J. Reuben Clark, Jr. and the Constitution

Joshua Reuben Clark, Jr. was born on September 1, 1871 in Grantsville, Utah to Joshua Reuben Clark and Mary Louisa Wolley Clark. He graduated in the first class at the University of Utah in 1898 and married Luacine Annetta Savage in September of that year. They became the parents of three daughters and one son. In 1903 Clark moved his family to New York City to attend the law school at Columbia University, where he graduated with an LL.B. degree in 1906. He excelled in law school and was elected to the editorial board of the Columbia Law Review. During his public career from 1906 to 1933, Clark served as assistant solicitor, solicitor, and undersecretary of the U. S. State Department, taught as an assistant professor of law at George Washington University, and crowned his public career by serving as U.S. Ambassador to Mexico. It was during his service as undersecretary of the State Department that he published his influential “Clark Memorandum on the Monroe Doctrine.” 

In July 1935, J. Reuben Clark, Jr. spoke at a luncheon at the California Club on the subject of the Constitution, and said in part: “ We are deaf today to the approach of tyranny because we have lived so long under the protection of the Constitution that we take for granted the blessings of liberty . . . . We need more people today with strong convictions in support of the Constitution and with courage to back their convictions.”  J. Reuben Clark, Jr., “Stand Fast by Our Constitution” (Deseret Book Co. 1973), p. 4 (cited herein as “Clark”). 

He was a devoted and life-long student of history and of the roots of the American founding. With particularity he studied the Roman legal system and its progeny. From this background, he viewed the Constitution “as emerging from a long historical process. . . . [and saw] the framers of the Constitution as being men of great historical knowledge as well as practical experience.” He said: 

The Framers of our Constitution . . . were trained and experienced in the Common Law. They remembered the barons and King John at Runnymede. They were thoroughly indoctrinated in the principle that true sovereignty rested in the people. . . . Deeply read in history, steeped in the lore of the past in human government, and experienced in the approaches of despotism which they had, themselves, suffered at the hands of George the Third, these patriots, assembled in solemn convention, planned for the establishment of a government that would ensure to them the blessings they described in the Preamble. (Clark, p. 145, 147). 

Yes, he revered the Framers, and describing them said, “[a]s giants to pygmies are they when placed alongside our political emigres and fellow travelers of today, who now traduce them with slighting word and contemptuous phrase.” (Clark, pp. 135-36).         

A key feature of the Constitution important to J. Reuben Clark was the Bill of Rights, and particularly the First Amendment. He observed that “the greatest struggle which now rocks the whole earth more and more takes on the character of a struggle of the individual versus the state.” (Martin B. Hickman, “J. Reuben Clark, Jr.: The Great Fundamentals,” BYU Studies 13:3 (1973), p. 257 (cited herein as “Hickman”). In this regard, “he was particularly concerned with the protection of the freedoms guaranteed by the First Amendment: freedom of the press, of speech, and of religion.” (Id.) His firm opinion was that, “the fathers felt that when they protected freedom of speech and of the press against government interference, they had effectively guaranteed the citizens freedom to talk and write as they felt and thought about their own government” (Id., p. 269), and that this was essential to a free society. 

In describing the concept of federalism inherent the Constitution (see 9th & 10th Amendments), J. Reuben Clark emphasized that there is a dual jurisdiction in our Constitutional form of government -- State and Federal. He felt strongly that a limited federal government is what the Founding Fathers clearly intended in the Constitution, and that  “local government governs best.” He said: 

The Federal Government may only do what we the people have authority to do; if it does more it is guilty of usurpation. The people have reserved to themselves or to their State governments every right and power they have not delegated to the Federal Government, which must always look to the Constitution and its amendments to find its rights, for it has none other. This system puts the great bulk of our daily life activities in the hands of our own neighbors who know us and our surroundings, and not in the hands of a bureaucrat in a far-away national capitol, who, to all intents and purposes, is an alien to us and our affairs. This plan gives the largest possible measure to local self government. Liberty will never depart from us while we have local self-government controlling and directing matters pertaining to our personal liberties and to the security of our private property; it will not abide with us if we lose our local self government. (Clark, pp. 187-88). 

In regard to an informed society, Clark continually stressed the need for all American citizens to “constantly review the purposes for which the Constitution was written.” (Id., p. 271). He taught that our patriotic allegiance should not run to individuals or government officials “no matter how great or small they may be,” but that the only allegiance we owe as citizens runs to our Constitution. He stated that “this principle of allegiance to the Constitution is basic to our freedom.” (Clark, p. 189). He decried “those who . . . are incapable of understanding or appreciating the fundamentals of, or to think practically and creatively about, the problems of free self-government.” He expressed the conviction that “those who understand the spirit as well as the word of the Constitution will be able . . . to preserve its great principles and the republican form of government for which it provides.” (Clark, p. 158). 

With respect to the founding documents with which every citizen should be familiar and conversant, J. Reuben Clark was a diligent student of the history of the founding and particularly the Federalist Papers. He made the statement (in agreement with Thomas Jefferson) that “these essays have been appraised as ‘the greatest treatise on government that has ever been written,’ and its writers have been ranked as of the same order with Aristotle, Montesquieu, and Locke.” (Id., p. 135). He quoted Fiske stating that, “for all posterity the Federalist must remain the most authoritative commentary upon the Constitution that can be found.” (Id., p. 167). He also loved George Washington's poignant Farewell Address, and described it as a “prophetic admonition and warning.” He frequently quoted excerpts from the address when writing or speaking on the meaning of the Constitution and earnestly recommended to his listeners “to read it in its entirety.” 

In connection with Constitutional learning and vigilance, he vigorously urged each citizen to be watchful and to discern gradual encroachments to our liberties under the Constitution. James Madison stated: “I believe that there are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.” Echoing Madison's admonition, J. Reuben Clark offered this solemn warning: 

In the whole history of the human race, from Adam until now, Tyranny has never come to live with any people with a placard on his breast bearing his name. He always comes in deep disguise, sometimes proclaiming an endowment of freedom [or rights], sometimes promising to help the unfortunate and downtrodden, not by creating something for those who do not have, but by robbing those who have. But Tyranny is always a wolf in sheep's clothing, and he always ends by devouring the whole flock, saving none. (Clark, p. 5). 

John Quincy Adams and the Amistad case, 1841

 “On July 1, 1839, fifty-three Africans, recently kidnapped into slavery in Sierra Leone and sold at a Havana slave market, revolted on board the schooner Amistad. They killed the captain and other crew and ordered the two Spaniards who had purchased them to sail them back to Africa. Instead, the ship was seized off Long Island by a US revenue cutter on August 24, 1839. The Amistad was then landed in New London, Connecticut, where the American revenue cutter’s captain filed for salvage rights to the Amistad’s cargo of Africans. The two Spaniards claimed ownership themselves, while Spanish authorities demanded the Africans be extradited to Cuba and tried for murder. 

Connecticut jailed the Africans and charged them with murder. The slave trade had been outlawed in the United States since 1808, but the institution of slavery itself thrived in the South. The Amistad case entered the federal courts and caught the nation’s attention. The murder charges against the Amistad captives were quickly dropped, but they remained in custody as the legal focus turned to the property rights claimed by various parties. President Martin Van Buren issued an order of extradition, per Spain’s wishes, but the New Haven federal court’s decision preempted the return of the captives to Cuba. The court ruled that no one owned the Africans because they had been illegally enslaved and transported to the New World. The Van Buren administration appealed the decision, and the case came before the US Supreme Court in January 1841. 

Abolitionists enlisted former US president John Quincy Adams to represent the Amistad captives’ petition for freedom before the Supreme Court. Adams, then a 73-year-old US congressman from Massachusetts, had in recent years fought tirelessly against Congress’s “gag rule” banning anti-slavery petitions. Here, Adams accepted the job of representing the Amistad captives, hoping he would “do justice to their cause.” Adams spoke before the Court for nine hours and succeeded in moving the majority to decide in favor of freeing the captives once and for all. The Court ordered the thirty surviving captives (the others had died at sea or in jail) returned to their home in Sierra Leone.”[1]

_______________________________

Closing Argument of John Quincy Adams before the Supreme Court, February 23, 1841 

 “I said, when I began this plea, that my final reliance for success in this case was on this Court as a court of JUSTICE; and in the confidence this fact inspired, that, in the administration of justice, in a case of no less importance than the liberty and the life of a large number of persons, this Court would not decide but on a due consideration of all the rights, both natural and social, of every one of these individuals. I have endeavored to show that they are entitled to their liberty from this Court. I have avoided, purposely avoided, and this Court will do justice to the motive for which I have avoided, a recurrence to those first principles of liberty which might well have been invoked in the argument of this cause. I have shown that Ruiz and Montes, the only parties in interest here, for whose sole benefit this suit is carried on by the Government, were acting at the time in a way that is forbidden by the laws of Great Britain, of Spain, and of the United States, and that the mere signature of the Governor General of Cuba ought not to prevail over the ample evidence in the case that these negroes were free and had a right to assert their liberty. I have shown that the papers in question are absolutely null and insufficient as passports for persons, and still more invalid to convey or prove a title to property…my argument in behalf of the captives of the Amistad, is closed. 

May it please your Honors: On the 7th of February, 1804, now more than thirty-seven years past, my name was entered, and yet stands recorded, on both the rolls, as one of the Attorneys and Counsellors of this Court. Five years later, in February and March, 1809, I appeared for the last time before this Court, in defence of the cause of justice, and of important rights, in which many of my fellow-citizens had property to a large amount at stake. Very shortly afterwards, I was called to the discharge of other duties--first in distant lands, and in later years, within our own country, but in different departments of her Government. 

Little did I imagine that I should ever again be required to claim the right of appearing in the capacity of an officer of this Court; yet such has been the dictate of my destiny--and I appear again to plead the cause of justice, and now of liberty and life, in behalf of many of my fellow men, before that same Court, which in a former age I had addressed in support of rights of property I stand again, I trust for the last time, before the same Court--"hic caestus, artemque repono." I stand before the same Court, but not before the same judges--nor aided by the same associates--nor resisted by the same opponents. As I cast my eyes along those seats of honor and of public trust, now occupied by you, they seek in vain for one of those honored and honorable persons whose indulgence listened then to my voice. Marshall--Cushing--Chase--Washington--Johnson--Livingston--Todd--Where are they? …Where is the marshal--where are the criers of the Court? Alas! where is one of the very judges of the Court, arbiters of life and death, before whom I commenced this anxious argument, even now prematurely closed? Where are they all? Gone! Gone! All gone!--Gone from the services which, in their day and generation, they faithfully rendered to their country. From the excellent characters which they sustained in life, so far as I have had the means of knowing, I humbly hope, and fondly trust, that they have gone to receive the rewards of blessedness on high. In taking, then, my final leave of this Bar, and of this Honorable Court, I can only exclaim a fervent petition to Heaven, that every member of it may go to his final account with as little of earthly frailty to answer for as those illustrious dead, and that you may, every one, after the close of a long and virtuous career in this world, be received at the portals of the next with the approving sentence— “Well done, good and faithful servant; enter thou into the joy of thy Lord.”[2]

___________________________

[1] https://www.gilderlehrman.org/history-resources/spotlight-primary-source/john-quincy-adams-and-amistad-case-1841

[2] United States vs. The Amistad, 40 US 518 (1841); Adams' complete argument may be found at: https://avalon.law.yale.edu/19th_century/amistad_002.asp  

[3] See also: Amistad, movie trailer (1997) https://www.youtube.com/watch?v=BJFDOvGMD0U

Graphic of John Quincy Adams (L) and Joseph Cinqué (R), who led the revolt aboard the Amistad, https://en.wikipedia.org/wiki/Joseph_Cinqu%C3%A9 

The Real American Revolution

From John Adams to Hezekiah Niles, February 13, 1818

Mr Niles, 

The American Revolution was not a trifling or common Event. It’s Effects and Consequences have already been Awful over a great Part of the whole Globe. And when and Where are they to cease? 

But what do We mean by the American Revolution? Do We mean the American War? The Revolution was effected before the War commenced. The Revolution was in the Minds and Hearts of the People. A Change in their Religious Sentiments of their Duties and Obligations. While the King, and all in Authority under him, were believed to govern, in Justice and Mercy according to the Laws and Constitutions derived to them from the God of Nature, and transmitted to them by their Ancestors— they thought themselves bound to pray for the King and Queen and all the Royal Family, and all the Authority under them, as Ministers ordained of God for their good. But when they Saw those Powers renouncing all the Principles of Authority, and bent up on the destruction of all the Securities of their Lives, Liberties and Properties, they thought it their Duty to pray for the Continental Congress and all the thirteen State Congresses, &c. 

There might be, and there were others, who thought less about Religion and Conscience, but had certain habitual Sentiments of Allegiance And Loyalty derived from their Education; but believing Allegiance and Protection to be reciprocal, when Protection was withdrawn, they thought Allegiance was dissolved. 

Another Alteration was common to all. The People of America had been educated in an habitual Affection for England as their Mother-Country; and while they Thought her a kind and tender Parent, (erroneously enough, however, for She never was Such a Mother,) no Affection could be more Sincere. But when they found her a cruel Beldam willing, like Lady Macbeth, to “dash their Brains out,” it is no Wonder if their filial Affections ceased and were changed into Indignation and horror. 

This radical Change in the Principles, Opinions Sentiments and Affection of the People, was the real American Revolution. 

By what means, this great and important Alteration in the religious, Moral, political and Social Character of the People of thirteen Colonies, all distinct, unconnected and independent of each other, was begun, pursued and accomplished, it is surely interesting to Humanity to investigate, and perpetuate to Posterity. 

To this End it is greatly to be desired that Young Gentlemen of Letters in all the States, especially in the thirteen Original States, would undertake the laborious, but certainly interesting and amusing Task, of Searching and collecting all the Records, Pamphlets, Newspapers and even hand Bills, which in any Way contributed to change the Temper and Views of The People and compose them into an independent Nation. 

The Colonies had grown up under Constitutions of Government, So different, there was so great a Variety of Religions, they were composed of So many different Nations, their Customs, Manners and Habits had So little resemblance, and their Intercourse had been so rare and their Knowledge of each other So imperfect, that to unite them in the Same Principles in Theory and the Same System of Action was certainly a very difficult Enterprise. The complete Accomplishment of it, in So Short a time and by Such Simple means, was perhaps a Singular Example in the History of Mankind. Thirteen Clocks were made to Strike together; a perfection of Mechanism which no Artist had ever before effected....

The Right to Keep and Bear Arms

“In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.” 

—St. George Tucker [1]

        “A foundation of our American republic is “the natural law principle that every human possesses certain inalienable rights. Inherent in this is a right to self-defense—that is, to forcibly resist infringements on inalienable rights. The right of the people to keep and bear arms, enshrined in the Constitution’s Second Amendment, is centered not on hunting or sport shooting but on this natural right of self-defense. It gives “teeth” to the promises of liberty, ensuring that attempts to reduce our natural rights to mere dead letters may be met with meaningful resistance.  

        The Framers and ratifiers of the Second Amendment did not operate in a philosophical or historical vacuum. In ratifying the Second Amendment, they built upon a strong foundation of inherited rights they had long possessed as Englishmen. A century before American independence, the Declaration of Rights of 1689 codified the right of English subjects to possess arms for their defense. Nearly contemporaneous to the American Revolution, famed English jurist William Blackstone listed the right of English subjects to possess arms for their defense as one of the principal barriers against violations of life, liberty, and property. This cherished right flowed from “the natural right of resistance and self-preservation, where sanctions of society and laws are found insufficient to restrain the violence of oppression.” 

        The right to keep and bear arms for self-preservation may vest in the individual, but it also secures a collective resistance against large-scale threats to liberty. The founding generation well understood that people who lack the means to defend and enforce their rights are not, in any meaningful sense, free. For centuries, ruling monarchs had often disarmed the general population and then employed professional armies or loyal “select” militias to impose their tyrannical rule on a defenseless people. In a very real sense, the war for independence from Great Britain started over King George III’s attempts to do the same. As colonial frustrations over repeated injuries to their rights and liberties reached a breaking point, the royal response grew progressively hostile and heavy-handed. Increasingly larger numbers of royal soldiers were sent to occupy Boston, not to protect the civilians from foreign threats, but to enforce controversial laws at bayonet-point and intimidate the colonists into submission. Ultimately, under orders from the King, General Thomas Gage led hundreds of well-armed professional troops to forcibly seize supplies of arms and gunpowder stored in some of the most disaffected areas of colonial America—the Massachusetts towns of Lexington and Concord. The ensuing skirmishes between British regulars and colonial militiamen were a final “spark” that set the Revolution ablaze. Had the colonists allowed themselves to be widely disarmed—or had they not already been one of the most widely armed civilian populations in history—the Revolution would certainly have been doomed. 

        It is little wonder, then, that the Founders immediately sought to safeguard the “right of the people to keep and bear arms” in their new nation. Their foresight to guarantee a well-armed citizenry continues, even today, to ensure the “security of a free state.”[2]

_______________________________

[1] William Blackstone, Commentaries (St. George Tucker Ed., Lawbook Exchange, Ltd. 1996) (1803). 

[2] Source for Text: https://www.heritage.org/the-essential-second-amendment/the-origins-the-second-amendment

Photo credit: Don Troiani https://www.dontroiani.com/

Copyright © Don Troiani All Rights Reserved.

Note: In District of Columbia v. Heller, 554 U.S. 570 (2008), the U. S. Supreme Court ruled that private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia. 

See also: "The Battle of Athens: An Obscure American Revolution" (1946)

https://www.libertarianism.org/articles/battle-athens-obscure-american-revolution

Statue of Freedom (U.S. Capitol)

“Affixed at the top of the United States Capitol, “Statue of Freedom is a classical female figure with long, flowing hair wearing a helmet with a crest composed of an eagle's head and feathers. She wears a classical dress secured with a brooch inscribed “U.S.” Over it is draped a heavy, flowing, toga-like robe fringed with fur and decorative balls. Her right hand rests upon the hilt of a sheathed sword wrapped in a scarf; in her left hand she holds a laurel wreath of victory and the shield of the United States with 13 stripes. 

The helmet is encircled by nine stars. Ten bronze points tipped with platinum are attached to her headdress, shoulders and shield for protection from lightning. She stands on a cast-iron pedestal topped with a globe encircled with the motto E Pluribus Unum (Out of many, one). The lower part of the pedestal is decorated with fasces (symbols of the authority of government) and wreaths. The pedestal is 18-1/2 feet high and almost doubles the total height. The crest of Freedom’s headdress rises 288 feet above the East Front Plaza. 

Statue of Freedom does not wear or hold a knitted liberty cap, as would have been expected in nineteenth-century art. The knit cap provided to freed slaves in ancient Rome had been adopted as the symbol of liberty or freedom during the American and French Revolutions and was usually shown as red. The Statue of Freedom's crested helmet and sword, suggesting she is prepared to protect the nation, are more commonly associated with Minerva or Bellona, Roman goddesses of war. The history of the statue's design explains why she wears a helmet rather than a liberty cap. The story of her casting reveals that some of the people who worked to create Freedom were not themselves free. 

Background & Design Process 

A monumental statue for the top of the national Capitol was part of Architect Thomas U. Walter's original design for a new cast-iron dome, which was authorized by Congress in 1855. Walter's first drawing showed a 16-foot statue holding a liberty cap on the long rod with which a slave would be symbolically touched during a ceremony bestowing his freedom in ancient Rome. 

Construction Superintendent Captain Montgomery Meigs, who was overseeing the artistic decoration of the Capitol extensions, had already engaged American sculptor Thomas Crawford to create other sculptures for the building, including the Senate pediment. He also had Crawford make models for the two bronze doors and for the figures of Justice and History over the Senate door. Born in New York City, Crawford had established a studio in Rome. His portrait statues and groups of classical and historical figures had earned him a reputation as both talented and prolific. 

On May 11, 1855, Meigs wrote to the artist at his studio to commission the statue for the dome. Regarding its subject, Meigs wrote, "We have too many Washingtons, we have America in the pediment. Victories and Liberties are rather pagan emblems, but a Liberty I fear is the best we can get." 

Crawford ended up creating a series of three maquettes (preliminary small models) several feet high and sending photographs of them to Meigs for approval. He described his first design with a female figure wearing a wreath of wheat and laurel as "Freedom triumphant—in Peace and War." 

However, when Meigs sent him a copy of the drawing for the dome, Crawford realized that his statue needed to be taller and stand upon a more prominent pedestal. He then sculpted a graceful figure in a classical dress wearing a liberty cap encircled with stars, holding a shield, wreath, and sword, which he said represented Armed Liberty. It was sent to Secretary of War Jefferson Davis, who was in charge of the overall construction at the Capitol. Davis objected to the liberty cap, the symbol of freed slaves, because "its history renders it inappropriate to a people who were born free and should not be enslaved." Davis suggested a helmet with a circle of stars. In response, Crawford designed a crested version of a Roman helmet, "the crest of which is composed of an eagle’s head and a bold arrangement of feathers, suggested by the costume of our Indian tribes." This third design was approved by Jefferson Davis in April 1856. 

Crawford executed the full-size clay model in his studio in Rome. It was then cast in plaster in five major sections. He died suddenly in 1857 before the model left his studio, and his widow shipped the model, packed into six crates, in a small sailing vessel in the spring of 1858. During the voyage the ship began to leak and stopped in Gibraltar for repairs. After leaving Gibraltar, the ship began leaking again to the point that it could go no farther than Bermuda, where the crates were left in storage until other transportation could be arranged. Half of the crates arrived in New York in December, but all sections were not in Washington until late March 1859. 

Beginning in 1860, the statue was cast in five main sections by Clark Mills, whose bronze foundry was located on the outskirts of Washington. Work was halted in 1861 because of the Civil War, but by the end of 1862, with the help of the slave Philip Reid, the statue was finished and temporarily displayed on the Capitol Grounds… Late in 1863, construction of the dome was sufficiently advanced for the installation of the statue, which was hoisted in sections and assembled atop the cast-iron pedestal. The final section, the figure's head and shoulders, was raised on December 2, 1863…”[1] 

The Celebration

“A large crowd stood on the U.S. Capitol’s East Plaza, heads tilted back as they looked skyward, 288 feet above them. Even amid the Civil War and frigid temperatures, hopes ran high as the last piece of a massive new bronze statue, Freedom, was deposited on top of the U.S. Capitol’s dome. As the final piece swung into position, the raising of a Union flag signaled — success! 

The crowds cheered, and [thirty-five] cannons [of the twelve forts positioned] around Washington thundered a deafening salute. “Let us indulge the hope,” wrote the National Intelligencer, “that our posterity to the end of time may look upon it with the same admiration.” 

After eight years of construction during an unprecedented national crisis, the Capitol’s dome, a symbol of Union and republican government, was crowned with a monumental statue personifying freedom. Although President Abraham Lincoln did not attend the ceremony (he had a mild case of smallpox) his symbolic presence at the event was undeniable. 

Just weeks previously, Lincoln spoke about a “new birth of freedom” during his famous Gettysburg Address. The statue carried his imprint; the engineer who installed it stamped “A LINCOLN PRESIDENT” on its feathered headdress, where it remains today.”[2] 

_____________________________________ 

[1] Architect of the Capitol, Statue of Freedom https://www.aoc.gov/explore-capitol-campus/art/statue-freedom 

[2] Blake Lindsey, A Tale of Two Symbols: Lincoln and the U.S. Capitol Dome, https://fords.org/a-tale-of-two-symbols-lincoln-and-the-u-s-capitol-dome/ 

First photo: Andreas Praefcke - Self-photographed, CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=2268299 

 

Second Photo by Architect of the Capitol

The Founders and Slavery

        The New York Times’s 1619 Project was launched in 2019 – the 400th anniversary of the colonization of Jamestown. Their bold claim was that: “the moment [America] began,” was in August 1619 when about twenty enslaved Africans were brought ashore in Virginia and sold as a form of property. “This incident, the Times writers said, ‘is the country’s very origin.’ Although the nation’s ‘official birthdate’ came long after, it is really ‘out of slavery—and the anti‐black racism it required’ that ‘nearly everything that has truly made America exceptional’ grew.”[1] They also assert that “our founding ideals of liberty and equality were false when they were written.” Shortly thereafter, the Pulitzer Center on Crisis Reporting, a Washington, D.C.-based nonprofit (unaffiliated with the Pulitzer Prizes), released lesson plans and reading guides aimed at bringing the 1619 Project into classrooms.[2] Occurring almost in synchronization with this, Critical Race Theory and its progeny have become “hot button” topics in education and politics. As a result, much discussion and debate has occurred about the American founding, the U. S. Constitution, and the Framers’ attitudes towards slavery and the natural rights of all mankind.[3] 

        To ascertain the intentions of the Founders with respect to slavery, we may examine original source documents such as James Madison’s Notes of the Debates in the Federal Convention of 1787, the correspondence and speeches of the leading Framers of the U. S. Constitution, as well as pamphlets, broadsides, and newspaper editorials of the time. Bernard Bailyn’s book “The Ideological Origins of the American Revolution”[4] (awarded both the Pulitzer and the Bancroft prizes) synthesized hundreds of pamphlets, letters, newspapers, and sermons from the founding era to ascertain both the historical roots and the primary philosophical ideas of the Founders and their fellow colonists. Somewhat surprisingly, Bailyn observed that as the pending revolution progressed, “[n]ew, and difficult, problems, beyond the range of any yet considered, unexpectedly appeared … No one had set out to question the institution of chattel slavery, but by 1776 it had come under severe attack by writers following out the logic of Revolutionary thought. The connection, for those who chose to see it, was obvious. ‘Slavery’ was a central concept in the eighteenth-century political discourse. As absolute political evil, it appears in every statement of political principle, in every discussion of constitutionalism or legal rights, in every exhortation to resistance.” (emphasis added, p. 232) However, he notes that, “[t]he presence of an enslaved Negro population in America inevitably became a political issue where slavery had this general meaning. The contrast between what political leaders in the colonies sought for themselves and what they imposed on, or at least tolerated in, others became too glaring to be ignored ….” (p. 235) He continues, “[a]s the crisis deepened and Americans elaborated their love of liberty and their hatred of slavery, the problem posed by the bondage tolerated in their midst became more and more difficult to evade.” (p. 241) Possibly then, in one way of looking at their intentions, in the Declaration of Independence the founders declared that “all men are created equal” and that they are each “endowed by their creator with certain inalienable rights,” but the natural consequences of these statements were more portentous than what they may have thought in July of 1776. They more fully realized that human slavery had to be confronted. 

        We may possess an advantage in looking back in time with many such historical records, but such perceived advantage can also serve a stumbling block when we view the past through a modern lens. Current societal attitudes and prejudices may jade and skew both our thinking and judgment concerning the founders and their generation. Another method to evaluate and judge the past is to read and study the thoughts and opinions of others who were well-known and who took significant time to review, ponder, and analyze the writings and actions of the Founders with respect to the treatment of slavery under the U. S. Constitution. Preeminent among these is Abraham Lincoln. 

        From his youth through his adulthood, Abraham Lincoln read about and studied the lives and writings of the Founders, especially George Washington and Thomas Jefferson.[5] Additionally, when Lincoln served as a U. S. Congressman, he spent significant time in the Library of Congress and archives reading documents and letters of the Founders, including the thirty-nine signers of the Constitution and the seventy-six members of the first U. S. Congress.[6] 

        During the Illinois senate campaign of 1858, Lincoln engaged in a series of formal debates with the incumbent Senator, Stephen A. Douglas, in a contest for one of Illinois' two United States Senate seats. Although Lincoln lost the election, these debates launched him into national prominence which eventually led to his election as President of the United States. The main theme of the Lincoln–Douglas debates was slavery, particularly the issue of slavery's expansion into the territories. Preceding the debates, in 1857, the U.S. Supreme Court in an opinion authored by Chief Justice Taney, held that blacks “had no rights which the white man was bound to respect.”[7] 

        The question of the equal rights of “all men” was on the mind of almost all citizens. The long-held and simmering disagreements related to this question, and to slavery itself, led not only to great debates, but to great divisions among the American people (as it does today). In these “Great Debates” with Douglas, Lincoln frequently referred to the language in the Declaration that “all men are created equal” and effectively placed those lofty words in historical context: 

I think the authors of that notable instrument [the Declaration of Independence] intended to include all men, but they did not mean to declare all men equal in all respects. They did not mean to say all men were equal in color, size, intellect, moral development or social capacity. They defined with tolerable distinctness in what they did consider all men created equal — equal in certain inalienable rights, among which are life, liberty and the pursuit of happiness. This they said, and this they meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right so that the enforcement of it might follow as fast as circumstances should permit.”[8] 

Lincoln understood and believed that the Founders meant what they said, but did not have power to miraculously change their society and culture to adopt the divine standard. Achieving such equality would require faith, labor, sacrifice and time. “They [the Founders who issued the Declaration] meant to set up a standard maxim for free society which should be familiar to all,—constantly looked to, constantly labored for, and even, though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people, of all colors, everywhere.”[9]  In the candidates’ debate held on October 7, 1858 at Knox College in Galesburg, Illinois, Abraham Lincoln replied, 

The judge has alluded to the Declaration of Independence, and insisted that negroes are not included in that Declaration; and that it is a slander upon the framers of that instrument to suppose that negroes were meant therein; and he asks you: Is it possible to believe that Mr. Jefferson, who penned the immortal paper, could have supposed himself applying the language of that instrument to the negro race, and yet held a portion of that race in slavery? … I believe the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration of Independence; I think I may defy Judge Douglas to show that he ever said so, that Washington ever said so, that any President [including Jefferson] ever said so, that any member of Congress ever said so, or that any living man upon the whole earth ever said so, until the necessities of the present policy of the Democratic party in regard to slavery had to invent that affirmation. 

Lincoln, through his own lengthy research in the records and archives in Washington D.C., could emphatically state that no Founder, no signer of the Declaration, and no member of the first U. S. Congress, ever said or wrote that “all men” did not include negroes or blacks. In this case, what they didn’t say may carry as much weight as what they did say. 

        As President of the ‘United’ States, now divided, Lincoln’s first object in the Civil War was to preserve the Union and the Constitution. But, as he so eloquently stated in his Gettysburg Address, he came to the conviction that the greater cause of the war was human equality: “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure.”[10]  To Lincoln, “all men are created equal” constitutes the main proposition and dedicatory cause of the nation of America, and the antitheses of slavery. Throughout his life and in his speeches, particularly the Gettysburg Address, Abraham Lincoln stood for the proposition that the Declaration’s bold affirmation of human equality represents the soul of America. As he said, “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.”[11] 

        Immediately following Lincoln’s election as President in 1860 the force of events moved very quickly towards secession. South Carolina acted first, calling for a convention to secede from the Union. State by state, conventions were held, and the Southern Confederacy was formed. Within three months of Lincoln's election, seven states had seceded from the Union. On March 12, 1861, few weeks preceding the outbreak of the Civil War, the new Confederate States’ Vice President, Alexander H. Stephens, in his “Cornerstone Speech,” in Savannah, Georgia, declared that the Confederacy stood for the proposition that Jefferson and the Founders were fundamentally wrong in declaring that “all men are created equal” and that the white and black races are fundamentally unequal. Remarkably and sadly, Stephens proclaimed: 

The new [Confederate] constitution has put at rest, forever, all the agitating questions relating to our peculiar institution African slavery as it exists amongst us the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the “rock upon which the old Union would split.” He was right... The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time... Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error... Our new government is founded upon exactly the opposite idea; its foundations are laid, its cornerstone rests, upon 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....”[12] 

Thus, in seceding from the Union, the Confederate states actually stood against Jefferson and the signers of the Declaration, basing their constitution on the philosophy of human inequality with a right to sell and enslave men and women as property. Over a period of 80 years, this fundamental difference in philosophy with respect to the natural rights of all men led to the complete division of the country. As Professor Thomas West significantly noted, “Abraham Lincoln, Stephen Douglas and Alexander Stephens agreed on one thing: the cause of the civil war was slavery.” [13] 

        While the Founders had their faults and prejudices, in stark contrast to the world at large in the 18th century, they believed in natural law principles and universal human rights. They pledged their lives, fortunes, and scared honor to the truth that “all Men are created equal.” They lived, fought, and labored to form a new nation based on principles of individual liberty and equality. To do so they were compelled to compromise between two, vested coalitions. If they had intended to promote and preserve slavery, they could have done so by enshrining it in an unmistakable manner for their own and future generations. Instead, they wisely and carefully crafted a government of delegated and separated powers designed to limit slavery’s status and restrict its future under the provisions of the Constitution, which they believed one day would eventually bring the abhorrent institution to its deserved end. Of course, the troubling history of slavery and racial prejudice in America should be acknowledged and taught, and we should all work to eliminate injustice, but those who write and teach that the Founders of our republic did not believe what they said in regard to our Creator endowing us with liberty and equal rights do a great disservice to our nation and to our children. 

__________________________________

1. Timothy Sandefur, “The 1619 Project: An Autopsy” (Cato Institute, October 27, 2020), https://www.cato.org/commentary/1619-project-autopsy, accessed July 28, 2022. 

2. Naomi Schaefer Riley, “The 1619 Project Enters Classrooms” (Education Next, News Vol. 20, No. 4) https://www.educationnext.org/1619-project-enters-american-classrooms-adding-new-sizzle-slavery-significant-cost/, accessed July 28, 2022.

3. Alexander Hamilton stated, “Natural Liberty is a gift of the beneficent Creator to the whole human race.” Address to the People of Great Britain,” Journals of the Continental Congress, Ford, Worthington C., ed. (Government Printing Office, Washington D.C., 1904-37) 1:82, 89. 

4. Belknap Press of Harvard University Press; Enlarged edition (1992) 

5. Ronald D. Rietveld, “Abraham Lincoln’s Thomas Jefferson” (White House Studies, Nova Science Publishers, 2005). 

6. Address at Cooper Institute, New York, February 27, 1860, Roy P. Blaser, ed., “Abraham Lincoln: His Speeches and Writings,” (Da Capo Press, Cleveland, 2001), pp. 517-524. 

7. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 

8. Debate at Alton, October 15, 1858, in The Collected Works of Abraham Lincoln, Roy P. Basler, ed. (Rutgers University Press, New Brunswick, New Jersey, 1953), Volume III, p. 283-325. (“CWAL”). 

9. Ibid. 

10. Gettysburg Address, November 19, 1863, in CWAL, 7:22-23. 

11. Speech at Independence Hall, February 21, 1860, American Patriotism, S. Hobart Peabody, ed. (American Book Exchange, New York, 1880), p. 507. 

12. Alexander H. Stephens (Cornerstone Speech), March 21, 1861, In Public and Private: With Letters and Speeches, Before, During, And Since The War, Cleveland, Henry, ed. (National Publishing Co., Philadelphia, Chicago, 1886), pp. 717-729. 

13. Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America (Rowman & Littlefield, 2000), p. 35.