Prof. Somin's assertion that TJ was an abolitionist makes us "feel better" about the founding of the nation, but does not reflect the reality of a man who owned 400 or so slaves during his lifetime, bought and sold people like, punished them by selling them away from the people they grew up with, and opposed every emancipation program that came before him. Where in this sordid record of his public and private life is there evidence that he opposed slavery. He must be compared to people like Judge St. George Tucker, who proposed and printed and circulated a gradual emancipation program for Va (which TJ would not endorse) or Edward Coles, who took his slaves to Ill, and freed them, or John Randolph and George Washington who free all their slaves in their wills; or John "Councillor" Carter who free ove 500 slaves one Sunday in the 1790s after coming back from Church.
-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189
918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Ilya Somin wrote:
IF I recall correctly, free blacks were citizens in at least one southern state (North Carolina) in 1787. It is possible that ordinary southern whites weren't aware of this fact, but such an assumption is less plausible in the case of southern political elites and southern delegates to the state ratifying conventions. It is also, I think, implausible to assume that southern white elites were unaware that free blacks were citizens in several northern states. As to why southern whites might have been willing to accept the presence of free black citizens, it is important to realize that such citizens were few in 1787, and the Constitution left the definition of citizenship largely in the hands of the states. Thus, southern whites, if they considered this issue at all, may not have seen much of a threat here. Regarding the DoI, I don't have much to add to the vast literature on the subject. However, Thomas Jefferson and many other framers were lifelong opponents of slavery so it is perfectly plausible that they meant to include blacks in it. Jefferson was one of the main supporters of the Northwest Ordinance and attempted to pass emancipation legislation in Virginia. Obviously, neither Jefferson nor the others expected immediate emancipation as a result of the Declaration, and many were personally hypocritical in so far as they continued to own slaves themselves. However, it is not true that they didn't realize that the wording of the DoI applied to blacks too, at least to the extent of condemning their enslavement. Ilya Somin On Fri, 1 Aug 2003, Paul Finkelman wrote:I agree with Franck that it was reasonable to argue that free blacks were citizens of hte US if you lived in some parts of the north; one assumes the Mass. framers believed this, from their experience. but the va, sc and ga framers would never have understood this is what they were doing. Can you imagine SC ratifiying if it pinckney had come back and said you will have to deal with black us citizens? there wre multiple intentions, as mark graber pointed out. The problem with "originalism" and "intentions" is that we cannot know what it means; we can look at text (is Franck now a strict constructionist/textualist?); but the text says slavery is protected in many ways; intentions go beyond text to the debates (where they can help us, but of course mostly they can't). But on slavery it is quite clear the southern framers *intended* to support slavery and ratified with that intention. See Pinckney's speeches in SC or even Madison's and Randolph's in VA. Thus, on this point, it seems to be, as Mark Graber said earlier, that Taney's orginalism is as plausible as anyone else's; I would argue more so, given the proslavery nature of the constitution. I did not get into teh Dec of I, but the only reference to slavery there is at the end, when the Dec complains about the king freeing slaves to fight against the patriots (He has incited domestic insurrections.) If something in the Dec. of I. was supposed to apply to slaves -- if that ws the *intent* of the DofI, I am sure the 40% of Virginia that was held in slavery would have been happy to know about it. But, neither the primary author (the Master of Monticello) nor very many other southern leaders, seemed to think that it applied. Now, that leaves Prof. Franck two alternatives. Either he can concede that the Dec. of I's authors did not intend it to apply to slavery or he can concend the founders, starting with TJ, of being dishonest, hypocritcal, etc. we agree on the territories clause; but I think Taney's 5th Amendment argument is powerful and goes to the heart of what slaveholders intended when the wrote and ratified that amendment. surely they did not intend it to be an abolitionist amendment; they intended it to protect their property. Lincoln's Cooper Union speech -- as well as his House Divided Speech and his debates with Douglas speeches are fine political rhetoric; I would have voted for him; but it is not great history. It is important for those of us who admire Lincoln, but who are modern scholars, to understand the difference between a great speech that fits and era, and serious historical analaysis. Lincoln was able to persuade the north that his view of history was how it ought to be, but that does not mean he was right about how it was. fortunately, Lincoln was neither an orginalist nor a text bound literalist. (ps, please excuse typoes, i am working with one hand, the other is taped up.) -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
