What Tom Cotton Gets So Wrong About Slavery and the Constitution

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Senator Tom Cotton, Republican of Arkansas, walking past a portrait of John C. Calhoun, leader of the proslavery forces in the Senate, Capitol Hill, Washington, D.C., February 23, 2016
Senator Tom Cotton, Republican of Arkansas, has introduced a bill in Congress that would punish school districts that use The New York Times’s 1619 Project in their curriculum by withholding federal funding. In so doing, he announced in a newspaper interview that America’s schoolchildren need to learn that the nation’s Founders said slavery “was the necessary evil upon which the union was built.” His statement is as preposterous as it is false: presuming to clarify American history, Cotton has grievously distorted it.

(As this article went to press, Cotton supported his argument by citing me along with several other liberal historians who have criticized the 1619 Project; with my colleagues, I have fundamental publicized objections to the project, but these in no way mitigate Cotton’s serious misrepresentations of the historical record for evident political gain.)

None of the delegates who framed the Constitution in 1787 called slavery a “necessary evil.” Some of them called slavery an evil, but not a necessary one. Gouverneur Morris of New York, for example, declared to the Constitutional Convention that he would “never concur in upholding domestic slavery,” that “nefarious institution” based on “the most cruel bondages”—“the curse of heaven on the states where it prevailed.” The great majority of the Framers joined Morris in fighting to ensure that slavery would be excluded from national law.

James Madison, the most influential delegate at the convention, explicitly repudiated the idea of building the union on slavery, stating that it would be “wrong to admit in the Constitution the idea that there could be property in men.” Though himself a slaveholder, Madison wanted to guarantee that the Constitution, while it might tolerate slavery in the states where it existed, would neither enshrine human bondage in national law nor recognize it as legitimate.

A minority of the Framers, from the lower South, disagreed, but they believed slavery was no evil at all. “If slavery be wrong,” Charles Pinckney of South Carolina declared, “it is justified by the example of all the world.” Far from a necessary evil, Pinckney thought slavery was a necessary good, as it had been for time immemorial. “In all ages,” he claimed, “one half of mankind have been slaves.”

There was, to be sure, one delegate who resembled Senator Cotton’s description: Pinckney’s cousin, Charles Cotesworth Pinckney, also from South Carolina. At one point in the convention debates, a perturbed Cotesworth Pinckney registered a complaint, seeming to desire, Madison noted, “that some provision should be included in favor of property in slaves.” That would have based the Union firmly on the constitutional right of slavery. And Cotesworth Pinckney did come close to calling slavery a necessary evil, noting that without it the Carolina economy could not survive (which was technically correct). But the convention majority, far from agreeing with anything he said, dismissed his objection out of hand.

The Constitution was hardly an antislavery document. Through fierce debates and by means of backroom deals, the lower South slaveholders managed to win compromises that offered some protection to slavery in the states: the notorious three-fifths clause giving an allotment of House seats and Electoral College votes based on a partial counting of enslaved persons; a twenty-year delay in authorizing Congress to abolish the nation’s involvement in the Atlantic slave trade; and a fugitive slave clause. Most importantly, the Constitution by implication barred the new federal government from directly interfering with slavery in the states where it already existed.

But neither did the Constitution, as Senator Cotton wrongly claims, establish slavery as necessary to the Union. It’s true that a few proslavery delegates threatened that their states would refuse to join the Union unless their demands were met. This occurred with particular force with regard to the Atlantic slave trade. A majority of convention delegates wanted to empower the national government to abolish the horrific trade, striking the first blow against it anywhere in the Atlantic world in the name of a sovereign state. Appalled, the lower South delegates, led by South Carolina’s oligarchs, threatened to bolt if the convention touched the slave trade in any way, but the majority called their bluff.

In the end, the proslavery delegates carved out the compromise that prevented abolishing the trade until 1808, salvaging a significant concession, though there could be little doubt that the trade was doomed. Even with this compromise, the leading Pennsylvania abolitionist Benjamin Rush hailed the slave trade clause as “a great point obtained from the Southern States.” His fellow Pennsylvanian and a delegate to convention, James Wilson, went so far as to say that the Constitution laid “the foundation for banishing slavery out of this country.”

History, of course, proved Wilson wrong—but not completely wrong. With the rise of the cotton economy, based on the invention of the cotton gin, which Wilson could not have foreseen, American slavery was far from stymied, but grew to become the mightiest and most expansive slavery regime on earth, engulfing further territories—including Cotton’s own Arkansas.

The Framers’ compromises over slavery had little to do with it, however. The problem was not primarily constitutional but political: so long as a substantial number of Northerners remained either complacent about slavery’s future, indifferent to the institution’s oppression, or complicit in the growth of the new cotton kingdom, the Constitution would permit the spread of human bondage.

Even so, in fact, the Constitution contained powerful antislavery potential. By refusing to recognize slavery in national law, the Framers gave the national government the power to regulate or ban slavery in areas under its purview, notably the national territories not yet constituted as separate states. The same year that the Framers met, the existing Congress banned slavery from the existing territories north of the Ohio River under the Northwest Ordinance, a measure reflected in the Constitution, which the new Congress quickly affirmed when it met in 1789. Later antislavery champions, including Abraham Lincoln, always considered the Northwest Ordinance to be organic to the Constitution; proslavery advocates came to regard it as an illegitimate nullity.

In time, as antislavery sentiment built in the North, the condition of slavery in the territories and in connection with the admission of new states became the major flashpoint of conflict, from the Missouri crisis of 1819–1821 to the guerrilla warfare of “Bleeding Kansas.” Proslavery champions like John C. Calhoun of South Carolina invented an argument that denied the Congress any power over slavery in the territories; Lincoln and his fellow Republicans refuted that argument. And upon Lincoln’s election as president in 1860, this constitutional issue was enough to spark the secession that led to the Civil War and Emancipation.

Senator Cotton has some mistaken things to say about that history, too. The Framers, he asserts, built the Constitution “in a way, as Lincoln said, to put slavery on the course to its ultimate extinction.” This absurdly imputes to the Framers powers of clairvoyance. Although Lincoln sometimes suggested that the Framers had purposefully designed slavery’s abolition—even Lincoln could wishfully exaggerate—the Constitution hardly ensured slavery’s doom. It took Lincoln’s and the antislavery Republicans’ concerted political efforts to vindicate the Constitution’s antislavery elements that set the stage for what Lincoln in his “House Divided” speech of 1858 called “ultimate extinction.”

Far from establishing a Union based on what Senator Cotton calls the “necessary evil” of slavery, the Founders fought bitterly over human enslavement, producing a document that gave slavery some protection even as it denied slavery national status and gave the federal government the power to restrict its growth—and so hasten its demise. The slaveholders, unable to abide that power, eventually seceded in an effort to form a new slaveholders’ republic, with a new Constitution built entirely on slavery: its cornerstone, as the Confederate Vice President Alexander Stephens declaimed, was “the great truth that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.”

Senator Cotton’s contempt for constitutional rights was previously revealed in his intemperate call for the invocation of the Insurrection Act and federal military power against protesters exercising their First Amendment rights to decry racism. His ignorance of history and the Constitution is the latest evidence of how the current Republican Party is, to say the least, a distant cry from the party Lincoln helped to found. As far as a Union founded on the “necessary evil” of slavery is concerned, Cotton appears unaware of how profoundly the Constitution of the United States of America differed from that of the Confederate States of America.

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