments also had an important practical dimension. As Foner explains, Lincoln believed that American government ultimately rested on the ground of public opinion. The success of Lincoln and the Republicans therefore depended upon their ability to shape public opinion. "Republicans, he insisted, adhered to the idea, which, as always, he traced back to the revolutionary generation, of ‘the equality of men.' Democrats sought to ‘discard that central idea' and substitute ‘the opposite idea that slavery is right' and therefore ought to be perpetuated and extended." Lincoln understood that political victory would ultimately go to the victor in the battle between these competing ideas.
The Republican coalition was a fragile one. Lincoln was constantly faced with the problem of "mediating disputes between former Democrats and former Whigs, nativists and immigrants, conservatives, moderates, and radicals." His solution, according to Foner, was to find the "lowest common denominator of Republican opinion"—opposition to the expansion of slavery—and focus "single-mindedly" on that issue. This focus provided the foundation upon which Lincoln built and maintained the Republican Party. Yet Foner claims that it would be a mistake "simply to anoint him as ‘a model of greatness for succeeding generations to follow.' …If Lincoln achieved greatness, he grew into it." Rejecting the view that Lincoln was "born with a pen in his hand ready to sign the Emancipation Proclamation or [entered] the White House with a fixed determination to preside over the end of slavery," Foner claims that in his youth Lincoln was formed in part by the racist attitudes of his community. This is why, according to Fiery Trial, Lincoln defended colonization as the answer to the problem of slavery until late in his career. It is also why he distanced himself from the abolitionists. For most of his life he did not believe that freed slaves could live in the United States as full political equals. Foner concludes, "Had [Lincoln] died early in 1862, it would be quite easy to argue today that Lincoln would never have issued a proclamation of emancipation, enrolled black soldiers in the Union army, or advocated allowing some black men to vote." For Foner, only the post-1862 Lincoln has a claim to greatness.
His evidence of Lincoln's early racial attitudes, however, is only circumstantial. He provides evidence of what others in Lincoln's childhood community thought, and assumes that Lincoln must have thought likewise. He asserts that Lincoln adopted abolition as a goal only after 1862, but he has no way of knowing the extent to which Lincoln's public statements were the product of his most deeply held beliefs or the political prudence of which he provides such ample evidence.
Foner complains that "we too often tend to read Lincoln's growth backward, as an unproblematic trajectory toward a predetermined end." Foner himself, however, may be guilty of a similar offense. He reads history backwards in order to vindicate the abolitionists, thus denying the possibility that Lincoln had a superior understanding of how the principles of the Declaration of Independence could be given political effect.