There were, finally, natural rights. The notion is generally attributed to Locke, but the American conception is probably somewhat original: Locke’s Treatises on Government likely relied too heavily on biblical authority for the deists who founded the new nation, and there is no real evidence that the more significant exposition of rights in the Second Treatise was even read by the framers. What the Americans fashioned was a conception of natural rights that lacked Locke’s rigorous conceptual framework, and perhaps also his conditions. For Locke, the social compact limited the exercise of rights, and even “inalienable rights” of “life” and “property” required the protection of positive law. For the framers, natural rights referred more loosely to freedoms which the government was bound to respect: rights to life, liberty, and property. These were more likely to be genuinely inalienable—they could not be ceded to the state—and genuinely natural—they preceded the state, and gave rise to, but did not depend upon, its positive laws.4
The distinction may be more than semantic: it may explain the framers’ otherwise remarkable capacity for inequality. The American conception of natural rights clearly underlies Madison’s “first object of government”; the social compact cannot embrace limitations on the pursuits of men because liberty is, a priori, essential to political life. Distinctions of property, then, are rooted in an inviolable liberty: inequality becomes a political mandate. This is not Rousseau, of course, and it is not even Locke. It explains, perhaps, why “equality” almost never appears as a first order principle: it is only a condition, as in, for example, John Dickinson’s devotion to “equal liberty” or “equal freedom.” When the framers do advocate “equality”—as when Noah Webster argues for an “equality of property”—it is almost always “liberty” that is on their minds: Webster’s argument is, above all, for the free alienability of property rights, for the accumulation of property not through divine rights of inheritance, but through merit.5
America’s natural order may not have been rooted in Locke or Rousseau, but it was clearly a product of its times. The modernist shift from the supernatural to the natural simply found full expression in the new nation. The process was manifest in a host of material ways—in the gradual transition, for example, from religious to property qualifications for suffrage—but its most significant impact was on political theory: it was not God, but nature, that defined and limited the realm of the politically possible. All men may have been created equal, and may have been endowed by their creator with inalienable rights, but they did not all evolve in equal ways, and the terms of their rights varied with the nature of things. Thus, in America, did the creator yield to creation.
“Justice,” “liberty,” and “equality” all assumed meanings constrained by nature; all were shaped by the “spirit” of the American nation. An undeniable part of that spirit was its natural order: generations of Americans would state both an empirical and a political truth when they claimed that theirs was a “white man’s government.” It was only natural, then, that justice, liberty, and equality should be reduced to fluctuating combinations of obfuscation, oxymoron, and empty formalism: they could then accommodate the harshest forms of economic, social, and political oppression. They could even accommodate slavery.
The Central Paradox
Slavery was not originally a distinct problem, in part because it did not begin as a distinctive condition. The line between servant and slave was hazy in the early colonies; in fact, the defining features of slavery would be contested clear through Reconstruction. In addition, many of the legal disabilities imposed on colonial bondsmen in their various forms—on slaves and servants of African, European, or Native American descent—were suffered by many “free” peoples: Native Americans, propertyless men regardless of their origins, and women. For early colonial thinkers, then, the problem of slavery was really a problem of degree.
But by the time of the Constitutional Convention, slavery was sufficiently distinct in form and fact to pose a peculiar challenge to the new nation’s political principles. The gradual separation of slave from servant happened principally as a matter of historical accident, and so too did the gradual correlation of color and condition. But, accident or not, these happened all the same, and by 1787 there was no longer mistaking slavery with any other form of servitude. To be sure, oppression, subordination, and exclusion persisted to varying degrees for many groups. But if these hardships constituted a continuum for eighteenth-century Americans, chattel slavery marked its logical extreme. For the slave, as for no other group, the disabilities were both complete and perpetual: the slave had, by nature, no cognizable rights, and was, also by nature, in every sense the inferior of the citizen. Slavery had become the dichotomous referent for American liberty and equality; thus most historians agree with Edmund Morgan’s appraisal that the concurrent rise of liberty and equality, on the one hand, and the institution of African slavery, on the other, would become “the central paradox of American history.”6
But as Morgan and others have noted, the paradox is not mere coincidence: liberty and equality, as America’s founders came to conceive them, were in fact deeply dependent on slavery. Consider:
Slavery provided a frame of reference for the American conception of liberty and an omnipresent reminder of the horrors of lost freedom. The rhetoric of the American Revolution never really did match the reality: the revolt itself had not been a popular one (at most a third of Americans had sought independence, and most of those for economic reasons) and, with perhaps one significant exception, independence had generally failed to produce social change. But the promise of its principles—of liberty and equality—offered a unifying theme for a new people, and slavery offered the rhetorical counterpoint. At the convention, then, Luther Martin could protest the proposed congressional electoral schemes by insisting that the smaller states would be “enslaved,” while in a radically different context, Benjamin Franklin could caution against the perpetual “servitude” of legislators. It was a pattern that would persist for generations: each compromise of freedom was liable to be condemned as slavery. Interestingly, no class was more ready to level the charge than the slaveholders: they were ever vigilant against “enslavement” by the Federalists, abolitionists, or the North. Perhaps, as Morgan suggests, “Virginians may have had a special appreciation of the freedom dear to republicans, because they saw every day what life without it could be like.” In a certain sense, their commitment to liberty and freedom was there at the beginning, even if it once served different goals: the first Virginia colony—at Roanoake—was founded to liberate African and Indian slaves from the Spanish.7
Slavery became the litmus test of American liberty, which embraced, above all other rights, the right to own property, including slaves. The almost incomprehensible notion of “human property” filled the law of slavery with contradictions: the ascendant liberal conception of property held that it must be freely alienable, and it abhorred perpetuities, but the law of human property fully consigned labor—it was freely alienable only for those who sold themselves into bondage—and maintained those laborers in perpetual bondage. The contradictions, of course, were a matter of perspective: for the slaveholder, the law was merely vindicating the rights in this species of property, on terms roughly commensurate with others. Thus Locke, who denounced hereditary slavery, was cited to support the natural rights of slaveholders; and Montesquieu’s condemnation of slavery as “absolute power” was used to define the slaveholder’s rights. Ultimately, respect for these peculiar property rights became the test of liberty, as well as the precondition to union. Speaking at the Philadelphia convention, Pierce Butler of South Carolina insisted that “[t]he security the South” States want is that their negroes may not be taken from them, which some gentlemen within or without doors, have a very good mind to do.” And, according to Madison’s notes on the convention, General Charles Cotesworth Pinckney “reminded the Convention that if the Committee should fail to insert some security to the Southern States ag* an emancipation of slaves, and taxes on exports, he shdbe bound by duty to his State to vote agst their Report.” Pinckney, of course, did not have to make good on his threat.8
Slavery made possible