GOP: Slavery and Disenfranchisement of Women Were Features, Not Bugs

by Eric Martin

Via Adam Serwer, here's an interesting tack for the GOP to take in attacking Supreme Court nominee Elena Kagan:

Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”

“Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?” the RNC asked in its research document. “And Does Kagan Still Believe That The Supreme Court's Primary Mission Is To ‘Show A Special Solicitude For The Despised And Disadvantaged’?”

Serwer provides the useful context from the speech Kagan quoted:

For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: 'We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. "We the People" included, in the words of the Framers, "the whole Number of free Persons." United States Constitution, Art. 1, 52 (Sept. 17, 1787). On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three fifths each. Women did not gain the right to vote for over a hundred and thirty years. The 19th Amendment (ratified in 1920).

These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade" would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States. [emphasis Serwer's]

The only proper response to such questions would be for Kagan to ask, in return, whether or not her interrogators believe that a document that officially designated each black to be three fifths of a person, enshrined slavery as law and denied women the right to vote was perfect, as written. 

Comments

[Ugh]

There was nothing in the Constitution that denied women the right to vote prior to the 19th amendment.

[Ugh]

Also, if the RNC knew what was good for them they would make some half-hearted gesture of protest and then let her be confirmed, as she's probably as good a nominee as they're going to get.

Instead, they put out stupid nonsense like this and then turn around and wonder why they can't get African-Americans to vote for the GOP.

And note that if the RNC believes that the Constitution was perfect as drafted, would they support repeal of the 2nd Amendment? Somehow I don't think so.

[Brett Bellmore]

I guess the question is whether "less than perfect" and "defective" are interchangeable descriptions.

"a document that officially designated each black to be three fifths of a person,"

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."

You will search the Constitution as originally drafted for the word "black", or any equivalent, in vain. Slaves were not exclusively black at the time of the founding.

[Eric Martin]

You will search the Constitution as originally drafted for the word "black", or any equivalent, in vain. Slaves were not exclusively black at the time of the founding.

OK, fair enough as a bit of relatively inconsequential trivia.

I guess the question is whether "less than perfect" and "defective" are interchangeable descriptions.

I guess the question is whether "less than perfect" is adequate in its own right to describe the shortcomings.

There was nothing in the Constitution that denied women the right to vote prior to the 19th amendment.

Please explain.

[cleek]

you seem to assume that the target audience for this stuff will be interested in context.

expect to see signs and bumper stickers saying things like "The Only Thing That's "Defective" Is A Liberal's Brain!"

[cleek]

Also, if the RNC knew what was good for them they would make some half-hearted gesture of protest and then let her be confirmed, as she's probably as good a nominee as they're going to get.

oh, they know what's good for them: obstruction, delay and conflict.

[twitter.com/tobascodagama]

Well, except that I think it's clear that the GOP does actually consider those aspects of the originally-drafted Constitution to be perfect as written.

[Ugh]

Please explain.

There was/is nothing in the constitution that either (i) states that women cannot vote; or (ii) states that voting is reserved exclusively for men.

See this short note on the 19th A. Also note that it states, consistent with my recollection, that by 1918 about half the states had granted women full or partial voting rights.

[Jesurgislac]

Please explain.

Actually, Brett's right: the original text of the US Constitution US government archives does not in the text specify that women shan't be allowed to vote: any more than in the text it specifies the race of "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

But as a historical matter of fact, the only state in the union where both women and men were allowed to vote (providing they were householders in their own right - there was a property test) was New Jersey, until 1807, at which point women householders were banned from suffrage.

The US Constitution also requires, in its original text, that all same-sex marriages and civil unions shall be recognised in all states of the US - to a sincere originalist, DOMA is a far worse offense against Article IV, Section 1 of the Constitution than any attempts to license, register, and monitor gun ownerships against the Second Amendment. Of course, that would assume there is such a thing as a sincere originalist, and it's not just an excuse by half-educated bigots to deny human rights and legal equality to people who aren't straight, white, and/or men.

[CJColucci]

Slaves were not exclusively black at the time of the founding.

No, they weren't, as many of Thomas Jefferson's descendants will be happy to tell you. Of course, without that sort of thing going on back then, we wouldn't have Lena Horne (RIP), Halle Berry, or Vanessa Williams

[wonkie]

The people who wrote hte COnstitution assumed that it ws defective and would need to be corrected over time. That's why they put in an amendment process. The document was a compromise between incompatible veiws right from the start and I'm sure the majority of the signers knew it.

[Ugh]

oh, they know what's good for them: obstruction, delay and conflict.

That's a good point, I was thinking purely in terms of what kind of Justice they would end up with, not in what other things they could fnck with along the way. They might even increase their campaign coffers.

[russell]

Slaves were not exclusively black at the time of the founding.

I assume that by "exclusively black" you mean there were slaves who were not at all black. As opposed to slaves who were of racially mixed parentage, with the mix including black.

Excluding, as the text does, Indians and indentured servants, how many people who were not at least partially black do you think were included among those counted as 3/5 of a person?

[Sebastian]

I wouldn't bother opposing Kagan much, she's a liberal and we've elected a liberal president so you are likely to get liberal nominees. But even more than most people in politics, she certainly is an illustration of the fact that knowing the right people will take you far. See Crookedtimber. And her argument in front of the Supreme Court on the Citizens United case as Solicitor General was just appalling. You can think that the Court went way too far in the case and still realize that the government's position was atrocious.

[Jesurgislac]

CJColucci: No, they weren't, as many of Thomas Jefferson's descendants will be happy to tell you.

I know this isn't relevant to the point you were making but: Jefferson freed all four of his surviving children by Sally Hemings. That is, two of them are known to have "escaped" and Jefferson made no effort to retrieve them, suggesting that they left with his consent: two were legally freed in his will. Sally Hemings herself was let go after Jefferson's death to live with one of her freed sons.

There is indisputable genetic evidence that many white men raped their slaves and treated their own children as human property to be worked and sold: but there is pretty solid evidence in the historical record that Jefferson didn't.

Sebastian: I wouldn't bother opposing Kagan much, she's a liberal and we've elected a liberal president so you are likely to get liberal nominees.

Obama is a conservative, not a liberal, and so is Kagan. Don't dilute the language.

[Eric Martin]

I'd say she's center-left, as Obama is.

Not quite conservative.

[russell]

but there is pretty solid evidence in the historical record that Jefferson didn't.

Hemmings and her (and his) children remained Jefferson's slaves until his death.

Jefferson was the author of many beautiful words. Beautiful life, not so much, at least in this regard.

[John Thullen]

The words "woman", "women", "girl", "lady", "she"
and "female" were not in the Constitution because there were no women at that time in the United States, as the Buchanan brothers, Pat and Bay, will tell you.

There were individuals who were 3/5 female and 2/5 male, but we're still not permitted to recognize that fact.

[Turbulence]

Not quite conservative.

I think Jes' point is that Americans' political lexicon is out of step with the rest of the western world. What Americans consider leftist is often considered center-right in other countries.

[Eric Martin]

Turb, I got that, but even still I think conservative is too far. Center-right might be accurate though.

[Jesurgislac]

Russell: Jefferson was the author of many beautiful words. Beautiful life, not so much, at least in this regard.

I wasn't attempting to defend Jefferson's life, merely noting that he didn't leave his children to be slaves after his death. There never were any slave descendents of Thomas Jefferson (not by Hemings, at least): his children weren't born free, but they died free, and his grandchildren were born free.

[Jesurgislac]

Turb: I think Jes' point is that Americans' political lexicon is out of step with the rest of the western world. What Americans consider leftist is often considered center-right in other countries.

No, actually my point was that Obama is a conservative. He's not a liberal and he's not center-left even by US standards. He may oppose torture himself, but he believes the President has the right to order prisoners to be tortured: he asserts the right of the US government to have anyone in the world arrested and detained indefinitely as an extrajudicial prisoner; he supports warrantless wiretapping: hell, he supports the right of health insurance companies to make a healthy profit over the right of individuals to remain healthy. He's really not a liberal.

[McKinneyTexas]

Back to the original post--shouldn't smart Republicans agree that the original document was flawed (defective, inhuman, pick your term) with respect to slavery and that there were obviously other aspects that have required amendment over time, but shouldn't they also say that--today, 2010--judges should decide cases on the law without regard to who is before the court unless the 'who' is actually germane to the legal issues?

So Jes, if Obama is a conservative, what does that make me? :-)

[Eric Martin]

...but shouldn't they also say that--today, 2010--judges should decide cases on the law without regard to who is before the court unless the 'who' is actually germane to the legal issues?

Yes and no. I'd have to see the examples where the "who" wasn't germane, but was still used as a basis for the decision. Even in theory.

[Ugh]

I'd have to see the examples where the "who" wasn't germane, but was still used as a basis for the decision. Even in theory.

Bush v. Gore.

[Jesurgislac]

McKinneyTexas: So Jes, if Obama is a conservative, what does that make me? :-)

*checks posting rules* Sorry, couldn't say. :-)

[gwangung]

So Jes, if Obama is a conservative, what does that make me? :-)

Ah, kids these days! Why, back in my day, we KNEW what a real liberal was....

[Turbulence]

No, actually my point was that Obama is a conservative.

Ah, my mistake then.

He's not a liberal and he's not center-left even by US standards. He may oppose torture himself, but he believes the President has the right to order prisoners to be tortured: he asserts the right of the US government to have anyone in the world arrested and detained indefinitely as an extrajudicial prisoner; he supports warrantless wiretapping:

I don't agree with most of this. I don't know if Obama is a liberal or not on these issues and I don't think it matters: the National Security State is in control of our government. Whether that control is through capture (i.e., Obama believes in his heart of hearts that shredded civil liberties and infinite warantless surveillance are good things) or whether that control is through raw power (i.e., Obama believes that opposing the whims of the national security apparatus is political suicide) is a question whose answer I neither know nor care to know.

hell, he supports the right of health insurance companies to make a healthy profit over the right of individuals to remain healthy. He's really not a liberal.

Since health insurance companies' profits seem vitally important to getting any real health care reform done, I think most liberals are OK with that. Especially since the major cost control problems in American healthcare have little to do with insurance company profits per se.

[McKinneyTexas]

I'd have to see the examples where the "who" wasn't germane, but was still used as a basis for the decision.

Maybe I wasn't clear. Sometimes the 'who' is germane, i.e. in a Title VII case, an African American might make a complaint of discrimination. In that case, the 'who' matters. If it's a car wreck, the 'who' doesn't matter, only the facts. At least in theory. As it happens, I am defending an African American male in a fatal car accident case in a rural Texas county, and I can assure you, the 'who' matters all the way around and it's a very, very ugly picture. When and if the dust settles a couple of years from now, I may ask for permission to do a guest post.

Sorry, couldn't say. :-)

Fair point.

[Jesurgislac]

Whether that control is through capture (i.e., Obama believes in his heart of hearts that shredded civil liberties and infinite warantless surveillance are good things) or whether that control is through raw power (i.e., Obama believes that opposing the whims of the national security apparatus is political suicide) is a question whose answer I neither know nor care to know.

No, it doesn't really matter, except to Barack and Michelle, whether President Obama is a conservative by choice or by circumstance: if he sleeps well at night or if he wakes up in a cold sweat thinking about the awful things he's done.

When Tony Blair became a Catholic, the best joke about his First Confession was, how long would it take?

"No time at all: Blair doesn't think he's done anything wrong."

Since health insurance companies' profits seem vitally important to getting any real health care reform done

Not really. A complete disregard for health insurance companies profits remains vital to getting any real health care reform done.

I'm not trying the line of "they're each as bad as the other". Clearly Obama and a Democratic administration/Democratic-controlled Congress is better than a Republican administration/Congress, with a nutjob for President. But claiming that Obama is a "liberal", or that Kagan is a "liberal appointment" stretches the definition of liberal to breaking point.

[Eric Martin]

If it's a car wreck, the 'who' doesn't matter, only the facts. At least in theory. As it happens, I am defending an African American male in a fatal car accident case in a rural Texas county, and I can assure you, the 'who' matters all the way around and it's a very, very ugly picture. When and if the dust settles a couple of years from now, I may ask for permission to do a guest post.

Well I absolutely agree with that principle. And I see nothing in Kagan's record to indicate that she doesn't.

Lastly: let me know when the dust settles. I'm definitely open to the guest post idea.

[McKinneyTexas]

Lastly: let me know when the dust settles.

Just to give you a flavor of how screwed up this deal is, the fatal accident was a head-on collision in heavy fog on a two lane rural highway. Sadly, this is fairly common and is almost never the basis for a criminal prosecution. More interesting is that the physical evidence conclusively shows that the accident happened entirely in my client's lane of travel. Even more interesting is that the state has had my client's blood samples since March 11th yet hasn't issued the toxicology report AND has recently amended the indictment to add non-intoxication-related charges (implying they don't have s**t for toxicology). I will be attending my client's arraignment for involuntary manslaughter tomorrow morning as an observer. Arraignment for involuntary manslaughter on this bulls**t record. Think about that for a minute.

[Eric Martin]

Wow.

[John Thullen]

"Jes, if Obama is a conservative, what does that make me?"

A mensch?

[jrudkis]

McKinneyTexas (OT),

Just to give a different fact pattern, I was once a commander of a black soldier who in 1994 was driving a car in Canada, and was passing a car. The other car apparently sped up and kept my soldier, his white canadian fiancee, and another african american soldier from coming back to their lane. He struck head-on into oncoming traffic, killing his fiance and the female canadian passenger of the oncoming minivan. No alcohol or drugs involved.

My command was called by the Canadian Police commander with a personal plea that we (US Army) not punish the soldier-driver, because it was not his fault.

It would have been so easy for the Canadian prosecutor to punish him based on the easy facts (passing and head-on collision) yet they took statements, investigated, and found that the other vehicle (that prevented moving back into traffic) was at fault.

And then called us to make sure my innocent soldier was not screwed.

He was a good soldier. He was never the same after the accident and lost everything, but at least he was not blamed for his fiancee's death. And it would have been so easy: Black US soldier, white Canadian fiancee, two dead females, and he was in the wrong lane.

I still don't pass on single lane roads because of this incident, but I appreciate the police who investigated this accident. And while I took part in some police bashing a couple threads ago, it is important to remember that most are the kind of people that would see this type of incident and look for the truth, not the easy conviction.

[Jesurgislac]

John Thullen: A mensch?

Fair point.

[Slartibartfast]

I think the major defect in the Constitution was that the right to vote was not clearly enumerated. I don't think it even says that there is a right to vote, other than there are certain people who have that right. It doesn't say women can't vote, because it doesn't really tell you who can.

So: blacks and women (and others, possibly) need not bother registering to vote.

And then there's that pesky three-fifths thing, which often gets overlooked because it doesn't specify slaves. But that's what it's about, if you have done any reading at all.

So: that one little compromise without which the Framers thought some minimally-sized union of states would not be possible wound up throwing the country into a civil war fourscore-and-change years later, that we still haven't quite recovered from.

So, the notion that the Constitution is defect-free fails the despairing-laugh test.

[Slartibartfast]

I may ask for permission to do a guest post.

Combined request to be recognized and floor motion to allow.

[Roger Moore]

There was nothing in the Constitution that denied women the right to vote prior to the 19th amendment.

Neither was there anything that guaranteed women the vote, or, for that matter, guaranteed anyone the vote. A "right" that can be taken away at the whim of the state legislature isn't much of a right; it's a privilege. I would say that a Constitution that fails to guarantee the right of citizens to vote is defective.

FWIW, the Constitution as originally drafted was clearly defective in the eyes of the drafters. It was so obviously defective that the defects were an issue during the debates about its adoption. Even its strongest supporters admitted that it was defective and would need to be amended by the addition of a Bill of Rights. Even if you accept that adding the Bill of Rights didn't prove that the original was defective, the Twelfth Amendment's substantial revision of the Electoral College should be more than adequate proof that there were serious flaws in the original design.

[navarro]

you are forgetting that the three-fifths clause was put in the constitution to reduce the influence of slave-holding states and not as a way of implying that "all other persons" were intrinsically worth 60% of the value of white, male property holders. some delegates of the northern, so-called free states wanted the slaves to count as nothing for the purposes of representations in congress since they were not allowed to vote and their interests could not be truly represented. the three-fifths clause was the compromise they worked out at the convention.

[russell]

that one little compromise without which the Framers thought some minimally-sized union of states would not be possible

Sadly, they were right about that.

[wonkie]

"Hemmings and her (and his) children remained Jefferson's slaves until his death."

I don't think so. I got about halfway through the Hemingses of Monticello and a couple of the offspring were informally freed in the section I read. As I recall in Virginia at that time Jeferson could not legally free his slaves. He could and did allow them to simply leave and even bought a stage coach ticket to help one depart.

[Slartibartfast]

you are forgetting that the three-fifths clause was put in the constitution to reduce the influence of slave-holding states and not as a way of implying that "all other persons" were intrinsically worth 60% of the value of white, male property holders. some delegates of the northern, so-called free states wanted the slaves to count as nothing for the purposes of representations in congress since they were not allowed to vote and their interests could not be truly represented.

That's not the way I see it. The way I see it is the compromise was the price the South paid for getting to keep slavery.

Maybe we're saying the same thing, here, but the three-fifths compromise was an agreement by all parties that some people (slaves) had no rights whatsoever. The North didn't like that, and the South didn't like only getting three-fifths apportionment. Equalization of misery, for those who had the standing to make the decisions, or so I see it.

[Slartibartfast]

I don't know about the Hemmingses in particular, but Jefferson's slaves mostly didn't get freed while he was alive. IIRC, they actually were sold after he died.

He needed the income, and after he died, his estate needed the cash.

So much for nice words. Pretty much what russell said, I think.

[Donald Johnson]

"Whether that control is through capture (i.e., Obama believes in his heart of hearts that shredded civil liberties and infinite warantless surveillance are good things) or whether that control is through raw power (i.e., Obama believes that opposing the whims of the national security apparatus is political suicide) is a question whose answer I neither know nor care to know."

I'd like to know, just as a matter of idle curiosity. I think anyone who is opposed to the national security apparatus gets weeded out during the primaries as a Kucinich-like wuss. But still, it'd be interesting to know for sure.

[gwangung]

Neither was there anything that guaranteed women the vote, or, for that matter, guaranteed anyone the vote. A "right" that can be taken away at the whim of the state legislature isn't much of a right; it's a privilege.

Hm. We should tell that to a great deal of the right wing today. Many of them seem to have real problems distinguishing the two.

[Jesurgislac]

Slarti, it's really not much of a defense of anyone to say that he didn't sell his own children or his mistress. Which is all I was saying. However. It was a distraction and I should really have left it alone. I mean I think George W. Bush is a bad guy who ought to be on trial for his crimes, but I never heard that he beat his dog or his children.

[Hartmut]

GOPsters love the sophistry that a mere constitutional ban on taking something away from citizens does not mean that said citizens have it in the first place.
But we had the dicussion here too that the air force is unconstitutional* on a strictly textualist base ;-)

*as an independent service branch as opposed to part of army or navy.

[Jesurgislac]

But we had the dicussion here too that the air force is unconstitutional* on a strictly textualist base ;-)

If the Founding Fathers had meant men to fly...

[Brett Bellmore]

Nah, the Air Force isn't unconstitutional. The genuine constitutional question regarding it, is whether it counts as an "army" or a "navy", in as much as the Constitution treats the two differently. I'd say "army". But there are arguments both ways.

Navarro, they're not listening on the 3/5ths clause. I've tried before, and no matter what you point out, it's always going to be a slight to the black man, not a way of reducing the congressional representation of slave states. In their heads, anyway.

Yes, while we have no hard numbers, since collecting those sorts of numbers wasn't the sort of obsession it is today, it is objectively true that, at the founding, there were white slaves, and free black men. Might make your head explode, but there were even free black men who owned white slaves...

Slavery didn't start out being about the supposed inferiority of blacks. It became about that, as a way of rationalizing the evil of slavery. But it didn't start out that way, and the Constitution reflects that.

[russell]

Slavery didn't start out being about the supposed inferiority of blacks. It became about that, as a way of rationalizing the evil of slavery.

This is exactly right, and it's also true that quite a lot of the legal institutionalization of the racial aspect came after the founding.

It's also true, however, that the vast majority of slaves (as opposed to indentured servants) in English speaking North America were non-whites, both at the time of the founding and even after. Indians, but especially Africans.

[Julian]

Brett, can you cite any academic works, books, or papers that support your claim that there were free black men who owned white slaves? It's confusing that you not only have "no hard numbers" but also know that something which happened 250 years ago is "objectively true." Do you have "hard anecdotes?" "Hard personal accounts?" Also, when you say "free black men," do you mean that there were no free black women? Or is "men" a catchall phrase for "people?"

I love that you call collecting numbers an obsession. Do you think there is a dangerous empirical tendency associated with numbers?

Furthermore, I think you're engaging in what the kids call false equivalency. You say that there were "at the founding, there were white slaves, and free black men." Do you know how many of each? How do you know that?

There's a post up, coincidentally, explaining the 3/5 clause at LGM: http://www.lawyersgunsmoneyblog.com/2010/05/a-covenant-with-death-and-an-agreement-with-hell

And I won't repeat his argument here. But please do explain how the 3/5 clause was not a slight to black people (again, you say "to the black man" as a catchall phrase, but I don't think that's what you mean). Since the 3/5 clause existed solely because of the issue of enslaving all but a vanishing minority of black people in the U.S., and all. Was slavery not a slight to black people? Should they not have taken it personally?

[russell]

The other thing I note regarding slavery and race in English North America is that trafficking in human beings -- commercial slave trading -- was, to my knowledge, almost exclusively in non-whites, and especially in Africans.

[Hogan]

you are forgetting that the three-fifths clause was put in the constitution to reduce the influence of slave-holding states

I think you mean "not unduly increase the influence of slave-holding states."

[Eric Martin]

Navarro, they're not listening on the 3/5ths clause. I've tried before, and no matter what you point out, it's always going to be a slight to the black man, not a way of reducing the congressional representation of slave states. In their heads, anyway.

Um, wouldn't it be both? I mean, the baseline attempt by the non-slave states was to consider slaves as non-persons. Zero persons. For representation purposes. Given that the vast, vast majority of slaves were black, that would seem to be something quite a bit larger than a "slight."

Further, the fact that 3/5ths was the eventual compromise doesn't really ameliorate the original insult: that they count for something less than a full human, even if "only" for seat allotment purposes.

Yes, while we have no hard numbers, since collecting those sorts of numbers wasn't the sort of obsession it is today, it is objectively true that, at the founding, there were white slaves, and free black men.

This is, indeed, objectively true. It is also objectively true that there were relatively very, very, very small numbers of each. Thus, anyone who claims that all slaves were black, or that all blacks were slaves, would be wrong.

However, the numbers were such that it would be pedantic to a degree of pointlessness to insist that slavery in America was not primarily and overwhelmingly a dynamic of whites enslaving non-whites (particularly Africans).

No heads exploding. It's actually not that controversial.

[wonkie]

"I don't know about the Hemmingses in particular, but Jefferson's slaves mostly didn't get freed while he was alive. IIRC, they actually were sold after he died."

I grant the discrepency between Jefferson's words and his deeds. I am just pointing out that there was a difference between how he treated family members and nonfamily memebers. The slaves sold after his death were not his relations or the mother of his relations. The mother of his children and the children themselves quietly slipped, with his knowledge, into relative freedom.
At leat that's the impression I got from reading.

People are very interesting. The conflicting attitudes that people can have inn their heads...if youu think Jefferson's attitudes were weird, what about his wife whose personal slave was her halfsister? Kind of puts into perspective all this stuff about how many fifths ofwhat kind of person counts for what etc etc.

There's a quote tickling the back of my mind but Ican't quite come up with it. Something about believing ten contradictory things before breakfast?

[hairshirthedonist]

...if youu think Jefferson's attitudes were weird, what about his wife whose personal slave was her halfsister?

That wasn't Hemmings? I thought Sally Hemmings was the half-sister of Jefferson's wife.

[hairshirthedonist]

Of course, I will Google. I just put the question out there because it was in my head at the time. I think it makes for a more organic blogging experience.

[hairshirthedonist]

Hemings (correct spelling) was said to be the half-sister of Jefferson's wife. And Hemings' mother was the daughter of an African-slave mother and an English sea-captain father. So there's quite a family tradition of (at the very least, arguable) slave-rape - three generations in a row, if the prevailing information is correct.

[Slartibartfast]

Slarti, it's really not much of a defense of anyone to say that he didn't sell his own children or his mistress.

I wasn't responding to anything you said in particular, Jesurgislac; just discussing in general. I think that (also in general) Jefferson tends (along with Washington, to get overly lionized & idealized. They were key figures, but not perfect.

it is objectively true that, at the founding, there were white slaves, and free black men

If you're referring to indenture, that is explicitly not part of the three-fifths provision:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

So, indentured servants were fully apportioned, Indians not apportioned at all, and slaves apportioned at three-fifths.

I think that's a correct interpretation, but I might have misunderstood what you were getting at.

[Carleton Wu]

Navarro, they're not listening on the 3/5ths clause. I've tried before, and no matter what you point out, it's always going to be a slight to the black man, not a way of reducing the congressional representation of slave states

Im not sure why you wouldn't regard it as a way of *increasing* the congressional representation of slave states. Snark aside, I don't know why you'd be starting from the presumed negotiating position of the slave states (ie that their slaves should count fully towards representation) rather than the Northern position ("yeah, if you want your possessions to count as people, I want half a person for my horse and two-fifths for my dining table").

And if you think that's the position of liberals, I don't think you're listening very carefully. We understand the nature of the negotiations between the two sides- but it's still an insult. The insult doesn't have to come from some racist desire to belittle black people or slaves to be insulting.

Pardon my love my analogies, but- let's say you're an only child. And your mother really wanted a girl. So she and your father agreed that you could wear boy-clothes during the week, but would have to wear a sundress to church on Sundays. Their bargain might not come from a desire to humiliate you, but the end result and it's obvious disregard for your dignity are still insulting.

[ajay]

the only state in the union where both women and men were allowed to vote (providing they were householders in their own right - there was a property test) was New Jersey, until 1807, at which point women householders were banned from suffrage.

Wow. Is the US the only country to have actually disenfranchised women?

[McKinneyTexas]

Let's take a step back from the 3/5's clause being a bad compromise, "bad" being defined solely by outcome, not intent at the time. Yes, I agree this is an arbitrary definition of the word "bad."

If the compromise had not been made, if slavery had not been inferentially if not expressly made a part of the original, flawed document, then wouldn't the likely result have been a much weaker central government under the Articles of Confederation or no national government at all? I think a solid case can be made for this. Reasoning further, under the AoC would there ever have been secession and a Civil War? Would the states have even remained Confederated?

That particular fork in the historical road, the 3/5th's clause, laid the foundation for the eventual eradication of slavery in North America (it remained legal in Brazil through the mid to late 19th century IIRC). But for that fork, the casus belli for the Civil War, which was preservation of the federal union, would not have existed. Would the North have gone to war against a sovereign South solely to liberate the slaves? Not very damn likely.

OT--thanks Eric, JT, Jes and Slarti. As I walked into the courthouse this morning, I could hear, in the distance, banjos gently dueling . . .

[Brett Bellmore]

"If you're referring to indenture, that is explicitly not part of the three-fifths provision:"

If I'd meant indenture, I'd have said indenture. But indenture was sometimes not much different from slavery.

http://www.amazon.com/They-Were-White-Slaves-Enslavement/dp/0929903056

[Slartibartfast]

But for that fork, the casus belli for the Civil War, which was preservation of the federal union, would not have existed. Would the North have gone to war against a sovereign South solely to liberate the slaves? Not very damn likely.

I see it differently. I see it like this: if no union to begin with, we all get sucked back into the British Empire and slavery gets eradicated by them a few decades later.

Which might in turn have prompted a different Revolutionary War, but one whose outcome might have been tipped with assistance from British subjects in the northern US.

Just making this up as I go, mind you. There might be flaws.

[Carleton Wu]

That particular fork in the historical road, the 3/5th's clause, laid the foundation for the eventual eradication of slavery in North America

I think at this point, we're in such an alternate history that it's hard to say if the end results are good or bad. Or even if we can judge- history isn't over yet. Maybe if Hitler hadn't been batsh1t there would have been no holocaust- or a democratic and free Germany today.

But I think we can make judgments- not on eventual outcomes, but on principle. Basically, the can was kicked down the road, leaving the mess for future generations to sort out. And those generations eventually had to bloodily do so. That the long-run results might have been good doesn't excuse the mistake.

[McKinneyTexas]

sucked back into the British Empire.

Yeah, that's a possibility too. Hadn't thought of that. Rolling it around a bit, I could see the New England states reuniting, the South and Mid-Atlantic states, not so much. The Brits had their hands full with Napoleon for several decades. By 1815, I don't think the former colonies were ripe for re-occupation.

[Turbulence]

But for that fork, the casus belli for the Civil War, which was preservation of the federal union, would not have existed. Would the North have gone to war against a sovereign South solely to liberate the slaves? Not very damn likely.

There are many different paths an alternative history could have taken. You've described one. A different path would involve a backward and impoverished and relatively sparsely populated confederacy eventually begging for union with the north. Since the relative power of free and slave states would have diverged significantly from that present in 1776, negotiations would have gone differently. A slave buyout and banning of the slave trade ala the UK might have been the condition for entry.

We can speculate about alternative histories all day, but these speculations tell us nothing.

[Slartibartfast]

The Brits had their hands full with Napoleon for several decades.

Ah, but if they hadn't spent themselves dry fighting the American Revolution, they might have made shorter work of Napoleon.

Basically, the can was kicked down the road, leaving the mess for future generations to sort out.

That's the way I see it, too.

[Carleton Wu]

Rolling it around a bit, I could see the New England states reuniting, the South and Mid-Atlantic states, not so much.

That's funny, I wouldve seen it the other way around. iirc the New England states, with their religious origins, were more likely to see a cultural divide that couldn't be bridged. Whereas I could easily see the more generalized political objections of the Virginia faction being satisfied by some sort of arrangement that gave them either representation in England or (more likely) more local control and formalization of taxation requirements.

[Carleton Wu]

Ah, but if they hadn't spent themselves dry fighting the American Revolution, they might have made shorter work of Napoleon.

I was thinking of the alternate history where the Articles of Confederation never got superceded by the Constitution due to disagreements around slavery- as opposed to one where the Revolution was never fought.
Besides which, given that the Brits didn't eventually 'defeat' Napoleon so much as he overextended himself in 1812, I don't know that additional resources in their hands would've made much difference.

I would think that this history (ie where the Constitution is never adopted) would lead to factionalization and fighting amongst the former colonies, and perhaps the West dominated by Mexico (or a Spanish-speaking derivative) and the Pacific NW and Alaska by the British/Canadians.
Or, as Turb suggests, a South progressively weaker vis a vis the North creates the preconditions for a 'better' merger sometime in the 19th century. Or maybe, rather than merging with the North, they align with the British at that time. etc.

We can speculate about alternative histories all day, but these speculations tell us nothing.

But they are fun.

[Slartibartfast]

I don't know that additional resources in their hands would've made much difference

Cash is one of those resources that can make a number of other resources appear. Plus, probably Bonaparte would not have been able to have a ready customer for the Louisiana Purchase.

So, not so much a military difference as an economic difference.

[Hartmut]

There is the theory that England's primary error was to remove the threat of French Canada. According to this the colonists would not likely have dared to rebel, if France could have been the laughing third party.
In a Disunited States of America the drive West would also quite possibly have been weaker (or at least not backed by military force).
Could there have been slave rebellions establishng states of their own in the West (Haiti style)?