Patrick Henry's case against the constitution: The structural problem with slavery

Journal of the Early Republic

Volumn 22, Issue 4, 2002, Pages 549-573

  Einhorn, Robin L ^a  

^a NONE

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EID: 63849281039     PISSN: 02751275     EISSN: 15530620     Source Type: Journal    
DOI: 10.2307/3124758     Document Type: Review

References (78)

1. For narratives of the process, see Robert Allen Rutland, The Ordeal of the Constitution: The Antifederalists and the Ratification Struggle of 1787-1788 (Norman, OK, 1966)
2. and Steven R. Boyd, The Politics of Opposition: Antifederalists and the Acceptance of the Constitution (Millwood, NY, 1979)
3. Citations to the Virginia ratification debate are to John P. Kaminski and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution, (vols. 9-10, Madison, WI, 1990, 1993), hereafter DHRC. All quotations in this and the next paragraph are from the same June 24 speech, 10:1476-77
4. On Robertson, "The Virginia Convention, 2-27 June 1788: Introduction," DHRC, 9:902-07
5. For the web edition of Elliot's Debates, Library of Congress, "A Century of Lawmaking for a New Nation: U. S. Congressional Documents and Debates, 1774-1873," http://memory.loc.gov/ammem/amlaw/lawhome.html; see also John P. Kaminski, ed., A Necessary Evil? Slavery and the Debate over the Constitution (Madison, 1995), 191-93
6. For modern biographies, see Jacob Axelrad, Patrick Henry: The Voice of Freedom (New York, 1947)
7. Robert Douthat Meade, Patrick Henry: Practical Revolutionary (Philadelphia, 1969)
8. George F. Willison, Patrick Henry and his World (Garden City, NJ, 1969)
9. Richard R. Beeman, Patrick Henry: A Biography (New York, 1974)
10. and Henry Mayer, A Son of Thunder: Patrick Henry and the American Republic (New York, 1986)
11. Only Mayer, 433-34, notices the slavery argument. For modern accounts of ratification, the clearest illustration is the complete absence of slavery from Gordon S. Wood, The Creation of the American Republic, 1776-1787 (New York, 1969)
12. Nineteenth-century southern biographers were interested: William Wirt, Sketches of the Life and Character of Patrick Henry (1817; 6th ed., New York, 1833), 305-06
13. William Wirt Henry, Patrick Henry (3 vols., New York, 1891), 2:379-89, 400-01
14. The modern pattern was set in Moses Coit Tyler, Patrick Henry (1887; rev. ed., Boston, 1898)
15. For the Madison quotations, DHRC, 10:1503, 1343. For northern abolition, see Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North (Chicago, 1967)
16. Shane White, Somewhat More Independent: The End of Slavery in New York City, 1770-1810 (Athens, GA, 1991)
17. For northern racism, see Joanne Pope Melish, Disowning Slavery: Gradual Emancipation and "Race" in New England, 1780-1860 (Ithaca, 1998)
18. Gary B. Nash, Forging Freedom: The Formation of Philadelphia's Black Community, 1720-1840 (Cambridge, MA, 1988)
19. Patricia Bradley, Slavery, Propaganda, and the American Revolution (Jackson, MS, 1998)
20. and David R. Roediger, The Wages of Whiteness: Race and the Making of the American Working Class (New York, 1991)
21. See Jack P. Greene, "The Constitution of 1787 and the Question of Southern Distinctiveness," in Robert J. Haws, ed., The South's Role in the Creation of the Bill of Rights (Jackson, MS, 1991), 21-31
22. For a major exception to this focus on the states, see Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York, 1996)
23. For the "progressive" view, see Merrill Jensen, The New Nation: A History of the United States During the Confederation, 1781-1789 (New York, 1950)
24. Merrill Jensen, The Making of the American Constitution (Princeton, 1964)
25. Jackson Turner Main, Political Parties Before the Constitution (New York, 1973)
26. Jackson Turner Main, The Antifederalists: Critics of the Constitution, 1781-1788 (Chapel Hill, 1961)
27. and, more recently, Joyce Appleby, Liberalism and Republicanism in the Historical Imagination (Cambridge, MA, 1992), chap. 8
28. For the "ideological" view, see Wood, Creation
29. Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill, 1980)
30. and Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Chapel Hill, 1997)
31. See Staughton Lynd, Class Conflict, Slavery, and the United States Constitution: Ten Essays (Indianapolis, 1967), 13-14
32. My own analysis is informed by the "American Political Development" approach to political history, which generally shifts the causal focus from social to institutional structures. Thus, it focuses less on "sectionalism" (social) than on the decision-making arenas created by the Articles of Confederation and Constitution (institutional). See esp. Richard R. John, "Government Institutions as Agents of Change: Rethinking American Political Development in the Early Republic," Studies in American Political Development, 11 (Fall 1997), 347-80
33. Theda Skocpol, "Bringing the State Back In: Strategies of Analysis in Current Research," in Peter Evans, Dietrich Rueschmeyer, and Theda Skocpol, eds., Bringing the State Back In (New York, 1985), 3-43
34. Mayer, Son of Thunder, 433
35. citing Hugh Blair Grigsby, The History of the Virginia Federal Convention of 1788 (1890-91; rep., New York, 1969), 157n. Grigsby renders the quotation "They'll free your niggers!" (emphasis in original), dates it at June 9, says he learned of it from "a person on the floor of the Convention at that time," and reports that, after Henry scared his audience with the threat of emancipation, this "homely exclamation" led them "instantly from fear to wayward laughter." Grigsby wrote his account in the 1850s. For Henry on troop quotas, DHRC, 10:1210: "How oppressive and dangerous must this be to the Southern States who alone have slaves?"
36. Cf. Finkelman, "Slavery and the Constitutional Convention," 190-91: "Provisions explicitly sanctioning slavery are found in five places." To the traditional three, Finkelman adds the direct tax clause and the Article 5 amendment restriction. I agree with Finkelman's count on the rhetorical issue of the Constitution "sanctioning slavery" and the political issue of it granting the South "extra political muscle" to protect slavery. See Leonard L. Richards, The Slave Power: The Free North and Southern Domination, 1780-1860 (Baton Rouge, 2000)
37. and Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780-1861 (Baltimore, 1974)
38. Kentucky Constitution (1792), art. 9. See Joan Wells Coward, Kentucky in the New Republic: The Process of Constitution Making (Lexington, KY, 1979), 16-25, 35-45
39. Vermont Constitution (1777), ch. 1, sec. 1; Delaware Constitution (1776), art. 26, which was removed from the revised Delaware Constitution (1792); Tennessee Constitution (1796), art. 1, sec. 26. Maryland, Declaration of Rights (1776), art. 13, may be the exceptional case, although it was not explicit. It banned taxes assessed "by the poll" and required everyone to be taxed "according to his actual worth, in real or personal property." These rules probably were intended to protect slavery. Robin L. Einhorn, "Species of Property: the American Property-Tax Uniformity Clauses Reconsidered," Journal of Economic History, 61 (Dec. 2001), 986, 991-93
40. DHRC, 10:1341 (Henry), 9:1159 (Mason), 9:961 (Henry). Antifederalists also argued that the presidential election procedure favored the North, assuming that elections often would be thrown into the House of Representatives (ibid., 10:1372, 1374-75), and that the treaty provision would let the North block the South's western growth. "Two-thirds of those who may happen to be present [in the Senate], may, with the President, make treaties that shall sacrifice the dearest interests of the Southern States," as James Monroe put it. Ibid., 9:1115
41. A national poll tax is highly unlikely today. In a property tax, apportionment would produce higher tax rates in poor states (where low rates can raise little money) than in rich states (where low rates can raise a lot of money). In 1895, the Supreme Court ruled that an income tax had to be apportioned in this nonsensical way. Hence, the Sixteenth Amendment. See Pollock v. Farmers' Loan and Trust Company, 157 U. S. 429 (1895), 158 U. S. 601 (1895)
42. Bruce Ackerman, "Taxation and the Constitution," Columbia Law Review 99 (Jan. 1999), 1-58
43. Calvin H. Johnson, "Apportionment of Direct Taxes: The Foul-Up in the Core of the Constitution," William and Mary Bill of Rights Journal, 7 (Dec. 1998), 1-103
44. E. R. A. Seligman, The Income Tax (1911; 2d ed., New York, 1914), 531-89
45. and Charles J. Bullock, "The Origin, Purpose and Effect of the Direct Tax Clause of the Federal Constitution," Political Science Quarterly, 15 (June and Sept. 1900), 217-39, 452-81
46. DHRC, 10:1222 (Henry), 1338 (Mason), 1339 (Madison), 1342 (Nicholas). Henry also thought federal direct taxes would preempt Virginia's state-level tax bases. Ibid., 9:1045-46. The real slave tax cuts resulted from the federal assumption of state debts, financed primarily by the impost
47. H. James Henderson, "Taxation and Political Culture: Massachusetts and Virginia, 1760-1800," William and Mary Quarterly, 47 (Jan. 1990), 90-114, emphasizes the fiscal significance of Virginia's disestablishment of religion
48. and, from other states, Samuel Nasson (Massachusetts) and Edward Rutledge (South Carolina), Elliot, Debates, 2:39, 4:277
49. For evidence that the impost was understood to be the one tax that could be enacted without generating debates about slavery, see Einhorn, "Slavery and the Politics of Taxation," 160-66. Many Antifederalists, including Henry, favored amending the Articles of Confederation to grant Congress the impost
50. This point cannot be emphasized strongly enough. The debates that put slavery at issue would concern taxes rather than "race" or "liberty." Northerners and southerners, all defending the interests of their white constituents, would act in the context of a consensus that slavery was evil, even if it was necessary. For the classic statement on this revolutionary-era consensus, stressing Virginia (but not South Carolina or Georgia), see William W. Freehling, "The Founding Fathers and Slavery," American Historical Review, 77 (Feb. 1972), 81-93
51. For Wilson, Lynch, Franklin, Chase, Rutledge (not quoted), and Hooper, "John Adams' Notes of Debate," July 30, Aug. 1, 1776, in Letters of Delegates to Congress 1774-1789, ed. Paul H. Smith (25 vols., Washington, 1976-98), 4:568-69, 592
52. For Adams, Harrison, and Witherspoon, "Thomas Jefferson's Notes of Proceedings in Congress," July 12-Aug. 1, 1776, ibid., 4:439-41
53. See also Kathleen M. Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill, 1996), 116-28
54. Journals of the Continental Congress, 1774-1789, ed. Worthington Chauncey Ford, et al. (37 vols., Washington, 1904-37), July 29, 1775, 2:222 (quotation)
55. For the finance issue generally, E. James Ferguson, The Power of the Purse: A History of American Public Finance, 1776-1790 (Chapel Hill, 1961)
56. For state taxes, Robert A. Becker, Revolution, Reform, and the Politics of American Taxation, 1763-1783 (Baton Rouge, 1980)
57. Cornelius Harnett to William Wilkinson, Nov. 30, 1777, in Smith, ed., Letters of Delegates to Congress, 8:349
58. For the vote on the real estate value apportionment. Ford et al., eds., Journal of the Continental Congress, Oct. 14, 1777, 9:801
59. and Joseph L. Davis, Sectionalism in American Politics, 1774-1787 (Madison, WI, 1977)
60. Nathaniel Folsom to Meshech Weare, Nov. 21, 1777, in Smith, ed., Letters of Delegates to Congress, 8:299
61. Ford et al., eds., Journal of the Continental Congress, June 25, 1778, 11:650 (New Jersey). Folsom obviously did not understand slavery; his idea that unsupervised slaves would amass "Bread & Riches" for absent masters missed the violence at the institution's core, as southerners understood only too well
62. North Carolina Delegates to Alexander Martin, Mar. 24, 1783, in Smith, ed., Letters of Delegates to Congress, 20:90-91
63. Ford et al., eds., Journal of the Continental Congress, Apr. 18, 1783, 24:256-60
64. DHRC, 9:907-08
65. James Madison, "The Federalist Number 10," in The Federalist, ed. Jacob E. Cooke (Middletown, CT, 1961), 56-65; "The Federalist No. 51," ibid., 351. We might read the last statement as suggesting a concrete payoff for slaveholders, that class conflict in the North could protect slavery in the South - as indeed it would in the first and second party systems
66. Madison, "Federalist Number 10," 65
67. Louis Hartz, The Liberal Tradition in America (New York, 1955), 69-70, 76-78 (quotations at 84-85, 129)
68. Hartz was not talking directly about violence, but about violent political thought. The literature demonstrating that he understated the extent of class conflict in U.S. history is too voluminous to cite here. It was the work of a generation from the 1960s to the 1980s, known as the New Labor, New Social, and New Urban histories. Hartz also mistook elite safety for social peace. On the racial violence of the Revolution in the South, see Sylvia R. Frey, Water From the Rock: Black Resistance in a Revolutionary Age (Princeton, 1991)
69. DHRC, 18:183
70. The other key formulation, of course, is Edmund S. Morgan, "Slavery and Freedom: The American Paradox," Journal of American History, 59 (June 1972), 5-29
71. For the power of wealthy planters in Virginia state politics, see Robert McColley, Slavery and Jeffersonian Virginia (1964; 2d ed., Urbana, 1973)
72. Richard R. Beeman, The Old Dominion and the New Nation, 1788-1801 (Lexington, KY, 1972)
73. For smallholder politics, Woody Holton, Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution in Virginia (Chapel Hill, 1999)
74. See esp. Rachel N. Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760-1808 (Chapel Hill, 1990)
75. On Madison's hopes for "diffusion," see Drew R. McCoy, The Last of the Founders: James Madison and the Republican Legacy (Cambridge, MA, 1989), 267-74
76. By the antebellum era, this solvent was less effective; see William G. Shade, Democratizing the Old Dominion: Virginia and the Second Party System, 1824-1861 (Charlottesville, 1996)
77. and Alison Goodyear Freehling, Drift Toward Dissolution: The Virginia Slavery Debate of 1831-1832 (Baton Rouge, 1982)
78. For one result, an acrimonious debate about slave taxes at the 1829/30 Virginia constitutional convention, Einhorn, "Species of Property," 994-98