Reading the Founders’ Minds

It is a truism that history writing tends to reflect the times in which it is written. All history is “contemporary history,” wrote the Italian historian Benedetto Croce, by which he meant that history is seen mainly through the eyes of the present and in relation to its problems. The distinguished American historian Bernard Bailyn agrees that history writing is not mere antiquarianism; he is keenly aware of the present’s need to relate to the past and the power of that need in stimulating historical inquiry and writing. “There is always,” he writes, “a need to extract from the past some kind of bearing on contemporary problems, some message, commentary, or instruction to the writer’s age, and to see reflected in the past familiar aspects of the present.” But without “critical control,” this need, says Bailyn, “generates an obvious kind of presentism, which at its worst becomes indoctrination by historical example.”¹

Thus at the beginning of the twentieth century when class conflict was rife—poor versus rich, western farmers versus eastern merchants, soft money versus hard money—it was not surprising that history writing about the American Revolution and the formation of the Constitution tended to express these turbulent social circumstances. Historians like Carl Becker and Arthur Schlesinger Sr. wrote about class conflict in the Revolution and Charles Beard attempted to show that the Constitution grew out of a struggle between different kinds of property interests.

Since our greatest domestic issue over the past half-century has been race relations, it was inevitable that historians would look back at the sources of our race problem and write the fullest and richest accounts of slavery in America that we have ever seen. It was inevitable too that our recent accounts of the Revolution and the founding of the nation would reflect our increased understanding of the importance of slavery to the history of America. Indeed, there is hardly a book now written about the founding of the nation that does not place the problem of slavery at its center. So in recent years we have had Leonard L. Richards’s The Slave Power (2000); Don E. Fehrenbacher’s The Slaveholding Republic (2001); Paul Finkelman’s Slavery and the Founders (2001); Garry Wills’s “Negro President”: Jefferson and the Slave Power (2003); Alfred W. Blumrosen’s and Ruth G. Blumrosen’s Slave Nation: How Slavery United the Colonies and Sparked the American Revolution (2005); and Gary Nash’s Forgotten Fifth: African Americans in the Age of Revolution (2006). Now we have these additional two books under review to help satisfy the seemingly insatiable desire of many historians today to place slavery at the heart of America’s origins.

Thanks to the works of these historians and many others, we now know more about slavery and the founding of the nation than previous generations of historians ever thought possible. But is all this new historical knowledge true to the reality of the past? Have the historians who have written these works exercised Bailyn’s “critical control” and avoided distorting the past with their present-minded concerns?

No one can deny the importance of slavery to the development of early America. Of the total American population of two and a half million on the eve of Independence, one fifth—500,000 men, women, and children—was enslaved. The most populous colony, Virginia, had the most slaves—200,000, or 40 percent of its population. Although most slaves lived in the Southern colonies, slavery was not inconsequential in the North. Fourteen percent of New York’s population was enslaved. New Jersey held 8 percent and Rhode Island held 6 percent of their populations in lifetime hereditary bondage. Northerners, especially Rhode Islanders, were also deeply involved in the international slave trade. Slavery existed throughout the colonies, and nearly every white American colonist directly or indirectly benefited from it.

It is also important, however, to provide some historical setting for understanding the omnipresence of slavery in colonial America. We need to know just how cruel and brutal the eighteenth-century ancien régime was in the years before the Revolution—cruel and brutal in a multitude of ways. Not only was there black slavery, but many whites were denied freedom and kept in various degrees of dependency. Indeed, the ubiquity of servitude in that patriarchal age tended to blur the conspicuousness of black slavery, especially in the North. Many masters regarded their white servants as “filth and scum,” “miserable wretches,” and “insolent young Scoundrels,” and sometimes treated them as harshly as masters treated their African slaves. A drunken and abusive servant being transported by ship to Virginia in the 1770s, for example, was horsewhipped, put in irons and thumbscrewed, and then gagged for a night and handcuffed for nine days.

Of course, such harsh treatment of white servants was rare compared to the ferocity with which some eighteenth-century masters treated their slaves. Regarding the African slaves as little more than animals, the slaveholders bought them at market, branded them, sometimes gave them names ordinarily reserved for dogs and horses, and bridled, haltered, and punished them as if they were domesticated livestock. Still, “the similarities in the treatment of slaves and servants, and in attitudes toward slaves and the poor,” writes Philip D. Morgan, the distinguished historian of early American slavery, “help explain how the overwhelming majority of Anglo-Americans took slavery for granted.”²

Indeed, the fact that slavery had been taken for granted for thousands of years prior to the mid-eighteenth century must be the starting point in any assessment of its influence on early American politics and nationhood. With the exception of some isolated people with strong principles, especially Quakers, few Americans prior to the Revolutionary era seriously questioned the institution of slavery. It was the Revolution and its emphasis on liberty that made slavery a problem for Americans.

Lawrence Goldstone, who is the author (with his wife Nancy) of several works of history on subjects other than early America, begins his book Dark Bargain with a brief overview of the ways the interpretations of the origins of the Constitution have changed over the past two hundred years; he writes that “the manner in which Americans have viewed the document is to a great extent a parallel of the manner in which the nation has viewed both itself and the role of slavery in its history.”

Few historians of the Constitution, he says, have paid proper attention to the importance of slavery. Instead of describing the politics of slavery in the Constitutional Convention of 1787, most present-day scholars of the Constitution, he complains, have been too caught up in philosophical abstractions. Recent accounts of the framing of the Constitution, he writes, have focused so exclusively on ideas that they have turned the document into nothing more than “a product of theory.” By concentrating on the thinking of “a small number of cerebral delegates—Madison, Hamilton, Franklin, or even the recently resurrected Gouverneur Morris,” present-day historians and political theorists have concluded that these few men “produced virtually the entire document among themselves.”

Goldstone wants to correct this mistaken emphasis on ideas and theories in the making of the Constitution by describing it as the consequence of pragmatic politics, most of it involving slavery. “The story of the forging of the Constitution is as much a study of the forces and factors that comprised American life as it is a stringing together of the political theories of Madison, Hamilton, and Franklin.” Slavery was at the heart of the making of the Constitution. “Of all the issues that would arise in Philadelphia,” he says, “the one that evoked the most passion, the one that left the least possibility of compromise, the one that would most pit morality against pragmatism, was the question of slavery.”

To concentrate our attention on the issue of slavery Goldstone introduces several characters who he thinks have been relatively ignored in the story of the convention, including Oliver Ellsworth and Roger Sherman of Connecticut and especially John Rutledge of South Carolina. Indeed, Rutledge is Goldstone’s real hero. “If one man can truly be deemed Father of the Constitution, at least at the convention,” he writes, “it is Rutledge.” Rutledge, says Goldstone, made the Constitution a proslavery document.

Rutledge was the crucial person in bringing together the slaveholders of the Upper South with those of the Deep South in order to convince the Northern delegates to agree that slaves would be counted as three fifths of a person for purposes of representation in the House of Representatives and the electoral college. He was also the central figure in fashioning a compromise with Northerners, principally Ellsworth and Sherman, on protecting the slave trade for twenty years and on the regulation and taxing of overseas trade. It was Rutledge, Goldstone claims, who “put South Carolina on the winning side of both contests.”

Most historians consider July 16, 1787, the decisive day in the Constitutional Convention. That was the day on which the Connecticut Compromise was adopted, which gave each state, however large or small, equal representation in the Senate. But Goldstone wants us instead to concentrate on July 12, which he considers of equal if not greater importance. That was the day on which the three-fifths compromise was adopted—a victory, he suggests, for the South and South Carolina in particular. This counting of slaves as three fifths of free persons for apportioning direct taxes and representation in Congress and the electoral college was part of the reason William Lloyd Garrison and other later abolitionists called the Constitution a “covenant with death and an agreement with hell.”

Yet, as Goldstone admits, many Southern delegates, including the entire South Carolina delegation, “had continually urged that slaves be counted in full.” In other words, many Southern delegates wanted slaves counted as five fifths for purposes of representation, which would have substantially increased the power of the South in the House of Representatives and the electoral college. By contrast, the Northern delegates preferred not to have the slaves represented at all. But South Carolina’s motion to count the slaves as five fifths of free persons was defeated by seven states to three. So the three-fifths compromise might be seen as a defeat for the Carolinians if not a victory for the Northern states.

If Goldstone is to establish Rutledge as the real father of the Constitution, he has to diminish James Madison’s role in the convention. Madison was the author of the Virginia plan, which became the working model for the convention, although it was much revised. Crucial to Madison’s plan were a veto power given to Congress over all state laws and the proportional representation for each state of its people or its financial contributions or some combination in both houses of Congress. Any kind of proportional representation, Madison believed, was preferable to representation of the states as states. Since states represented as states was what was wrong with the Articles of Confederation, Madison was convinced that retaining any semblance of state sovereignty in the new national government would vitiate it and ultimately destroy it. That’s why the convention’s rejection of his proposal for proportional representation in both houses of Congress and the adoption of the Connecticut Compromise on July 16 so deeply depressed him and other national-minded delegates. So alarmed were they by what they correctly saw as their defeat (it was no “compromise” for them) that they caucused the next day to decide whether or not to withdraw from the convention.

Madison’s passion on this issue of proportional representation in both houses of Congress helps explain his several arguments made prior to his defeat on July 16. Goldstone, like many other historians, takes these arguments out of context to demonstrate the importance of slavery to the convention. Since the principal support for equal representation in Congress came from the small states, who feared their interests would be swallowed up by the more populous states in a system of proportional representation, Madison desperately needed to get the delegates to think of their divisions in terms different from small versus large states. This is why he argued in the days preceding the Connecticut Compromise that it was “pretty well understood that the real difference of interests, lay not between the large & small but between the N. & Southn States,” and that it was “the institution of slavery & its consequences that formed the line of discrimination.”³

Once these statements are put in context, we can begin to understand why Madison was willing to go so far as to throw into the debate the specter of a sectional split in order to get his colleagues back to thinking about proportional representation in both houses of Congress. Of course, at that point he did not imagine there could be a Civil War and had little inkling of how potentially explosive his statements were.

Giving a sense of surrounding circumstances, which is the essence of historical explanation, is not Goldstone’s strong point. His account of the 1780s, for example, lacks such historical background. Although Virginians in that decade were actually relaxing their black codes that governed the slaves’ lives, forming anti-slavery societies, and manumitting their slaves by the thousands, Goldstone pictures the South in the 1780s as gripped by an overriding fear of slave insurrections. (He could never account, for example, for the College of William and Mary’s conferring in 1791 an honorary degree on the celebrated British abolitionist Granville Sharp.)

Goldstone turns this “ongoing fear of slave revolts” into “the lever” that Madison and the other nationalists “needed to generate interest in a meeting of all the states” in the summer of 1787. For Goldstone, Shays’s rebellion of debtor farmers in western Massachusetts in the winter of 1786– 1787 was simply an unnerving reminder to the slaveholding Southerners of what their black slaves might do to them. Even more alarming in the 1780s, he claims, was the fear of forced emancipation. “As northerners either outlawed slavery or phased it out, southerners were convinced that their northern neighbors intended to compel them, either by financial pressure or force, to do the same.” “Or,” he suggests, “perhaps foreigners would free the slaves.” Despite Goldstone’s claims, we have little or no evidence that many Southerners in the 1780s were possessed by these kinds of fears or that fears like these lay behind their willingness to create a stronger national government.

If we are to understand accurately the role of slavery in the making of the Constitution, we have to try to rid ourselves of our knowledge of what happened in the succeeding decades. The founders did not know the future, any more than we do, and most of them at the outset lived with the illusion that slavery in the United States was dying away and would somehow eventually disappear, especially with the ending of the slave trade. Of course, they could not have been more wrong, but that mistaken confidence in the future, reinforced by misleading developments in the Upper South, including thousands of manumissions, the explosion of “freedom suits” in the courts, and the initial anti-slavery sentiments of evangelical Protestant groups, made both Northerners and Virginians willing to compromise on the issues of the three-fifths clause and the slave trade.

By 1820, following the crisis over whether Missouri could be admitted to the Union as a slave state, those illusions and optimism were gone: from that moment the North and South saw themselves heading for a cataclysmic confrontation. But it is anachronistic to read back into 1787 knowledge of that confrontation. Slavery was undoubtedly important in the making of the Constitution, but unfortunately it was not as important to most of the delegates as we today think it ought to have been.

Robin L. Einhorn has no problem reading the present back into the past or, for that matter, reading the past forward into the present. In her book Einhorn, who is a professor of history at the University of California, Berkeley, has no doubts about the manifest and latent effects of slavery on America. For her, slavery did not merely shape the making of the Constitution; it shaped as well the capacity of the South to become truly democratic, which led not only to the Civil War but to a profound American misunderstanding of the role of strong government that affects us even today. She has George W. Bush’s red-state America very much on her mind and makes no effort whatever to hide her present-minded agenda.

At the outset she rejects what she believes are several conventional narratives of American history. She dismisses the story that pits a liberty-loving, tax-averse people against an ever-encroaching federal government. With the income tax amendment and the emergence of the welfare state, this story, she writes, “has been a downhill slide ever since: government growing, tax burdens skyrocketing, and our liberty in more danger than George III ever posed.” But equally false in her opinion is the “liberal” story that the growth of the federal government in the twentieth century came in response to the problems of industrialization and urbanization. The crucial weakness of this version of history, she claims, is that it is dated. It simply assumes that

the New Deal represented a progressive step toward a more democratic society, that Franklin Delano Roosevelt’s four freedoms (of speech and religion, from want and fear) outlined a political program that everyone except a few crazy extremists supported.

But, says Einhorn, these assumptions are no longer warranted:

Today, the former extremists run the country, championing “creationism,” attacking regulation, and pledging to cut taxes no matter what the cuts do to the ability of our governments to provide the services people want, from law enforcement to social security and environmental protection (meanwhile running massive budget deficits).

But since “the former extremists” who now run the country in Congress and the presidency have been democratically elected, there has to be something fundamentally wrong with the way American democracy now works. We the people have been hoodwinked by elites, and this, Einhorn argues, is all because of the way American taxation and American slavery became intertwined and influenced Americans’ attitude toward government. By investigating the various ways Americans right from the beginning of their history dealt with taxation at the colony, state, and federal levels, Einhorn finds that democracy and liberty in the North created confidence in strong government; slavery created the opposite. In other words, says Einhorn,

the antigovernment rhetoric that continues to saturate our political life is rooted in slavery rather than liberty. The American mistrust of government is not part of our democratic heritage. It comes from slaveholding elites who had no experience with democratic governments where they lived and knew only one thing about democracy: that it threatened slavery.

It is not at all clear how a nonslaveholding radical like Thomas Paine, who favored democracy and yet fully shared Jefferson’s mistrust of government, fits into Einhorn’s argument.

With or without Paine, however, Einhorn’s account is certainly revisionism with a vengeance. She clearly realizes the radical implications of her argument. Jefferson as a Southern slaveholder has to be not merely brought down a peg (which historians have been doing for decades) but kicked right out of the story of the development of liberty and democracy in America. “The Jeffersonian story is wrong,” she says. The slaveholding founders, especially Jefferson and Madison, worked out a “brilliant” narrative, “in which, not coincidentally, they were the heroes,” that has deceptively dominated American culture for over two hundred years. Jefferson and Madison told this story “in the romantic idiom” borrowed from radical British opposition thinking that historians have called the “republican ideology.” This ideology, which Einhorn dismisses as a mere cover for slavery, not only idealized independent yeoman farmers and country life, but was based on a profound fear of bloated monarch-like governments, high taxes, large public debts, and standing armies. When Hamilton and the Federalists tried in the 1790s to impose just such a monarch-like government on the new United States, Jefferson resisted, “retailed the [republican] ideology with all the trappings,” and led the opposition against these native tyrants just as Americans had resisted the British tyrants in the 1770s.

Einhorn mocks this conventional Jeffersonian story that hides the reality of slavery and Southern class conflict behind popular talk of liberty. “The Jeffersonian ‘Revolution of 1800’ had nothing to do with slaveholders taking over the federal government,” she writes sarcastically. “It brought ‘the people’ to power.”

How, she asks, could historians be taken in by such a fatuous story? One reason they have been deluded, she claims, is that some of the people who told the story in the North actually were poor farmers and artisans. Precisely because the North was more democratic than the South, it contained more “‘plebeian’ writers” who could teach the lower orders “how to organize against commercial elites” much more effectively than the yeoman farmers of the South could organize against the slaveholding elites. Consequently, wealthy Southern slaveholders like Jefferson and Madison did not have to defend their superior status or denounce democracy in the ways the Northern Federalist elites such as Gouverneur Morris had to do. “As a result,” Einhorn writes, “they left behind fewer elitist statements for us to use against them.” If the Southern yeoman farmers had only contested their elites as Northern farmers and artisans did, Jefferson and Madison might have been forced to expose themselves as the hypocritical slaveholding aristocrats they really were.

It is high time, says Einhorn, that we junk this fraudulent Jeffersonian narrative of the origins of America and tell a more accurate story in its place, one that puts slavery and taxation front and center where they belong. Unless we expose the reality of slavery in the past and the power of the slaveholders in keeping government weak and taxes low, we are apt to lose confidence in our present-day democracy. Indeed, she says, “our invocations of ‘democracy’ are coming to sound fatuous once again.” And this is because the heirs of the slaveholding founders who so perverted our attitudes toward government are “back” in control of our government, still claiming to be vulnerable elites needing protection from taxation and government. To save our democracy, Einhorn concludes, “we must purge the legacies of the slaveholders and their demands for ‘security’ from our public life.”

To retell the story of America, which means filling in “the gulf between this Jeffersonian story and the truth,” Einhorn has chosen “to use the history of tax policies and tax debates as a lens to focus in on when, where, and with kinds of results democratic governments existed in the early United States.” Einhorn begins her analysis by comparing the tax policies of Virginia and Massachusetts going back to the colonial period. She has very little sympathy with the difficulties pre-modern governments had in extracting money from their people. With her modern idea of progressive taxation in mind, she repeatedly faults the tax systems of these early governments for being regressive and for not favoring equity over simplicity. Since her purpose is to show the insidious influence of slavery, she has to play down the fact that Virginia’s dispersed and corrupt county governments and its poll tax were established in the seventeenth century well before slaves in any numbers were introduced into the colony.

Instead, she implies that Virginia’s corrupt county politics, which “was far from democratic,” and its primitive tax system flowed from slavery and compares them to the less corrupt, more democratic politics and more sophisticated tax structure of relatively slave-free Massachusetts. She even questions the view of Edmund S. Morgan and other historians that by the mid-eighteenth century Virginia had developed a system of responsible aristocratic government that served the public reasonably well. Instead, she contends that slaveholding Virginia created an oligarchic system in which “clever members of a privileged gentry class” simply milked the public for their own benefit. “Corruption…,” she says, “lay at the heart of gentry rule.” No wonder “Virginians did not trust their officials,” and no wonder they came to believe in minimal government.

By contrast with Virginia the “remarkably democratic” government of Massachusetts could do no wrong. Even when Massachusetts town officials flouted provincial tax laws, they did so in ways that illustrated their “competence and sophistication.” Even though Massachusetts’s taxes were “as regressive as Virginia’s,” they were administered more fairly and with less corruption. Since slavery was not involved in the tax politics of Massachusetts, the history of taxation in the colony and state was “recognizably modern”; it was a history “in which various groups competed over the distribution of tax burdens”—something not experienced by Virginians.

Einhorn continues with a detailed and desultory discussion of the differing tax systems of several other colonies and states, focusing on those of Pennsylvania and South Carolina. Surprisingly, slaveholding South Carolina created as sophisticated a tax system as that of democratic Pennsylvania and one that was “the most progressive on the continent.” Lest this claim damage her thesis, Einhorn is quick to explain that South Carolina did not really have any tax politics in which ordinary settlers pooled their tax revenues to buy roads, schools, and courthouses. Instead, the history of taxation in South Carolina is “a story about how elites distributed burdens among themselves.” Amid all the diverse tax systems, the essential point, Einhorn maintains, is that the Northern colonies and states “generally taxed larger ranges of objects in more sophisticated ways” than the Southern slaveholding colonies and states. Because of the relative absence of slaves, governments were also “more democratic in the North than in the South.” Einhorn’s lesson for us today is obvious: sophisticated high-tax systems fairly and competently administered are a measure of real democracy.

In the second part of her book, Einhorn moves to taxation at the federal level during the early decades of the new Republic. At this level taxation was generally confined to customs duties or tariffs levied on imported goods; when tried, other sorts of taxes—direct taxes and excise taxes—did not last long. The reason the early Congresses focused exclusively on the tariff, she says, was that it was “the only tax Congress could adopt without talking about slavery.” She doesn’t make much of the simplicity and indirectness of the tariff and never mentions President Jefferson’s reason for favoring it: as he told Congress in 1806, “the great mass of the articles on which impost is paid is foreign luxuries, purchased by those only who rich enough to afford themselves the use of them.”

Throughout her book Einhorn has many serious and substantial discussions of tax policies and tax politics, and one wishes she had said more, especially since early American taxation is a much-neglected subject. We can all agree that slavery was the crucial element separating the South from the North, that the antebellum South was less democratic than the North, and that the tax systems of the Northern states tended to be more sophisticated than those of the Southern states. But Einhorn is not satisfied to establish these important points. So interested is she in showing the influence of slavery persisting into our own time that she sometimes seems to exaggerate its reach.

Take, for example, her discussion of the various “uniformity clauses” adopted by many of the new Northern and western states in their antebellum constitutions, which consumes a large part of the third section of her book. These constitutional uniformity clauses required that different forms of property be treated “uniformly”—that is, that they be assessed in the same way and taxed at the same rate. No one kind of property—farmland, for example—could be taxed at a higher rate than any other kind of property of equal value—financial assets, for example. Many of the new Northern and western states adopted such clauses out of a Jacksonian democratic desire to ensure that their legislatures would be bound by a rule that would secure equal taxation and thus would not tax majorities more heavily than minorities.

In their desire for equality, these Jacksonian states, according to Einhorn, misunderstood the real source of such uniformity clauses. She is sure that the idea behind the uniformity clauses originated in the desire of Southern slaveholders to protect themselves from oppressive taxation on one of their most valuable properties—their slaves—by nonslaveholding majorities, even though none of the constitutions of the states of the Deep South actually contained any such uniformity clause. The framers in the states of the North and Northwest that adopted such clauses, including the later states of California and Oregon, Einhorn says, simply didn’t know what they were doing; they mistook a defense of slavery as a defense of equality. “Because they did not realize that these constitutional restraints on majority rule were elitist restraints on ‘the people,'” she writes, “they turned concessions to slaveholders into shelters for other elites.” Thus by protecting the property rights of minority elites, slavery stretched its terrible political tentacles into the free states of the North and Northwest, and by extension even into our own time.

Too much of Einhorn’s book follows this pattern of argument. Slavery was “the elephant in the room” that no one wanted to notice; yet she assumes it was everywhere influencing events, even when the evidence for such influences is hard to come by. The evidence is scarce, she argues, because the Southern political leaders hid their real motives—to defend slavery—beneath their “romantic idiom” of republicanism. Inevitably, her account has no place for idealism. Although all the leading founders condemned slavery as inconsistent with everything the Revolution was about, Einhorn is sure that “they had no intention of taking any steps toward abolishing it.”

Her picture of the seventy-eight-year-old Madison in the Virginia constitutional convention of 1829–1830 as an inveterate and deceitful defender of slavery with nearly fifty years of experience to draw upon is a caricature:

He had mastered the manipulation of the terms “persons” and “property”—to defend whatever concessions slaveholders were demanding at any particular moment—in his struggles with northerners in the 1780s.

Although “nobody had ever guilt-tripped Madison successfully,” he was finally ready, she says, to come clean on what she believes was always his hidden desire to defend slavery.

Unfortunately, she totally misunderstands the conciliatory role Madison was trying to play in a convention deeply divided over the representation of eastern slaveholders. Madison initially favored the cause of the state’s western nonslaveholders who wanted representation in the legislature based on white population alone, but out of fear that the convention would collapse and the state would break apart he eventually came to side with the eastern slaveholders and favor some representation in the legislature of their “peculiar” interest in their slaves. By ignoring Madison’s desperate efforts at compromise, Einhorn’s account has none of the contextual complexity that makes, for example, the historian Drew McCoy’s description of Madison in the Virginia convention so sensitive and persuasive.⁴ Perhaps what she needed in this account of Madison, and throughout her book, was not merely more of what Bernard Bailyn calls the historian’s “critical control,” but also some sense of the tragedy of the past.