The Flawed Genius of the Constitution

Why do I love the U.S. Constitution? This instrument formally converted the worth of my great-great-grandfather Sidiphus into three-fifths’ that of a free person. Living in the East Indies as a free man, Sidiphus had been tricked into enslavement—recruited to a Georgia farm just before the Civil War by the promise of a foremanship. Had he managed to escape Georgia and bondage prior to the onset of the war, the Constitution would not have protected his God-given natural rights.

Article I, Section 2 of the Constitution determined that representation in Congress and direct taxation would be apportioned to the states by adding up the whole number of free people, plus “three-fifths of all other persons”—meaning enslaved persons—“excluding Indians not taxed.” These words carried into the Constitution a compromise first formulated in 1783 in a proposed amendment to the Articles of Confederation. That compromise was later adopted in the Constitution to resolve the conundrum of how to tax the plantation wealth of the South without giving white landowners outsize power in Congress by including enslaved people in the official count of the population.

Given the crime against humanity written into the Constitution because compromise was necessary to form a union—and given the sharp and unabating attention that the nation’s Founders and their writings have received in recent months—I had better have a rock-solid explanation for my love of that document. Simple love of country, land of my mother’s milk, won’t do. My love must be sighted, not blind.

Special project: The battle for the Constitution

As it happens, Sidiphus’s God-given natural rights had been much earlier asserted by none other than Thomas Jefferson and fellow members of the drafting committee of the Declaration of Independence. They took the trouble to make this assertion in the original draft of the Declaration, when they castigated the King of England for violating—through his protection of the trade in enslaved people—the “sacred rights of life and liberty” of Africans who had never done him any harm. We will never know if it was Jefferson who thought up those words—words that would take many Americans today by surprise—or another committee member, perhaps John Adams or Benjamin Franklin. Adams, from Massachusetts, never enslaved anyone and thought enslavement was wrong. Franklin, from Pennsylvania, who himself had been an indentured servant, did enslave African Americans early in his life, but he eventually abandoned the practice and became a full-throated abolitionist. Pennsylvania and Massachusetts would be the first states to abolish enslavement, in 1780 and 1783, respectively (and gradually in the case of Pennsylvania)—years before the U.S. Constitution was adopted, and even before the Revolution was formally over. The Continental Congress, of course, in its revisions to the draft of the Declaration of Independence, struck out any explicit recognition of Africans’ human rights, postponing their protection until 1865, when the Thirteenth Amendment was ratified.

Already in 1776, Benjamin Franklin could make cutting jokes about the so-called slave interest and its influence on American politics. In the July 1776 debates over the Articles of Confederation, this exchange occurred between Franklin and Thomas Lynch Jr., of South Carolina, as recorded in the Journals of the Continental Congress:

lynch: If it is debated, whether their slaves are their property, there is an end of the confederation. Our slaves being our property, why should they be taxed more than the land, sheep, cattle, horses, &c.? Freemen cannot be got to work in our Colonies; it is not in the ability or inclination of freemen to do the work that the negroes do.

franklin: Slaves rather weaken than strengthen the State, and there is therefore some difference between them and sheep; sheep will never make any insurrections.

Franklin knew that enslaved men, women, and children were fully his equal, as capable of insurrection and revolution as he and his colleagues had been that hot July day in Philadelphia when they resolved to break away from Britain. Franklin recognized that a society built on a foundation of domination would be as unstable as the foundation itself.

Eleven years later, though, Franklin was helping shore up the Great Compromise, the adoption of the three-fifths clause that underestimated my great-great-grandfather’s worth. In the final days of the Constitutional Convention, delegates debated whether they would convey their draft to Congress without individual endorsements or seek to have each delegate affix his signature to the document. The latter approach, which in fact played out, would amount to a pledge of commitment and ensure that dissent would die in the Convention—sworn secrets of the debates long concealed until James Madison’s unofficial notes surfaced decades later. Franklin was in favor of consensus and for burying reservations. In a statement he said:

Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity.

With these words, Franklin articulated the deepest, hardest truth of free self-government. People can have the chance of self-government through the institutions of constitutional democracy if and only if they prioritize the preservation of those institutions over wins in substantive domains of policy. For this lesson, Abraham Lincoln is our foremost teacher. When union and policy commitments come into conflict, those who wish to preserve free self-government must choose union. In that spirit, Franklin chose freedom for some over freedom for none.

Yet not all compromises are good ones. And not all are necessary. To understand and embrace the centrality of compromise to the sustainability of constitutional democracy and the self-government of free and equal citizens, one needs to be able to distinguish between good and bad compromises. Both the Declaration and the Constitution (via the Bill of Rights) include another important compromise, this one not about enslavement but about religion. The Declaration simultaneously uses the languages of rationalism and of faith to establish the grounds for its moral commitment, as when it invokes the “Laws of Nature and of Nature’s God.” While the text refers to a “Creator,” to “divine Providence,” and to a “Supreme Judge,” it studiously avoids using the vocabulary of any specific religion or doctrine. The text is capacious. Believers and nonbelievers alike are given reason to sign on; no specific form of belief takes precedence. Similarly, the Constitution’s inclusion of the protection of religious freedom and the separation of Church and state formed the structure for a profoundly valuable and durable compromise. James Madison led the argument for the provision, responding to efforts in Virginia to pass a law requiring all taxpayers to make an annual contribution or pay a moderate tax in support of churches. (Advocates of the law included some of the old lions of the Revolution, such as Patrick Henry, Edmund Pendleton, and Richard Henry Lee.)

What made the compromises around religion morally legitimate and sound was that they took into account the perspectives of all those in the new country who would be affected by them. Every religious point of view present in the colonies in 1776 was conceivably embraced by the language, including those of the disenfranchised. The compromise about enslavement did not, in contrast, consider the perspective of all those affected by that decision. Standing on partial ground, it lacked moral legitimacy and would ultimately prove destabilizing for the country.

From the October 2015 issue: How the Constitution caused our dysfunctional government

Yet the compromise was made, and Franklin was not the only one who understood himself to have been complicit in it. So too did James Wilson. Wilson, like Franklin, was from Philadelphia. At the Constitutional Convention, he was one of the few elder statesmen who had also signed the Declaration of Independence. (Wilson was 44; Madison was 36.) He repeatedly asserted that the work of creating the Constitution was but an extension of foundations laid by the Declaration. Wilson was Madison’s equal at the Convention in terms of learning and influence. Although he was a member of the first Supreme Court, we have nonetheless all but forgotten him, presumably because he was also the first and only Supreme Court justice to go to debtors’ prison (as a result of failed land speculations). He died of a stroke while fleeing the reach of the law.

Whereas Franklin was an enslaver in the earlier parts of his life, Wilson was an enslaver for much of his life. Even while publicly writing and speaking against enslavement, he owned a man named Thomas Purcell for 26 years. However, two months after marrying a Quaker woman, Hannah Gray, he emancipated Purcell, an act often attributed to Gray’s influence. Like Franklin, Wilson fully understood the nature of the compromise in the Constitution, and was prepared to accept it. During Pennsylvania’s ratifying convention, he responded thus to a Pennsylvanian who objected to the three-fifths clause of the Constitution and to another provision, in Article I, Section 9, protecting the right to import enslaved people for 20 years:

With respect to the clause restricting Congress from prohibiting the migration or importation of such persons as any of the states now existing shall think proper to admit, prior to the year 1808, the honorable gentleman says that this clause is not only dark, but intended to grant to Congress, for that time, the power to admit the importation of slaves. No such thing was intended … Under the present Confederation, the states may admit the importation of slaves as long as they please; but by this article, after the year 1808, the Congress will have power to prohibit such importation, notwithstanding the disposition of any state to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind, gradual change, which was pursued in Pennsylvania … A tax or duty may be imposed on such importation, not exceeding ten dollars for each person; and this, sir, operates as a partial prohibition; it was all that could be obtained. I am sorry it was no more; but from this I think there is reason to hope, that yet a few years, and it will be prohibited altogether.

The best, then, that can be said about the compromises regarding slavery that also helped the Constitutional Convention achieve unanimity is this: Those who knew enslavement was wrong but nonetheless accepted the compromises believed they were choosing a path that would lead inexorably, if incrementally, to freedom for all.

We cannot, however, assume with Wilson and Franklin and others like them that incrementalism was the only available path to freedom for all. It is also not clear that the Constitution’s compromises even accelerated the march of freedom, whether for enslaved people or for people more generally. Britain offers a natural experiment with which to make judgments about alternative paths. Revolutionary ideas were afoot there too in the 1770s and ’80s. Universal suffrage for men was proposed in Parliament for the first time in 1780 by Charles Lennox, the third Duke of Richmond, an ardent supporter both of the American revolutionaries and of radicals in Britain. Yet at home, in the British Isles, the Crown managed to fend off the revolution it could not defeat in 13 of its colonies.

This, however, did not result in the permanent nonfreedom of British subjects. A British legal judgment in 1772 introduced a doctrine against selling enslaved people abroad, a doctrine that was commonly though erroneously thought to mean that no one could be held as a slave on English soil. In de facto fashion it reduced enslavement in Britain and redirected the attention of abolitionists to enslavement in the British colonies. In 1793, “Upper Canada”—in essence, the region just north of the Great Lakes—passed the Act to Limit Slavery, the first law of its kind in the remaining British colonies. Britain itself in 1833 passed the Slavery Abolition Act, dismantling enslavement throughout its Caribbean colonies and making Canada a free land for African Americans who escaped slavery in the U.S. The law helped make possible the Underground Railroad, the fights about the Fugitive Slave Act, and the dynamics that eventually led to the Civil War.

As to universal manhood suffrage, there the United Kingdom moved slowly. In 1832, Britain introduced the first of what would eventually be three 19th-century Reform Acts. This act had different rules for those living in counties versus towns. In towns, men who occupied property with an annual rent of at least 10 pounds could vote. That still left six out of seven men without voting rights. Britain adopted another reform measure in 1867 and one more in 1884. The third Reform Act gave the vote to all male house owners and all males paying rent of 10 pounds or more a year—leaving out 40 percent of men and of course 100 percent of women. These changes were accomplished without a bloody internal war.

The U.S. gave the vote to all male citizens regardless of skin color or former condition of servitude only with the Fifteenth Amendment, in 1870. Until that point, African Americans as well as some white men in states that made tax payment a prerequisite had been denied the right to vote. These changes required a bloody civil war, and even they were still partial. Pennsylvania and Rhode Island maintained tax-paying qualifications into the 20th century; women and Native Americans did not yet have suffrage. In both Britain and the United States, true universal suffrage was not adopted until well into the 20th century, and fights for voting rights persist.

In other words, the Constitution did not earn an earlier release from bondage or promote universal suffrage for men much faster than was accomplished under Britain’s constitutional monarchy. Nor much faster than was achieved in Canada, a country we can look to for an answer to the question of what might have happened had the North American colonies that came to form the United States failed in their bid for freedom.

What did accelerate the march of freedom for all was abolitionism, a social movement that crystallized in both the United States and the United Kingdom in the years immediately following the revolutionary break between the two. Moral leadership made this difference. Freedom flows from the tireless efforts of those who proclaim and pursue protection of the equal human dignity of all.

So why, then, do I love the Constitution? I love it for its practical leadership. I love it because it is the world’s greatest teaching document for one part of the story of freedom: the question of how free and equal citizens check and channel power both to protect themselves from domination by one another and to secure their mutual protection from external forces that might seek their domination.

Why do we have three distinct aspects of power—legislative, executive, and judicial—and why is it best to keep them separate and yet intermingled? A typical civics lesson skates over the deep philosophical basis for what we glibly call “separation of powers” and “checks and balances.” Those concepts rest on a profound reckoning with the nature of power.

The exercise of power originates with the expression of a will or an intention. The legislature, the first branch, expresses the will of the people. Only after the will is expressed can there be execution of the desired action. The executive branch, the second branch, is responsible for this. The judiciary comes third as a necessary mediator for addressing conflicts between the first and second branches. The three elements of power—will, execution, and adjudication—are separated to improve accountability. It is easier to hold officials accountable if they are limited in what they are permitted to do. In addition, the separation of powers provides a mechanism by which those who are responsible for using power are also always engaged in holding one another accountable.

James Madison, in The Federalist Papers, a series of newspaper opinion pieces written by Madison, Alexander Hamilton, and John Jay in 1787 and 1788 in support of the proposed Constitution, put it this way:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

To ensure that power could be held accountable, the designers of the Constitution broke power into its component parts. They assigned one power to each of three branches. Then they developed rules and procedures that would make it possible for officers in each branch to not only exercise their own powers but also, to some extent, check and counterbalance the use of power by others. The point of giving each branch ways of slowing down the other branches was to ensure that no branch would be able to dominate and consolidate complete power.

The rules and procedures they devised can also be called “mechanisms”—procedures that in themselves organize incentives and requirements for officeholders so that power flows in good and fair ways.

We all use mechanisms to limit power and achieve fairness in our ordinary lives. A good example is the kind of rule parents use for helping children share desserts. If I’ve got a cake, and I need to divide it up between two children, the easiest way for me to achieve a fair outcome is if I let one child slice while the other child gets first pick. The child who slices has an incentive to slice as fairly as possible, knowing that the second child will surely choose the bigger slice if the slices are not equal. Parenting books do not generally cite “Federalist No. 51,” in which Madison advised, “Ambition must be made to counteract ambition.”

The U.S. Constitution is full of mechanisms like this to structure the incentives of officeholders to make sure power operates in fair ways. Here is a smattering of my favorite examples, courtesy of the identification in The Federalist Papers of the highest and best features of the Constitution:

Each branch should have as little agency as possible in the appointment of the members of the other, which means no branch can surreptitiously come to control another by populating its personnel and staff.

Each branch should be as little dependent as possible on the others for emoluments annexed to their offices, which means no branch falls under the sway of another by virtue of hoping for a raise.

No double-office holding is permitted, which means that trying to play a role in more than one branch at the same time is strictly off-limits.

The executive has a veto over legislation, but it can be overruled by a two-thirds vote of the Senate, which means that an executive decision (on legislation) emanating from support of a bare majority of the people cannot overrule a view emanating from a supermajority of the country.

The executive can propose the draft of treaties, but ratification requires senatorial advice and consent, which prevents treaties from being struck as personal deals with benefits to the executive and thereby hinders corruption.

The Senate must approve Supreme Court appointments made by the president, but the Court has the power of review over laws passed by Congress, which means Congress can be overruled by justices to whose appointment the legislative branch has itself consented.

The Constitution is the law of the land and establishes powers of enforcement, but it can be changed through a carefully articulated amendment process, by the people’s standing legislative representatives or by representatives to conventions especially elected for the purpose—which means the final power always rests with the people.

I delight in the cleverness of these mechanisms. There are many more. Instituting a bicameral legislature—having a Senate and a House of Representatives—is itself a check on monolithic legislative power. I marvel at the Constitution’s insight into the operations of power. I respect the ambition of the people who sought to design institutions and organize the government with the goal of ensuring the safety and happiness of the people. I see its limits, but I love its avowal—by stipulating the process for amendment, to date exercised 27 times—of its own mutability. Remarkably, the Constitution’s slow, steady change has regularly been in the direction of moral improvement. In that regard, it has served well as a device for securing and stabilizing genuine human progress not only in politics but also in moral understanding. This is what figures like Franklin and Wilson anticipated (or at least hoped for).

It would be a mistake to think that Britain’s own slow march toward the expansion of freedom was in no way prodded along by the example across the Atlantic and domestic pressures flowing from that example, just as Britain’s earlier abolition of enslavement generated pressures that drove the march of freedom forward here at home.

The Constitution is a work of practical genius. It is morally flawed. The story of the expansion of human freedom is one of shining moral ideals besmirched by the ordure of ongoing domination. I muck the stalls. I find a diamond. I clean it off and keep it. I do not abandon it because of where I found it. Instead, I own it. Because of its mutability and the changes made from generation to generation, none but the living can own the Constitution. Those who wrote the version ratified centuries ago do not own the version we live by today. We do. It’s ours, an adaptable instrument used to define self-government among free and equal citizens—and to secure our ongoing moral education about that most important human endeavor. We are all responsible for our Constitution, and that fact is empowering.

That hard-won empowerment is why I love the Constitution. And it shapes my native land, which I love also simply because it is my home. The second love is instinctual. The first comes with open eyes.

This article appears in the October 2020 print edition with the headline “The Constitution Counted My Great-Great-Grandfather as Three-Fifths of a Free Person.”