rights, but they did not all evolve in equal ways, and the terms of their rights varied with the nature of things. Thus, in America, did the creator yield to creation.
“Justice,” “liberty,” and “equality” all assumed meanings constrained by nature; all were shaped by the “spirit” of the American nation. An undeniable part of that spirit was its natural order: generations of Americans would state both an empirical and a political truth when they claimed that theirs was a “white man’s government.” It was only natural, then, that justice, liberty, and equality should be reduced to fluctuating combinations of obfuscation, oxymoron, and empty formalism: they could then accommodate the harshest forms of economic, social, and political oppression. They could even accommodate slavery.
The Central Paradox
Slavery was not originally a distinct problem, in part because it did not begin as a distinctive condition. The line between servant and slave was hazy in the early colonies; in fact, the defining features of slavery would be contested clear through Reconstruction. In addition, many of the legal disabilities imposed on colonial bondsmen in their various forms—on slaves and servants of African, European, or Native American descent—were suffered by many “free” peoples: Native Americans, propertyless men regardless of their origins, and women. For early colonial thinkers, then, the problem of slavery was really a problem of degree.
But by the time of the Constitutional Convention, slavery was sufficiently distinct in form and fact to pose a peculiar challenge to the new nation’s political principles. The gradual separation of slave from servant happened principally as a matter of historical accident, and so too did the gradual correlation of color and condition. But, accident or not, these happened all the same, and by 1787 there was no longer mistaking slavery with any other form of servitude. To be sure, oppression, subordination, and exclusion persisted to varying degrees for many groups. But if these hardships constituted a continuum for eighteenth-century Americans, chattel slavery marked its logical extreme. For the slave, as for no other group, the disabilities were both complete and perpetual: the slave had, by nature, no cognizable rights, and was, also by nature, in every sense the inferior of the citizen. Slavery had become the dichotomous referent for American liberty and equality; thus most historians agree with Edmund Morgan’s appraisal that the concurrent rise of liberty and equality, on the one hand, and the institution of African slavery, on the other, would become “the central paradox of American history.”6
But as Morgan and others have noted, the paradox is not mere coincidence: liberty and equality, as America’s founders came to conceive them, were in fact deeply dependent on slavery. Consider:
Slavery provided a frame of reference for the American conception of liberty and an omnipresent reminder of the horrors of lost freedom. The rhetoric of the American Revolution never really did match the reality: the revolt itself had not been a popular one (at most a third of Americans had sought independence, and most of those for economic reasons) and, with perhaps one significant exception, independence had generally failed to produce social change. But the promise of its principles—of liberty and equality—offered a unifying theme for a new people, and slavery offered the rhetorical counterpoint. At the convention, then, Luther Martin could protest the proposed congressional electoral schemes by insisting that the smaller states would be “enslaved,” while in a radically different context, Benjamin Franklin could caution against the perpetual “servitude” of legislators. It was a pattern that would persist for generations: each compromise of freedom was liable to be condemned as slavery. Interestingly, no class was more ready to level the charge than the slaveholders: they were ever vigilant against “enslavement” by the Federalists, abolitionists, or the North. Perhaps, as Morgan suggests, “Virginians may have had a special appreciation of the freedom dear to republicans, because they saw every day what life without it could be like.” In a certain sense, their commitment to liberty and freedom was there at the beginning, even if it once served different goals: the first Virginia colony—at Roanoake—was founded to liberate African and Indian slaves from the Spanish.7
Slavery became the litmus test of American liberty, which embraced, above all other rights, the right to own property, including slaves. The almost incomprehensible notion of “human property” filled the law of slavery with contradictions: the ascendant liberal conception of property held that it must be freely alienable, and it abhorred perpetuities, but the law of human property fully consigned labor—it was freely alienable only for those who sold themselves into bondage—and maintained those laborers in perpetual bondage. The contradictions, of course, were a matter of perspective: for the slaveholder, the law was merely vindicating the rights in this species of property, on terms roughly commensurate with others. Thus Locke, who denounced hereditary slavery, was cited to support the natural rights of slaveholders; and Montesquieu’s condemnation of slavery as “absolute power” was used to define the slaveholder’s rights. Ultimately, respect for these peculiar property rights became the test of liberty, as well as the precondition to union. Speaking at the Philadelphia convention, Pierce Butler of South Carolina insisted that “[t]he security the South” States want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do.” And, according to Madison’s notes on the convention, General Charles Cotesworth Pinckney “reminded the Convention that if the Committee should fail to insert some security to the Southern States ag* an emancipation of slaves, and taxes on exports, he shdbe bound by duty to his State to vote agst their Report.” Pinckney, of course, did not have to make good on his threat.8
Slavery made possible the universal grant of liberty to freemen by removing from the body politic those groups—labor and the poor—that otherwise posed the chief threat to the political order. Federalists and Republicans shared a fear of the mob: the “faction” that most worried both groups was the democratic majority. But they fashioned quite different solutions. For the Federalists, the passions of the democratic masses needed to be filtered through a more-or-less representative elite—more representative for Madison even before his republican conversion, less representative for the likes of Adams and Hamilton. For the Republicans, the problem had been solved by slavery. The mostly white freedmen in the colonial South always seemed to be on the brink of rebellion: they were largely disempowered because they owned no property, and they were largely without property because of a very artificial land scarcity. Slavery eased the threat posed by the freedmen: with slavery, the number of indentured servants decreased and so too, then, the number of men turning free. Those who were free simply needed to be persuaded that they shared the interests of the master class, a cause advanced principally by the drawing of the color line. Of course, slaves posed their own threat of rebellion, but the conditions of bondage and the harshness of the reprisal (slaves who participated in insurrections faced grisly “exemplary deaths” by slow burning, dismemberment, or by being hanged in chains) tended to mitigate the threat. As a result, slaves proved less dangerous to the privileged class than did free or semifree labor, and the latter groups reaped some of the benefit. As Morgan concludes, “Aristocrats could more safely ensure personal equality in a slave society than in a free one. Slaves did not become leveling mobs.”9
Slavery provided the economic security needed to permit liberty. It is easier to afford liberty in times of social peace and economic stability, and slavery helped ensure both conditions. In fact, slavery helped ensure American independence: the Revolution itself would not have been possible without the funding secured by tobacco exports, and production of that crop, of course, was in turn made possible by slavery. Fitting, then, that the Virginia Assembly voted in 1780 to reward Revolutionary soldiers with three hundred acres and a slave.10
Slavery provided the measure of relative liberty and equality among the white population. By the mid-eighteenth century, the plantation owner, the yeoman farmer, and even the white indentured servant had this in common: they were not slaves. They were, relatively, equal, and they were, as opposed to black Americans, all free; it was true in fact and theory. By the nineteenth
