Consent of the governed

Denish D'Souza, What's So Great About America. Page 114-116.

D'Souza has an intriguing discussion as to both the 3/5s issue in the constitution as well as an explanation of Lincoln's views on race and slavery. At first blush this discussion seems disingenuous but on reflection, I wonder if he doesn't present the most logical argument I have seen for squaring the circle between the private actions and thoughts of these classical Liberal founding fathers and the actual words of the constitution.

Starting on page 114 he summarizes the issues, logical conundrums and competing philosophical and commercial views.

The deference of Jefferson and the American Founders to popular prejudices strikes many contemporary scholars as an intellectual and moral scandal. Some, like John Hope Franklin, suggest that popular convictions simply represented a frustrating obstacle that the Founders should have dealt with resolutely and uncompromisingly. But in a democratic society, the absence of the people's agreement on a fundamental moral question of governance is no mere technicality. The case for democracy, no less than the case against slavery, rests on the legitimacy of the people's consent. To outlaw slavery without the consent of the majority of whites would be to destroy democracy, indeed to destroy the very basis for outlawing slavery.

The men gathered in Philadelphia were in a peculiar predicament. For them to sanction slavery would be to proclaim the illegitimacy of the American Revolution and the new form of government based on the people's consent; yet for them to outlaw slavery without securing the people's consent would have the same effect. In practical terms as well, the choice facing the founders was not to permit or to prohibit slavery. Rather, the choice was either to establish a union in which slavery was tolerated, or not to have a union at all. Any suggestion that Southern states could be persuaded to join a union and give up slavery can be dismissed as preposterous. As Harry Jaffa puts it, had the founders insisted upon securing all the rights of all men, they would have ended up securing no rights for anybody.

Thus the accusation that the Founders compromised on the Declaration's principle that "all men are created equal" for the purpose of expediency reflects a grave misunderstanding. The Founders were confronted with a competing principle, also present in the Declaration: governments derive their legitimacy from the "consent of the governed." Both principles must be satisfied, and where they cannot, compromise is not merely permissible but morally required.

The American Founders found a middle ground not between principle and practice, but between opposition to slavery and majority consent. They produced a Constitution in which the concept of slavery is tolerated in deference to consent, but not given any moral approval in recognition of the slave's natural rights. Nowhere in the document is the term "slavery" used. Slaves are always described as "persons," implying their possession of natural rights. The Founders were also careful to approve a Constitution that refuses to acknowledge the existence of racial distinctions, thus producing a document that transcended time.

[snip]

Even so, the test of the founders' project is the practical consequence: did the founding strengthen or weaken the institution of slavery? The American Revolution should be judged by its consequences. Before 1776, slavery was legal in every part of America. Yet by 1804 every state north of Maryland had abolished slavery either immediately or gradually; southern and border states prohibited further slave importations from abroad; and Congress was committed to outlawing the slave trade in 1808, which it did. Slavery was no longer national but a sectional institution, and one under moral and political siege.

Abraham Lincoln not only perceived the founders' dilemma, he inherited it. The principle of popular rule is based on Jefferson's doctrine that "all men are created equal," yet the greatest crisis in American history arose when the people denied that "all men are created equal" and in so doing denied the basis of their own legitimacy. Lincoln had two concrete choices: work to overthrow democracy, or work to secure consent through persuasion. Conscious that he, too, must defer, as the founders did, to prevailing prejudices, Lincoln nevertheless sought to neutralize those prejudices so they did not become a barrier to securing black freedom. In a series of artfully conditional claims - "If God gave the black man little, that little let him enjoy" - Lincoln paid ritual obeisance to existing racism while drawing even racists into his coalition to end slavery. Lincoln made these rhetorical concessions because he knew that the possibility for securing antislavery consent was far better in his time than in the 1780s.

Commenting on the Declaration of Independence, Lincoln said of the founders: "They intended to include all men, but they did not intend to declare all men equal in all respects. They defined with tolerable distinctness in what respects they did consider all men created equal—equal in certain inalienable rights. 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. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit." By working through rather than around the democratic process, Lincoln justified the nation's faith in the untried experiment of representative self-government. In vindicating the slave's right to rule himself, Lincoln also vindicated the legitimacy of democratic self-rule. Thus it is accurate to say that Lincoln gave America a "new birth of freedom."

Lincoln's position came to be shared by Frederick Douglass, who had once denounced the Constitution but who eventually came to the conclusion that it contained antislavery principles: "Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered," Douglas said. Slavery, he concluded, was merely a "scaffolding to the magnificent structure, to be removed as soon as the building is completed."

Speech on the Dred Scott Decision by Abraham Lincoln