NARRATOR: The Founders are often bundled together as a group and labeled - either as a bunch of hypocrites or as a pantheon of wise heroes. The truth is more complicated than either of those caricatures. They were individual men with different backgrounds, ideas and beliefs. Like every other person, they were a mix of flaws and virtues. In this episode, I want to take a closer look at some of the Founders themselves. Although they shared common goals, they had vastly different motivations. How did the founding generation grapple with the evil of slavery? Does it matter what their historical circumstances were? Were they unduly optimistic about the prospects for the newly formed union? My guests for today are: Professor Lynn Uzzell, who is an adjunct lecturer at the University of Virginia and a Visiting Assistant Professor at Washington & Lee University. and Professor Gordon Wood, the Alva O. Way University Professor and Professor of History Emeritus at Brown University. PUBLIUS: Professor Uzzell, I want to start with an obvious but uncomfortable question. Did any of the Founders demand an immediate end to slavery? The Constitution banned the importation of slaves by 1808 but was there anyone who even suggested that slavery should be abolished altogether? LYNN UZZELL: One of the things that I like to try to emphasize when talking about this difficult subject of slavery, when a time that the constitution was framed, is to emphasize the historical context. Because it is something that today we have a very difficult time wrapping our heads around. How is it that these men who declare their own independence to declare their own equal right to freedom just 11 years earlier, could at this time acknowledge that there were a class of beings who did not enjoy their natural right to freedom. One of the things that we have to realize however is how new the abolitionist movement was. So this was 1787: the first abolitionist society in the world was just 12 years old. 1775 was the start of the Pennsylvania abolitionist society. And by the time the constitution was framed, there were another dozen or so abolitionists societies. But even though the movement was growing by leaps and bounds, it was still a very novel new movement. And therefore, one of the things that we find surprising today is that there was nobody at the time who criticized the constitution for not putting slavery on the road to abolition. Even the abolitionist societies never expected such an outcome. The most that they wanted the most that they were trying for was an immediate end to the international slave trade. The movement to have a nationwide abolition of slavery is something that progressed after the constitution was framed. PUBLIUS: Very soon after the Constitution was ratified, the fragile compromise between the Northern and Southern states was disrupted again. In 1790, two Quaker members of the Pennsylvania Abolitionist Society presented the new Congress with a petition to outlaw the slave trade. Several of the Founding Fathers, notably Benjamin Franklin and Elbridge Gerry among others, spoke in support of this petition. The Southern delegates were outraged. James Madison stepped forward to propose a committee to examine the matter and then deftly edited the committee report to reflect the compromises of the original Constitution. The report concluded that the federal government had no power to regulate slavery within the states, apart from enforcing the slave trade ban in 1808. Madison was emblematic of the Virginian founders and their equivocal approach to the slavery question. Professor Wood, can you talk a bit about Virginia? Was it more closely aligned with the Northern or Southern states? GORDON WOOD: There's a strong feeling among enlightened men, particularly in Virginia, that slavery's got to go. Nobody's promoting it as a positive good. And I think the main issue that has to be emphasized is that most people in 1776 thought slavery was on its last legs, that it was dying a natural death. Sooner or later it's going to be eliminated. We just got to get rid of the slave trade, international slave trade, and that will certainly be the killer of it. So there's a strong feeling in the country, and particularly in Virginia. As I say, Virginia is so crucial because it's a biggest state and it dominates the country as no state or no colony ever has. And they feel that slavery is going to die. And they there's some evidence of that because, as Washington realizes, cotton of course can't be grown in Virginia. The tobacco, which has been the staple for a century, is exhausting the soil and they begin growing wheat, which does not require the kind of labor that tobacco did. And so, Washington and other planters are renting out their slaves to people, craftsmen and so on in Richmond, Norfolk and people begin to sense, well this could the beginning stages of wage labor that slavery will evolve in this way. And so, this is part of the thinking of Virginians. Virginia, in the 1780s, has a huge number of manumissions. There are freedom suits being brought by anti-slavery organizations. There are more anti-slavery organizations in Virginia then in the North. So the people are thinking, well, these freedom suits... If you could show that you had an Indian or a white ancestor, then the whole line is freed. And so the number of freedmen, black freedmen in Virginia in 1780s grows enormously. And so, this, I think, affects the psychology of people. They feel this is the beginning of the end of slavery. Now, of course they couldn't have been more wrong. Slavery is not dying. It's better than, it's doing well and doing better than ever particularly in the deep South, in South Carolina and Georgia. They're living with this illusion. Now in the North, there are real moves toward ending the slave trade. Right away, 1776 on. And by 1804 all the states in the North have a abolished slavery legally. Now this is the first anti-slave movement in the history of the world. So we got to get that in context. Slavery had been taken for granted for thousands of years and existed everywhere, certainly in the new world, and certainly in Africa and Asia in 1776. So the northern states are moving against slavery in a way that no other state ever had. And so it's a major development. And as I say, Virginia is, it seems to be moving in the same direction. In 1791 the College of William Mary, the trustees, the board of visitors made up of rich slave holding planters give an honorary degree to Granville Sharp, who's the leading British abolitionist. Now, why would they do that? It gives you a sign. They were really living with the illusion that they are in the forefront of the abolition of slavery and they're endorsing it. PUBLIUS: Their endorsements don’t always seem to line up with their actions though. Thomas Jefferson, author of the Declaration of Independence, also proposed a bill banning slavery in the western territories (which was defeated by one vote). Yet, he himself didn’t free his slaves. George Mason vehemently opposed the slave trade but equally vehemently opposed any federal action against state slavery laws. How do we reconcile these things? LYNN UZZELL: Right. So when we consider this juxtaposition between slavery and the declaration of independence, what we have to wrap our heads around is the dreaded H word, hypocrisy, all right? The founders were in this respect, hypocrites. The thing is, is that the founders at the time understood themselves to be hypocrites. What is hypocrisy, but that you declare certain ideals and you fail to live up to them. They understood that. And they understood that they were letting themselves open to hypocrisy. Like the complaint of Samuel Johnson. That, "Why is it that we hear the loudest yelps for Liberty among the drivers of Negroes?" I think is what he said. And I think that if we can accept that this is what happens within political regimes, that even in our own time, at any political time, there is a people who fail to live up to their ideals. Then this is the only way that we can legitimately confront this original sin of slavery. But hypocrisy has its bright side as well. When Patrick Henry was criticizing himself for owning slaves, what he said was, "Can anybody imagine that I “Mr. Give me Liberty or give me death” am the owner of slaves of my own purchase," he says, "I will not, I cannot defend it." I will so far pay my devoir to virtue so far as to own the rectitude of her precepts and lament my want of living up to them." Now what he's referring to is that old maxim, that hypocrisy is the homage, the devoir that vice pays to virtue. So he's calling himself a hypocrite. But as long as people grasp and are willing to accept that what they're doing is hypocrisy, then they have the option of eventually raising up their actions until they match their ideals. But it requires holding onto the ideals in the first place, those ideals that are instantiated within the declaration of independence. PUBLIUS: Something that is hard for us to understand is that slavery in many forms had been part of society for thousands of years. The Age of Enlightenment, during the lifetime of the Founders, was the first time that societies began to really confront the immorality of slavery. Obviously, this was a difficult thing to do because it had massive implications. Before any action could be taken, people had to acknowledge that it was wrong to begin with. Some of the Founders, such as Ben Franklin, James Wilson, Gouverneur Morris and Benjamin Rush, had already reached this conclusion. Morris called slavery “the curse of heaven in the states where it prevailed.” Wilson said slavery was “repugnant to natural law.” Nonetheless, other Founders were still struggling with how to think about slavery and what to do about it. Professor Wood, can you give us more insight on this? GORDON WOOD: Well in 1776 I think everyone, all the founders certainly, knew that slavery was incompatible with their message, that they were promoting life, liberty and pursuit of happiness. They just knew that there was an inconsistency between holding people in servitude or in slavery. Lots of people of course were in bonded servitude as well, and all of that comes under assault as a result of the revolution. Anybody who's going to hold slaves suddenly is put onto the defensive because the American Revolution simply was preaching a message of liberty and freedom that everyone knew was incompatible with the idea of holding people in either bonded servitude or slavery. The reality of course, is that many southerners were slaveholders, including Washington. All of the Southern leaders, Madison, Jefferson... some behaved better than others. So I think the typical feeling was expressed by Patrick Henry when he said, "Look, I'm a slave holder. I know it's bad. I know it's wrong. I know it's inconsistent with everything that we believe in, that America is about and that this revolution is about but, I don't know what I do without them." And that's the kind of position he took. But others wrestled with it. Washington wrestled with it too, and he freed his slaves at the end of his life. It was important to him to do that. And he didn't just throw them out. He had provisioned for training them, having them apprenticed, and not thrown out without skills. So he was quite aware of of the of the problem. Now these are human beings caught up in a system that they had inherited and they were certainly aware of how wrong it was. There's no, there's no one, no founder that I know of who actually said it was a good thing. That comes later. That's a later generation tried to justify slavery. There are successive generations in the South who tried to turn slavery into a positive good and to deny the reality of the declaration. But for the revolutionary generation, there's none of the leaders who justify slavery, they all feel it is wrong, it's morally wrong, and it's inconsistent with everything the revolution is about. And that is I think, important for us today. PUBLIUS: One of the indications the Founders knew it was wrong was the fact that the Constitution doesn’t use the word “slavery” anywhere. The Founders didn’t want the Constitution sullied by the mention of slavery but it was a reality that had to be dealt with. At the Constitutional Convention, James Madison said that, “the states were divided into different interests not by their difference of size but principally from their having or not having slaves.” In the last podcast episode, we talked about the need for compromise between the Northern and Southern states in order to form a union. How did the Constitution reflect these compromises? Were both sides pleased or frustrated with the results? What did individual Founders think about this? The Constitution didn’t present a clear answer on the question of slavery. LYNN UZZELL: Right? So a lot of people treat the constitution as I like to say, kind of like a ouija board. That whatever question you can ask the constitution, it has an answer for you. And as it happens, it always seems to come up with the answer that whoever is moving the piece has in his mind already. And the truth is, is that the constitution really just set up a framework within which political debates were meant to happen. Which is to say the constitution did not really have a stance about slavery. It had made compromises with slavery. It had made some concessions, in at least one important respect, it had made an improvement on the condition of slaves in that it allowed for the prohibition of the slave trade after 20 years. But other than the few places where the constitution explicitly referenced slavery, how the constitution would treat that institution would depend very much on how the political actors worked within that framework. And within that framework you had certain abolitionist activists who said there are parts of this constitution we can use to further the cause of abolition. But then you also had advocates of slavery saying there are parts of this constitution that we can use for our own protection. And that is where the clash starts out. I think that Lincoln was right in so far as he said that the constitution can be made in the service of freedom, but he was probably historically stretching things a little when he said that the framers of the constitution intended and expected the extinction of slavery. I believe that that is true of most of the framers, but there were 55 men there framing the constitution and they came from a variety of different backgrounds, including a few committed slaveholders in the deep South. And some very conflicted uncomfortable slave holders in Virginia who did expect the ultimate extinction of slavery but did not think it would happen for a long time. And then you've got some northerners who are more pure in their abolitionist tendencies. Two of the members, Alexander Hamilton and Benjamin Franklin were members of abolitionist societies. But they did not think that the framing of the constitution was the place to push that agenda. They thought that it was a very fragile circumstance that they were encountering to get any kind of frame of government up and running at all. So you've got the compromises, you've got a lot of deflecting, you've got some members who clearly expected that slavery would be an imminent end. You've got Oliver Ellsworth, who looked at the progress that abolition had already been made just in the last 10 or 15 years, and he said, Soon slavery's not going to be a speck in this country." Well, Ellsworth was from the North and we all live in our own bubbles. And if he looked around his immediate surroundings, maybe he did believe that. But the Southern members knew that it was not going to be that easy. You've got James Wilson of Pennsylvania who during the ratifying convention looked at the 20 year slave clause, the one that allowed for the elimination of the slave trade after 20 years. And he said that this clause was going to lay the foundation for the end of slavery throughout the country. Well, he was not being realistic. He was probably being sincere, but he was not being realistic. But you also have some members from the South who had no expectations whatsoever that slavery would come to an end. So where that fight had to take place was under the rubric of the constitution, and there were certain clauses that each side could use to further their own agenda. So you've got figures such as Frederick Douglas, who did very good lawyerly work in manipulating the clauses of the constitution, even those that favor the slave side to say that, "No, these did not relate to slavery at all these clauses." And he even interpreted the three fifths clause as leaning towards freedom. Why? Well, if the Southern States were to free their slaves, then they would get two fifths more in representation just by freeing their slaves. Therefore, it's an incentive to free their slaves. Well that takes a bit of creative interpretation, but you could say that the three fifth clause for that reason leaned towards freedom. But these are the ways that each side would use the constitution to further their own cause. PUBLIUS: In 1786, George Washington wrote, “I never mean (unless some particular circumstance should compel me to it) to possess another slave by purchase: it being among my first wishes to see some plan adopted by the legislature by which slavery in the Country may be abolished by slow, sure and imperceptible degrees.” Washington hoped for a gradual abolition but didn’t champion any plan to make it happen. You mentioned James Wilson being “sincere but not realistic.” Does that description apply to other Founders also? Despite the fact that many founders thought slavery was evil, they also seemed optimistic about it being a dying institution. Within just a few decades after the Constitution, slavery was clearly not going away. What happened? How could the Founders have been so unduly optimistic? LYNN UZZELL: Right. So many of the changes that took place were ideological. For instance, at the time that the constitution was framed, there were very few people who would argue, certainly not argue on the national level that slavery was a positive good. Later over the years, members in the deep South became more and more aggressive about arguing in favor of the institution of slavery itself. But there were other changes that also led to the South becoming more entrenched and more attached to the institution of slavery. And one of those changes was the invention of the cotton gin. Now at the time of the framing of the constitution, they were realizing that the big cash crop, which favored slavery, which was tobacco, was depleting the soil, that it had longterm economic ills and a lot of people believed that with greater technology you might actually have less slavery. But what happened with the invention of the cotton gin is that all of a sudden this crop of cotton became so much more profitable because it became so much cheaper to manufacture cotton clothes after the cotton was picked. And therefore the slaves were seen as a great asset in furthering that economic powerhouse. And therefore if they had foreseen the invention of the cotton gin, then they might have thought that it made a difference whether the slave trade were allowed until the year 1800 which is what they had originally agreed to or adding eight more years, 1808. Because so many more slaves were imported in those last eight years after the effects of the cotton gin were felt then in the entire 12 years before the year 1800. PUBLIUS: The tremendous growth in the enslaved population made emancipation an even more difficult problem. Already in 1790, the first United States census showed that there were almost 700,000 slaves. Plans involving owner compensation would have been financially impossible, relocating freed slaves or planning gradual abolition would have been a monumental task of enormous complexity. The Founders didn’t totally ignore the problem but they couldn’t find a consensus on how to address it. How does, or should, this affect our views on the Founders? LYNN UZZELL: Yes. The fact that many of our most revered founders were slave holders certainly does complicate and make difficult any reverence of the founding era. And I think the problem is, is once again, we have to embrace the idea that humans are fallible and that if we insist that our heroes are somehow also flawless, then we're not going to have any heroes left. So in no way should we minimize the fault of owning slaves, but we also have to put this in historical context and realize that it is no great virtue to not own slaves today. It was a tremendous sacrifice for some people during the founding era that disbanding one's household of slaves is in many cases, extremely difficult, extremely costly and a tremendous sacrifice. Now, that doesn't mean that they shouldn’t have made that sacrifice anyway, but at the very minimum we have to recognize how much of a sacrifice it was for those few people who did make that step. PUBLIUS: The Constitution doesn’t deserve our allegiance or our rejection because it’s a reflection of the personal Founders. The Founders knew that they and their fellow citizens were not perfect and not perfectable. The Union had to be built on principles and structures that could withstand the change of time and the flaws of individuals. But the problem of slavery couldn’t be avoided for long. In the very next generation, the Constitution and the Union would be put to the ultimate test. NARRATOR: Thank you for listening to this conversion from the No 86 Audio Series. The spirit of debate animating the Federalist Papers in the Founding Era inspires all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!