Dark Bargain

by Lawrence Goldstone

  Portraying America's Founding Fathers as grasping profiteers made Beard a reviled figure in mainstream academia. After he resigned from Columbia in 1917 to protest the university's refusal to reappoint several professors who opposed American involvement in World War I, he never received another university appointment.15

  Although Beard readily admitted that the work was "fragmentary" and "designed to suggest new lines of historical research rather than to treat the subject in an exhaustive fashion," his analysis stood relatively unchallenged for more than forty years, and stuck in the craws of conventional historians for every minute of that time. Finally, in 1956, Beard was seriously challenged when a professor at Michigan State University, Robert E. Brown, published a rigorous critical analysis titled Charles Beard and the Constitution. Two years later, a young researcher in Wisconsin named Forrest McDonald published We the People: The Economic Origins of the Constitution, and Beard's edifice collapsed.

  McDonald, as conservative as Beard was radical—he was a state chairman for Barry Goldwater in 1964 and has been a prominent contributor to both The National Review and the Heritage Foundation—confronted Beard on his own ground and demolished his arguments. Where Beard was superficial, McDonald was meticulous; where Beard generalized, McDonald was specific; where Beard droned, McDonald wrote with wit and panache. He exposed Beard's simple division into real property and paper assets as simplistic, mis leading, and often just plain wrong. After We the People, only the most radical New Leftists ever took Beard seriously again.

  McDonald's treatment of slavery was also more nuanced, dividing slave holders into three categories: those to whom slaves were an auxiliary labor sup ply; those whose livelihoods were based on slavery, but to whom slaves' economic value was questionable; and those to whom slavery was both practical and necessary.16 Still, McDonald was unwilling to ascribe root cause to the needs of slaveholders, allowing slavery to be one of those facets of early Ameri can life that existed but did not seem to matter all that much.

  In recent years, constitutional analysis has evolved beyond both Beard and McDonald. Practical realities are often substantially ignored, and the delegates in Philadelphia are now often portrayed as little more than repositories for political philosophy. Constitutional scholarship has become, therefore, predominantly a study of ideas and, with the document itself a product of theory, the great compromises become simply the willingness of the nation's leading citizens to moderate differing abstract points of view to achieve a higher end.

  In most contemporary chronicles, a small number of cerebral delegates-Madison, Hamilton, Franklin, or even the recently resurrected Gouverneur Morris—are portrayed as having produced virtually the entire document among themselves. Men such as Charles Cotesworth Pinckney have evaporated into little more than footnotes to the proceedings. Slavery has no real place in such a construction and, as a result, has once again been relegated to a minor determinant or none at all.17

  The major question in constitutional scholarship, still unresolved, is whether the convention was a meeting guided by philosophy and political theory, with a nod to practical exigencies, or one of hardheaded practicality where self-interest was justified by lofty argument.

  Edmund Wilson, in his transcendent To the Finland Station, devoted his first chapters to the extraordinary nineteenth-century French historian Jules Michelet. Before Michelet, history had been "a series of biographies of great men," and Michelet saw a need to "clear the gods and heroes away." Michelet, according to Wilson, was one of the first in his field to "grasp fully . . . the organic character of human society and the importance of reintegrating through history the various forces and factors which actually compose human life."18

  Nothing could be more true of constitutional history. The story of the forging of the Constitution is as much a study of the forces and factors that comprised American life as it is a stringing together of the political theories of Madison, Hamilton, and Franklin. Many of those forces are no different than those we experience today—a desire for security, economic self-interest, opportunity for personal enrichment, and protection of a way of life. Two of the most dominant forces in the America of 1787, however, are no longer present. The first was a relentless drive to expand the nation's borders; the second was the institution of human slavery. Each bore heavily on the other.

  It is crucial to an understanding of the events in Philadelphia that those who participated in the debates not be deified, demonized, or seen merely as extensions of ideas. These were fully formed human beings with virtues, frailties, aspirations, jealousies, and aims both petty and grandiose. They could be alternately sophisticated or naive, manipulative or gullible. The degree to which Americans can know these men, appreciate how they saw themselves in their surroundings, walk in the door with them in May 1787, is the degree to which they can understand how and why their Constitution was created as it was.

  "Michelet," Wilson added, "always shows [remarkable men] in relation to the social group that has molded them and whose feelings they are finding expression for, whose needs they are attempting to satisfy."19 The men who came to Philadelphia that summer of 1787 operated overwhelmingly not as disinterested philosophers but as pragmatic advocates for the interests of their states, their regions, and their distinctly disparate social systems. That they did so, that they were interested in practicalities and not theory, enabled them to draft a Constitution that worked in the very real world in which they lived.

  The convention itself is generally depicted as, if not a monolithic event, at least as one in which the same members were dominant throughout, none more so than Madison. But the tone of the debates changed drastically during the four months. They may have begun with discussions of theories of government, but theory was abandoned as negotiations became increasingly serious and specific. As the weeks wore on and the proceedings tended more and more to practical politics, slavery came progressively to the fore, until, at the end of August, it drove a wedge into the convention that almost wrecked the entire affair. With the shift in mood came a shift in the men who wielded real power.

  This narrative will focus primarily on four of those men. Two owned slaves; two did not. Two were wealthy; two were not. Three signed the finished Constitution; one refused. The three who signed—Oliver Ellsworth and Roger Sherman of Connecticut, and John Rutledge of South Carolina—had arrived in Philadelphia in May as dubious nationalists, fully expecting to oppose any plan that placed too much power in the central government. The one who refused—George Mason of Virginia—had arrived as an enthusiast for a more dominant central government. When the meeting adjourned on September 17, each of these four had reversed his position and slavery was in large part responsible. The reasons for the change in attitudes underscore the essential dynamic of the Philadelphia convention.

  *This is why General Pinckney had felt free to misrepresent the proceedings. The general was not alone in employing this tactic. It was widely used by former delegates during the ratification process.

  2. RELUCTANT NATION: THE ARTICLES OF CONFEDERATION

  The seeds of the struggle for sectional supremacy that would dominate the Philadelphia convention were sown decades earlier, when three distinct societies grew up in the colonies, each largely determined by the role of slavery in the labor force. Sectionalism did not percolate in earnest, however, until the early 1780s, during the first feeble efforts to forge a single, cohesive nation.

  Few countries have emerged with less enthusiasm for unity than the United States. From the Stamp Act Congress in 1765 until the delegates convened in Philadelphia twenty-two years later, most Americans bore primary allegiance to the state within which they lived, and the notion of abandoning that identity to be part of a larger whole was preposterous.

  Even during the Revolution, when there was grudging acknowledgment of the need for some cooperative authority to help manage and support the war effort, parochial considerations overwhelmed nationalism. In 1775, Benjamin Franklin drafted a proposal
to form a national government and presented it to the Continental Congress. It was studiously ignored. A few months later, Silas Deane submitted another version, and Connecticut's congressional delegation offered a third, both proposals suffering the same fate as Franklin's.1

  Finally, at the same time as a committee was formed to draft a declaration of independence, John Dickinson of Pennsylvania2 was asked to head another committee to establish some ground rules for a new central government. The plan he presented in June 1776, which he called "Articles of Confederation," was more to Congress' liking than Franklin's or Deane's, but only after seventeen months and two major revisions was a final, much weaker draft offered to Congress in November 1777.3 Even so, "The debates . . . over the formation of the Confederation were essentially involved with state interests . . . only the debates over representation . . . touched on the nature of union and the problem of sovereignty, and even here the polemics were tied closely to individual state interests."4 Nationalists, such as John Adams and James Wilson, cried in the wilderness that "we are not so many states; we are one large state."5

  John Dickinson

  Drafted in war, Dickinson's plan was concerned primarily with establishing a workable mechanism for mutual defense. Avoiding any hint of a transfer of autonomy, he called the new compact a "League of Friendship," in which, "Each Colony shall retain and enjoy as much of its present Laws, Rights and Customs, as it may think fit, and reserves to itself the sole and exclusive Regulation and Government of its internal police, in all matters that shall not interfere with the Articles of this Confederation." The final version made this clause even stronger. "Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled."

  There were other differences between Dickinson's first draft and the final version, some of which presaged divisions in Philadelphia a decade later. Article XI of the draft read, "All Charges of Wars and all other Expences that shall be incurred for the common Defence, or general Welfare, and allowed by the United States assembled, shall be defrayed out of a common Treasury, which shall be supplied by the several Colonies in Proportion to the Number of Inhabitants of every Age, Sex and Quality, except Indians not paying Taxes."

  The southern states were furious—the clause made no distinction between slaves and white men. Slaves were property, not people, and Dickinson's lack of awareness was offensive. At the same time, southerners refused to be taxed on their slaves. If population were to determine apportionment of taxes, they insisted, white people alone should be counted; if it were property, land and improvements should be the basis.

  In the middle of a conflict that was then being fought largely in their part of the country, northerners were none too eager to engage in extensive discourse as to the sociopolitical status of slaves, and so, setting the pattern for the debates to come, northern congressmen gave slaveowners their way. The final, tortuous version read, "All charges of war, and all other expences that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the value of all land with in each state, granted to or surveyed for any Person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the united states in congress assembled, shall from time to time direct and appoint." Unlike simply counting people, however, assessing the value of property could be subjective to the point of meanmglessness.*

  To further appease the southerners, one other clause was inserted: "If any Person guilty of, or charged with treason, felony, or other high misdemeanor in any state, shall flee from Justice, and be found in any of the united states, he shall, upon demand of the Governor or executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offence." Thus, even if slaves were lucky enough to successfully escape bondage, they could no longer find sanctuary anywhere in the new nation. And so, the fugitive slave clause was born.

  The revised Articles of Confederation were presented to the states for approval. As they considered the plan in 1779, Washington was desperately trying to hold the Continental army together. The great victory at Saratoga aside, defeat seemed inevitable without a concerted effort across the entire Union. Nonetheless, ratification stalled.

  States with claims to western territories—Massachusetts, Connecticut, the Carolinas, Georgia, and especially Virginia—wanted to retain their western lands as state domain (although overlapping claims often left unclear which state owned what), while states with no claims, such as Maryland, New York, and Rhode Island, bigheartedly viewed western territories as the property of all.6 The landed states countered that the landless states were only interested in opening the West for speculation, a charge with more than a dollop of truth in it.

  The Articles of Confederation

  At first, the landless states refused to ratify the Articles, but one by one they came around, until, by late 1779, every state had agreed to the Articles, except Maryland. Maryland would not budge. Its legislature issued a statement that insisted "the back lands . . . if secured by the blood and treasure of all, ought in reason, justice and policy, to be considered a common stock, to be parceled out by Congress into free, convenient, and independent Governments." This lofty sentiment was somewhat undercut when Maryland wished to exempt from joint ownership any territory staked out by its own speculators.7

  Since universal suspicion of authority had given each state a veto power over adoption—unanimous approval was required to put this league of friendship into effect—Maryland found itself in an enviable bargaining position: It could hold out for the absolute best deal.

  What Maryland wanted was for the landed states, especially Virginia, to cede their territorial claims in the West to the nation as a whole, so that Maryland speculators might have an equal shot at the riches. Only after Virginia agreed to do just that (and Maryland decided that it needed the strength of a national government to ward off a feared attack by Benedict Arnold on Chesapeake Bay) did Maryland agree to "rise above their principles" and provide the last link to confederation on March 1,1781. Maryland's principles were further compromised when Virginia included a clause that expressly nullified Maryland's land claims. Still, the United States of America (as Dickinson had termed the nation in his draft) was finally a country. "Thus in the last, and most brilliant period of the war, while Greene was leading Cornwallis on his fatal chase across North Carolina, the confederation proposed at the time of the Declaration of Independence was finally consummated."8

  Once the Articles had been ratified, the Congress of the new United States moved with uncharacteristic speed to establish ministries of war, finance, and foreign affairs. Unfortunately, Congress picked a particularly unsuitable man to head each of the three.

  Robert Morris, while an obvious choice for superintendent of finance, was also a man for whom the term "conflict of interest" might well have been coined. Possessed of perhaps the most astute economic sense in the entire nation, he had kept the country afloat during the war through a series of the same sort of book-juggling maneuvers that would eventually break him and send him to debtors' prison and a penniless death. From the first, many suspected Morns would look upon his new post more as an opportunity for personal gain than as a sacred trust from a nation in need.*

  As superintendent for foreign affairs, Congress tapped Robert Livingston, an able man with a distinguished career ahead of him—he would eventually swear in President Washington in 1789—but who in 1781 was a close associate of Morris and could therefore be expected to use his office to fashion deals with foreign governments more in the interests of speculators than of the new nation. He left the foreign affairs ministry less than a year later, before he had a chance to prove his detractors correct; still, no one mourned his departure.

 
But by far the worst choice was for secretary at war, where, astoundingly, Congress elected the utterly incompetent Benjamin Lincoln. Lincoln's most noteworthy achievement had come in South Carolina, where he had allowed his entire army to be captured after a bungled attempt to break the siege at Charleston. His only military success was still six years away, and that would be over a bunch of poorly organized farmers in Massachusetts, one of whom was named Shays.

  The nation could ill afford such blunders since, even after the Treaty of Paris of 1783 ended the war, threats to the survival of the United States had in no way disappeared. Regardless of the treaty's specific stipulations, British troops remained lodged in New York and British forts continued to dot American territories in the Northwest. What's more, Britain closed its West Indian ports to American produce while continuing to sell its goods to Americans who craved them, thereby deepening the economic crisis. Protests by John Adams, the new ambassador to England, were barely acknowledged.

  Relations with other European nations were equally inauspicious. The Spanish feared the growing American presence on the east side of the Mississippi and renewed their threats to close New Orleans to American commerce. Even France, whose support for the fledgling democracy had been crucial in preventing Washington's army from being annihilated, began to make commercial and diplomatic demands as if the new nation were now a part of its empire.