[Chapter 19 of Rothbard’s newly edited and released Conceived in Liberty, vol. 5, The New Republic: 1784–1791.]
The most important battle of the August days of the Constitutional Convention was waged, as had been the battle over the three-fifths clause, between the North and South and had at its heart the institution of slavery. One of the small number of restrictions on Congress in the draft Constitution was a prohibition of any tax on exports, or of any tax or prohibition on the “migration or importation of such persons as the several States shall think proper to admit”; in short, there was to be no restrictions on the slave trade. Furthermore, no navigation act could be passed except by a two-thirds vote in each house of Congress: a hallmark of the southern distrust of the northern merchants, one of whose many goals in the drive for a Constitution was to privilege themselves through a navigation act that would cripple the competition of foreign shippers in the southern foreign trade. All of these provisions were friendly to the South: two (the export tax and navigation clauses) were designed to preserve freedom of southern trade against northern attempts to seize privileges or revenues from the South; one (on the importation of slaves) was designed to preserve the traffic in slaves.
Already, Gouverneur Morris in early August had made an unsuccessful attempt to rescind the three-fifths clause decided upon in July, and Mason and the South were joined by Massachusetts and Connecticut in opposing the prohibition of exploiting the (as existing) minority South through export taxation. Then, on August 21, the slavery issue burst forth once more. Luther Martin of Maryland began proceedings by demonstrating that he was interested in individual liberty as well as states’ rights. Martin flatly proposed a prohibition or a tax on the importation of any slaves, for the encouragement of slavery embodied in the three-fifths clause “was inconsistent with the principles of the revolution and dishonorable to the American character.” John Rutledge replied in an interesting and revealing manner: in defending the slave trade, Rutledge insisted that “Religion & humanity had nothing to do with this question—Interest alone is the governing principle with Nations.” In short, moral principle was to be turned over in favor of vested economic interest; or, rather, vested economic interest was to be elevated to the status of “moral” principle overriding all other considerations. Charles Pinckney used slightly different tactics and upheld empirical evidence and custom over moral principle: “If slavery be wrong, it is justified by the example of all the world…. In all ages one half of mankind have been slaves.” Pinckney, of course, was speaking from the vantage point of the slave-owning “half” rather than the enslaved. His second cousin, Charles Cotesworth Pinckney, added flatly that “S. Carolina & Georgia cannot do without slaves” (i.e., the slave-owners, not the enslaved inhabitants, of these states could not make do). Pinckney also used a primitive Keynesian multiplier analysis to “demonstrate” the benefits of slavery and slave importation for the whole country: “The more slaves, the more produce to employ the carrying trade; The more consumption also, and the more of this, the more revenue for the common treasury.” Both Pinckney, Rutledge, and Abraham Baldwin of Georgia threatened dissolution of the convention if it should interfere in any way with the slave trade.1
One interesting aspect of the decision was George Mason’s eloquent speech denouncing the slave trade and even slavery itself. He insisted that only South Carolina and Georgia still permitted slave imports and denounced the immorality, tyranny, and sins of slavery. Mason denounced northern merchants who had engaged in this traffic and urged that Congress have the power to prevent the slave trade. Charles Cotesworth Pinckney and Oliver Ellsworth of Connecticut, in reply, staunchly pointed to the reason for Virginia’s eloquence in attacking the slave trade. Since the Virginians, despite the eloquence and depth of Mason’s attack, were not after all proposing to proceed against slavery itself, Ellsworth and Pinckney saw in the Virginians’ stand the new makings of a vested economic interest of this aim: slave breeding. As Ellsworth trenchantly pointed out:
If it [slavery] was to be considered in a moral light we ought to go farther and free those already in the Country.—As slaves also multiply so fast in Virginia & Maryland that it is cheaper to raise than import them, whilst in the sickly rice swamps [further South] foreign supplies are necessary, if we go no farther than is urged, we shall be unjust towards S. Carolina and Georgia.
Similarly, Pinckney stated “as to Virginia she will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants.”
Both Ellsworth and his Connecticut colleague Roger Sherman tried to justify their acceptance of the slave trade by lightly and complacently opining that all the states would eventually abolish slavery themselves “by degrees.” Sherman expressed his opinion that such an issue should not obstruct the business of forming a new Constitution. John Dickinson attacked the slave trade as “inadmissible on every principle of honor & safety,” and James Wilson wryly observed that if defenders of the right of the slave trade were maintaining that South Carolina and Georgia would probably soon abolish it themselves, then there was no reason for them to stay out of a Union that might prohibit that trade.
In the midst of this critical rift, however, Gouverneur Morris, who had been one of the loudest talkers against slavery and had deemed it as “a nefarious institution” and “the curse of heaven,” now proposed a “bargain”: the slave trade, export tax, and navigation act clauses should all be recommitted to a special committee, and “these things may form a bargain.” In short, Morris realized that the benefits of special privilege to northern merchants in a navigation act would undoubtedly outweigh in the minds of northern delegates the attraction of an abstract principle.
The export tax and slave trade clauses were then referred to a special committee, one member from each state, by a vote of 7–3. Those who held out against Morris’ corrupt bargain were New Hampshire, Pennsylvania, and Delaware (Massachusetts was absent). On committal of the restrictive clauses in the navigation act, only Connecticut and New Jersey voted nay. In the course of the debate on this committal, Nathaniel Gorham of Massachusetts said very revealingly: “He desired it to be remembered that the Eastern States had no motive to Union but a commercial one.”
Two days later, on August 24, the grand committee returned with its dearly agreed upon bargain: (1) the importation of slaves could not be prohibited until 1800, but Congress could tax such imports at a rate no higher than the average duty on imported goods (the latter concern had already been hinted at by Rutledge and Charles Cotesworth Pinckney); (2) the two-thirds requirement on navigation acts was dropped. The northern (especially New England) merchants had the power to impose navigation acts, and the slave trade was to be tightly insulated for over a decade.
The first move on the committee report was Charles Cotesworth Pinckney’s amendment, which proposed to extend the term of an inviolate slave trade from 1800 to 1808—thus providing the slavers a twenty-year grace. Most significantly, Gorham of Massachusetts, who was the delegate most anxious to impose a navigation law, seconded Pinckney’s motion. Over the strenuous objections of James Madison, the twenty-year term was approved by 7–4 (only New Jersey, Pennsylvania, Delaware, and Virginia voted no). Not only Maryland but all of shipping-oriented New England voted cozily with the hardened slave states of the Deep South. After the maximum duty on imported slaves was changed to ten dollars per person, the slave-trade clause of the bargain was passed by the identical 7–4 vote.
At this point, on August 29, Charles Pinckney dramatically moved to scuttle the bargain with the North by proposing to restore the two-thirds requirement, not only for navigation acts, but for any law “for the purpose of regulating the commerce of the U.S. with foreign powers.” Pinckney eloquently denounced “oppressive regulations” that would be imposed by a tyranny of a majority of the North’s commercial interests. The liberal Luther Martin eagerly seconded the motion, and George Mason backed the proposal as protecting the rights of the southern minority. The North of course opposed Pinckney’s proposal on behalf of freedom of trade. The shocked George Clymer of Pennsylvania protested that “the Northern & middle States will be ruined, if not enabled to defend themselves against foreign regulations.” Gouverneur Morris indignantly protested, in the usual argument from paradox of the ultras, that navigation acts would really benefit the South. First, subsidies to American ships will multiply them and eventually make the shipping trade cheaper than at present—i.e., the southerners should sacrifice the current and foreseeable economy for a purportedly improved one in some distant and indefinite future. Second, only a navigation act subsidizing American shippers and seamen could build an American navy “essential to security, particularly of the S. States,” from some unspecified menace. The fact that the liberal opposition remained unconvinced by these specious arguments did not of course allay the enthusiasm of Morris and the other nationalists for the navigation acts.
The other ultra-nationalists of course objected to any such restriction in national power. James Wilson fumed at the problems of the minority and called for unchecked majority rule. Madison, picking up the sophistry of the proto-Keynesian multiplier from Charles Cotesworth Pinckney, maintained the nationalist paradox: the navigation subsidies would really benefit the South by increasing the wealth of the East and hence the consumption of southern products, and therefore all this would be a “national benefit.” As in all such multiplier paradoxes, the contra-“multiplier” effect of not spending the money seized to pay the subsidy, or the effect of coercively diverting trade from its most efficient and profitable channels, was conveniently overlooked. For his part, the blunt Nathaniel Gorham of Massachusetts was far more candid: to Gorham, the substance was simple and the threat explicit: “If the Government is to be so fettered as to be unable to relieve the Eastern States what motive can they have to join in it.”
Most illuminating were the statements of those southerners who were willing to betray the interests of the traders and the consensus of their sector, and indeed of the consensus of the country, for the sake of the corrupt bargain to save the slave trade. Pierce Butler announced his distaste of navigation acts, but he frankly opposed the motion of his South Carolina colleague in order to “[conciliate] the affections” of the eastern states. And John Rutledge warned that a navigation act was necessary for New England’s desire to secure the West Indies trade. After all, declared Rutledge, taking the grand view, “we are laying the foundation for a great empire.” But it was Charles Cotesworth Pinckney, one of the architects of the bargain, who delivered the fullest rebuttal to his cousin’s motion against navigation acts. He admitted that “it was the true interest of the S. States to have no regulation of commerce.” But the eastern states (New England) had lost much commerce since the Revolution, and “considering … their liberal conduct towards the views of South Carolina” on importing slaves “he thought it proper that no fetters should be imposed in the power of making commercial regulations.” Charles Cotesworth Pinckney ended in a remarkably oleaginous note: prejudiced against the New Englanders before the convention, he now found them good fellows indeed: “as liberal and candid as any men whatever.”
With this arrival of the compact by the leadership of the Deep South, the entire bargain was truly sealed. The bargain essentially benefited New England ship-owners and the southern slave owners at the expense of consumers and other beneficiaries of the freedom of trade. Charles Pinckney’s motion was then voted out of order by a vote of 7–4, and the scuttling of the navigation act clause was then approved unanimously. This scuttling was later reaffirmed again in a desperate attempt to restore the clause by George Mason. It was not, apparently, enough for the northerners to sell their anti-slave principles for the sake of a strong national government and navigation subsidy to eastern ship-owners. In the spirit of happy harmony and good fellowship now permeating the convention, the assembled notables helped fasten far more securely the chains of black slaves in America. The draft Constitution had simply provided that any slave escaping to another state should be extradited to the original state. Pierce Butler of South Carolina moved to add to this clause a fugitive slave (and servant) law, a motion that passed the convention not only unanimously but without one iota of debate. This infamous clause expressly provided that even if slavery had been abolished in the state to which the slave may flee, it must deliver up the slave on demand of his master.
Slavery was now driven into the heart of the Constitution: in the three-fifths clause, in the protection of slave importation for twenty years, in the fugitive slave clause, and even in the congressional power to suppress insurrections within the states. The fact that the words “slave” and “slavery” do not appear explicitly in the Constitution does not change unduly this judgement. Indeed, the habitual use of such terms as “other persons,” “such person,” or “Person held to … labor,” instead of “slave,” were simply shamefaced evasions by men who knew that they were betraying anti-slave principles dominant in their constituencies. To Luther Martin, therefore, the American Constitution was a grave betrayal of the idea of equal rights set forth in the Declaration of Independence. The Revolution, Martin strikingly declared, was grounded in defense of the natural, God-given rights possessed by all mankind, but the Constitution was an “insult to that God … who views with equal eye the poor African slave and his American master” [italics in original].2
Another deep failing of the Constitution from the standpoint of liberty was the failure to include a bill of rights—a prohibition against governmental interference with individual rights. All of the revolutionary state constitutions had included these cherished provisions, and on August 20 Charles Pinckney proposed clauses that amounted to a bill of rights, to a list of prohibitions on national government interference with individual freedom. Pinckney urged that the freedom of the press be “inviolably preserved,” and that soldiers may not be quartered in homes in peacetime without the owners’ consent. During the final act of the convention in mid-September, Elbridge Gerry and Hugh Williamson of North Carolina urged the requirement of jury trials in civil cases as well as criminal, Gerry warning of the “necessity of Juries to guard agst. corrupt judges.” This prompted George Mason, the author of the great Virginia Bill of Rights, backed by Gerry, to move for a committee to propose a bill of rights for the Constitution. But Gorham and Sherman protested that Congress “may be safely trusted,” and the convention, so feeble was its devotion to liberty, voted unanimously against any bill of rights. Pinckney and Gerry soon returned to the attack, moving to insert a clause “that the liberty of the Press should be inviolably observed.” Sherman scornfully asserted that the power was “unnecessary” since Congress had no power over the press, and the convention then voted the freedom of the press clause down by a vote of 4–7 (it was backed by Massachusetts, Maryland, Virginia, and South Carolina).3
[The numbering of the footnotes in this article differs from that in the original book. Please consult the book for all notes.]
- 1. [Editor’s footnote] For more on South Carolina and Georgia’s views regarding the slave trade, see Conceived in Liberty, vol. 4, pp. 1293–94; pp. 179–80.
- 2. Lynd, “The Abolitionist Critique of the United States Constitution,” pp. 238–39. On the bargain over slavery, also see Merrill Jensen, The Making of the American Constitution (Princeton, NJ: D. Van Nostrand Co., 1964), pp. 90–94.
- 3. [Editor’s footnote] Farrand, The Records of the Federal Convention, vol. 2, pp. 183, 221, 364–74, 449–53, 524, 587, 617.