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“Thomas Jefferson, the Constitution and Slavery” By Clark S. Judge

The weekly column from Clark Judge:

“Thomas Jefferson, the Constitution and Slavery”
By Clark S. Judge: managing director, White House Writers Group, Inc.; chairman, Pacific Research Institute

It was William Faulkner who wrote, “The past is never dead. It’s not even past.” How we understand the origins of our institutions and the men and women who shaped them shapes what we value about them now. It informs what we keep and what we change and what we build that’s new.

Last month, on 4th of July weekend, I found myself thinking about Thomas Jefferson and slavery. You know the derision directed at the author of the Declaration of Independence on this topic — and, in some quarters, at the legitimacy of the entire American project in light of his and the other Founders’ failure to abolish slavery at the country’s start.

I have a different view.

Yes, we have all read Mr. Jefferson’s impassioned denunciations of slavery and listened to charges that, despite those fine words, he made scarcely a move to end it. I could answer that words are action, particularly Thomas Jefferson’s words. For it mattered that the Declaration of Independence was written as it was, that the nation was established with an unequivocal statement of principles, a statement that was incompatible with slavery and that for the next 87 years lay as a weight —in the end a crushing weight — over the presence of human bondage in this country.

But the fact is that Jefferson also took a major political action to end slavery, and, as fully as his words, that action ultimately decided the matter.

The story starts shortly after independence. Jefferson and his Virginia allies embraced a four-point project for the democratization of their state. As Henry Adams reports in his history of the U.S. during Jefferson’s presidency, close ties to Britain had been the strongest of the props of Virginia “society”:

[A]fter this had been cut away by the Revolutionary War, primogeniture, the [state sponsorship of the Episcopal] Church, exemption of land from seizure for debt, and negro slavery remained to support the oligarchy of planters. The momentum given by the Declaration of Independence enabled Jefferson and [Constitutional Convention delegate and Jefferson teacher and mentor] George Wythe to sweep primogeniture from the statute book. After an interval of several years, Madison carried the law which severed Church from State. There the movement ended. All the great Virginians would gladly have gone on, but the current began to flow against them. They suggested a bill for emancipation, but could find no one to father it in the legislature, and they shrank from the storm it would excite.

Jefferson, however, did not stop there. My authority for his next attack on the peculiar institution is Abraham Lincoln. On October 10, 1854, Lincoln delivered his famous Peoria speech on the Kansas-Nebraska Act or, as he put it, the repeal of the Missouri Compromise. As Lincoln explained:

When we established our independence… [Virginia] owned the North-Western Territory – the country out of which the principal part of Ohio, all Indiana, all Illinois, all Michigan and all Wisconsin, have since been formed…. The question of ceding these territories to the general government was set on foot. Mr. Jefferson… conceived the idea of taking that occasion, to prevent slavery from ever going into the north-western territory. He prevailed upon the Virginia legislature to adopt his views, and to cede the territory, making the prohibition of slavery therein, a condition of the deed. Congress accepted the cession, with the condition….

So the law for which Jefferson could not win passage when it applied to the settled part of Virginia he succeeded in getting applied to the largely unsettled part. But why did he bother? Discussing Jefferson’s Louisiana Purchase, Joseph Ellis, in his 1998 best-selling study of the man, American Sphinx, writes of:

… the special almost mystical place the West had in [Jefferson’s] thinking… For Jefferson more than any other major figure in the revolutionary generation the West was America’s future. Securing a huge swatch of it for posterity meant prolonging for several generations the systemic release of national energy that accompanied the explosive movement of settlements across the unsettled spaces.

What I am saying is that as early as the 1780s Jefferson foresaw that explosive movement into unsettled spaces. Using the grant of Virginia’s northwestern territories to the national government, he contrived to ensure that states that emerged from those lands would be free and their populations would oppose perpetuation of slavery.

Clearly, the (using Henry Adam’s term) Great Virginians viewed slavery as a horrible conundrum. They had, after all, put their lives fortunes and sacred honor on the line for government by consent of the governed and the equal dignity of all people, principles they recognized as incompatible with the organization of their own plantation economy. But they knew that a frontal assault on slavery would rip apart their society and the country, most likely ending the American experiment scarcely after it began. What to do?

Their answer (not just Jefferson’s) was to encourage slavery’s gradual suffocation. Let measures such as the constitutionally sanctioned 1807 banning of slave importation and the energy of free farming render the slave economy unsustainable and obsolete.

Some have pointed out to me that Jefferson later argued for the diffusion of slavery through the trans-Mississippi territories. That was at the time of the Missouri Compromise, 1820. The Missouri crisis and the accompanying Congressional intervention forced him to face that his generation’s formula of keeping slavery primarily a state issue until it withered away was not working. His panicked and despairing writing on the compromise (the federal government’s first move in a different direction) shows that he saw no alternative to this approach but war between the states. He anticipated that that war would prove horrific and the death of the nation. Horrific it was. But the nation survived, thanks in no small part to all the multitudes that had come to inhabit those Northwest Territories.

For it is impossible to imagine Lincoln emerging or the Union winning the Civil War had these states and their populations been neutral to, or supported, slavery? As it was, migration from the South into their southern halves made Indiana and Illinois close calls for union, even with slavery banned in them.

The Constitution and the Northwest Ordinance (which Congress passed even as the Constitutional Convention was in session) together comprised a brave and brilliant solution to an almost unsolvable puzzle. They set in train political and demographic developments that ultimately allowed for the impossible combination of abolition and the Republic’s survival.

In sum, Jefferson put the demographic and political weight of his states-to-be on the side of freedom. He hoped that by doing thus slavery would melt peacefully away, which did not happen. But when conflict came, the Midwest’s by-then-enormous population – not to mention the leadership of such Midwesterners as Lincoln and Grant – determined the outcome.

The free states of the Midwest cast Jefferson’s final vote against slavery and for the unalienable right of all to liberty.

Question: If you had been at the Constitutional Convention, would you have voted to end slavery in the United States then and there, or at least immediately to have ended the slave trade, not waited to 1807? Before you answer, consider: those attending the convention understood with crystalline clarity that the American Revolution had been won because the colonies had stuck together and that breaking apart would pose a mortal danger to all. While the delegations of Virginia and possibly North Carolina were ready to end the slave trade as a first step to doing away with slavery itself, the South Carolinians and Georgians announced that their states would go their own way if the convention took any move in that direction. South of Georgia lay what we now call Florida, but what was then Spain. Spain and Britain divided the new country’s western and northern borderlands. The British navy (the world’s largest and most capable) could control the seas to the east whenever they chose. Now, all things considered, how do you vote… and why?

A version of this essay was previously posted here: http://bit.ly/1oLQ4Yo

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    Hugh Hewitt
  • Hugh Hewitt is a lawyer, law professor, and broadcast journalist. A proficient blogger, Hugh Hewitt has one of the most visited political blogs in the U.S.

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