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

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

(1)  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
Times cited : (10)

References (78)
  • 4
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    • The Virginia Convention, 2-27 June 1788: Introduction
    • On Robertson, "The Virginia Convention, 2-27 June 1788: Introduction," DHRC, 9:902-07
    • DHRC , vol.9 , pp. 902-907
    • Robertson, O.1
  • 5
    • 0041922866 scopus 로고
    • 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
    • (1995) A Necessary Evil? Slavery and the Debate over the Constitution , pp. 191-193
    • Kaminski, J.P.1
  • 11
    • 85037869007 scopus 로고
    • New York
    • 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)
    • (1969) The Creation of the American Republic, 1776-1787
    • Wood, G.S.1
  • 13
    • 79956978160 scopus 로고
    • 3 vols., New York 400-01
    • William Wirt Henry, Patrick Henry (3 vols., New York, 1891), 2:379-89, 400-01
    • (1891) Patrick Henry , vol.2 , pp. 379-389
    • Henry, W.W.1
  • 14
    • 77953222997 scopus 로고
    • Boston
    • The modern pattern was set in Moses Coit Tyler, Patrick Henry (1887; rev. ed., Boston, 1898)
    • (1887) Patrick Henry
    • Tyler, M.C.1
  • 21
    • 79956978349 scopus 로고
    • The Constitution of 1787 and the Question of Southern Distinctiveness
    • Robert J. Haws, ed, Jackson, MS
    • 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
    • (1991) The South's Role in the Creation of the Bill of Rights , pp. 21-31
    • Greene, J.P.1
  • 28
    • 84871539978 scopus 로고    scopus 로고
    • For the "ideological" view, see Wood, Creation
    • Creation
    • Wood1
  • 33
    • 0002193787 scopus 로고
    • Bringing the State Back In: Strategies of Analysis in Current Research
    • Peter Evans, Dietrich Rueschmeyer, and Theda Skocpol, eds, New York
    • 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
    • (1985) Bringing the State Back In , pp. 3-43
    • Skocpol, T.1
  • 35
    • 79956765009 scopus 로고
    • 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?"
    • (1969) The History of the Virginia Federal Convention of 1788
    • Grigsby, H.B.1
  • 36
    • 79956777134 scopus 로고    scopus 로고
    • 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)
    • Slavery and the Constitutional Convention , pp. 190-191
    • Finkelman1
  • 39
    • 0035687238 scopus 로고    scopus 로고
    • Species of Property: the American Property-Tax Uniformity Clauses Reconsidered
    • 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
    • (2001) Journal of Economic History , vol.61 , pp. 986
    • Einhorn, R.L.1
  • 40
    • 79956786633 scopus 로고    scopus 로고
    • 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
    • DHRC , vol.10 , pp. 1341
  • 41
    • 79956764915 scopus 로고    scopus 로고
    • 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)
    • Loan and Trust Company
    • Farmers, P.V.1
  • 42
    • 0347128460 scopus 로고    scopus 로고
    • Taxation and the Constitution
    • Jan
    • Bruce Ackerman, "Taxation and the Constitution," Columbia Law Review 99 (Jan. 1999), 1-58
    • (1999) Columbia Law Review , vol.99 , pp. 1-58
    • Ackerman, B.1
  • 43
    • 33749827546 scopus 로고    scopus 로고
    • Apportionment of Direct Taxes: The Foul-Up in the Core of the Constitution
    • Dec
    • 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
    • (1998) William and Mary Bill of Rights Journal , vol.7 , pp. 1-103
    • Johnson, C.H.1
  • 45
    • 0040308994 scopus 로고
    • The Origin, Purpose and Effect of the Direct Tax Clause of the Federal Constitution
    • June and Sept 452-81
    • 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
    • (1900) Political Science Quarterly , vol.15 , pp. 217-239
    • Bullock, C.J.1
  • 46
    • 79956978403 scopus 로고    scopus 로고
    • 10:1222 (Henry), 1338 (Mason), 1339 (Madison), 1342 (Nicholas). Henry also thought federal direct taxes would preempt Virginia's state-level tax bases
    • 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
    • The Income Tax , vol.9 , pp. 1045-1046
  • 47
    • 0007785174 scopus 로고
    • Taxation and Political Culture: Massachusetts and Virginia, 1760-1800
    • 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
    • (1990) William and Mary Quarterly , vol.47 , pp. 90-114
    • Henderson, H.J.1
  • 48
    • 79956978427 scopus 로고    scopus 로고
    • and, from other states, Samuel Nasson (Massachusetts) and Edward Rutledge (South Carolina), Elliot, Debates, 2:39, 4:277
    • Elliot, Debates , vol.2 , pp. 39
    • Nasson, S.1
  • 49
    • 79956978387 scopus 로고    scopus 로고
    • 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
    • Slavery and the Politics of Taxation , pp. 160-166
    • Einhorn1
  • 50
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    • 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
    • (1972) The Founding Fathers and Slavery, American Historical Review , pp. 81-93
    • Freehling, W.W.1
  • 51
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    • John Adams Notes of Debate
    • 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
    • (1976) July 30, Aug. 1, 1776, in Letters of Delegates to Congress 1774-1789 , vol.4 , pp. 568-569
  • 54
    • 79956662579 scopus 로고
    • ed, 37 vols, Washington, July 29, 1775, quotation
    • Journals of the Continental Congress, 1774-1789, ed. Worthington Chauncey Ford, et al. (37 vols., Washington, 1904-37), July 29, 1775, 2:222 (quotation)
    • (1904) Journals of the Continental Congress, 1774-1789 , vol.2 , pp. 222
  • 58
    • 79956653051 scopus 로고
    • For the vote on the real estate value apportionment. Ford et al., eds., Journal of the Continental Congress, Oct. 14, 1777, 9:801
    • (1777) Journal of the Continental Congress , vol.9 , pp. 801
  • 61
    • 79956667623 scopus 로고
    • 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
    • (1778) Journal of the Continental Congress , vol.11 , pp. 650
    • Ford1
  • 64
    • 85047282211 scopus 로고    scopus 로고
    • DHRC, 9:907-08
    • DHRC , vol.9 , pp. 907-908
  • 65
    • 0003302176 scopus 로고
    • ed. Jacob E. Cooke (Middletown, CT,)
    • 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
    • (1961) The Federalist Number 10, in The Federalist , pp. 56-65
    • Madison, J.1
  • 68
    • 0011540250 scopus 로고
    • 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)
    • (1991) Water From the Rock: Black Resistance in a Revolutionary Age
    • Frey, S.R.1
  • 69
    • 79956786582 scopus 로고    scopus 로고
    • DHRC, 18:183
    • DHRC , vol.18 , pp. 183
  • 70
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    • Slavery and Freedom: The American Paradox
    • 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
    • (1972) Journal of American History , vol.59 , pp. 5-29
    • Morgan, E.S.1
  • 78
    • 79956853187 scopus 로고    scopus 로고
    • For one result, an acrimonious debate about slave taxes at the 1829/30 Virginia constitutional convention, Einhorn, "Species of Property," 994-98
    • Species of Property , pp. 994-998
    • Einhorn1


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