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15

Equality



CHAPTER 15

Introduction

Few features of the Constitution interest us today as much as equality. Although it is often the case that the questions the present poses to the past are largely an expression of contemporary concern--our questions rather than their questions--the issue of equality is an exception. For although the word "equality" appears nowhere in the document itself, our concern for equality is the direct consequence of the Founders' concern with equality. "The word fitly spoken" in 1776 (in Lincoln's memorable figure of speech) gave a special meaning and character to the Constitution, to the Union, and--by extension--to the people living their political lives in a regime defined by the Declaration, the Constitution, and the Union. To inquire closely into the Founders' understanding of equality is to scrutinize the very center of their political program--and ours.

Far, then, from being an alien category imposed upon a resistant matter, equality is a theme one encounters at almost every turn in the writings and arguments of the period. The difficulty lies not in want of evidence, but rather in our arbitrariness in singling out equality from the other great themes or problems with which it was connected. For it was not equality in the abstract that stirred men's passions so much as equality in the enjoyment of rights. What was to be the reach of that claim? There was much to argue over.

Many of the large issues that were to exercise Americans at the time of the establishment of the Constitution are already prefigured in the Putney Debates in England (no. 1). Here officers and men of the Puritans' New Model Army wrestled with the claim to which "the poorest he that is in England" was held to be entitled as much as "the greatest he." The immediate issue was equality in suffrage, but the implications--as the resistant officers were quick to point out--extended to representation, property, and the very elements of society itself. James Harrington, in his envisaged Oceana (no. 2), looked to the establishment in fact of an equal commonwealth, equal in both its foundation and its structure. An Agrarian Law would work against the concentration of landownership in the hands of the few and thereby prevent those few from overpowering the whole people. Concurrently a system of compulsory rotation of elected officials would forfend the creation of a magistracy separate from and hostile to the people at large. And yet for all this, Harrington's equal commonwealth would cherish the distinctions between men. In "a government of laws and not of men" individual superiority can be recognized without chagrin or resentment. Harrington expected a people enjoying a popular and equal suffrage to act on the understanding that "where men excel in virtue, the commonwealth is stupid and unjust if accordingly they do not excel in authority."

Thanks to John Locke's reformulation of Hobbes, the claim and implications of original equality became an American commonplace. (See ch. 2.) On the premise of original equality there is no natural subordination or ascendancy; everyone is as free as the next to order his acts or possessions or person as he sees fit. To say that all men are by nature equal is to say that every man has an equal right to his natural freedom. As little as I can rightfully diminish your freedom without your consent can you diminish mine. The solidity of this claim is quite unshaken by the manifest inequalities among men, inequalities that may persuade some men to defer to others because of some acknowledged superiority. Although much of this original equality is superseded by the conventions of society and government, the foundation of civil society itself can only be the consent of free equals to submit to such an order. Finally, and in the most critical instance, the equal enjoyment of some rights persists--because unalienable.

By insisting upon the relatively even hand with which nature endows all men, Thomas Gordon, writing as Cato (no. 3), wished to impress upon his readers a healthy disdain for the trinkets and titles with which the few adorn themselves the better to gull the many. Confronted with the great inequalities of society, the many hasten to concoct or believe "a just Cause for Things that are not just." Reflections on men's natural equality should lead all to be more discriminating, to recognize the great role of "Contrivance or Chance" in countering the effects of nature. Instead of being dazzled or awed by blood, title, or place, instead of asking who the man is, we should inquire into what he is. The wanton, capricious, and often cruel effects of fortune may then be recognized for what they are. Cato did not say what a people should do on discovering that a titled ass or royal knave is, for all that, an ass or a knave. But on the other hand it is clear that he was not a crude environmentalist, ready on the instant to cry in extenuation that someone is depraved because he is deprived. If nature gives all her offspring heads and hands to provide for themselves, the expected consequences of natural equality will be inequality "according to the Use that they make of their Faculties, and of the Opportunities that they find." Here fortune can surely play cruel jokes, but in the most important respect, he thought, equality is still available to all. "To be great is not in every Man's Power; but to be good is in the Power of all: Thus far every Man may be [u]pon a Level with another, the Lowest with the Highest."

Montesquieu's discussion of equality in the context of the corruption or vulnerability of popular self-government struck an especially responsive note among the Americans. (See ch. 18, no. 3.) Equality was essential to democracy, but too much was as great a threat to that form of government as too little. So Montesquieu taught, and so a number of Founders were prepared to believe. There was no dearth of occasions for concern that there was not enough equality, or too much. Thus New Englanders could wonder and worry whether so comparatively unequal and divided a society as Virginia would be able to make a common cause against the British enemy (nos. 9, 10). Democraticus (no. 14) viewed the "principle of equality, this right," as a benchmark by which to judge a state's political liberty and, what is more, as the surest inducement to social cohesion and popular involvement. Yet that principle's hostility to "every species of subordination" did not extend to subordination arising from "the difference of capacity, disposition, and virtue." A Watchman (no. 15) did not feel compelled to raise that qualification as he mocked the pretensions of "some of our UNCOMMON People" who were opposing the movement for what was to become the Pennsylvania constitution of 1776. These, not the leaders of the popular party, were the true vulgarians. Humble beginnings are not only an antidote to pride, but almost a source of pride in an egalitarian regime.

It was during those weeks of June and July 1776 that Virginia debated and passed its Declaration of Rights and that the Continental Congress laid hands on Jefferson's draft of a declaration of independence, giving witness to their sentiments (as he wryly noted), "not only by what they receive, but what they reject also." During that very period, however, a Citizen of New Jersey (no. 19) could complain of the aristocratical "ideas of government" prevailing among the common people as well as the rich. Such ideas had consequences: "The rich, having been used to govern, seem to think it is their right; and the poorer commonalty, having hitherto had little or no hand in government, seem to think it does not belong to them to have any."

Equal in Speech? Equal in Fact?

It is difficult to assess the truth of this characterization, not least because both pronouncements and recorded practices point in two directions. The letters of William Eddis (no. 6) depict a Maryland of great economic extremes, with a wretched underclass of servants and slaves and a vastly rich proprietary patronage, and yet notwithstanding all this, a prevalent sense of independence and equality even among "those who move in the humbler circles of life." Gouverneur Morris (no. 8) saw in the agitations of 1774 the end of the old order: "The mob begin to think and to reason. Poor reptiles!" Those very presuppositions that a Citizen of New Jersey was to attack as persistent atavisms here fill Morris with a sense of impending loss and regret.

The signals would be no less confusing or ambiguous if one tried to assess the relative equality of American society in revolt by looking at a handful of documents written within a half-dozen years of the Declaration of Independence. Jefferson's letter to David Rittenhouse on the inequality of talents (no. 23) makes an extraordinary gloss on the opening paragraph of the Declaration. His zeal as "a true Whig in science" led Jefferson to put politics in its place and, further, to be ready to put all men in their places: "we should dispose of and employ the geniuses of men according to their several orders and degrees." For Jefferson this was a matter of economy modeled on nature itself; true superiority was too rare a commodity to be misallocated or squandered or denied. Far from being in conflict with the Declaration's premise of the equality of rights, the rare talents of exceptional human beings (such as Rittenhouse) were the finest adornments of a regime where all were equally free to do their best. In the same spirit one might argue that the rare talents of exceptional human beings (such as Jefferson) were indispensable for securing the enjoyment of those equal rights. For all that, the premises of the Declaration were by no means truisms even to the Revolutionaries themselves. In the Return of Northampton, Massachusetts (no. 26), one is surprised less by the clear voice of Locke arising from the mists of the Connecticut River valley than by the perceived need to make a case for "personal equality." All taxpaying adult males have a right to give or withhold their consent; the case against taxation without representation apparently had still to be made in America as well as England.

It is hard to recognize in these several reflections on the inequality of talents and the unequal enjoyment of rights quite the American world depicted by Crèvecoeur or Franklin. Even discounting the deliberately idyllic tone of the first and the special rhetorical purposes of the second, we are left with an America that is the antithesis of all that Europe stands for: extremes of luxury and penury, pomp and wretchedness, dominion and domination. In the eyes of J. Hector St. John Crèvecoeur the American scene showed "a pleasing uniformity of decent competence," no palaces, no hovels. It was a happy people whose dictionary was luckily "short in words of dignity, and names of honour." Here laborers and men of the middling stations of life might long enjoy the gratifications of a "pleasing equality" (Letters from an American Farmer, Letter 3 [1782]). Franklin, too, stressed the "general happy Mediocrity" of fortune prevailing in America (no. 27). Europeans hoping to cash in on their real or fancied superiority to the Americans had best stay home; certainly birth, so highly valued in Europe, could hardly "be carried to a worse Market than that of America."

Given the ambiguities and contradictions in current (1780s) thought and actions, it is hardly to be expected that prophecies of the future course of equality in American society would speak with one voice. Jefferson's vivid encounter with the "enormous inequality" of the Old Regime, which had been productive of "so much misery to the bulk of mankind," confirmed his dedication to legislative policies that would augment and sustain the class of small landholders (no. 32). Therein lay the way for America to avoid Europe's distress. Madison granted readily enough "the comparative comfort of the Mass of people in the United States" (no. 33). But he was less certain than Jefferson--much less certain--that the Americans' superiority in this respect was sufficiently accounted for by the political advantages of a general freedom and of laws favoring the subdivision of property. When the United States too became "a Country fully peopled," Europe's puzzlement over the employment of the "great surplus of inhabitants" would become America's. It was a question whether republican society would manage better.

Meanwhile, however, statesmen framing a constitution for their posterity had to make some estimate of future probabilities. Those meeting at the Philadelphia Convention could do no less, and in the course of their labors showed strikingly different estimates of the future of equality in America. George Mason feared swinging from one of Montesquieu's extremes to the other; he saw the Convention as overreacting to earlier democratic excesses. In appealing for moderation he depicted an America where families rose and fell easily, and counseled those presently affluent and mighty to consider that "the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of Society." The pronounced inequalities of Mason's America bore little resemblance to Charles Pinckney's land of small differences and great openness. Like Jefferson, Pinckney saw strong forces at work in the situation of the Americans that would preserve and reinforce equality for a long time to come. Madison granted the undeniable features that set American society apart from states riven by hereditary distinctions and great inequality of wealth. But even now in 1787, he thought, America could not sensibly be regarded "as one homogeneous mass, in which every thing that affects a part will affect in the same manner the whole." As population grew, so too would "the proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings." The future lay closer at hand than some suspected, "symptoms of a leveling spirit" already being discernible perhaps no farther away than western Massachusetts. To guard against this spirit and yet to do so in a manner compatible with republican principles was the great and urgent problem facing those "framing a system which we wish to last for ages."

A perceptive critic of the Constitution, the Federal Farmer (see ch. 13, no. 22), tried to judge the proposed institutional arrangements in the light of his own subtle taxonomy of America's contending interests. Among these the greatest were "the natural aristocracy"--officeholders, eminent professional men, men of large property--arrayed against "the natural democracy," the many others. The grounds of division were more complex than mere ownership of property; the effects of division were psychic as well as political. A concern for equality demanded a recognition of these inevitable nonegalitarian features of political life and a response to them. Hamilton, in contrast, saw the preponderant forces of equality in American society as something to be countered--within politically acceptable limits--for the sake of a respectable and effective government (no. 40).

Of all that generation of Founders, however, none compares to John Adams in his preoccupation with the problems of equality and inequality. Cranky, effusive, repetitive--and acute--his analysis testifies to a mind that was possessed by the "first principle" of the regime he helped shape. It was not for Adams a question of equality or no equality. He fully embraced the fundamental principles of equal natural rights and consent as taught by Locke and voiced by the Declaration. Rather it was a question of how to reckon with the actual inequalities in a constitution. How might one distinguish "not unuseful" inequalities--necessary results of nature's unequal distribution of understanding and activity--from "artificial inequalities," human contrivances that repeatedly and from time out of mind had subverted the very foundations of public decency and general liberty (no. 30)? Given that inequality is inevitable, the statesman's thoughts ought to be directed at neutralizing its worst effects and converting the "natural aristocracy" into "the greatest blessing of society." To do so, however, required the most careful institutional arrangements, the most judicious management (no. 34). (See also ch. 11, no. 16.) Sober analysis had to precede sound policy: it was indispensable to recognize that the political problem was one of influence, not of rights. Whatever different bases men found for distinction, each could serve as a claim for privilege. In this sense anyone might be deemed an aristocrat who could command "one Vote in Addition to his own, by his Birth Fortune, Figure, Eloquence, Science, learning, Craft Cunning, or even his Character for good fellowship and a bon vivant" (no. 62). The attempt utterly to eradicate all privilege in the name of a mathematical equality was that terrifying amalgam of folly and fancy to which Napoleon had recently applied the term "Ideology"--a word (Adams confided to Jefferson) "which perfectly expresses my Opinion" (nos. 59, 63). Recognize instead that we are dealing with a part of "the Natural History of Man" (Letter to Jefferson, 14 Aug. 1813), a prejudice better accommodated than ignored or misunderstood. On the matter of accommodation Adams and Jefferson continued to differ, "as rational friends" and in fulfillment of their common belief "that we ought not to die before we have explained ourselves to each other" (Jefferson, no. 61).

An Equal Suffrage

Nothing displays so clearly the complexity (and the awareness of complexity) provoked by considerations of equality as those documents in which the discussion moved from high principle to high principle applied. A regard for circumstances tends to complicate rather than simplify issues, and so those discussions tend not to leave the reader with the satisfaction of an easy, pithy summary. What, for example, would be an equal suffrage under existing conditions? The Putney Debates (no. 1), Harrington (no. 2), Democraticus (no. 14), and John Adams (see ch. 13, no. 10) all spoke to the question, but with different voices, different emphases.

Adams was satisfied that it was better to wink at the generally free and easy interpretation of restrictive qualifications in Massachusetts than to stir the entire issue in an effort to bring principle and practice into harmony. For the principle, strictly interpreted and strictly applied, could hardly countenance the exclusion of women and minors and the propertyless; and those were exclusions for which Adams thought there were ample justifications. In one important respect John here spoke only for himself; Abigail had, and continued to have, her own view of what was owed women (nos. 9, 10, 12). Adams was, however, in the mainstream in rejecting mathematical equality, although not everyone would have adopted his language in opposing anything tending "to confound and destroy all Distinctions and prostrate all Ranks, to one common Levell." (Contrast no. 19.) Yet the people of Sutton, Massachusetts, even while vigorously criticizing the proposed (and later rejected) state constitution of 1778 for excluding free propertied "negroes, Indians and mulattoes" from voting, had no trouble accepting the exclusion of the propertyless or proposing a dilution of their vote (no. 22). (These state arguments over suffrage would come to have a direct bearing on the government of the United States, since the Constitution of 1787 adopts the states' voting rules in determining the qualifications of electors of the United States House of Representatives.)

For the people of Northampton, Massachusetts, criticizing the proposed (and later accepted) state constitution of 1780 for failing to extend the suffrage to all adult taxpaying males, the call for "personal equality" was quite compatible with a recognized need for "corporation equality," the representation of town-corporations as such, regardless of their unequal size (no. 26). Far, then, from embodying the principle of equality, the maxim "one man, one vote" seemed rather to deny it. That at least appears to be the implicit conclusion of the Constitution of Massachusetts of 1780 (no. 25, ch. 1, sec. 3, art. 2). The very article that insists on an equal representation provides for a disproportionately large representation of the small incorporated towns scattered over the state. Luther Martin thought no less could be argued on behalf of the small states in the federal union (no. 37). (See also chs. 12 and 13.)

Property and Privilege

Equality considered in reference to property yielded similarly cautious conclusions. The record discloses no prominent movement of levelers, to say nothing of diggers, whatever the alarms set off by Shays and by Rhode Island (see, e.g., Farrand 2:332, 3:47--48). Yet these Founders were republicans, and most were sworn enemies to hereditary privileges and aristocratic pretensions, and to the seemingly unassailable battlements that European society had erected in defense of those privileges and pretensions. In this sense great inequality of property was not only suspect but a present danger (Adams, no. 10; Jefferson, no. 20; Madison, no. 50). For Benjamin Franklin it was even a question why property should be represented at all. Civil society was not like a partnership of merchant-adventurers whose voting rights were proportioned to their shares of investment (see ch. 12, no. 25). Other Founders, less enthusiastic or less financially secure, tried to address the main issue: how might the social and political effects of great wealth best be countered? To promote "equal Liberty," one needed to divide landownership into parcels small enough "to make the Acquisition of Land easy to every Member of Society" (Adams, see ch. 13, no. 10).

Equal possibilities were indispensable; equal holdings neither feasible nor desirable. A country of small wards or small republics, peopled and governed by men of small but adequate means, enjoying modest comforts and great independence: that was and continued to be Jefferson's vision of the government best suited "for the Man of these states." There need be no American analogue to "the Canaille of the cities of Europe," men so debased by the inequality of their societies as to pervert or endanger every public or private good (no. 61; see also no. 32). So, at least, it seemed to Jefferson looking at America and Europe from Paris or from atop Monticello. Closer to the scene, Noah Webster agreed that popular government did indeed rest on a "fundamental law, favoring an equal or rather a general distribution of property" (no. 44). Anything hindering that distribution--be it perpetuities, primogeniture, entail, and the like--was counter to sound republican policy. But the ultimate effect of sound policy in this instance would be, paradoxically, evil consequences. Republican New England already showed what would be true for the entire United States: repeated subdivision led first to equality, then to impoverishment of the many, finally to enrichment of a few. Webster's fears were not shared by Justice Nathaniel Chipman of Vermont (no. 51), partly because he had greater faith in the very devices on which Webster relied to prevent great permanent accumulations. Whatever monopolized property or rendered it unalienable was indeed "a violation of the equal rights of man." But mere inequality of property was another matter; it was not necessarily "subversive of genuine liberty." Something like a law of nature would, if unimpeded, allow men to reap whatever they had sown, rising or sinking as the case might be. The Procrustean alternatives verged on tyranny. The author of the Declaration of Independence agreed (no. 64).

The Matter of Color

And then there was the matter of color. Whatever else might be said of the Founders' efforts to come to terms with the massive presence of black chattel slavery in the United States, obtuseness or indifference to the moral implications is not a charge that can stick. Their repeated references to the injustice of slavery were not limited to the secret discussions of the Philadelphia Convention. See Farrand 1:135 (Madison), 588 (G. Morris); 2:220 (Sherman), 221 (G. Morris), 364 (Martin), 370 (Mason), 371 (Ellsworth), 372 (Dickinson), 415 (Madison, Williamson), 417 (Madison). In public speech and in nonconfidential letters, the point was made again and again: slavery was deeply at odds with every principle that justified American resistance to British oppression. A people that literally had defined itself by reference to the principle of equality was in flagrant and profound contradiction with itself in holding other men slaves. The documents assembled here are only exemplary of some of the modes of expressing that deeply disquieting truth. Patrick Henry confessed outright to his Quaker correspondent that he was to be counted among those acting on "a Principle as repugnant to humanity as it is inconsistant with the Bible and destructive to Liberty." And why? "I am drawn along by ye. general inconvenience of living without them, I will not, I cannot justify it" (no. 7). Henry's candor was rare, not his reason (no. 41).

The inconsistency of a slave-trading and slave-owning America was given special point, of course, by the principled pronouncements of the Virginia Declaration of Rights and Declaration of Independence and the Massachusetts Declaration of Rights. The bearing of those pronouncements on the country's egregious inequality was lost on no one, neither at the moment nor after. See Randolph (no. 17), Jefferson (no. 18), Pickering (no. 29), Martin (no. 37). Yet noting the fact of incongruity and inconsistency was not enough. What was to be done? A master's having one slave to set free (Jay, Conditional Manumission, 21 Mar. 1784) bore little relation to a master's having hundreds to set free; the economic costs and social consequences were simply incomparable. It was important to recognize the difference, to admit the difficulty--not in order to excuse (no. 31), but in order to understand. The theory was plain; reducing it to practice, quite another matter (no. 39).

Here the massive fact was prejudice--again, not to be pleaded in extenuation (Franklin, no. 5), but no less real for all that. It lay on the surface, shaping public discourse (Hamilton, no. 24; Jay to Dongan, 27 Feb. 1792) and often preventing it (Madison, no. 45; Tucker to Belknap, 13 Aug. 1797). All proposals for change had to come to terms with that basic social datum: whites disdained and feared blacks (Jefferson, no. 28; Jay to Dongan, 27 Feb. 1792; Madison, no. 65). Under certain conditions the expression of those passions might account for emancipation--as in Massachusetts (no. 53). Regardless of whether the framers of the Massachusetts Constitution intended the result, that document's Declaration of Rights was in fact used in the state courts as a basis for attacking slavery. Here was an early but hardly unique instance of antislavery principles being bolstered by interest, passion, and prejudice.

Elsewhere, as in the parts of Virginia and South Carolina where blacks outnumbered whites, those passions pointed alternatively (or even simultaneously) to removal through colonization, or continued slavery for the indefinite future, or utter bewilderment. But the passion-inspired reasoning that commended colonization (nos. 28, 43) was questionable on two counts: the staggering costs and dedication necessary to bring about the wholesale removal of blacks (nos. 54, 55), and the resistance of enlightened folk to the notion that prejudice was invulnerable (nos. 47, 55). Yet even the most studiedly analytical proposals faltered in the entanglements of passion and could offer only the hope of hope (nos. 28, 56). Matters certainly were no better in the state and federal legislatures and courts. There the Founders' generation and their successors wrestled with the Constitution's provisions regarding the slave trade (Art. 1, sec. 9, cl. 1), the recovery of fugitive slaves (Art. 4, sec. 2, cl. 3), the three-fifths rule (Art. 1, sec. 2, cl. 3), and the complexities of excluding slavery from the territories and arranging for gradual emancipation in the northern states. Their struggles--and evasions--could not but shape the general understanding of equality.

But what if, as some few maintained, prejudice was indeed mutable? Would not then the full and equal incorporation of free blacks in American political and social life and in the land in which they had surely mixed their labor be a genuine if distant possibility? Northern abolitionist plans rested on this foundation. With the gradual education and moral improvement of freedmen, whites would come to extend and accept the blacks' enjoyment of political and civil liberty. This, of course, presumed that blacks had the capacity for such improvement (Franklin, no. 5; Hamilton, no. 24; Sullivan, no. 55)--and no less that whites had the capacity to alter their perceptions in the face of new facts. But if white prejudice was immutable and black resentment at their oppression implacable, then full equality was a will-o'-the-wisp. The available alternatives were bleak enough. Either slavery might continue as it was, or its rigors be mitigated into a form of "civil slavery" (no. 56), or the population of manumitted slaves be removed from American soil (no. 65). This, of course, presumed that black slaves had the capacity to learn to manage their own affairs--out of the reach of disdainful whites--whatever the final judgment might be of their native capacities (no. 28; see also Jefferson to Grégoire, 25 Feb. 1809). And it presumed no less what "A Freeman" (no. 47) denied--that whites had a "just right" to expel Africans who were as much Americans as the Europeans on this side of the Atlantic.

That white Americans had a right to make black slaves an offer they could not refuse--freedom on the condition of removal--was a point of which Jefferson, Tucker, and Madison seemed convinced. Although blacks were unquestionably the equals of whites in having the natural right to govern themselves, the profound differences in their common American past seemed to preclude the transformation of that natural right into a conventional right that blacks might enjoy under the Constitution. "Deep rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has made"--Jefferson's litany went on and on. Blacks would need to be protected from their contemptuous former masters, who in turn would need to be protected from their vindictive former slaves. The new birth of black freedom could take place only in a new land of their own. It was a tragic irony to stagger the mind: A new nation, conceived in liberty and dedicated to the proposition that all men are created equal, erected in a land where "the mere distinction of colour [had been] made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man" (Madison, Farrand 1:135). The agonies of the Founders and of their successors were as much a tribute to the power of that dedication to equality as a mark of its failure.


The Founders' Constitution
Volume 1, Chapter 15, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch15I.html
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