What Pete Buttigieg Gets Wrong About the Founding Fathers
He espouses a position that is popular among historians, but it’s easily disproved.
|Timothy Sandefur||Jan 7, 2020||42||4|
Pete Buttigieg’s remark that America’s Founding Fathers “did not understand that slavery was a bad thing” has stoked once more the argument over the relationship between the founding and slavery. This comes on the heels of the New York Times’s 1619 Project, which revived the old falsehood that the Constitution’s authors designed it to protect that awful practice forever—an argument thoroughly refuted by myself and others. But Buttigieg’s wording takes a more moderate position: The Founders may not have endorsed slavery, but they also didn’t oppose it. When they wrote in the Declaration of Independence that “all men are created equal,” they didn’t mean it literally, and neither intended nor expected their words to be used by the generation that followed as a weapon of liberation.
This is less malicious than the Times’s position, but no less false. And while it would be unfair to focus specifically on Buttigieg’s words—he was speaking extemporaneously in 2014, about a different subject—the theory that the Founders did not actually mean “all men are created equal,” or that 19-century anti-slavery leaders like Abraham Lincoln and Frederick Douglass were cleverly reinterpreting these words when they said so, is widely shared by historians and lawyers today.
Championed primarily by the late historian Pauline Maier, this theory holds that when the Founders wrote “all men,” they didn’t think their words would include black people. Maier argued that it was the subsequent generation—particularly Lincoln—who viewed the Declaration as “a living document” and “enlist[ed]” it “on behalf” on anti-slavery arguments. In something like a Platonic noble lie, they were adapting, for laudable anti-slavery purposes, words that were not written with that intention.
But the reality is that the authors of the Declaration and the Constitution were quite clear in their understanding that slavery was “a bad thing”—so much so that it would be tedious to quote examples to prove their virtual unanimity on that point. They also understood that it was irreconcilable with the Declaration’s self-evident truth of equality. They said so at the time—and if they had somehow overlooked it, they were soon informed of it by British opponents, such as Jeremy Bentham, who argued that the proposition must be false, because slavery is ubiquitous and dates to prehistoric times.
Nevertheless, the Founders persisted. They began working toward realization of the self-evident truth even before the Declaration was written. The world’s first anti-slavery organization, the Pennsylvania Abolition Society, was founded on April 14, 1775, a week before the battles of Lexington and Concord, and Ben Franklin joined it. His colleagues began devising proposals to gradually eliminate slavery soon after independence. Thomas Jefferson, for instance, drafted a bill in 1784 to eliminate it in the country’s western territories—a proposition that fell one vote shy of passage. (“Thus we see the fate of millions unborn hanging on the tongue of one man,” he wrote, “and heaven was silent in that awful moment!”) A year later, he said slavery was so great an evil that it tempted the wrath of God.
In 1783, the Massachusetts Supreme Judicial Court abolished slavery in the Quock Walker decision, on the grounds that it was contrary to the proposition that all men are created equal. The court’s interpretation of that phrase was not unique. Samuel Hopkins, a Declaration signer, wrote in 1787 that “the Africans, and the blacks in servitude among us, were really as much included in these [self-evident truths] as ourselves; and their right, unalienable right to liberty, and to procure and possess property, is as much asserted as ours, if they be men.” Countless others shared his view—including black Americans, such as the New Hampshire freedmen who petitioned the state for abolition in 1779 because “the God of nature gave them life and freedom upon the terms of the most perfect equality with other men.” Even the few revolutionaries who defended slavery acknowledged that it was contrary to the equality principle: Charles Cotesworth Pinckney, the only Constitutional Convention delegate to speak openly in slavery’s defense, opposed adding a Bill of Rights because, he said, it would “begin with declaring that all men are by nature born free,” which would be taken with “a very bad grace,” given that “a large part of our property consists in men.”
Of course, recognizing slavery’s evil was the easy part. Vastly more complex was the question of how to end it. Wealthy and powerful slaveholders were not simply going to surrender their human property—and delegates to the Constitutional Convention were quite aware that overt efforts to restrict it would drive Georgia, South Carolina, and possibly other states out of the union. Worse, many leaders, including Jefferson, feared that immediate emancipation would provoke a race war, and possibly war between the states. The whole problem was unprecedented: No society had ever abolished slavery before.
The Convention therefore fashioned a series of compromises. It adopted provisions accommodating slavery—such as a 20-year protection for the international slave trade—but also gave the institution no permanent federal guarantee, and did not even use the word “slavery.” James Madison insisted that the word not appear in the Constitution, because it was “wrong to admit” in its text “that there could be property in men.” Instead, the document referred to slaves as “persons,” contained no reference to race, and included provisions such as the “Privileges and Immunities” Clause of Article IV that virtually ensured an ultimate showdown over the legitimacy of enslavement.
They wrote these provisions in the belief that slavery was withering away, both because of its economic inefficiency and because of what Jefferson called the “general spread of the light of science,” which was persuading the world that “that the mass of mankind were not born with saddles upon their backs.” That wasn’t an unreasonable prediction at the time; in New Hampshire and elsewhere, slavery was never abolished, but disappeared for these reasons.
Yet things changed after 1800, thanks partly to the cotton gin and other developments that made slavery more profitable than expected. The Founders deserve blame for not doing more at that moment to resist slavery’s expansion, when their actions might perhaps have averted civil war. But that’s speculation, and it doesn’t change the fact that they and their contemporaries knew slavery was “a bad thing”—and that the Declaration’s equality principle rendered it anathema.
There was another, more insidious development after 1800 that had far more to do with slavery’s persistence. That was the advent of a wholly new theory of slavery, which rejected the idea that it was an evil to be eradicated and praised it instead as a “positive good” both to whites and blacks. It was the advocates of this theory—most importantly South Carolina’s John C. Calhoun—who “re-interpreted” the Declaration of Independence. They—not the abolitionists—were compelled either to twist its words or to reject them entirely.
Calhoun himself admitted that the Declaration meant what it said—and was incompatible with slavery—but he argued for that reason that its equality principle was a “dangerous error.” Subordination and servitude, not equality and freedom, are the natural conditions of man, he claimed; liberty is given to people only when society sees fit. Still, the equality principle could also be safely ignored because it “made no necessary part of [the] justification” of independence in 1776. What really sparked the Revolution was not any “recondite” and “hypothetical” notions about the rights of man, but the British government’s intrusion into the traditional prerogatives of colonial governments. In Calhoun’s telling, Jefferson was a utopian bookworm whose gratuitous speculations about equality should be politely disregarded. Calhoun’s allies, including Virginia’s George Fitzhugh and South Carolina’s James Hammond agreed, treating the Declaration as meaningless poetry or downright falsehood.
Chief Justice Roger Taney and Illinois Senator Stephen Douglas took a subtler approach. Instead of traducing the Declaration, they simply ignored its language. Taney admitted in his 1857 Dred Scott opinion that its “general words … would seem to embrace the whole human family,” and “would be so understood” if they were written at the present day. Nevertheless, he concluded, the Founders could not really have meant that, because if they had, they would have immediately proclaimed emancipation. Douglas agreed: The Declaration might say “all men,” but it shouldn’t be taken literally—it really only meant “white” men.
This argument left unexplained why the Founders chose their words so imprecisely, if that was what they meant. And, as Lincoln observed in his devastating reply to Taney, the whole argument was a non sequitur anyway. There were many reasons—good and bad—why the Founders did not immediately abolish slavery. That didn’t prove they meant anything other than what they said.
Anti-slavery thinkers, by contrast, pointed to the plain meaning of the Declaration’s language when arguing that it was irreconcilable with slavery. Foremost among these was John Quincy Adams, son of the Declaration’s leading champion and a longtime friend of Jefferson. He called the Declaration the revolution’s “manifesto”—and said slavery was a “travest[y]” of its “self-evident truth … that all men are created equal.” The idea that the Declaration’s authors were neutral toward slavery was a lie. “He knew that they all abhorred slavery,” wrote a reporter transcribing one of Adams’s speeches, “and he could prove it, if it was denied now, from the testimony of Jefferson, of Madison, and of Washington themselves.” Abolitionists would “find in the writings of Jefferson, at the time of the Declaration of Independence, and during his whole life…a justification for everything they say on the subject.”
Other, more militant anti-slavery leaders, notably William Lloyd Garrison, Frederick Douglass, and Charles Sumner, followed Adams in quoting the Declaration as if it meant just what it said—neither more nor less. And Maier herself acknowledged that, unlike Calhoun, they “did not need to rewrite [it] to enlist its authority on their behalf.” Yet she never acknowledged that this fact contradicted her assertions that abolitionists were engaged in “wishful suppositions,” and that the Declaration’s authors “had not understood what they were doing in quite that way.” Her book made no mention of Adams or the Quock Walker case and gave short shrift to those who argued in the immediate aftermath of independence that its principles mandated slavery’s extinction. Far closer to the truth is Alexander Tsesis, who concludes in his book For Liberty and Equality that Maier was right “that later generations interpreted the Declaration to be a statement of rights,” but that “from the very beginning, Americans understood and intended it to carry that message.”
Why does Maier’s “creative reinterpretation” theory persist? One reason is that it fits snugly into prevailing Progressivist theories, which hold that the words of a law—whether the Declaration, the Constitution, or a statute—don’t actually mean anything until they’re interpreted by a judge. In a recent Twitter exchange on this subject, for example, Cornell law professor Josh Chafetz accused me of having “an implausible faith in the determinacy of complex texts”—a fancy way of saying that it’s naïve to think written words actually mean things. Instead, what happens is that competing groups fight over how to interpret words—arguments in which nobody is ever really correct, since, again, words have no “determinacy”—and one side eventually gains more adherents than the other (for reasons unrelated to the truth of the matter, which does not exist).
One problem with this argument is that skepticism toward the “determinacy” of texts—like all skepticism—is ultimately self-contradictory. Consider: The abolitionists who allegedly “reinterpreted” the Declaration did so by writing their own “complex texts”—speeches, pamphlets, books—and today’s scholars, in turn, write their own texts about the abolitionists, in which they purport to understand those originals. Pauline Maier’s book, and this article, are therefore just as indeterminate as anything else, and to say that Maier argued a certain theory about the Declaration—or that she was right or wrong—is itself just an interpretation of her book, and no more “true” than an argument to the contrary.
This game quickly degenerates into the sophomoric position taken by Lewis Carroll’s Humpty Dumpty, who tells Alice, “When I use a word … it means just what I choose it to mean—neither more nor less. … The question is … which is to be master—that’s all.”
The reality is that texts are determinate, and interpretation is not about attributing meaning, but comprehending it—not telling, but listening. Legal words, like all words, denote concepts that mean things, and don’t mean their opposites. Some words might be hard to understand, and the concepts they denote may be complex abstractions (such as “murder,” “intent,” or “liberty”) but that doesn’t render them radically vague. Interpretations are therefore either faithful or not faithful to the meanings of written words. Faithful interpretations of a text are consistent with the rest of that text and to facts external to it. The phrase “all men are created equal” means a specific thing—one a native English speaker in 1776 or 1861 or 2020 can understand and can interpret rightly or wrongly. The anti-slavery reading of the Declaration passes the test of faithfulness, because it alone makes sense of the ordinary dictionary definition of such terms as “all” and “equal,” as well as the Lockean tradition that informed it, the founding generation’s attacks on slavery, and as the efforts of Calhoun, Taney, and others to ignore or reject its language. When Lincoln argued that the Declaration meant what it said, that it could not be squared with slavery, and that it was, in fact, true for all men and all times—he was telling the truth.
In the context of slavery, Humpty Dumpty’s words take on a chilling double meaning. The question before the Civil War was indeed, who was to be master. In the minds of slavery’s advocates, it was “white men.” But the Declaration proclaimed, and Lincoln reasserted, that “all men” are masters of themselves—an eternal principle which the nation’s Founders knew to be a call for the freedom of all mankind. It’s fortunate that later generations insisted on taking them at their word.
Timothy Sandefur is vice president for litigation at the Goldwater Institute and author of The Conscience of the Constitution (Cato Institute, 2014).
Photograph of Pete Buttigieg from event at the University of Chicago on October 18, 2019, in Chicago, Illinois, by Scott Olson/Getty Images.