“I now hold, as I have ever done, that the original intent and meaning of the Constitution (the one given to it by the men who framed it, those who adopted it, and the one given to it by the Supreme Court of the United States) makes it a pro-slavery instrument which I cannot bring myself to vote under, or swear to support.” (Frederick Douglass, 1849) 

“I hold that the Federal Government was never, in its essence, anything but an anti-slavery government. Abolish slavery tomorrow, and not a sentence or syllable of the Constitution needs to be altered. It was purposely so framed as to give no claim, no sanction to the claim, of property in man.” (Frederick Douglass, 1863)

Those who live long lives in turbulent times may change their ideas without changing their principles, and Frederick Douglass—constantly studied as an exemplar of enslavement and escape, too seldom studied as a thinker—was no exception. In the 1840s, Douglass, one of the nation’s most prominent abolitionists, told audiences all across the northern states and in Europe that there was a deep and abiding connection between slavery and the 1787 Constitution. As Douglass noted in New York City in May 1845, in a speech that my U.S. History class at the Lawrenceville School read after reading portions of Douglass’s first autobiography, “all the states were united in one constitution and that constitution protected and supported slavery.” The “twenty six States that blaze forth” on the “flag, proclaim a compact to return me to bondage if I run away, and keep me in bondage if I submit,” maintained Douglass. After the publication of his best-selling Narrative in the spring of 1845, Douglass, who was still legally a slave, was in considerable danger and had to flee to England for safety. He returned a year later, a free man after British sympathizers purchased his freedom, and started an abolitionist newspaper in Rochester, New York. By the early 1850s, Douglass had shifted in his thinking about the Constitution. In 1852, in his famous Fourth of July Address, he maintained that the “principles” of the Constitution were “entirely hostile to slavery.”

Leading a student project that analyzed Douglass’s 1859-60 lecture tour of Great Britain prompted me to revisit how I was teaching the time period and to look closely at Douglass’s evolving understanding of the Constitution. Douglass’s speeches provided a window into the ways in which abolitionists thought about what the Constitution meant in 1859-60 and, most importantly, what it could or should become in the future. As Henry David Thoreau noted in an essay on slavery, the “law will never make men free; it is men who have got to make the law free.” Ultimately, my students and I had to consider how to make sense of the Douglass of the 1840s, who viewed the Constitution as a “covenant with death,” and the Douglass of the 1850s, who adhered to an antislavery reading of the Constitution. Most abolitionists lost hope that they would ever see the end of slavery after the passage of the draconian 1850 Fugitive Slave Act, but Douglass’s faith in the Constitution and in the political process only grew.

Most U.S. history texts, such as The American Pageant and Alan Brinkley’s American History, focus on the prominent Boston abolitionist William Lloyd Garrison and his close followers, who believed that the Constitution was a “covenant with death,” but generally do not discuss those radical abolitionists who believed that the Constitution not only provided a way to end slavery immediately everywhere in the United States but also enshrined the natural law principles of the Declaration of Independence into law. As historian James Colaiaco has argued, Douglass disregarded the “extrinsic intentions of the framers” in order to promote a constitutional “framework” that could serve to “implement the natural rights proclaimed in the Declaration of Independence.” Douglass’s positions sparked an interesting debate in my classroom about the various ways to interpret the Constitution.

Douglass in Exile

Douglass’s ship arrived in Liverpool in late November 1859. Douglass stayed with the Methodist minister H.O. Crofts, the husband of Julia Griffiths, a close friend and former editorial assistant with whom he worked closely in Rochester. A few weeks into his stay he received word that John Brown had been sent to the gallows. My students and I were initially surprised that Douglass commenced his lecture series in Halifax in December 1859 not with talks on Brown and Harpers Ferry or calls for “arms” and “materials of war” to be used to “rescue slaves by force,” but rather on the dangers of the Garrisonian doctrine of non-intervention and how to curb what he saw as the “nationalisation” of the institution after the infamous Supreme Court decision in Dred Scott v. Sanford (1857). Within days of the capture of the abolitionist John Brown at Harpers Ferry, Virginia, in October 1859, Douglass fled the United States. This was the second time that Douglass had to flee the country of his birth in order to save his life. The discovery by the authorities of a brief but incriminating note he wrote to Brown led Douglass to fear that he too would be put on trial in Virginia. Even “if the Courts of that slave state should acquit me, as they would not have been very likely to do, I could never hope to get out of that state alive,” wrote Douglass in a telling letter to the Irish abolitionist Maria Webb. “If they did not kill me for being concerned with Dear Old Brown,” they would have done so “for my being Frederick Douglass.”

Even though he was on the run, Douglass remained hopeful that the political foundations of the nation would lead to a peaceful end to human bondage. At the center of this optimism was his understanding of the antislavery nature of the Constitution, the very document his old friend and mentor Garrison had publicly burned in a large Fourth of July celebration in Framingham, Massachusetts, six years before. Even though he was on the run with a bounty on his head, Douglass never lost faith in the ability of the American political system to crush what abolitionists called the “Slave Power.” Douglass did not promote John Brown’s constitution while in Great Britain; instead, he railed against Garrisonian attacks on the federal Constitution, for if the document condoned slavery, then Chief Justice Roger Taney’s opinion in Dred Scott was legitimate. In his opinion for the court, Taney declared that the property rights of slave owners were absolute and that the federal government could not interfere with slavery. Douglass called for more antislavery politicians in the vein of Republicans William Henry Seward, Charles Sumner, and John Parker Hale, who advocated for the use of federal power to stop the expansion of slavery and end slavery in the territories. Douglass believed that the election of an antislavery president was close at hand. Douglass urged abolitionists in England and Scotland to hold fast to the antislavery principles that had been thrown aside by Taney and to work with their American counterparts in putting antislavery men into office.

Douglass and mainstream Republicans were in complete agreement that there was “not a word” in the Constitution that favored the idea of “holding property in man.” Douglass, however, believed that the Constitution could be used to eradicate slavery everywhere and not just in the federal territories or the District of Columbia. In making his textual arguments, Douglass drew from a small and varied, but nonetheless powerful, body of legal scholarship that dated back to the 1830s. Radical antislavery constitutionalists agreed that the due process clause of the Fifth Amendment, along with the privileges and immunities clause in Article IV, Section 2, and the guarantee of republican government in Article IV, Section 4, all undermined the slave system. Douglass was influenced in his thinking by Gerrit Smith, Alvan Stewart, Lysander Spooner, the somewhat unhinged George Washington Mellen (he spent time in a padded room for professing that he was the real George Washington), and, most importantly, William Goodell, author of the 1844 Views of American Constitutional Law. Goodell was a forceful proponent of the use of the guarantee of republican government clause in the Constitution to destroy the slave system.

In his second autobiography, My Bondage and My Freedom (1855), Douglass declared that he “became convinced” after reading the works of Goodell and Spooner, and conversing with his close friend and mentor Gerrit Smith, that “the constitution of the United States not only contained no guarantees in favor of slavery, but, on the contrary, it is, in its letter and spirit, an anti-slavery instrument, demanding the abolition of slavery as a condition of its own existence, as the supreme law of the land.” In January 1851, he told Smith, a wealthy New York abolitionist, that he had “decided to let Slaveholders and their Northern abettors have the Laboring oar in putting a proslavery interpretation upon the Constitution.” Douglass believed that an antislavery reading of the Constitution could assist abolitionists in their quest to destroy the Slave Power. In 1855, Douglass helped to form the Radical Political Abolitionist Party, which affirmed the antislavery nature of the Constitution and the necessity of protecting human rights.

Douglass vs. Thompson

Douglass’s frequent attacks on a proslavery reading of the Constitution in his lectures in England and Scotland brought him into conflict with the prominent abolitionist George Thompson (1804-1878) who, like Garrison, advocated for disavowal from politics and for disunion. Thompson criticized Douglass for going back on positions he had articulated while on a lecture tour of Great Britain in the mid-1840s and urged him to return to his old view that slavery was, to borrow a phrase from historian William Wiecek, “the witch” at the nation’s “christening.” In his lecture at Glasgow City Hall on February 28, Thompson argued that Douglass’s views fifteen years earlier supported the Garrisonian notion that the Union needed to be dissolved “as the first effectual step towards the overthrow of slavery.” After offering the audience a brief history of Bloody Kansas and John Brown, along with the Dred Scott case, Thompson turned to the constitutional arguments of the Republicans, a party he despised but one that he believed was indeed acting in accordance with the limited powers granted under the Constitution. Antislavery men from the free states were duty bound to “support the Constitution. They could not, without adding perjury to treason, assail the rights of the Southern States in the matter of slavery within their borders,” declared Thompson.

On March 26, 1860, in the Queen’s Rooms, an ornate building near the medieval University of Glasgow, Douglass took on Thompson’s arguments and presented a learned analysis of the antislavery nature of the Constitution. Before reading the essay, my students and I read the opening of a lengthy article by the eminent legal scholars Jack Balkin and Sanford Levinson on the “canons of constitutional law.” Balkin and Levinson ask the all-important question of why textbooks devote so much attention to Taney’s opinion in Dred Scott, a ruling that leading constitutional scholars then and now believed to be fundamentally wrong, and hardly any attention at all to Douglass’s speech.

Douglass did not deny that abolitionists and slaveholders had given the Constitution a proslavery reading—“But it does not follow that the Constitution is in favour of these wrongs because the slaveholders have given it that interpretation.” Douglass believed that the text of the Constitution “authorized nothing inconsistent with natural justice, and men’s natural rights.” Dubbing George Thompson an “assailant,” Douglass sought to separate issues that Thompson had joined together. In Douglass’s analysis, neither the existence of a Slave Power, nor slaveholders’ participation in the framing process, meant that the Constitution was a proslavery compact. Rather, the real question for Douglass was simple: “Does the United States Constitution guarantee to any class or description of people in that country the right to enslave or hold as property any other class or description of people in that country?”

Douglass chastised those who looked for hidden motives of the Framers. “It was not what they tried, nor what they concealed; it was what they wrote down, not what they kept back, that the people adopted” in 1787. It was the “paper itself, with its own plainly written purposes” that citizens had to turn to understand the “purpose and object.” He took Thompson to task for adjusting the language of clauses that Garrisonians had been arguing for decades were supportive of slavery.

Antislavery Constitutionalism

As my students knew from reading an informative two-part essay on slavery and the Constitution by historian Paul Finkelman, there were four clauses that Garrison and his close ally Wendell Phillips frequently cited in order to highlight the proslavery nature of the Constitution: Article I, Section 2 (three-fifths clause); Article I, Section 8 (insurrection clause); Article I, Section 9 (slave trade clause); Article IV, Section 2 (fugitive slave clause). Douglass was not convinced. “I deny utterly that these provisions of the constitution guarantee, or were intended to guarantee, in any shape or form, the right of property in man in the United States” (emphasis in original). Article I, Section 9, for example, provided for the continuance of the “migration or importation” of persons. In his speech, Thompson simply said “continuance of the African slave-trade.” However, “slave” or “slave trade” are not in the original text, and for Douglass this was significant. “I repeat, the paper itself, and only the paper itself with its own plainly written purposes is the constitution of the United States,” said Douglass. The document must “stand or fall, flourish or fade, on its own individual and self-declared purpose and object.” Whatever “we may owe to the framers of the Constitution, we certainly owe this to ourselves, and to mankind, and to God: that we maintain the truth of our own language, and do not allow villainy, not even villainy of slaveholding … to clothe itself in the garb of virtuous language.”

Presenting a nuanced and creative reading of the three-fifths clause in Article I, Section 2, Douglass argued that in reality the clause laid a “disability on the slaveholding states; one which deprives those states of two-fifths of their natural basis of representation.” Douglass maintained that the clause created an incentive for slave states to liberate their slaves to increase their representation. As for the insurrection clause in Article I, Douglass put forth the argument that the institution of slavery itself actually constituted an insurrection and, therefore, the executive was required to use any means necessary to stop it. Douglass in this sense offered a preview of Lincoln’s Emancipation Proclamation.

As Wiecek has argued, Douglass urged abolitionists to “discern what the Constitution might be” and not view it from the long perspective of the past. Douglass asked the audience in Glasgow to think about the meaning of the Preamble when contemplating the relationship between slavery and the Constitution:

Here are its own objects as set forth by itself:—“We, the people of these United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.” The objects here set forth are six in number: union, defense, welfare, tranquility, justice, and liberty. These are all good objects, and slavery, so far from being among them, is a foe of them all. But it has been said that Negroes are not included within the benefits sought under this declaration. This is said by the slaveholders in America—it is said by the City Hall orator—but it is not said by the Constitution itself. Its language is “we the people;” not we the white people, not even we the citizens, not we the privileged class, not we the high, not we the low, but we the people; not we the horses, sheep, and swine, and wheel-barrows, but we the people, we the human inhabitants; and, if Negroes are people, they are included in the benefits for which the Constitution of America was ordained and established. But how dare any man who pretends to be a friend to the Negro thus gratuitously concede away what the Negro has a right to claim under the Constitution?

Even though the full implication of his positions were ones that mainstream antislavery politicians did not readily accept, Douglass joined prominent figures such as Salmon Chase and Gamaliel Bailey in espousing a powerful antislavery constitutionalism that confronted claims by slaveholders that the framers of the Constitution had enshrined slavery in national law. While the Douglass of the 1850s was not the same Douglass of the 1840s when it came to understanding the Constitution, there is one element that connects the two periods: in each decade Douglass sought a way to destroy the Slave Power. Once he deemed the tactics of moral suasion espoused by the Garrisonians as unworkable, he opened his mind to a powerful body of literature on the Constitution and eventually came around to the idea that the founding document was the best weapon he had at his disposal to attack the Slave Power.

As my students and I realized, Douglass certainly saw the complexity of American politics before the Civil War. In line with Abraham Lincoln or William Seward, Douglass declared, “I, on the other hand, deny that the Constitution guarantees the right to hold property in men, and believe that the way, the true way, to abolish slavery in America is to vote such men into power as will exert their moral and political influence for the abolition of slavery.” The “American people have gone quite too far in this slaveholding business now to sum up their whole business of slavery by singing out the cant phrase, ‘No union with slaveholders,’” declared Douglass at the close of his speech in Glasgow, taking one more shot at the Garrisonians. “To desert the family hearth may place the recreant husband out of the presence of his starving children, but this does not free him from responsibility.”

Douglass and Republicans were more in line with each other than perhaps historians give credit for. Yet, in the end, my students also pointed out where Douglass and the Republicans departed. Unlike Lincoln, Douglass believed that blacks were fully equal to whites and deserved the privileges and immunities of citizenship. He had, of course, been making this point on the lecture circuit for nearly twenty years, but now he linked his call for equality with an antislavery reading of the Constitution. Douglass believed in Lincoln’s argument that the Union and the Constitution were the “last best hope” for democracy in the modern world, but they differed in their understanding of how expansive the democracy should be. For Douglass, the privileges and immunities of citizenship were assured by the Constitution. Both Douglass and members of the Republican Party asserted that the Constitution regarded slaves as persons and not property. However, Douglass was also compelled to attack the part of Taney’s ruling in Dred Scott that declared that blacks were never and could never be citizens of the United States. Racial discrimination was a deprivation of life, liberty, and property without due process of law. While abroad, Douglass consistently reminded his audiences that he still believed that white Americans were “false to their institutions.”

American political leaders, according to Douglass, all too frequently declared that “all men were created equal, except negroes; all men were entitled to life, liberty and to pursue happiness, except negroes; all men were protected in life, liberty, and property, except negroes.” In the aftermath of the brutal civil war that claimed the lives of over 700,000 Americans, Douglass’s expansive understanding of the meaning of citizenship would finally become a part of our constitutional discourse. Douglass’s speeches in England and Scotland in early 1860 serve as a bridge connecting the Civil War and Reconstruction eras. Equal protection of laws and the privileges and immunities of national citizenship—the hallmarks of the Fourteenth Amendment—originated in the writings of those abolitionists who saw the Constitution as an antislavery vehicle.

Acknowledgments

The author dedicates this article to the History Department at the Lawrenceville School.

Further Reading

David Blight’s Frederick Douglass’ Civil War: Keeping Faith in Jubilee (Amherst, 1991), John Stauffer’s Black Hearts of Men: Radical Abolitionists and the Transformation of Race (Cambridge, Mass., 2004), and John Colaiaco’s thoroughly engaging Frederick Douglass and the Fourth of July (New York, 2007) helped me to understand Douglass’s transformation to a proponent of an antislavery reading of the Constitution. I also benefited from reading Peter Myers, Frederick Douglass: Race and the Rebirth of American Liberalism (Lawrence, Kan., 2008). On the role of slavery at the Constitutional Convention see David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification (New York, 2009). Manisha Sinha’s The Slave’s Cause: A History of Abolition (New Haven, Conn., 2016) devotes considerable attention to radical abolitionists in the 1840s and 1850s, along with the contributions of British Garrisonians. W. Caleb McDaniel’s The Problem of Democracy in the Age of Slavery (Baton Rouge, 2013) is also a must-read for anyone looking to understand the Garrisonians. The place to start on abolitionist readings of the Constitution is William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca, N.Y., 1977) and his earlier work, The Guarantee Clause of the United States Constitution (Ithaca, N.Y., 1972). On the role of abolitionist theory in the creation of the Fourteenth Amendment see Jacobus tenBroek, The Antislavery Origins of the Fourteenth Amendment (New York, 1951) and James McPherson’s classic, The Struggle for Equality (Princeton, N.J., 1967). James Oakes’ The Radical and the Republican: Frederick Douglass, Abraham Lincoln and the Triumph of Antislavery Politics (New York, 2008), along with his newer book, The Scorpion’s Sting: Antislavery and the Coming of the Civil War (New York, 2014), are absolutely essential for understanding the political world that Douglass discusses in the speeches mentioned in this essay. See also Douglas R. Egerton’s informative discussion of the politics of the 1850s in Year of Meteors: Stephen Douglas, Abraham Lincoln and the Election that Brought on the Civil War (New York, 2010) and Sean Wilentz’s The Rise of American Democracy: Jefferson to Lincoln (New York, 2005). I relied on editor John Blassingame’s third volume of Douglass’s speeches (1855-1863), published in 1985 by Yale University Press, for this essay.

This article originally appeared in issue 16.4 (September, 2016).

Erik J. Chaput, Ph.D., is a History Master at the Lawrenceville School, a college preparatory boarding school in New Jersey, and a member of the teaching faculty in the School of Continuing Education at Providence College. He is the author of The People’s Martyr: Thomas Wilson Dorr and His 1842 Rhode Island Rebellion (2013) and the co-editor with Russell J. DeSimone of the Letters of Thomas Wilson Dorr and the Letters of John Brown Francis, which can be found on the Dorr Rebellion project site hosted by Providence College.

Almost one million people flock to the National Archives on the National Mall in Washington, D.C., each year to see, among other things, the United States Constitution. The National Constitution Center (NCC), set to open in Philadelphia on July 4, 2003, expects one million annually to troop through its doors as well. But reverence does not imply knowledge. Despite the high interest in the document that these attendance numbers might suggest, public opinion research and visitor studies conducted over the last two decades demonstrate that the Constitution remains, as Michael Kammen once wrote, “swathed in pride yet obscured by indifference.” Many National Archives visitors whom I interviewed last summer saw their trip to D.C. as a pilgrimage to a sacred shrine. Yet when queried about the particulars of the Constitution, many people cannot accurately quote the document or determine its function.

Despite the Constitution’s famed Preamble establishing “the people” as the sovereign power from which all governmental authority derives, the American public came rather late to a first-hand knowledge of the document. Delegates at the 1787 Constitutional Convention maintained strict secrecy during the proceedings. Windows were shuttered; a ban was imposed upon speaking of the proceedings outside of the room. Local papers gave little hint of momentous happenings in the city as they continued to be fascinated with the “Male child of the most extraordinary size ever known,” which they labeled “the greatest phenenomom [sic] of the present age.”

After the proceedings, beginning with the Pennsylvania Packet on September 19, 1787, newspapers did print the Constitution and the public debate that ensued over the next two years of the ratification process. In 1796, a school text entitled A Plain Political Catechism also was published. Few other books or pamphlets, however, were published for the general public to explain the Constitution in the early years of the nation. By the 1850s, statesmen were lamenting the lack of common knowledge about the document’s contents.

But while public familiarity with the Constitution languished, reverence for the document as the foundation of the American system grew. Beginning in 1916, a movement to allow the public greater access to the Constitution–both the document itself and its contents–began with a suggestion to mark September 17 as Constitution Day. The movement gained momentum during the next decade as a way to fight socialism and communism. By the 1920s, the Constitution had become as sacred a text as the Declaration of Independence, if not more so.

This interest eventually led to a more public presentation of the Constitution as physical artifact. The general public had not seen the document much during its first hundred years. Moved from one storage facility to another, it was the property of the State Department. In 1920, the Declaration of Independence and the Constitution finally were put on display together. In 1921 President Harding had the documents transferred from the State Department to the Library of Congress where a “shrine” was dedicated in 1924 in a second floor display area. With the advent of film, educational materials helped to spread images of the Constitution’s likeness–if not knowledge of the document’s contents–to students and adults.

Despite these measures, by the last half of the twentieth century, popular knowledge of the Constitution, its history and its principles, was poor. A 1943 National Opinion Research Center study showed that only 23 percent of respondents could correctly name some of the rights protected by the Bill of Rights. In 1947, the Gallup Poll noted that 41 percent had no knowledge of the contents of the Bill of Rights. On the bicentennial of the Constitution in 1987, a study by the College of Education at the University of Houston reported that 46 percent of those queried did not know that the Constitution created a system of government.

In the most recent NCC poll, conducted by Minda Borun in November 2001, two-thirds of respondents could not identify the Constitution as the outline for U.S. government, while less than one-fourth could correctly pick three items in the Constitution from a list of six choices. People seemed to recognize their ignorance. In another NCC study, only 12 percent of respondents claimed to know “a great deal” about the Constitution, with others avoiding taking the survey out of self-professed shame.

Two core areas of confusion reign. The first one is that many people mix the elements of the Declaration of Independence and the Constitution. According to the 2001 NCC study, 71 percent of those surveyed thought the Constitution, rather than the Declaration, guaranteed citizens “life, liberty, and the pursuit of happiness.” And, in a similar poll in 1997, over a third of respondents also identified “all men are created equal” as a quote from the Bill of Rights.

The second area of confusion concerns the relationship between the Bill of Rights and the Constitution itself. One curriculum writer under contract for the NCC stated, before corrected, that the Constitution had a preamble and a bill of rights, leaving out the central articles that create the foundation of the system. No wonder that students, therefore, are especially confused.

Teachers at the Delaware Council of Social Studies 2001 Conference identified the Bill of Rights as the one part of the Constitution that students knew. At the fifth grade level, students simply knew the Bill of Rights existed. By middle school, the students knew one part of the First Amendment–the freedom of speech. By high school, they were familiar with almost all ten of the amendments, but they still were not highly cognizant of the rest of the document. Teachers attributed this phenomenon to the fact that the Bill of Rights was the only part of the Constitution that seemed relevant to the students in their daily lives.

Lack of obvious relevance of the document to the daily life of ordinary people is one reason we seem to retain so little factual knowledge about the Constitution. In The Presence of the Past, authors Roy Rosenzweig and David Thelen conclude that people’s sense of history is personal. “Most Americans simply do not recognize themselves and their families in a distant narrative that . . . equates our national past with the history of the nation state,” they write. Broad national movements matter most when they touch the life of a family member or close friend. Participants in an NCC program where people were asked to sign the Constitution echoed this conclusion, finding little connection between the document and their personal lives. Eighteen percent, even after learning about the document in the program, said that it held no relevance for them. Instead, respect was the emotion they expressed.

In fact, reverence for the document is key to how people today think of the Constitution. As a sacred text in the United States, the Constitution is something most adults believe that children should learn about in school. About one-third of the visitors to the National Archives in Washington, D.C., on July 2, 2001, came to the Archives with at least one child under twelve, many having made the trip in order to show the documents on display to their child or even because the child, having studied the Constitution in school, wanted to see it. As one woman from California said, her “children wanted to come to D.C.” and she decided they should “see the document.” Indeed, many deemed the visit important enough to wait with their children nearly an hour on a hot, steamy afternoon. As a parent of a sixth grader put it, seeing the Constitution “reinforces a feeling of being American.”

Once people cleared the metal detectors into the Archives, they entered the dark and very cold interior only to encounter more lines. A security guard informed them that they could go around the perimeter of the rotunda and see other documents like the Magna Carta on their way, or “fast-track” to see only the Declaration and Constitution. About half chose the straight and narrow route to the American scriptures, while a quarter of the visitors waiting in line to enter the building had said they came specifically to see the Constitution. It is a “national treasure,” “the foundation of the country,” as some waiting to see it commented. No one other document received as many mentions as the motivating factor for the visit.

Thirteen percent of those exiting the Archives also said they had come specifically to see that document. The discrepancy in numbers suggests that the Constitution has good name recall. When asked to name something housed in the National Archives, visitors could remember the Constitution. The discrepancy also may suggest that when visitors have seen all of the exhibits, it is harder to recall one specific reason for the visit. After leaving the Archives, as many people said their visit was to see the Declaration as the Constitution.

The item that people noted as most interesting about the Constitution also differed between pre- and postvisit. Before seeing the Constitution, over one-third of the people I talked to said they were most interested in the history behind the document and its significance to American history. Fewer than one in five expressed interest in the physical nature of the object itself. After viewing the Constitution, however, half of the visitors commented on the physical nature of the document: its preservation and legibility.

The signatures at the end of the document (fig. 2) fascinated visitors. One elderly man was excited to see that one signer had his last name. Others were frustrated by the darkness of the room and the illegibility of the writing, commenting that the text “was hard to see.” Yet others focused on the act of signing itself and the meaning of such an act. “What must it have been like to be a founder?” one visitor wondered.

The act of signing one’s name indicated a commitment. In the “signing” program mentioned above, almost half of the respondents indicated that signing was “a public endorsement of a set of beliefs.” One participant indicated his signature meant, “I agree with what it says.” Others went beyond content to personal affirmation, reenacting the role of Founder. “It’s a pledge–reminds us of where we stand.” “I felt like, when I was signing it, I was making a decision.”

The legibility of the framers’ signatures also made viewers think about the preservation of the document. Perhaps because the National Archives survey was done the weekend before the building closed for two years of renovations, visitors were quite observant of the lighting conditions, the quality of the paper, and overall state of preservation of the Constitution. Most felt the document was in poor condition, but a few commented on how thrilled they were that something of its age still existed, though the Constitution was far from the oldest document on view.

The experience of seeing the “real thing” was the most common postvisit response I heard during the Archives survey. “It’s cool to see the original document,” offered one viewer. “It fills me with a great sense of meaning.” In other museums in which I have worked, I also have heard again and again people comment on the “real-ness” of the artifact or the environment. Merely to be in the presence of what is considered an authentic relic of the past is a personal connection, a way to engage with history, even if the engagement consists only of viewing.

As I observed visitors in front of the Constitution in the Archives’ exhibit, I noted that half in fact did nothing but look–and then for an average of thirteen seconds. Out of that quick looking, however, came strong responses, from a cryptic “you don’t want to know,” to an excited “amazing!” When asked the most interesting thing about the Constitution, one person replied reverently that “just being in its presence” was awe inspiring.

Reverence incorporates honor, respect, deference, and veneration. But also distance. The object of reverence is a faraway thing, part of the then and there, rather than the here and now. Perhaps this is why some 91 percent of those surveyed by the NCC in 1997 said the Constitution is important, while just over 10 percent claimed to know much about it.

If reverence equals distance, must it also equate with inaction? Report after report documents an alarming lack of civic involvement by many American adults. For instance, in the last presidential election, only 53 percent of those eligible voted. Despite the perceived importance of the Constitution and the emotional impact that viewing the “real thing” made on those I spoke with last July, an understanding of the connection of the document to daily life and of the personal responsibility to uphold the Constitution is lacking. One signing program participant summed up the task ahead for institutions like the National Archives and NCC: “People need to know about this . . . it’s part of being American.”

Further reading: Background on the writing of the Constitution can be found in Catherine Drinker Bowen, Miracle in Philadelphia (Boston, 1966) and Gordon S. Wood, The American Revolution: A History (New York, 2002). For a more detailed history, see Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill, 1969). The following books discuss Americans’ understanding of history in general as well as the Constitution specifically: Michael Kammen, A Machine That Would Go Of Itself: The Constitution in American Culture (New York, 1986) and Roy Rosenzweig and David Thelen, The Presence of the Past: Popular Uses of History in American Life (New York, 1998). In addition, the following works explore visitors’ desire for “real” objects and their definitions of and abilities for interactivity: Amber Combs, “Why Do They Come? Listening to Visitors at a Decorative Arts Museum,” Curator 42/3 (July 1999): 186-97, Lisa C. Roberts, From Knowledge to Narrative: Educators and the Changing Museum (Washington, D.C., 1997), Beth A. Twiss-Garrity, “Children as Museum Visitors,” Current Trends in Audience Research and Evaluation 13 (May 2000): 71-81, and Stephen Pinker, How the Mind Works (New York, 1977). The visitor statistics come from “What Americans Don’t Know about the Constitution,” The College of Education/Collaboration for Learning and Leading, University of Houston; Suzanne Soule, “We the People . . . The Citizen and the Constitution: Knowledge of and Support for Democratic Institutions and Processes by Participating Students,” Center for Civic Education; “Startling Lack of Constitutional Knowledge Revealed in First-Ever National Poll,” The National Constitution Center Applied Research and Consulting LLC, NCC, “I Signed the Constitution Report,” National Constitution Center (1999); Minda Borun, “National Constitution Center Survey,” National Constitution Center, 2001, and data generated by the author and intern Jennifer Phillips while surveying visitors on July 2, 2001, at the National Archives in Washington, D.C. A review of 1787 Philadelphia newspapers is found in Martha Crary Halpern, “Laurel Hall and the Year 1787” for the Philadelphia Museum of Art (Philadelphia, 1987).

This article originally appeared in issue 2.4 (July, 2002).

Beth A. Twiss-Garrity is vice president, Interpretation for the National Constitution Center, opening July 4, 2003, on Philadelphia’s Independence Mall. Her publications include “Material Culture as Text: Review and Reform of the Literacy Model for Interpretation” in American Material Culture: The Shape of the Field (Winterthur, Del., 1997); and “Listening to Our Visitors’ Voices” in Old Collections, New Audiences: Decorative Arts and Visitor Experience for the 21st Century (Dearborn, Mich., 2000).

“We the People” once had many ways of exercising their sovereignty besides those ordained and established in the Federal Constitution.

Citizen Protests

Indebted farmers in Western Massachusetts had little to show after years of petitioning the legislature for relief from the state’s post-revolution fiscal policies. With their appeals unanswered and their economic plight deepening, they began organizing countywide meetings as they had during the Revolution. This time those efforts produced little relief. Finally, on August 29, 1786, some 1,500 farmers crowded the Court of Common Pleas at Northampton, preventing the court from meeting. They did not challenge the court’s legitimacy. Rather, the farmers sought a temporary suspension of debt collections to give the legislature time to redress “their grievances.”

The Northampton court closing, along with later actions of the farmers, raised the specter of revolution not just in Massachusetts, but across America. The Massachusetts events acquired the name “Shays’ Rebellion.” They have been cited ever since as one reason for replacing the Articles of Confederation with a new federal Constitution that supposedly saved the country from spiraling into rebellion and discord. Most historical accounts have followed suit, depicting the farmers as the losers in their confrontation with state government and in a larger struggle to determine if “tumultuous meetings” and armed resistance could be legitimate ways for the sovereign people to express their will.

Yet at the time, the political leaders we now call the Founders differed sharply over what the Massachusetts incidents really signified.

John Adams considered the farmers’ actions “seditious,” even their peaceful conventions and petitions, and referred to the Massachusetts events as an “insurrection.” Others, like James Madison, were clearly worried about the “turbulent scenes” in Massachusetts, but did not see them as rising to the level of revolution. Madison came to wonder if the government’s reaction to the farmers—including their violent suppression by a state-sanctioned private army—was a harmful overreaction. A few leaders, like Thomas Jefferson, considered the Massachusetts “commotions” a minor inconvenience of rule by a people who had won the Revolution. The Massachusetts incidents reflected the “liberty” Americans now possessed to rock the boat of government on occasion, and a little “turbulence” would not sink it.

In essence, historical and popular understandings of the American constitutional tradition have adopted the contentions of only one side of this debate and its role in bringing about the 1787 constitution. In doing so, these accounts miss much of that tradition’s actual history. The Massachusetts farmers were largely vindicated in the aftermath of their so-called rebellion. In the next state election following the “suppression” of the alleged rebels, those supporting forceful measures against the farmers lost control of the governorship and the lower house of the legislature. In this respect, the views of “defeated rebels” turned out to more closely mirror the attitudes of the populace and eventually exercised a strong influence on the direction of policy. That the farmers were as comfortable about expressing the will of the people through direct action as they were in going to the polls was a source of considerable consternation to their opponents.

Understanding why the meaning of the Massachusetts events divided Americans at the time, as well as its significance to America’s constitutional development today, requires understanding the constitutional mindset of the Massachusetts farmers and their opponents. It was not only what the Massachusetts farmers were doing, but how they defended themselves that alarmed their opponents. The fact that the farmers justified their actions in constitutional terms galvanized the Americans who framed and later supported the federal Constitution to move in a very different direction. Despite their different views of constitutionalism, the two sides in the 1787 debate both reflected ideas unleashed by the American Revolution.

American Constitutionalism’s Revolutionary Heritage

After declaring independence, Americans saw themselves as revolutionaries, but not as rebels. They maintained this distinction because they had exercised a people’s collective right to cast off an arbitrary king, as they had George III.  Both natural law and English constitutional doctrine gave the colonists a right to revolt against a monarch’s oppression. But in rejecting George III, Americans had no ready replacement with a traditional claim on their loyalty.  Few American revolutionaries worried about this. They assumed that the people themselves were the new and rightful sovereign, rather than a monarch. They established new state governments based on written constitutions. In thus implementing the theory of the people as the sovereign, Americans created a new and distinct revolutionary constitutionalism that would prove extraordinarily powerful and difficult to control.

While the theory of the people exercising power as the sovereign was not original to Americans, actually building governments on that foundation was new to world history. Most governments at the time were monarchies or expressions of raw power. Few examples existed of a people deliberately creating their own government. Thus, Americans found themselves in a unique position. As a South Carolina pamphleteer observed, Americans could fashion their own governments because they had freed themselves from “the control of hereditary rulers and arbitrary force.”

Written state constitutions adopted in the 1770s expressed Americans’ belief that they could, as Thomas Paine explained in Common Sense, exercise their “power to begin the world over again.” A congressional delegate from Connecticut, Oliver Wolcott, described America’s constitution-making in 1776 as a “Real” and not a theoretical expression of the people’s will. In a Fourth of July oration in 1778, historian David Ramsay captured the novelty of America’s constitutions: “We are the first people in the world who have had it in their power to choose their own form of government.” Before the American Revolution, constitutions were “forced on all other nations” or “formed by accident, caprice,” or “prevailing practices.”

In the setting of the Old World, constitutions often represented a grant of specific rights or liberties to the people by the sovereign. In contrast, as Madison described, the American constitutions were “charters” by the people as the sovereign, granting to government specific powers. Achieving independence confirmed for most Americans the truth of their revolutionary aspirations. The deficiencies that hampered their war effort were overshadowed by the vindication that victory gave to their idealism. Their revolution ushered in governments that made it possible for the people to be the sovereign.

As Colonel Benjamin Hichborn, a Boston lawyer, expressed it in 1777, this sovereignty was expansive. It entailed “a power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure, to alter or annihilate . . . any former government and adopt a new one in its stead.” There were doubters, of course. In that same year Pennsylvania revolutionary Dr. Benjamin Rush qualified claims “that ‘all power is derived from the People.’” This was undoubtedly true, believed Rush, but it did not mean “that all power is seated in the people.” They might be the source of power, but the actual exertion of that power on a day-to-day basis should be vested in the government and office-holders the people selected.

Independence intensified the struggle over what it meant that the people were the sovereign. Americans grappled with how they as the collective sovereign could, like a king, speak clearly in one voice on local as well as on national concerns in their large and diverse country. For some, a natural solution to discerning the voice of the sovereign was found in what we might call “proceduralism.” One would know the true will of the people only with their use of specified procedures established by the constitution.

But even this commitment to formal legal procedures by its most emphatic advocates was not absolute. The belief that a constitution’s requirements for changing the constitution should be observed gave way to the recognition that the government was still the servant of the people as the sovereign. Thus, as the sovereign, a majority of the people could dispense with the procedures required by the constitution for change. As a practical matter, to those believing in this proceduralism, the principle worked in two ways. If the servant of the people—the government—recognized a change the people made without using the established procedures, the legitimacy of the change went unquestioned. But if government refused to validate an alleged change made outside the constitutionally established procedures, the use of those procedures was necessary to legitimize the change and validate the fact that the sovereign had spoken.

One instance of the supple utility of the authority of the people to overcome supposedly mandatory procedures came with the revision of Pennsylvania’s 1776 Constitution. Critics of that “radical” constitution were stymied in their efforts for constitutional change. They had been unable to muster the constitutional requirement of a two-thirds vote by a Council of Censors that only met every seven years to consider whether or not to hold a new constitutional convention. By 1790 those critics controlled the legislature and they bypassed the 1776 constitution’s requirements for constitutional change by initiating a convention themselves. They argued that “the people” as the sovereign could replace the existing constitution without following its procedures, and called for elections of delegates to a constitutional convention that created a new constitution for the state. This was the same tactic used to replace the Articles of Confederation with the federal Constitution.

The Proceduralist Vision of Rule by the People

Today the idea that we know the will of the sovereign only through the exclusive use of specific formal procedures—such as elections and constitutional amendment—seems self-evident. For the revolutionary generation this was not immediately apparent. The recent experience of their successful revolution clearly taught them that proceduralism was not the only way to recognize when the sovereign had spoken. Often during the Revolution there was no way that traditionally accepted procedures could lend legitimacy to their struggle. Proceduralism provided one way, but not the only way, to confirm that the people had expressed their will. But with military victory, applying the principle of the collective sovereign’s ability to act directly, without the aid of procedural verification, became a growing source of dispute among America’s leaders, and between those leaders and some of their constituents.

To understand this dispute, the modern reader must resist assuming that our ordered world was anticipated by members of the revolutionary generation. Many of their ideas about rule through a constitution—ideas they seriously discussed, considered, and acted upon—are foreign to our present constitutional understandings and near-absolute commitment to proceduralism. Yet, the historical record offers abundant evidence that our constitutional tradition has evolved from many different and earlier constitutional understandings. Appreciating how these ideas gave rise to our present constitutional world requires that we take the past on its own terms to recover a constitutional world that once existed in America.

Today, it is widely assumed that following established procedures and processes is the only basis for legitimate change. From this perspective it seems as if the farmers who closed Northampton’s court lacked any legal or constitutional justification. This conclusion erroneously assumes that the proceduralism we take for granted now was the touchstone of constitutional legitimacy in America then. As my book American Sovereigns suggests, the exclusive use of specific procedures was not so obvious to earlier generations of Americans.

Proceduralism in the Context of Revolutionary Constitutionalism

Americans of the revolutionary generation had a concept of proceduralism, but one significantly different from the one we accept today. Americans then and for quite some time after the Revolution often followed procedures, such as those specifying how a constitution could be changed. But even when those procedural steps were followed, many Americans regarded them as simply useful, not indispensable. The people might well follow specifically mandated procedures to effect change, but utilizing those procedures was not the only way a collective sovereign could legitimately articulate its will.

Indeed, the farmers participating in court-closings during the summer of 1786 saw themselves as the “body of the people” entitled to exercise their sovereignty. They followed the well-known and widely accepted practice employed during the Revolution when crowds, committees of correspondence, and legally unsanctioned gatherings expressed the will of the people. That such a view was vigorously disputed by Massachusetts authorities and their allies underscores the growing difficulty of recognizing when “the people” acted as the collective sovereign. Colonel Hichborn’s 1777 celebration of the power of “the people at large” was consistent with the views of the Massachusetts farmers engaged in the court-closings. Untroubled by his earlier statement, however, Hichborn took a leading role in suppressing the farmers’ movement.

Since the time of the Revolution, ideas drawing upon the authority of the people—frequently reiterated in the constitutions of the 1770s (and in the Massachusetts Constitution of 1780)—were used in increasingly expansive ways. The events in Massachusetts frightened many leaders in post-revolutionary America. For those scandalized by citizens presuming to act as the people in closing courts, the “rebellion” in Massachusetts showed how important it was to rein in misguided constitutional understandings and constrain the meaning of American constitutionalism. The legitimacy of direct action was particularly serious because the events in Massachusetts formed part of a broader pattern of popular protests experienced in post-revolutionary America.

The Federal Framers and the People

Not surprisingly, those events influenced the federal Framers in 1787. Among the principles not expressed in the federal Constitution when it was drafted were statements of the rights of the collective sovereign—their primacy over government, their right to scrutinize governors and their government, and their right to alter or abolish government at will. A general concession that governors were the servants of the people and that the collective sovereign had the right to abolish government was one thing, but it was quite another to place words to that effect in the Constitution where it might be invoked willy-nilly. During the convention, James Madison acknowledged that the collective sovereign could “alter constitutions as they pleased.” It was, after all, “a principle in the [state] Bills of rights,” he noted. Still, popular attempts to exercise that right under state constitutions caused difficulties, as the events in Massachusetts demonstrated. Why tempt fate by including similar language in the federal Constitution?

In fact, while “the people” appeared prominently in the Preamble to “ordain and establish” the federal Constitution and later surfaced to elect members of the House of Representatives, they then disappeared from the text of the Constitution. Their absence formed a striking contrast to their presence in many state constitutions in which the people and their collective existence as the sovereign was repeatedly acknowledged. “The people” reappeared in the federal Bill of Rights added by the first Congress, but without any statements comparable to the wide-ranging expressions of the authority and rights of the collective sovereign that were found in the state constitutions. Instead, James Madison drafted the amendments as narrowly worded prohibitions on certain types of legislation. This focus had the effect of deemphasizing the people’s collective rights.

This silence about the people in the federal Constitution did not mean that the federal Framers disputed the idea that the people were the sovereign. In fact, they explicitly invoked the people’s authority in submitting the new federal Constitution for an up-or-down vote even though their convention had only been authorized to revise the Articles of Confederation. The Framers brought about a new federal Constitution in defiance of the procedures that the Articles stipulated for altering its structure by citing the legitimacy that came with the people acting as the sovereign. As Madison put it, the people could “breathe life” into the proposed new Constitution, overcoming any procedural irregularities in its creation.

In this respect, the framing of the federal Constitution was not a singular constitutional event. It was another example of the doctrine of rule by the people. Yet despite their willingness to deploy this doctrine as a political tactic, the Constitution’s supporters were reluctant to acknowledge, much less encourage, the direct authority of the people. The Federalist position simply underscored the tension inherent in the American commitment to the sovereignty of the people. That tension would resurface repeatedly over the next half-century.

The Persistence of Revolutionary Constitutionalism

Many federal Framers—including George Washington—expected the people to assume only a passive role as the sovereign after the adoption of the federal Constitution. These expectations were soon disappointed. Stiff resistance met the attempt to collect the national government’s first tax on a domestic product: an excise on whiskey. Those tax protests illustrate a wider and persistent debate over the people’s relationship to government that the Revolution had not resolved.

That relationship had been at the center of emerging understandings of constitutionalism from the moment Americans acted as the collective sovereign to declare independence and create new governments. Under that conception, government in America was subordinate to the people, and representatives were the people’s agents. As with any principal-agent relationship, the people retained the right to monitor their agents through the constitutional order established under their authority as the collective sovereign. For example, the practice of drafting instructions to guide the actions of legislators—familiar to Americans long before the Revolution—developed a particularly important constitutional significance after independence.

The western farmers who protested the excise tax in the early 1790s embraced a constitutionalism that considered the people entitled—as individual citizens and groups of citizens—to scrutinize the conduct of government. They believed that citizens had the right to petition, instruct, and assemble to criticize government officials as well as to establish groups to question government policies. Yet all these steps—unexceptional from today’s perspective—were at the time branded by supporters of Washington’s administration as “seditious” and constitutionally illegitimate. These later Federalists neutered the collective sovereign to point of flirting with a transfer of sovereignty from the people to government— and came close to turning America’s revolutionary constitutionalism on its head. These constitutional arguments by opponents of the excise tax protestors are usually overlooked because of a tendency to focus on the later, violent stage of the farmers’ protests and their supposed intent to foment a “Whiskey Rebellion.” In fact, the controversy illustrates a disputed constitutionalism even after the federal Constitution supposedly “settled” the proper relationship of the people to their government.

This disputed constitutionalism persisted at both the state and national level well into the 1840s. For example, in 1842, Rhode Island witnessed another so-called rebellion involving whether a constitution enacted under the people’s authority—but without the consent of the existing state government—had constitutional legitimacy. This “Dorr Rebellion” crystallized America’s competing perceptions of the implications of written constitutions. That struggle pitted those who acknowledged the practical manifestation of the people’s sovereignty against those who increasingly located sovereignty in government itself. Proponents of government sovereignty insisted that the people needed to act with the consent of the existing government and only according to constitutional provisions for change. Anything different would be a revolution based on raw power. Their opponents, on the other hand, insisted that the people’s sovereignty gave constitutional legitimacy to revisions that bypassed existing provisions for constitutional revision and that occurred without the government’s consent.

Contrasting our constitutionalism with that of earlier generations of Americans suggests our current theory of what makes government legitimate was not inevitable. It did not develop in a straight-line from the Revolution to today, as is often depicted in constitutional histories. Controversies over the people as the sovereign and how they would rule were not resolved in 1776, or in 1787, or in the 1790s, or for that matter in the 1840s.

America’s Post-Civil War Constitutional Framework

The Civil War clearly influenced the development of ideas about the authority of the collective sovereign to act independent of government. It seems that many of those earlier constitutional ideas—described in American Sovereigns—survived the Civil War. This demonstrates that American constitutionalism—of both the federal and state variety—did not emerge from one defining moment or event. Rather, it grew incrementally over the course of political controversies within the states and at the national level. The constitutionalism that holds sway today is not a natural inheritance but the product of choices Americans made between shifting understandings about the people as a collective sovereign.

As a preliminary study of the post–Civil War period suggests, the legitimacy of direct action by the people eventually came to be displaced. Ironically, those ideas were rendered beyond the constitutional pale only during the Progressive Era—the period of progressive reform associated with Theodore Roosevelt and persisting into the early 20th century. The Progressives suggested that direct action by the people could be achieved through the device of the initiative and referendum. The image of “the people” making law directly for themselves suggests—at first glance—the exercise of their sovereign authority. Yet, such law-making by the people required strict compliance with legal procedures. This effectively reversed the position taken by farmers closing courts in Massachusetts in 1786 that the sovereign could act independent of legal procedures.

Our adherence to proceduralism today often makes it difficult to understand our forebears’ constitutionalism. Yet we both ground the legitimacy of American government on the consent of the people and their sovereign authority. And we—just as they—continue to struggle with the vitally important question: what does it mean that in America “the people” rule?

Note: The author wishes to thank Joe Franaszek, Ben Ortega, and Jeff Pasley for their helpful comments on this piece.

Further Reading:

A highly influential study of early American constitution-making is Gordon S. Wood’s The Creation of the American Republic, 1776-1787 (1969).  In extending Wood’s findings beyond the time frame of his work, scholars have assumed that today’s constitionalism is directly linked to the Federal constitution. For a critique of that assumption by historians, political scientists, and lawyers, see Christian G. Fritz, “Fallacies of American Constitutionalism,” 35 Rutgers Law Journal (2004), 1327-69.  Fritz, American Sovereigns, examines how Americans struggled over the idea that a collectivity—the people—would rule as the sovereign. Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending of the American Revolution (2007) and Ronald P. Formisano, For the People: American Populist Movements from the Revolution to the 1850s (2008) demonstrate how Americans both before and after the federal Constitution continued to invoke the sovereignty of the people. Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004), advances a theory of “popular constitutionalism” that gives the people the responsibility “for interpreting and enforcing their constitution.” The classic study tracing the emergence of the concept of the sovereignty of the people is Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988).

BLOGITORIAL NOTE: Presenting an article that I commissioned a little too late to go through the full Common-Place production process, but still wanted to be part of the extended Politics Issue here on the blog. I think readers will find it one of the most original and illuminating pieces in the whole issue, and I am grateful to Prof. Chris Fritz for turning this out in record time and in such fine fashion. For another aspect of “popular constitutionalism,” see Ray Raphael’s article on the doctrine of instruction elsewhere in the issue and my essay on freedom of the press posted here a few weeks ago, a longer variant of one published in Pennsylvania Legacies. — JLP

This article originally appeared in issue 9.1 (October, 2008).

Christian G. Fritz is Dickason Professor of Law at the University of New Mexico and author of American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (2008).

Because the conflict between slavery and liberty drives to the heart of the meaning of the United States, questions involving slavery, the Constitution, and the founders continue to generate heated but frequently trite debate. With a presidential election looming, it is all but certain that politicians and pundits will be asked about race, slavery, and the founding.

Their responses are predictable. Pundits on the far left frequently claim that the Constitution of 1787’s treatment of slavery amounted to a betrayal of the American Revolution’s promise of liberty and equality. In this reading of the Constitution and slavery, the Founding Fathers were petty hypocrites who sacrificed the Revolution’s promise of freedom for all on the altar of self-interest and racism. While liberals, Democrats, and the left more generally prefer to put off discussions about race, slavery, and the founding, conservatives have embraced the challenge with zeal. Informed by the demands of Christian nationalists and the precepts of American exceptionalism, pundits and politicians on the right have turned the founders into demigods, conflating the Declaration of Independence and the Constitution into a single document, and then elevating both to sacred text. Indeed, nary a week passes without some conservative politician, pundit, or celebrity attributing authorship of the Constitution to God or Jesus. “Our Bible and our Constitution both come from God. They are both sacred scriptures,” proclaimed conservative media superstar Glenn Beck in his applause line in February, while stumping for presidential candidate Ted Cruz. Conservatives and Christian nationalists who have adopted these precepts worship the Constitution as a divinely inspired, sacred text. GOP politicians, fearful that they cannot win an election without the base’s support, readily affirm these essential truths.

Despite ample evidence to the contrary, many conservatives continue to insist that the founders were committed abolitionists who directly or indirectly abolished slavery. As presidential candidate Michele Bachmann erroneously and embarrassingly claimed in 2011, “the very founders that wrote those documents worked tirelessly until slavery was no more in the United States.” In the same vein, conservatives incorrectly but fervently maintain that the Constitution inevitably put slavery on the road to abolition, a claim that requires one to ignore nearly the entire social, economic, and political history of the United States from the Revolution through the Civil War. These understandings of the founding and the Constitution reflect the ideological convictions of their proponents, wishful thinking, and ample amounts of cynical opportunism. They possess, however, no grounding in historical reality.

A careful analysis of the Constitution produced by the founders in Philadelphia in 1787 demonstrates that it was neither wholly antislavery nor wholly proslavery. Nor was it solely the product of a singular group of demigods or hypocrites, acting in a singular moment in time. The Constitution of 1787—like nearly every other significant outcome of the American Revolution—was the product of prolonged and contentious conflict, debate, and accommodation. Conflicts and debates about slavery and government preceded the Philadelphia convention by decades and continued well into the 1860s. Likewise, the Constitution’s provisions regarding slavery were the product of a series of conflicts, accommodations, and compromises. The emerging sections were badly divided before and after the Philadelphia convention, and voters, politicians, and delegates from both sections failed to obtain all that they might have sought when it came to slavery. Opposition from northerners produced a Constitution that stopped short of creating a slaveholders’ republic or union, whose primary purpose was to protect and promote the interests of slaveholders. But at the same time, the demands of southerners produced a constitution where slavery’s existence in some states was euphemistically acknowledged, where slaveholders were recognized as a powerful interest, and where slave states and slaveholders were granted distinct privileges.

The Constitution included a series of compromises involving slavery. Those compromises added an element of complexity to the Constitution that defies any effort to reduce it to Twitter-sized proslavery or antislavery soundbites that implicate or exonerate the founders. Within those complex compromises, slaveholders gained certain, specific privileges, most importantly the three-fifths clause, the fugitive slave clause, and the international slave trade clause. More broadly, contemporaries agreed that the Constitution restrained the federal government from taking action against slavery in the states where it already existed. At the same time, however, voters and politicians agreed that the Constitution permitted federal action when slavery was a national issue or a national matter (rather than merely a state issue or state matter). The Constitution also created a republic that acknowledged slavery’s existence in some states. It stopped short, however, of making the United States a slaveholders’ republic, as was the case in the southern states, which possessed state governments whose primary purpose was to protect and promote the interests of slaveholders. The Constitution also failed to explicitly define slaves as property, or to identify slavery as a race-based condition. Finally, the Constitution deferred to normal political processes the manner by which the federal government would use its powers regarding slavery. Even if the government could act against slavery, the decision to do so would be required to move through normal political channels: passage of a bill by Congress and its signing into law by the president.

Overall, the Constitution produced by the fifty-five delegates in Philadelphia in the summer of 1787 recognized the existence of slavery as a powerful sectional interest and granted slaveholders important privileges. At the same time, it allowed for important state and federal action against slavery, and stopped short of constitutionally establishing the United States as a slaveholders republic or union, whose paramount purpose would be to protect and promote the rights and interests of slaveholders. How that came to pass involved far more than fifty-five demigods or hypocrites meeting in Philadelphia in the summer of 1787.

Prelude to the Philadelphia Convention: War, Revolution, and Slavery, 1774-1787

As American independence turned into multiple American Revolutions in the 1780s, Americans black and white, northern and southern, found themselves badly divided over slavery. In the wake of the Imperial Crisis, the War for Independence, and the American Revolution, ordinary people and sympathetic elites in the North seized the Declaration of Independence’s thundering phrase “that all men are created equal.” In the process, they fashioned a decidedly egalitarian ideology that elevated equality, personal and family independence, and democratic self-government to the highest ideals of republican government and society. Middling whites and sympathetic elites used these egalitarian ideologies to chip away at hierarchy and privilege in the North in principle if not always in practice. In doing so, they opened crucial spaces for slaves, free blacks, and antislavery whites to claim natural rights for enslaved blacks, and to begin the process of state-level abolition. Across the North, state-level abolition was ideologically grounded in free and enslaved black claims to the natural rights claimed by whites. By the time the Philadelphia convention met to forge a new constitution, every northern state except for New York and New Jersey had passed legislation that provided for at least the gradual abolition of slavery in their states (New York and New Jersey would do so in 1799 and 1804 respectively). By 1787, even when northern whites denied black claims to equality and citizenship, they generally accepted the legitimacy of black claims to freedom. White northerners also generally agreed that enslaved blacks possessed a natural right to freedom, even if slaveowners possessed competing and equally valid property rights.

In the South, the situation was markedly different. Slaves, free blacks, and antislavery whites (typically small groups of Baptists, Methodists, and Quakers) were simply no match politically for ordinary whites heavily invested in racial subordination, or for the South’s ruling class, planters whose wealth and place in society was grounded in slavery. For southern politicians, the purpose of government had long been to empower the gentry. The gentry then governed those beneath them according to their race, gender, and rank. Through the Imperial Crisis, war, and revolution, southern elites met popular challenges to their rule and authority—from both black slaves and non-gentry class whites—in various ways. Southern slaveholders used the Revolution’s emphasis on property rights to blunt popular attacks on slavery and the gentry’s political power. They emphasized white supremacy and insisted that free blacks and whites could never live together peacefully in the United States. When pressed by lesser whites for democratic reforms, southern planters created an imagined gentry of all white men, emphasized the authority and mastery that all white men were to exercise over all black people, and wrote protections for themselves as a class into state constitutions and laws.

In the chaos and foment of imperial crisis, war, and revolution, some slaves were able to take advantage of circumstances to gain individual freedom for themselves. Overall, however, efforts to abolish slavery at the state level in the South got nowhere. In the Chesapeake states of Virginia and Maryland, upwards of 10,000 slaves managed to gain their freedom during the war. In Georgia, perhaps one-third of the enslaved population managed to escape during the war, as did thousands in South Carolina. Slavery nonetheless remained the singularly most important institution in the slave states, and white southerners fiercely fought against any suggestions that their individual state should enact some type of gradual abolition plan. In addition, with the war’s end in 1781, southern whites began the process of reconstructing their slave societies and re-asserting white supremacy with force, violence, and terror. Escaped slaves in places such as South Carolina and Georgia were hunted down and either killed or returned to slavery. While some states such as Virginia passed laws allowing for individual slaveowners to free slaves, in general, southern states passed new laws that increased the power that slaveowners and other whites wielded over blacks, and made it more difficult for conscientious slaveowners to free slaves. By 1787, southern whites had met and bested efforts to disrupt and dismantle the slave societies of the South.

Between 1765 and 1787, southern whites and slaveholders confronted a shifting array of challenges to slavery. They responded by fighting strenuously to maintain their sovereignty over slavery as an institution, and their claims of mastery over black people as individuals and as slaves. Through it all, they also insisted on protecting their interests and the basis of their power: slavery. Southern slaveholders and whites expected nothing less from the delegates gathered to write a new constitution in Philadelphia in the summer of 1787.

Slavery, Sectional Differences, and Constitutional Compromises at the Philadelphia Convention

Initially, slavery played no real role in the determination of national-minded elites such as James Madison, George Washington, and Alexander Hamilton on the need for a new national government. The immediate goal of the Philadelphia convention was to create a government powerful enough to maintain the two great gains of the American Revolution: independence and republican forms of government at the state level. At the same time, politicians who supported the Philadelphia convention hoped that a more powerful government would prove able to exact more favorable commercial treaties from European powers. While many Americans today assume that the United States was predestined to become a stable, global superpower, the fifty-five delegates faced an entirely different situation. In 1787, the United States was an incredibly diverse continental confederation consisting of thirteen independent states, two very different sections, and multiple regions (New England, Middle States, Upper South, Deep South, and trans-Appalachian West). These United States were weakly united in an ill-defined “union,” and governed by a Confederation Congress that exercised no real power. Native Americans, African Americans, and European powers all threatened invasion or rebellion. Sectional and regional differences perpetually placed the union on the verge of disintegration. The weak, ineffective central government seemed to foster the emergence of anarchy and tyranny in the states. Finally, the weak, discordant union enjoyed no respect from European powers; shut out from the lucrative European and Caribbean markets, American commerce and its economy languished in the 1780s.

Despite vast disagreements that separated politically active white male voters, nearly all agreed that union of some sort was necessary to maintain independence and republican forms of government at the state level. As the delegates understood their task, it was to forge a workable central government that would preserve republican government and independence for a vast continental union in a hostile world, while simultaneously negotiating commercial treaties to alleviate the painful, post-war economic depression.

While slavery and sectional interests were central to all of these issues, the personal proclivities of the delegates had little bearing on the ways in which they addressed the realities of slavery. While the delegates to the Philadelphia convention assumed to themselves the authority to draft a new constitution, their handiwork had to be ratified in state-level ratifying conventions. This meant that any constitution drafted in Philadelphia had to pass the scrutiny of voters and state-level politicians at home. The necessity of ratification at the state level severely shaped how the Philadelphia Constitution addressed slavery.

For one, state-level ratification meant that any provision for abolition at the national level was politically impossible. Many northern voters and politicians—along with perhaps a few prominent southern founders such as George Washington—would have endorsed a constitution that provided for the eventual abolition of slavery. Such considerations never even made it to discussion. Southern delegates to the Philadelphia convention made clear that state-level politicians in the southern slave states would surely reject any constitution that allowed for any kind of federally directed emancipation, in any form. Black slavery was simply too important to white social, political, and economic life in the southern states. In the late 1780s there were nearly 600,000 slaves in the southern states. Those 600,000 slaves accounted for roughly 40 percent of the section’s overall population. In the politically and economically powerful regions of the southern states where slavery was most entrenched and important, slaves accounted for at least 50 percent of the population. Slaves amounted to the single most valuable class of property in the southern states; and slaveholders formed the most powerful single class in the United States and in the individual southern states. Southern politicians would reject any constitution that allowed for any federal interference in slavery in the states where it already existed.

At the same time, however, the drafters of the Constitution recognized that northern voters and politicians would just as surely reject any constitution that made slavery a national institution, extended too many concessions to slaveholders, or turned the United States into a slaveholders republic. Yet, the Constitution had to be ratified in slave states by planters who proved perpetually leery about ceding any power and authority to a government that they did not exercise direct control over. That meant that the Constitution had to acknowledge the reality of slavery and provide some guarantees for slaveholders if it were to stand any chance of ratification in the southern states.

The drafters of the Constitution responded to these conflicting concerns by creating a complex constitution that sought to satisfy the demands of very different groups of people in an enormous and diverse continental republic. And while southern slaveholders won a significant swath of concessions and privileges in the Constitution, it failed to go as far as many of them hoped or expected. Furthermore, those privileges always came with certain limitations, limitations that would allow for numerous challenges to southern slavery in the future.

For one, the words “slave,” “slavery,” or “negro” appear nowhere in the Constitution. In place of the words “slave” or “slavery,” the Constitution uses euphemisms such as “other persons” or “persons held to service.” The drafters of the Constitution’s choice of words was deliberate. Some objected that the direct acknowledgement of slavery in the Constitution would stain both the document and the nation. They also recognized that the presence of those words in the Constitution would likely lead to its rejection in at least some of the northern states. Likewise, the Constitution failed to directly identify black people held as slaves as property. Importantly, in omitting the words “slave” and “slavery” from the Constitution, and in failing to identify slaves as property, the Constitution established a union that offered only indirect recognition of slavery’s existence in some states. Indeed, as southern opponents of ratification—the Anti-Federalists—repeatedly pointed out in state ratifying conventions, the Constitution failed to define slaves as property or to cast the institution in explicitly racial terms by using the term “negro.”

Euphemistic terminology did not stop slaveholders from demanding and gaining privileges and protections under the Constitution. Most notable of these protections was the three-fifths Clause, which granted slave states extra representation in the House of Representatives. Contemporary Americans have badly misunderstood the meaning and importance of this clause, mistakenly believing that it served as a commentary on the perceived worth of African Americans. In reality, the clause was the product of raw calculations of state and sectional political power in the legislative branch. Representatives of the slaveholding states insisted on the full inclusion of slaves in the allocation of representatives to each individual state. Northern delegates responded by insisting that African Americans should not count at all, given that the laws of southern states recognized slaves as property, not persons. Because 40 percent or more of the population of the slave states was black and enslaved, this was no idle issue. Control of the House of Representatives and influence over the election of the president were both at stake.

The determination of how slaves would be counted in allotting representation in the House of Representatives would determine which section would dominate the legislature. Southern delegates feared that the southern states would be overwhelmed in the legislative branch if slaves went uncounted for purposes of representation. As a political matter, they also understood that the Constitution stood no hope of ratification in the southern states unless they could count on parity, if not supremacy, in the legislative branch. Under no conditions would state-level southern politicians cede control over slavery to a legislative branch that they did not control. With this issue threatening to break up the Philadelphia convention, a compromise was reached: slaves would count for three-fifths of their population in determining the number of seats allocated to each state, as was done for purposes of taxation under the Articles of Confederation. This was an important concession made by northern delegates to the southern states. Without it, southern states would assuredly have rejected the Constitution in the state ratifying conventions.

With the additional clout in the House of Representatives granted by the three-fifths clause, southern politicians could block any antislavery laws they opposed, provided that the slave states remained united and unanimous in their opposition. The three-fifths clause granted the southern states a de facto sectional veto that could be used if the South acted in unison. Despite the advantages granted by the three-fifths clause, southern Anti-Federalists identified significant deficiencies in the Constitution. As they repeatedly pointed out in state ratifying conventions, the clause provided political rather than constitutional protections for slavery in the states. Southern Anti-Federalists also recognized that the advantages conferred by the clause would prove effective only so long as the South maintained parity with the North in terms of population.

Slaveholders won other important concessions and privileges at the Philadelphia convention. The Constitution contained a fugitive slave clause, which gave slaveholders the right to recover runaway slaves who escaped to free states. Since the 1772 Somerset decision in England, southern slaveholders had expressed concerns about the status of runaway slaves in free territory. With states such as Pennsylvania having already abolished slavery, slaveholders demanded protections for their property in slaves. They would not willingly enter into union with states that possessed the power to emancipate southern slaves. Northern delegates who favored union readily made the concession. That being said, the fugitive slave clause was so poorly worded and phrased that it left undefined which parties were responsible for its enforcement. The hastily drafted clause was a persistent source of conflict between the North and the South from 1793, when the first fugitive slave law was passed, to 1860, when seceding slave states cited the refusal of northern states to implement the clause as justification for leaving the Union.

Beyond these concessions to slaveholders, the Constitution took a vague stance on slavery in complex ways that allowed for action and inaction with regard to slavery. The Constitution was silent about abolition or the continuation of slavery in the states. Nonetheless, as a result of the ratification debates and the first few sessions of Congress, an unwritten consensus emerged about the powers of the federal government over slavery. In general, northern and southern politicians came to agree that the federal government lacked the authority to take action against slavery in the states where it existed.

Thus, though it is written nowhere in the Constitution, by the early 1790s politicians and voters formed a consensus that the Constitution left it to individual states to decide for themselves whether to retain or to abolish slavery within their own state. As part of this unwritten consensus, the founding generation generally agreed that the Constitution treated slavery as a local and state institution, rather than a national institution. The Constitution’s neutrality on slavery at the state level allowed for the continuation of slavery in places such as Virginia. But it also allowed for abolition at the state level in the North. On this basis, states such as New Jersey and New York abolished slavery in their states by passing abolition laws and state constitutional amendments. With the northern and southern states unwilling to even address what kind of powers the federal government exercised over slavery in the states, the Philadelphia convention did what they did with every other issue of significant disagreement: they sidestepped it and kicked it back to the states. Hardly of deliberate design, federalism, as it applied to slavery and every other issue, was simply the most workable solution to the problem of governing an immense and diverse continental republic composed of semi-sovereign states.

The neutrality on slavery at the state level was joined by a general agreement that the Constitution granted the federal government authority to take action against slavery when it fell outside the purview of individual states. This was an important power, even if the power was granted silently, informally, and euphemistically. In the 1783 Treaty of Paris, the United States gained the right to most of the territory in the trans-Appalachian west: the enormous swath of territory stretching from the Appalachian Mountains to the Mississippi River, and from Great Lakes in the north to the Gulf of Mexico in the south. In 1787, while the constitutional convention met in Philadelphia, the Confederation Congress passed the Northwest Ordinance of 1787. The Ordinance’s Article VI prohibited slavery in the region that would become Ohio, Indiana, and Illinois, signaling the willingness of national politicians to limit slavery’s western expansion into territories owned by the federal government (rather than in territory owned by individual states). In its territorial clause, the Constitution granted the federal government power to “make all needful rules and regulations” for the territories of the United States. The “territories” were lands claimed by the federal government rather than the already existing states. These lands would be acquired through war and negotiation by the U.S. government from Native American nations. The land would then be organized into territories and open to settlement. Once the population of a territory reached 60,000, it would become eligible to apply for statehood.

Politicians from both sections agreed that the euphemistic territorial clause granted the federal government the authority to prohibit slavery’s expansion in territories. The territorial clause, in conjunction with the Northwest Ordinance of 1787, contained important antislavery powers. Congress would use these powers immediately: In one of its first acts in 1789, Congress re-passed the Northwest Ordinance of 1787, once again prohibiting slavery in what would become the states of Ohio, Indiana, and Illinois. Reflecting the kinds of sectional horse-trading necessary to preserve union, the first federal Congress also voted to permit slavery in the Southwest Territory, which would become the slave state of Tennessee in 1796. Reflecting the haphazard emergence of federalism as a constitutional principle, in 1790 North Carolina agreed to cede the lands that would form the Southwest Territory to the federal government only on the condition that Congress abstain from using its powers to prohibit slavery there.

The politics and geopolitics of union manifested themselves in the Constitution’s international slave trade clause. In the Philadelphia convention and later in ratification debates, a consensus emerged that the federal government possessed the power to prohibit the international slave trade on the grounds that it was a form of international commerce. This power was also recognized on the grounds that the importation of additional slaves to the United States was a matter of national rather than state interest. Thus, Congress should possess the authority to regulate or abolish it. Slaveholders from Georgia and South Carolina objected to granting Congress these powers. In 1787 South Carolina and Georgia were simultaneously recovering from the War for Independence while undergoing a rapid expansion into the interior as slaveholders increasingly planted cotton. Planters in those states feared that the federal government would immediately prohibit the international slave trade, cutting those states off from the importation of additional slaves. In response, delegates from those two states warned that they would refuse to endorse the Constitution, and that their states would fail to ratify it, if they did not have access to the slave trade. Fearing that South Carolina and Georgia would join the British or Spanish Empires, who would then pose a more menacing threat to American independence, the delegates at Philadelphia struck a compromise with Georgia and South Carolina. Congress would be barred from prohibiting the international slave trade for twenty years. But in gaining this exemption, South Carolina and Georgia created a near-universal agreement in the other states that Congress could and would prohibit the international slave trade at the earliest possible date.

Like so many other clauses in the Constitution that dealt with slavery, the slave-trade clause was complex and the product of numerous threats, demands, and compromises. On the one hand, it permitted the international slave trade to continue for twenty years. On the other hand, it gave the federal government the power to end the slave trade, a power that no previous U.S. government possessed. By granting Congress authority to legislate on slavery when it was a national issue—mainly in regards to the international slave trade and the expansion of slavery into the territories—the Constitution granted Congress antislavery powers that it could use at its discretion, and subject to normal political processes. More broadly, the important proslavery victory won by South Carolina and Georgia was tempered by an important antislavery victory that led to a near-consensus agreement from the other states that Congress should act to close the international slave trade as soon such action was constitutionally permissible.

The Place and Significance of Slavery in the Constitution

While slaveholders failed to have all of their demands met at the Philadelphia convention, they almost always came out ahead. This was due to several factors that would continue to shape sectional politics straight through to 1860. Southern delegates to the Philadelphia convention always acted in unity whenever they perceived a real and tangible threat to slavery. They made concessions on issues unrelated to slavery to gain northern votes in support of southern interests. When all else failed, they threatened disunion and promised that whatever calamities followed would rest in the hands of northerners who unreasonably issued demands that no southern slaveholder could accept.

Threats of disunion proved effective against even the most committed northern abolitionists who believed that perpetual union was more important than immediate action against slavery. For them, republican self-government and natural rights could only be preserved in union; if disunion transpired, then all hopes of abolition went with it. Thus, while Philadelphia Quakers and their allies such as Benjamin Rush lamented the concessions made to slaveholders in the Constitution, they accepted them as the necessary price of union, which they hoped would be the mechanism by which they could nudge the nation toward gradual emancipation. Likewise, northern Anti-Federalists universally condemned constitutional concessions to slaveholders from every conceivable angle, in every state ratifying convention. But like Abraham Lincoln seven decades later, they preferred to “nobly save” rather than “meanly lose the last best hope of earth:” union. For northern Anti-Federalists and abolitionists, union—even the necessarily imperfect one created by the Philadelphia convention—remained the only means by which republican government and the values of the Revolution could be maintained and then more perfectly realized. Southern slaveholders and northern supporters of ratification always stood ready to cynically exploit northerners’ pragmatic and increasingly sentimental devotion to union.

The result of these debates, conflicts, and compromises was an exceedingly complex constitution that allowed individual states to decide for themselves what to do with slavery. It also included clauses and provisions that could be used to protect and promote slavery, to attack and abolish slavery, to remain neutral on slavery, or to forge compromises regarding slavery. Over the next seven decades, it would be used in all of those capacities. It was also a constitution that granted important concessions to slaveholders. But in failing to provide them with explicit protections, it invited a never-ending series of challenges from northerners. In sum, it was a constitution designed to govern an immense, diverse, and expanding continental union with imperial ambitions, a union where slaveholders stood as the single most powerful class both within their states and in the nation, but where those slaveholders were constantly challenged by white northerners and black southerners.

Whether or not the Philadelphia convention produced a proslavery constitution that created a proslavery nation-state has become an irreducible matter of teleology and terminology centering on how one defines “proslavery.” It also engages in a form of essentialism that ignores the conflicting positions that went into the construction of both the Constitution and the clauses regarding slavery and slave state political power. The clauses addressing slavery were the product of too much conflict and compromise to bear the weight of any singular intent, purpose, or effect. These clauses were also suggestive rather than definitive, and they left their implementation to normal political processes in Congress. These clauses also proved limited enough, vague enough, and imprecise enough to allow for multiple positions on what actions were permissible under the Constitution, as seven decades of sectional politics, culminating in Civil War, would demonstrate. Finally, these clauses were ambiguous enough to allow for endorsement and quick ratification of the Constitution in places such as Pennsylvania and South Carolina, states that possessed wildly divergent interests and positions on the place of slavery in the federal union. Nonetheless, what remains clear when the Constitution is situated in the larger Revolutionary period is that its slavery and sectional clauses were the product of conflict, accommodation, and compromise. As with just about every sectional conflict in this period, the slave states gave up a little and received much in return. The little that they did give up, however, allowed for a multitude of challenges to slavery.

In the end, the Constitution maintained the status quo of an expanding continental union, where one section remained committed to slavery’s maintenance and growth while the other section became increasingly committed to abolition. The Constitution also put off profound disagreements about the place of slavery in a republican government and national development. It failed also to address the most fundamental conflict of all: the rights of individuals to be free versus the rights of slaveholders to their property in slaves. Above all else, then, the Constitution put off—at least temporarily—the need to address these problems in favor of stronger union and effective federal government. The Constitution failed to address, let alone solve, the problem of slavery and endemic racism, because the founders were neither hypocrites nor demigods. Instead, much like us, they were far too human. And like us, the founders proved entirely incapable of addressing the seemingly intractable problems of liberty, slavery, and racism in these United States.

Further Reading

My interpretation of the Constitution is heavily influenced by five works, though my interpretation differs from all of them. See, Matthew Mason, “Slavery and the Founding,” History Compass 4 (2006); Earl M. Maltz, “The Idea of a Proslavery Constitution,” Journal of the Early Republic, 17 (Winter 1997): 37-60; Don Fehrenbacher, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (New York, 2001); David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification (New York, 2009); George William Van Cleve, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early Republic (Chicago, 2010).

For recent popular debates about the place of slavery in the constitution, see David Waldstreicher, “How the Constitution Was Indeed Pro-Slavery,” The Atlantic, Sept. 19, 2015, and Sean Wilentz, “Constitutionally, Slavery Is No National Institution,” New York Times, Sept. 16, 2015.

This article originally appeared in issue 16.4 (September, 2016).

John Craig Hammond is associate professor of history at Penn State University in New Kensington, Pennsylvania. He is co-editor, with Matthew Mason, of Contesting Slavery: The Politics of Freedom and Bondage in the New American Nation (2011) and author of Slavery, Freedom, and Expansion in the Early American West (2007), in addition to numerous articles and chapters in edited collections. He is also a candidate for the Pennsylvania House of Representatives, 28th District, in the upcoming November election.

On Monday morning, July 1, 1776, just as delegates to the Continental Congress were assembling in the East Wing of the Pennsylvania State House to resume debate on declaring independence, a currier handed John Adams a letter from Samuel Chase. The Maryland Convention had suddenly reversed its position, Chase informed Adams. Three weeks earlier, in response to Richard Henry Lee’s momentous resolution in favor of independence, the Maryland delegation had stormed out. Then Chase and others sent the matter back to the county conventions, and at least four of these instructed their delegates to the Maryland Convention to instruct its delegates to the Continental Congress to vote in favor of Lee’s resolution. In an emergency session on Friday evening, June 28, the Maryland Convention finally conceded to the dictates of the county conventions. “See the glorious effects of county instructions,” Chase now boasted to Adams. “Our people have fire if not smothered.”

Elsewhere, local conventions were instructing their delegates to higher bodies to take the big leap—towns to county conventions, counties to provincial congresses, and these to the Continental Congress. Historian Pauline Maier has cataloged ninety of these “other” declarations of independence. Lee’s congressional motion for independence, in fact, stemmed from the Virginia Convention’s instructions to its delegates to the Continental Congress to introduce just such a measure. 

Fifty-seven of the lower bodies on Maier’s list were Massachusetts townships. This is no mere coincidence, for local town meetings had been telling their delegates to the General Court exactly how to behave throughout the late colonial period. For congregational New Englanders, who took the notion of popular sovereignty at face value, instructions constituted the perfect link between local and provincial government. If government existed for the good of the people, it stood to reason that the people themselves were entitled to make the decisions. There should be no intermediaries. Just as ministers should not stand between a people and their God, so should political representatives merely facilitate the popular will, not define it. Because of the corporate nature of their communities, furthermore, Massachusetts citizens assumed that the will of the people could be readily determined in their town meetings and then set to paper in the form of explicit instructions.

Take the town of Worcester, the “shire town” or (seat of government) of Worcester County. In 1766, the town meeting instructed Ephraim Doolittle, its representative to the General Court, to “use the whole of your influence and endeavor” to put an end to plural officeholding, construct a “convenient house” in which spectators could observe the proceedings of the General Court, revise the fee schedule by which public officials lined their pockets, repeal all excise taxes, shut down the publicly funded Latin grammar schools (of no use to ordinary farmers), and pass a law prohibiting all bribery and corruption. The townsmen concluded on a stern note: “That you give diligent attendance at every session of the General Court of the province this present year, and adhere to these our instructions, and the spirit of them, as you regard our friendship, and would avoid our just resentment.”

The following year, the Worcester town meeting repeated most of these items, with one key addition.

That you use your influence to obtain a law to put an end to that unchristian and impolitic practice of making slaves of the human species in this province; and that you give your vote for none to serve in his majesty’s Council, who, you may have reason to think, will use their influence against such a law.

Instructions had revolutionary implications, in both form and content. Once the door was opened to popular control of government, who knew how far the people would go? Lieutenant-Governor Thomas Hutchinson recognized the danger, and it alarmed him. In 1766, recently ruffled by the mob demolition of his house, he argued that instructions threatened the roots of orderly government by prohibiting calm deliberation. “To hold each representative to vote according to the opinion of his town…contradicts the very idea of a parliament the members whereof are supposed to debate and argue in order to convince and be convinced.”

Hutchinson’s fears proved well founded, for in the decade to follow, American patriots used instructions to push their agendas on deliberative bodies. Witness the heated Instruction War in Worcester, May 16-August 24, 1774. 

At the town meeting on May 16, citizens selected Joshua Bigelow to represent them in the General Court and appointed a committee to prepare a draft of his instructions. Six of the seven committee members belonged to the town’s radical caucus, the American Political Society (APS), and these men utilized the genre of “instructions” to hurl invectives against British imperial policies as liberally as they would in a political broadside. They also minced no words in demanding that Bigelow (also an APS member) carry the good fight on their behalf. “We, in the most solemn manner, direct you, that whatever measures Great Britain may take to distress us, you be not in the least intimidated…but to the utmost of your power resist the most distant approaches of slavery.” They placed Bigelow under “the streckest injunction” not to approve compensation for the tea dumped into the Boston harbor; they directed him to conclude the impeachment proceedings against Chief Justice Oliver for accepting a salary from the Crown; they “earnestly require[d]” him to use his “utmost endeavors” to convene “a general Congress” of the committees of correspondence from throughout the colonies. (This convention, four months later, would evolve into the Continental Congress).

Although the town’s Tory opposition vehemently opposed this political diatribe, the instructions carried the day, unaltered.

But opponents did not concede. They gathered forty-three signatures on a petition that called for a special town meeting to reassess the previous vote, and according to law, the selectmen were required to honor this petition. So on June 20 both sides mustered their forces for a showdown. 

Although local Tories had gathered every “friend of government” they could, there were simply not enough of them in Worcester. Once more the radicals prevailed, but this time, although outvoted, the Tories drafted a dissent, which they published in the Boston newspapers.

We behold so many whom we used to esteem sober, peaceable men, so far deceived, deluded and led astray, by the artful, crafty and insidious practices of some evil-minded and ill-disposed persons, who, under the disguise of patriotism, and falsely styling themselves the friends of liberty, some of them neglecting their own proper business and occupation, in which they ought to be employed for the support of their families, spending their time in discoursing of matters they do not understand,…intend to reduce all things to a state of tumult, discord and confusion…

These and all such enormities, we detest and abhor, and the authors of them we esteem enemies to our King and Country, violators of all law and civil liberty, the malevolent disturbers of the peace of society, subverters of the established constitution, and enemies of mankind.

Fifty-two supporters of the British Crown—the “Protestors,” as they were called—affixed their names to these vitriolic words, and in a town with fewer than 250 eligible voters, this constituted a sizable minority. The community of Worcester was at war with itself. 

But that war came to an abrupt end when the citizens of Worcester learned that Parliament had just passed the most abusive of all its punitive measures: the Massachusetts Government Act, which unilaterally revoked key provisions of the colony’s constitution, the 1691 charter. Town meetings, the basis of local self-government, were outlawed; they could only convene at the pleasure of the Crown-appointed governor, who had to approve all agenda items. Members of the powerful Council, formerly elected, would henceforth be appointed by the King. All local officials, such as sheriffs and judges, would no longer be subject to the approval of elected representatives, while even jurors would be selected by Crown-appointed officials, not by the people themselves. 

In Worcester, the new Government Act altered the political landscape beyond recognition. Before, Tories could present a reasoned (albeit controversial) argument for remaining true to imperial authority; afterwards, the Tory stance was entirely discredited. There was no way to argue that citizens could benefit by having their political enfranchisement yanked away.

Activists from the APS seized the moment to squash the local Tories, once and for all. They forced the fifty-two Protestors to “beg forgiveness” in a formal recantation, but that alone would not suffice. In a town meeting on August 24, they forced each of the Protestors, one at a time, to strike a line through his signature at the bottom of the Protest, which the town clerk, Clark Chandler—son of the town’s most prominent citizen over the past decades, John Chandler—had entered in the official journal.

Then, unhappy with even the appearance of dissent, the patriots ordered the clerk to “obliterate, erase, or otherwise deface” the Protest from the record. Left with no other option, Chandler inked his pen and drew it across the Protest, line by line, in full public view (fig. 1).

But even that would not suffice. A few words could still be deciphered in the record book, the patriots claimed, so they made him do it again—this time with continuous loops of tight spirals that rendered the Protest unintelligible.

Certainly that should have ended the matter, but it didn’t. We do not know exactly what triggered the last dramatic humiliation, but we do know that in full view of the town meeting, Worcester’s town clerk was forced to dip his own fingers in a well of ink and drag them over the first page of the Protest. The short, irregular changes of direction in the defacements on this document suggest that Chandler’s hand was forced.

Worcester’s Instruction War was over, and two weeks later, on September 6, patriots from around the county gathered in the shire town to close the courts. Mustering in thirty-seven units from their respective towns, 4,622 militiamen lined both sides of main street and forced some twenty-five court officials to walk the gauntlet, reciting their recantations at least thirty times apiece, hats in hand. With this dramatic humiliation, all British authority vanished from both the town and county of Worcester, never to return.

That left local citizens without any legitimate government. So on October 4, 1774, the town of Worcester issued a truly historic instruction to its representative to the forthcoming Provincial Congress, Timothy Bigelow, Joshua Bigelow’s cousin.

You are to consider the people of this province absolved, on their part, from the obligation…contained [in the 1691 Massachusetts charter], and to all intents and purposes reduced to a state of nature; and you are to exert yourself in devising ways and means to raise from the dissolution of the old constitution, as from the ashes of the Phenix, a new form, wherein all officers shall be dependent on the suffrages of the people, whatever unfavorable constructions our enemies may put upon such procedure.

Exactly twenty-one months before the Continental Congress would approve its own Declaration of Independence, the citizens of the town of Worcester had decided it was time to form a new and independent government, no matter what anybody else might say (figs. 2 and 3). 

But despite the efforts of Timothy Bigelow, in obedience to the instructions of the Worcester town meeting, a “new form” of government did not rise in a set piece “from the ashes of the Phenix.” The Provincial Congress, which effectively ascended to power in the wake of the old order’s demise, refrained from proclaiming its own authority, for fear of alienating other colonies. It “recommended” various measures, including the payment of taxes to its own treasurer, but it shied from calling them “laws.” 

In the summer of 1775, with the approval of the Continental Congress, the Provincial Congress assumed authority according to the 1691 charter, absent the royal governor, but this did not satisfy Massachusetts radicals. They wanted their “new form,” and they wanted to draft it themselves. When the state legislature submitted a constitution for approval by the people in 1778, it was overwhelmingly rejected, in part because of an absence of any declaration of rights but also because the majority of citizens wanted a say in setting up their own government.

Finally, in a statewide referendum held in the spring of 1779, Massachusetts citizens voted overwhelmingly to hold a special convention with the express and sole aim of drafting a new constitution, which would of course be submitted to the people for ratification. Through the summer, towns chose delegates and sent them forth, often with specific instructions. As citizens of Bellingham told Noah Alden, “We your constituents claim it as our inherent right at all times to instruct those that represent us, but more necessary on such an important object which not only so nearly concerns ourselves but our posterity.”

Virtually all the instructions opened by insisting on the need for a bill or declaration of rights, often delineating the specific guarantees that must be written into the new constitution. The list compiled by the people of Pittsfield closely foreshadowed the national Bill of Rights, which would be adopted a dozen years later, but it also included one critical injunction that never found its way into the famous document we all treasure. “[A]s all men by nature are free, and have no dominion one over another, …that no man can be deprived of liberty, and subjected to perpetual bondage and servitude, unless he has forfeited his liberty as a malefactor.”

Typically, the instructions insisted that people have the ultimate say in their government. Most called for annual elections, and beyond that, although ideas differed, towns promoted various mechanisms intended to secure the authority of the people: a prohibition against executive vetoes, an insistence that all taxes originate in the lower house of the legislature, and in one case, a unicameral legislature, so the voice of the people would remain unchecked by any other authority. 

Citizens of Sandisfield were very specific in their list of instructions, which, in total (over 2,500 words), might be mistaken for a first draft of the new constitution, right down to the residency qualifications for lieutenant governor (one year), the time for annual elections (April), the precise number of senators (twenty) and probate judges (twenty-four), and so on. The people from Gorham, on the other hand, concluded their instructions with a modest plea for minimalism. “The sense of Gorham relative to a mode of government the more simple, the less danger of the loss of Liberty and the most tending to happiness with the least expence.”

Several town meetings told their delegates that drafts of the Constitution should be printed and circulated to every town, so that the people might ponder its provisions and suggest amendments. Some made it clear they expected the convention to meet a second time, so delegates could incorporate the proposed amendments into a revised version. Only after the people at the township level had provided their input would the Constitution be resubmitted for final ratification. 

This almost happened—but not quite. On March 2, 1780, the Convention ordered 1,800 copies of its completed document to be dispatched to the towns, which were at liberty to propose amendments. Each article had to garner approval from two-thirds of the voting population; if not, the controversial issue would be returned to the Convention, which would incorporate the relevant amendments and rewrite the article. There would be no second referendum, however, so the people themselves would have no further say in the matter.

Overall, the Massachusetts Constitution of 1780 was well received, but certain articles did arouse opposition, most notably Article III of the Declaration of Rights, which required each community to support public worship. Although many towns proposed amendments related to this and several other matters, the suggestions were all over the map. Richmond, for instance, insisted that all militiamen, not just those over the age of twenty-one, have a voice in choosing their captains, that judges be appointed annually rather than serve indefinitely, and that property qualifications for the offices of governor and lieutenant governor be reduced and capped. Meanwhile, those very particular citizens of Sandisfield noted that “the word Council ought to be erased and the word Senate inserted” in Chapter 1, Section 2, Article III; they also renewed their objection to the governor’s veto power and advocated closer scrutiny by the legislature over the fee table for local officials. When the Convention met again in June, it categorically refused to deal with these diverse amendment proposals. Instead, it declared on the basis of partial results (many towns had failed to report numerical returns) that the two-thirds threshold had been met for every article and the entire Constitution would take effect, without alteration. 

Still, for those towns that had initially issued instructions to their delegates, the people had had some say in the matter, beyond choosing delegates and granting their assent in the end. Furthermore, according to the document itself, they could always have their say, as Article XIX of the Declaration of Rights laid out clearly. “The people have a right…to give instructions to their representatives.”

The Federal Constitution of 1787, on the other hand, included no guarantee for the right of issuing instructions, and this was hardly an accident. Instructions implied that the ultimate responsibility for decision making lay with the people, but as Madison argued so forcefully in Federalist no. 10, the judgment of representatives, with their “enlightened views and virtuous sentiments,” was likely “superior” to that of the people, with all their “local prejudices.” If election districts were large enough, Madison predicted, the people in any locality would not be able to come together as a body and bind their representative to specific actions. Large districts and the absence of instructions effectively precluded a democratic government, in which the people themselves can dictate their will, in favor of a republican government, in which wiser men rule. 

Madison and the framers got their large election districts, which did indeed render instructions to congressional representatives unfeasible. Ironically, however, the notion of instructions staged a revival in the new federal Senate, allegedly the province of the most enlightened leaders. Since senators were elected by state legislatures, some of these bodies assumed the authority to dictate terms to the men whom they had chosen to represent their states at the national level. Although this was hardly the intention of the framers, who had tried to remove the Senate from the “influence” of “factions” (to use the parlance of the times), several state legislatures tried to bind United States Senators with instructions on very specific matters. The practice continued intermittently until 1913, when the Seventeenth Amendment transferred the choice of Senators from the state legislatures to the people.

Today, although there is no formal provision for issuing instructions at the federal level, neither are instructions specifically prohibited, and at least in Massachusetts, that cradle of local democracy, the right of instructions is still legally guaranteed. The problem now lies with the infrastructure. Back in revolutionary times, there was a direct and functional chain of command between the people and the highest level of government officials: citizens at their town meetings chose and instructed representatives to their provincial (and later state) governments, and these in turn chose and instructed representatives to the federal Congress. In the name of democracy, this chain has been broken, with people electing their federal representatives directly. But they do so separately, from the privacy of voting booths, and they have only an indirect say in the matter for the next two, four, or six years, when the next election cycle comes around.

The vacuum left by the absence of instructions has been filled in two ways—most obviously by lobbyists, who exert far more influence on the people’s representatives than the framers dared to imagine, but also by ballot referendums, those hybrids of democracy and mass-market capitalism, in which public opinion and special-interest money combine in an unholy alliance to legislate on matters large and small. Only by reinventing some variant of that revolutionary chain-of-command, starting at the “town meeting” level, might ordinary citizens place themselves as prominently in the mix of politics as they did at the nation’s founding.

Further Readings:

To my knowledge, there is no comprehensive study of community-based instructions during the revolutionary era. Pauline Maier, in American Scripture: Making the Declaration of Independence (New York, 1998) lists and discusses many (but not all) of the instructions from the spring of 1776, which pushed Congress to declare independence. Most of these primary sources are reprinted in Peter Force, ed., American Archives, Fourth Series: A Documentary History of the English Colonies in North America from the King’s Message to Parliament of March 7, 1774, to the Declaration of Independence by the United States (New York, 1972; first published 1833-1846). Transcriptions of the instructions from the Town Meeting of Worcester can all be found in Franklin P. Rice, ed., Worcester Town Records from 1753 to 1783 (Worcester, Mass., 1882), but this book is difficult to locate; it might be easier to access the original records at the city clerk’s office. Similarly, instructions from numerous other town meetings throughout Massachusetts can be accessed by going directly to the respective town offices. About a dozen sets of instructions from various towns are reprinted in L. Kinvin Wroth, ed., Province in Rebellion: A Documentary History of the Founding of the Commonwealth of Massachusetts, 1774-1775 (Cambridge, Mass., 1975). For instructions leading up to the Massachusetts State Constitution of 1780, see Oscar and Mary Handlin, eds., The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1789 (Cambridge, Mass., 1966).

Secondary sources: For a brief discussion of instructions in the revolutionary era, see J. R. Pole, Political Representation in England and the Origins of the American Republic (New York, 1966): 72-75, 80, 94-95, 161-165, 211-214, 229-240, 441, 541-542. For a narrative of the Massachusetts Rebellion of 1774, in which instructions played a crucial role, see Ray Raphael, The First American Revolution: Before Lexington and Concord (New York, 2002). For instructions from state legislatures to the United States Senate during and beyond the early republic, see C. Edward Skeen, “An Uncertain ‘Right’: State Legislatures and the Doctrine of Instruction,” Mid-America: An Historical Review 73:1 (January 1991): 29-47.

This article originally appeared in issue 9.1 (October, 2008).

Writer/historian Ray Raphael, author of fourteen books, turned his attention to the American Revolution in the mid-1990s. His books include A People’s History of the American Revolution (2001; 2002), The First American Revolution: Before Lexington and Concord (2002), and Founding Myths: Stories that Hide our Patriotic Past (2004). His latest and most challenging book—a sweeping narrative of the founding era based on the lives of seven representative figures (both George Washington and Private Joseph Plumb Martin, for instance)—will be out this coming spring.

Historians have long believed that James Madison recorded his famous Notes of Debates in the Federal Convention of 1787 to preserve for posterity the process of drafting the U.S. Constitution. According to the well-known story, Madison—who never missed a session of the convention—meticulously took down the proceedings in shorthand by day, and then scrupulously copied them out longhand by night. And while some suggest that Madison may have doctored his Notes later in life to make himself look good, others point out that any post-convention tinkering failed to hide his stubbornness and his many defeats that summer. In Madison’s Hand, Mary Sarah Bilder, professor of law and Michael and Helen Lee Distinguished Scholar at Boston College Law School, turns this conventional wisdom completely on its head. She argues instead that Madison originally wrote his Notes not for posterity, but as a “legislative diary” for future reference for himself and for Thomas Jefferson (19). Bilder further maintains that Madison wrote the final third of the Notes not in the summer of 1787, but later, between 1789 and 1797. Finally, Bilder claims that Madison substantially altered the Notes later in life by changing or replacing speeches (especially his own) and by adding material from the official Convention Journal, from the notes of other delegates, and even from printed sources. So mutilated did his Notes become, concludes Bilder, that even Madison himself eventually realized that he had lost forever the original convention proceedings of 1787.

Prior to the 1787 convention, Madison became convinced that the powers of the federal government needed to be expanded at the expense of the states. Poorly designed state governments, Madison believed, led to tyranny by the majority within the states, and prevented the federal government from pursuing national interests. He hoped to solve these problems by replacing the Articles of Confederation with a national government in which representation would be based on state population, and which would empower the federal legislature to strike down state laws.

Bilder places Madison’s decision to record the convention proceedings into historical context. While a member of the Confederation Congress, Madison took notes in the form of a “legislative diary” as a personal reference and for the purpose of “sharing intelligence” with fellow Virginians, especially Jefferson (22). Rather than recording everything, Madison, according to Bilder, selectively took down in a gossipy style only those events that interested him. Bilder believes that Madison followed a similar practice in the opening days of the convention. For the first few days of the gathering, he wrote his Notes from memory after the sessions had ended. Only around day four of the Convention did he begin taking rough notes during the sessions and transcribing them after hours. Rather than transcribing his rough notes at the end of each day, writes Bilder, he instead wrote them out twice weekly, typically on Tuesdays or Wednesdays and Sundays.

The first part of the convention went well for Madison, with the delegates basing representation in both houses of Congress on state population. Late in June, the small states asserted themselves, demanding equal state representation in Congress. To protect the interests of Virginia, Bilder shows that Madison countered the small states by proposing that representation in one house of Congress be based on each state’s free population, and the other house be based on each state’s entire population, including slaves. In mid-July Madison suffered two stinging defeats: The convention decided that the states would be equally represented in the U.S. Senate, and it rejected the congressional veto. Bilder explains that these defeats left Madison angry and frustrated.

In August, as the delegates turned their attention to fine-tuning the Constitution, Madison took on a new and more constructive role. Bilder suggests that his skill with language helped him to identify wording that would satisfy both sides of a dispute. Recognizing Madison’s importance, the delegates placed him on three crucial committees late in the convention that dealt with slavery, the election of the executive, and the style of the final draft. Bilder contends that as Madison’s role in the convention changed, so too did his Notes. The more engaged in the proceeding he became, the more his Notes deteriorated. The rough notes Madison recorded during the sessions increasingly consisted of brief summaries, incomplete sentences, and abbreviations. After August 21, writes Bilder, the Notes collapsed entirely, because Madison no longer had the time to write out his rough notes in longhand between sessions.

After the close of the convention, Madison busied himself with writing the Federalist, attending the Virginia Ratification Convention, running for Congress, and drafting the Bill of Rights. Not until the fall of 1789 was he able to write out the rough notes from August 21 to the close of the convention. Thomas Jefferson’s return from diplomatic service in France and his subsequent appointment as secretary of state, hypothesizes Bilder, inspired Madison to finish transcribing the rough notes. At the same time, Madison also went back and revised his earlier Notes in a variety of ways. He made revisions with cross outs and erasures. He fixed spelling mistakes and provided explanatory comments. He even rewrote some of his own speeches on new pages and inserted them in place of the original pages. Madison obtained access to the official Convention Journal and filled in details that he had originally neglected to record. In so doing, Bilder maintains, Madison changed the gossipy tone of the Notes to one of detachment. He also made the document much more complete, and much more dispassionate. Madison, in short, altered his Notes from a legislative dairy into a legislative record.

Bilder accuses Madison of revising his Notes with 20/20 hindsight. By 1790, Madison and Jefferson had become convinced that Treasury Secretary Alexander Hamilton sought to restore a British-style monarchy in America. Madison accordingly revised his own convention speeches to distance himself from the high-toned aristocratic government associated with Hamilton’s June 19 speech that favored the abolition of the states and a president and Senate for life. For example, Madison changed his speeches to minimize his attacks on the state governments, and downplayed his defense of the congressional veto, a powerful executive, and an aristocratic Senate that would protect the property interests of the rich. Bilder even suggests that the replacement speeches Madison composed added criticisms of slavery that Madison never really made during the convention.

Perhaps Bilder’s most explosive claim is that Madison devised his famous theory about the ability of a geographically extended republic to stifle majority tyranny not before the convention, but after it. Madison’s extended republic argument can be found in section eleven of his April 1787 memorandum “Vices of the Political System of the U.S.,” and in speeches delivered at the convention during June. Bilder contends that Madison later rewrote section eleven of his “Vices” essay, as well as his June speeches, to include the extended republic argument, which he did not formulate until the writing of Federalist no. 10 late in 1787. Bilder points out that at the time Madison gave those speeches, he relied exclusively on structural features that he hoped to insert into the Constitution, especially the congressional veto, to subdue majority factions. She also claims that other note takers did not record Madison making the extended republic argument during the convention. Bilder believes that two or more years later, Madison substituted in the Notes new speeches that contained the less controversial extended republic argument in place of the original speeches calling for structural features that were eventually rejected by the convention. In retirement, Bilder insists, Madison continued to tinker with his Notes. In particular, he made them consistent with the notes left behind by other convention delegates.

Some of Bilder’s claims are sound (Madison did not transcribe the rough notes after August 21 until two years later), but others are dubious because they are based on little or no evidence (Madison only transcribed his rough notes twice a week). Some of her conclusions are wildly speculative (Madison misspelled Charles Pinckney’s name “Pinkney” to poke fun at the South Carolinian, whom he disliked). Bilder invariably—and perversely—attributes the worst possible motives to Madison (especially that he falsified the historical record) and even to Dolley Madison (forgery). This book unfairly casts doubt on the credibility of Madison’s Notes, our best source on the convention.

Bilder’s Madison is obsessed with clearing away inconsistencies in his political record, and making sure that other sources did not contradict his Notes. Did Madison later doctor the record to appear politically consistent across his career, or did he make minor edits to clarify his positions to avoid the appearance of inconsistency? Bilder sides with the former view. Most recent scholarship on Madison, in contrast, sides with the latter view. In particular, Lance Banning argues that a tendency to falsely overstate Madison’s nationalism in the 1780s makes it look as if he flip-flopped into a states’ rights backer in the 1790s, when in fact he steadily sought proper federal-state balance. Drew McCoy sees similar consistency in Madison’s positions over time on internal improvements, a national bank, and nullification. Given Madison’s frustration during his career with those who either willfully or inadvertently distorted his positions, it seems much more likely that his motive in revising his Notes was to clarify his views at the 1787 convention than it was to revise them.

This article originally appeared in issue 16.4 (September, 2016).

Stuart Leibiger is professor of history and History Department chair at La Salle University. He is author of Founding Friendship: George Washington, James Madison, and the Creation of the American Republic (1999), and editor of A Companion to James Madison and James Monroe (2013).

For the United States, poverty was present at the creation. The initial years of the new nation were freighted with economic deprivation. The gap between top and bottom economic strata, already widening during provincial times, continued growing in the aftermath of the Revolution. And outright destitution in the freshly birthed Republic loomed large. To be sure, the situation was less severe than in Europe, and commentators took comfort in the hefty size and vitality of America’s middling ranks. Still, the reality of neediness was undeniable. Even leaving aside chattel slaves (whose material resources were often meager but who were rarely counted among the nation’s poor between 1776 and 1861), deprivation was evident in the opening span of United States history. More than one of every six Philadelphians were defined as hard-pressed by 1800, while the roster of New Yorkers receiving charitable assistance jumped six-fold (reaching nearly a fifth of this city’s population) between 1784 and 1814.

Nor did the situation improve over time. While it’s true there were increments in the real per capita value of goods and services as the country matured, the division between rich and poor continued to deepen and neediness remained very much a fact of American life. The dislocations attending emerging economic transformations, as well as the infusions into various settings of needy newcomers (like the slave runaways who exchanged their masters’ holdings for new environs with little in hand but their self-seized liberty, or the refugees from famine-scarred Ireland who commonly entered the Republic virtually penniless), meant numerous communities—notably but not exclusively in the North—ended up hosting sizable contingents of distressed residents. In fact, as early national years (ending around 1820) gave way to antebellum decades (1820-1861), poor city neighborhoods molted into full-fledged slums, with New York’s Five Points neighborhood surfacing as only the most notorious among such zones of concentrated impoverishment. And scores of organizations—public and private—arose to aid the legions of Americans lacking “sufficiencies.”

Further shaping this record of poverty, of course, were the intermittent but dramatic downturns gripping substantial reaches of the economy. Admittedly, such contractions were felt by different constituencies and regions to different degrees. And given the increasingly dense entanglements of Americans within commercial, manufacturing, and employment networks, it’s probably the case that in a general sense these episodes affected more people more severely as time went on. But such suddenly severe “hard times” were never easy. Certainly the depression of 1807 (sparked by Jefferson’s Trade Embargo) and the Panics of 1819, 1837, and 1857 (the consequence—broadly speaking—of speculative bubbles that suddenly burst) had severe consequences. For the twofold impact of these precipitous implosions was to worsen conditions among those already in (or on the cusp of) poverty while confronting fair portions of those in more comfortable circumstances with unexpectedly—wrenchingly—having to make do with less.

All this drew responses from contemporaries. Here, indeed, there is reason to suggest a crescendo. It’s not just that efforts to provide succor grew more plentiful over the years. It’s also that, in tandem with the rise of slums and the likely swelling impact of economic collapses, all manner of analyses, evaluations, and related considerations of these developments seemingly became more frequent. What’s more, such remarkings seem to have included mounting attention to issues of appearance. Those already needy or newly suffering from downturns were treated in multiplying bundles of written descriptions and (often simultaneously) brought under increased observation. Above all, the outright poor were subjected to burgeoning vectors of direct viewing. There are indications, for example, of expanded sightings by expanding contingents of charity-dispensing “visitors” to the homes and neighborhoods of the destitute, as well as by managers of the growing array of remedial almshouses. And there are indications, too, of increased direct viewings undertaken by other individuals (from public and private officials to travelers and journalists) who sought to gather information about the needy or who simply began to find scenes of poverty in the Republic an interesting “sight.”

What, then, of pictures? This was an era of a rapid—indeed explosive—surge in the volume of images present in the United States. Starting in 1839 the new technology of photography burst upon the scene. But there were also sizable additions to the number of hand-made drawings, paintings, and above all prints (this last category showing up as both illustrations in publications and as stand-alone images, often in the form of inexpensive lithographs). Taking this full graphic inventory into account, it’s clear pictures ignored neither the steadily evolving presence of needy folk nor abrupt economic reversals. By all accounts, in fact, the level of pictorial response paralleled the rising curve of attention to these subjects (including the rising curve of attention to their appearance) that was evident in texts and observational practices. Yet it’s no less clear that images glossing the developing patterns of persistent neediness, or downturns, or both—the fabric of want as a whole—tended to follow certain tracks, some of which (as it turned out) reflected certain apprehensions and constraints. Pictures of poor folk and downturns may have grown more frequent and encompassing. But pictures also followed their own trajectories. And these are telling. Precisely because images were so extensively braided into the milieu, their distinctive handlings of Americans in need or suddenly having to do with less—in other words, what these images did and did not show—were important in defining the Republic between the Revolution and the Civil War.

The initial early national phase of the United States was characterized by especially pronounced hesitancy to image want. Lingering associations of graphic art with loathsome luxury encouraged picture-makers to pay careful mind to received notions of merit, or at least of acceptability, in images. Not surprisingly, these notions embraced matters of formal technique (such as proficiency in established academic practices of composition and use of color). But intersecting with the broad boosterist patriotism loose among contemporary Americans, the formal aesthetic standards current in the milieu also applauded pictures that inspired national pride or, minimally, did not highlight problems or concerns in the just-minted nation. Ultimate pictorial excellence was said to abide (as it supposedly had for some while) in history paintings or (a brand of imagery now starting to draw critical respect) in landscapes: the first because they could provide lessons of moral heroism; the second because they could yield leavening illustrations of America’s signature “beauties of nature”; and both because they could proceed without highlighting material crimpings. Other images gained traction, if not always high praise, by not flagging problems like economic want too concertedly. Thus, while it was now more likely (compared to provincial times) to find lower-ranked people folded into images illustrating American life, the working sorts enrolled in these pictures are typically presented as thriving rather than scrambling to make ends meet. And portraits, which functioned as something of a cash-crop for many early national artists, were popular in part because they generally punctuated not the economic difficulties but the material adequacy (or indeed wealth) of their protagonists.

And then there was the problem of misguided feelings. Belief in the efficacy of empathetic sentiment—confidence that people could and should be linked by sympathetic “common sense”—was very much in the air of post-Revolutionary America. But in early national years this belief was combined with concern that sentimentally charged encounters with representations of the unsavory could have unfortunate results. Renderings of the poor calculated to promote intelligent and remedial responses among the better-off were fine, possibly even useful. Critics warned, though, against renderings of figures so “depraved,” so mired in “wretchedness,” that those contemplating the delineations would experience, not “feelings that lead us to take an interest in our fellow creatures,” but “disgust” or the equally alienating emotion of relief at being insulated from the deprivations revealed in the presentations. In principle, such warnings covered all manner of depictions, written and spoken as well as pictorial. (And in the event, the very presence of these standards fostered a traffic in sub-respectable lewd representations that again involved both words and pictures). But coupled with the other advisories promoting graphics that saluted the uplifting (or at least avoided the problematic), cautions against wrongly aroused feelings tended to imply that images possessed a special force for good or ill—and hence tended to especially discourage starkly emphatic graphics of want.

None of this meant that early national Americans lacked all exposure to pictures dealing with economic pressures. After all, as before the Revolution so after, European images of Old World lowly or needy residents crossed the Atlantic. And some of these graphics—various prints by Hogarth, for example—had long been favorably received by Americans. But while pictures produced in the United States in these years occasionally touched on want-in-the-Republic, they did so in ways that avoided taking full measure of the phenomenon. Poor neighborhoods were rarely imaged. Nor was there much enthusiasm for graphics covering the destitute who were now starting to be targeted (and observed) by the first wave of post-Revolutionary charity visitors and poorhouse administrators. This last disinclination may have arisen in some measure because picturing the poor in such contexts could suggest the presence of corrective supervision; and there are indications picture-makers striving to win favor in the milieu commonly sought to avoid graphics linking non-chattel (especially white non-chattel) poor with the oversight associated with slave labor. To be sure, the hesitancy to image non-slaves under supervision similarly discouraged early national pictures depicting interiors of various prisons and workplaces that had also begun introducing muscled-up oversight of free Americans. But joined with other inhibitions against imaging destitution, the reluctance to illustrate watched-over poor folk served to further restrict pictures of those in need.

So what was possible? Confining ourselves for the moment to responses toward currents of ongoing poverty, rather than to treatments of discrete downturns, what was the cultural space available for picturing neediness? Here and there, it turns out, portraits might actually play a role. For occasionally, almost certainly working on speculation (rather than relying on prearranged commissions), early national artists—including the technically able and prominent among them—used portraiture to delimit scruffy and even overtly hard-pressed individuals. But it’s important to appreciate that these images generally do not stress their subjects’ deprivation so much as find ways to declare that even these figures might be reckoned sources of national inspiration. Hence Charles Willson Peale’s painting of the elderly (allegedly 134-year old!) Muslim former slave Yarrow Mamout accents the man’s face with warmth, seriousness, and dignity. And Samuel Waldo’s portrait of a beggar invests this figure with an expression of sufficient prideful strength to raise the possibility Old Pat was in truth (as the painting’s title asserts) admirably “independent” (fig. 1). By the same token, the period’s more accomplished streetscapes and more impressive initial forays into genre art give scattered mention to alms-seekers or to the contrast between well-to-do and needy folk. But the mentionings are so matter-of-fact or humorous that the sting of the depicted poverty largely drains away.

Other images—most of them prints but running from polished engravings to relatively crude woodcuts—strike a similar balance between acknowledging neediness and diluting its import. Magazine illustrations denoting the poor are prone to equip such personnel with comely faces and adequate costumes, while the derision contemporary cartoons sometimes direct toward paupers generally spring from these figures’ political positions rather than their economic standing (fig. 2). Even the American version of Old World Street Cries emerging in these years offsets the harshness of poverty. While acknowledging that the venders of goods and services who strolled the early national urban byways were sometimes “distressed,” the texts of these booklets describe such people for the most part as plucky “examples of application and industry.” And the illustrations garnishing their pages generally follow the same line, displaying criers in plain, perhaps unfashionable, but entirely presentable apparel (fig. 3).

In sum, the needy of the early Republic might be imaged—but for the most part only by underscoring something besides their difficulties or by softening what they had to endure. This, however, is not how matters remained. Even if we continue to limit ourselves for the present to engagements with ongoing destitution rather than with depressions and panics, it’s clear that antebellum pictures did indeed follow the overall growth of attention toward poverty and did indeed begin grappling with the hard-pressed more often and more thoroughly.

Admittedly, images of history and natural scenery (the latter now fully recognized as aesthetically top-flight) for the most part continued omitting mention of neediness. Indeed, high-end oil paintings as a whole remained generally closed to destitution. So too, portraits (both paintings and prints) registered no significantly enlarged interest in economically distressed figures, much less in harping on their lack of resources; and there were certainly cartoons that continued deploying paupers less to depict poverty than to score partisan political points. Moreover, as we’ll find, the images of poverty that did surface in antebellum years continued to evince significant constraints. Nonetheless, the years between 1820 and 1861 unquestionably featured thickening inventories of graphics (produced by artists who often as not worked in diverse forms of image-making) that proved increasingly alert to the nation’s poor.

To start with there were now illustrations of the country’s maturing urban slums. City guides—surveys of urban centers published in these years—carried images of these districts (fig. 4). Equally notable, post-1820 iterations of City Cries occasionally involve illustrations conceding the hand-to-mouth condition of street sellers more baldly than previously typical of such graphics. Then too, Cries now segued into formulations of Street Figures: text-and-picture vignettes of individuals supposedly found on antebellum city avenues, fair numbers of whom are imaged as vividly ragged and presumably hard-pressed (fig. 5). Going further, graphics of poverty often accompanied the investigations, proliferating after 1820, into situations of poor folk (fig. 6). And there are likewise images mobilized to document the ever-sharpening contrast between “The Two Great Classes” of rich and needy Americans (fig. 7).

What accounts for this new openness to picturing poverty? One factor, ironically, was that the picturing was not more pronounced. The multiplication of images dealing with neediness was substantial. But part of why this increase could take place was that antebellum graphics in their entirety covered an astonishing spectrum of topics and issues. Accordingly, Americans did not feel overwhelmed by the uptick in imaged destitution. No less important, though, was that a good deal of this surge was propelled by a desire to explain. Living through what many believed were unprecedentedly rapid and comprehensive transformations, antebellum Americans were broadly desirous to learn about the alterations transpiring in their milieu. And inasmuch as lesser ranks generally, and poor sorts specifically, were conceived to be integral to the changing national environment, Americans found it more necessary—and legitimate—to ponder those below, including the hard-pressed.

Which in turn meant the ponderings themselves often carry explanatory intentions.Certainly this was true of the antebellum pictorial reactions to destitution. Take, for example, the images just cited. After all, whatever their other goals—alongside, say, their aim to amuse (as “Street Figures” sometimes do), and alongside rendering judgments (as in the outrage occasionally notched into imaged contrasts of rich and poor)—these graphics are manifestly about making neediness understandable. They strive to identify and situate its densest crystallizations (like Five Points) and locate it within the topography of America’s “Two Great Classes.” And they strive to demonstrate how poverty operated on public streets and amidst its own (“Genteel Lodging House”) domestic contexts. All told, they strive to make poverty not just more pictorially visible but also more legible.

It’s worth underscoring that large proportions of explanatory-inflected pictures of antebellum poverty, as again exemplified by the four prints just discussed, are set in cities. There were several reasons for this. First, post-1820 urban communities were deemed especially changeful and consequently especially suitable for imagery that sought to lay out understandings. Explanatory pictures of urban poverty in these years were to some degree thus simply part of the projects-in-explication evident in many city views. But equally trenchant was that poverty itself was deemed essentially urban. Persisting Jeffersonian notions of cities as toxically antithetical to the ideal of yeoman-based democracy may have been operating here, encouraging associations of destitution with built-up settlements (and of course preeminently with urban slums) rather than with fields and farms. And the coinciding inclination to celebrate rustic vistas (apparent in antebellum landscape art) surely also had an effect, if only by making it comparatively difficult to conceive (and especially to picture) needy folk in the hinterland. In fact, there wasrural poverty in post-1820 America. But with occasional exceptions (including occasional graphics of raggedly costumed non-slaves in notionally rustic American settings and scattered illustrations of neediness in foreign countrysides), it was rarely pictured. If explanatory images of urban destitution traded on general dispositions to essay understandings of cities, they probably drew as well on widespread leanings to equate American poverty primarily with the nation’s larger communities.

That said, there are also pictures touching on neediness in these years, even on urban neediness, that are accented somewhat differently from the images discussed to this point. For the fact is there are pictures that, while scarcely avoiding efforts to project understandings of poverty, advance a different brew of intentions: not just mixing explanation with other goals but giving these other goals major emphasis. For example there are images—including at least one oil painting—that focus on the emerging propensity of certain (usually upper-class) individuals to treat the city poor as objects of considerable (albeit aloof) curiosity: as interesting “sights” (fig. 8). At the same time, there are now images that fully embrace sympathy. Sentiment was by now in full flood in the United States. And although earlier worries about exciting untoward “feelings” by no means vanished, there was relatively greater tolerance for illustrations recording sympathetic involvement with the “wretchedness” of the destitute. In fact, images of sentimental charitable caring became one avenue by which earlier resistance to picturing poor whites-under-supervision was also put aside in these years (fig. 9). Alternatively (and possibly in direct reaction to such sympathy-drenched offerings), there are pictures harping on unappealing needy sorts. David Gilmour Blythe, an artist who (somewhat anomalously) depicted the poor in paint, was one picture-maker quite prepared to set forth low-ranked, and intermittently overtly needy, figures in ways that gave primacy not to providing explanations, or interesting “sights,” or subjects worthy of sentimental empathy, but to posit the off putting (fig. 10).

So all in all antebellum America hosted swelling inventories of pictures grappling in one way or another with the nation’s poor. And as this bundle of images gained traction in the culture, there arose what amounted to an iconography of poverty, a language of signs that helped make neediness recognizable in graphic representations. Most obviously, there was the emblem of tattered or patched clothing. Mobilized sporadically in early national years (in Old Pat and cartoons but not in all Street Cries), and admittedly used somewhat inconsistently thereafter (not for both Blythe’s figures, for example), ragged costumes nevertheless developed between 1820 and 1861 into relatively reliable pictorial indicators of material deprivation. Added to this was shoelessness or scanty footwear (visible, for instance, among some Street Figures). While barefoot figures might continue as markers of healthy simplicity in images of rural life, individuals lacking any or adequate footwear in city settings came to connote people in need. At the same time, picture-makers also began using disorder to flag poverty, with the disorder extending from physical to moral. In the 1859 rendering of Five Points noted above (fig. 4), for example, ramshackle structures (also apparent in fig. 6) coincide with a policeman gesturing inadequately as one woman falls (perhaps from drunkenness? perhaps from being assaulted?) and another lifts her skirt in the beckoning gesture of prostitutes. What’s more, images of city destitution sometimes signal disorder by noting racial mixings. A frequent feature of northern slums in these years, racial heterogeneity was part of why northern whites not living in these districts often judged them disturbing—not least when (as in fig. 4) blacks participating in the mix are shown as well-(even over-) dressed: blatantly stylish clothes here serving as their own counterpunctual designations of poverty’s disorder.

Yet even with all these aspects of this imagery acknowledged, there remains more to say about post-1820 pictures of needy Americans. Specifically, there remains more to say about how this imagery was bracketed: about how antebellum picturings of poor folk, for all their increased capaciousness, remained limited to certain tracks. Photography, for instance, was rarely brought to bear on the destitute in these years. The need of early photographers to have subjects that were largely motionless, and the consequent inclination to turn cameras on unpeopled outdoor scenes or on figures willing and able to pay to sit quietly for studio portraits, doubtless contributed to the paucity of photographs dealing with the hard-pressed. But it seems equally plausible that, unlike their counterparts in the late 1800s (many of whom were riveted by the poverty-revealing photographs by Jacob Riis), antebellum Americans were simply not ready to see, or purchase, camera-made images of Five Points residents in any great number. Hand-crafted graphics were one thing. But it would be a while—perhaps it would require exposure to photographs of Civil War battle scenes—before there was much call for directing the camera’s purported ultra-accuracy toward harsh economic conditions.

There were likewise constraints on pictures of southern poverty. There was, it’s true, a blossoming of antebellum graphics illustrating southern slaves, many of whom are presented in the tattered regalia of poverty. (Indeed, by locating these figures in hinterland locales the images constitute something of an exception to American unwillingness to giving neediness a rural address.) But in keeping with the general disinclination to construe slaves as poor, the purpose of these typically northern-composed images was more to explore the humanity of African-Americans, and in some instances raise questions about chattel servitude, than to dwell on the scanty resources of these figures. Since, moreover, the antebellum escalation of full-throated attacks on slavery often left southern whites markedly defensive about the effect of “the peculiar institution” on the region’s majority race, there was comparatively little eagerness among these individuals to embrace treatments, including graphic treatments, of a problem like poverty afflicting their own kind. This is not to say there were no pictures of needy whites in the Old South. But the indications are that whites below the Mason-Dixon Line were less receptive to such graphics than either they or northerners were to images of destitution in the North. And given this lack of receptivity, there was probably less space in the culture as a whole for images of poverty in Charleston or Richmond than for pictures of Five Points.

A final limiting attribute attaching to graphics of neediness in these years was their apparent apprehension about universalizing the needy: about making their condition altogether familiar and proximate. Because this apprehension commonly kept these images grooved within formulations that cast the poor, even the northern poor, as “other.” This was particularly obvious when, amidst their explanatory or other undertakings, the images imposed negative stereotypes on those in need. Inasmuch as the poor are now and again depicted as intemperate or otherwise enmeshed in disorder, or as black, or with the lantern jaws or pug noses used to sign the Irish—inasmuch as this is true, pictured needy folk become at once flawed and distinct. (In practice Blythe probably drew on such types in cobbling up his disagreeable faces). Not only do such pictures often allow these stereotypes to carry explanatory force (implying their protagonists are poor largely because they are drunk, black, or Irish), but they also define their subjects as qualitatively less than and different from the audience these same pictures willy-nilly conjure up. The images wielding such formulations, in other words, implicitly propose that among those looking upon these graphics were contingents of not-poor, sober, and presumably native-born and white respectable sorts who do their picture-perusing from positions of superior distinctiveness.

But the poor were separated off even without recourse to denigrating caricature. They were separated off because the bulk of pictures treating the poor in these years were generated from the outside. It’s not just that artists crafting the images were usually of at least middling standing. More fundamentally, it’s that pictures containing poor figures—even pictures the needy may themselves have looked upon—were not produced at the behest of the hard-pressed and did not embrace their point of view in any clear or reliable manner. To be sure, this was not unique to the needy or to antebellum decades. Pictures have frequently recruited people into their frames more or less unilaterally. And throughout American history images treating lower strata—not just the poor but working folk generally—have especially tended to be of (rather than by) these constituencies. Moreover (turning back to Old Pat), it’s apparent images fashioned from the outside have nonetheless managed to depict the needy with respectful seriousness. Nor should we fail to realize that both lesser folk as a whole and the poor specifically have in any case proved persistently capable of using the dynamics of visuality in America—the whole gamut of “seeing” and being “seen” in the culture—to assert themselves. Yet it’s equally evident antebellum picture-makers were often reluctant to construe poverty as a normal feature of the Republic. And alongside their increased references to needy sorts, post-1820 artists consequently often end up holding these individuals at arm’s length, crafting graphics that speak at, or about, or down to the destitute rather than for them. Even when bridged sympathetically, the apartness of the needy abides—is expressed as what requiresbridging—in images. So that antebellum pictures are indeed commonly limited to denoting the poor as “other.”

Thus some of the possibilities, and accompanying strictures, characterizing pictures between the Revolution and the Civil War as they reacted to the developing presence of needy folk in the Republic: to the reality of poverty in both good times and bad. But what of graphic responses to more episodic economic crimpings? What of the downturns that arose only periodically but, upon arising, imposed added pressures on the already hard-pressed and startlingly novel burdens on swathes of the better-off? How were these hard times pictured?

At first not extensively. Although his rags are attributed most immediately to his craven deference toward Britain, the material distress of the pauper posed in the early national cartoon mentioned previously (fig. 2) almost certainly connects to the trade dislocations surrounding the 1807 trade embargo. And the date of his portrait (fig. 1) makes it at least possible that Old Pat‘s poverty relates to the economic collapse of 1819. In the final analysis, however, and in line with the general hesitations to picture destitution in the Republic’s initial years, neither image grapples directly with the two downturns. And few other early national pictures allude to them at all.

But this mode of dealing with downturns soon changed. In keeping with the increased (albeit bounded) antebellum pictorial engagement with ongoing poverty, the major post-1820 collapses received increased graphic attention. In fact, the graphic coverage of these crises occasionally incorporates elements of the images referring to more rooted neediness. But pictures dealing with antebellum crashes also display their own characteristics.

Consider, for example, pictorial responses to the unraveling of 1837. The graphics most prone to addressing this Panic were those most open to treating current events: “news.” Hence political cartoons took the lead. And among these was “The Times” by Edward Clay (fig. 11). The creator of a large and varied oeuvre of images (including several prints savagely mocking northern free blacks), Clay produced this stand-alone lithograph in the summer of 1837, just as the import of the downturn began to be felt. Configured as a panorama of densely packed scenes, several with a decidedly theatrical feel, the picture presents figures that often run to repulsive types. Not just the drunk (to the left), but also the callous landlord, the carriage-fitted lawyer to the right, and presumably the unseen proprietor of Shylock’s pawnshop (this last detail reflecting the antisemitism occasionally springing up in the milieu): all verge on disparaging caricatures. So that in this case it’s not just the unsavory poor but others as well who are “othered” by means of offputting stereotypings. But this does not stop Clay from simultaneously displaying the human cost of the downturn. If the drunk has only himself to blame, his stricken wife, the pathetic widow pleading with her landlord, the crowd storming the bank, the cartless teamster, and the unemployed (and barefoot!) workers in the foreground: these are all surely innocent casualties. In fact, another inflection of his stereotyping is that some of his needy figures—the widow and bedridden wife especially—amount to the kind of positive (and melodramatic) caricatures also loose in antebellum America, accompaniments to the extravagantly sentimental presentations of poor waifs (like the girl in fig. 9) circulating through the culture. Still, notwithstanding his reliance on types, Clay departs from received cartoonist practices and makes his downtrodden victims more than mere tokens of ideological postures. For are they not manifestly suffering? Indeed, the frantic crowd, the widow-landlord encounter, and the tradesmen’s jarring combination of unragged apparel and shoelessness together comprise the artist’s method of registering, not merely the condition of those already poor, but the new—and shockingly unanticipated—stringencies besetting all kinds of residents of communities like Boston, New York, and Philadelphia amidst the 1837 Panic.

And then Clay ties it all together with a political indictment. Although his attack does not overshadow the print’s recitation of hardship, Clay’s critique is hard-hitting. Positioning his scenes beneath an ironic July 4th banner and, more pointedly, a sunburst of Andrew Jackson’s signature hat, glasses, and pipe set beside the sinking balloon of the Democrats’ banking scheme, Clay joins other Whiggishly slanted cartoonists in blaming this crisis on speculative practices springing from Democratic fiscal policies. Triggered by identifiably wrongheaded decisions, the 1837 Panic is thus depicted as deeply unusual. And as a result, even as it includes the poor in variously permutated typologies, “The Times” ultimately manages to keep at a distance all its needy figures—whether they are pictured as malevolent or blameless—by continuing to construct their condition as fundamentally abnormal. But then too, no less significantly, Clay uses his partisan analysis to bolster the explanatory force of his image. Like other antebellum images bearing on economic difficulties, Clay’s cartoon rode the legitimizing crest of explanation. And for this image, the basic understanding turns on the mistaken political vision of Jacksonian Democrats.

So joining elements that were familiar with others that were novel, “The Times” takes its place as a picture that confronts the 1837 downturn in a strikingly direct manner. What’s just as striking, however, is that aside from a few other political cartoons, Clay’s decision to use his confrontation to harp on the sufferings caused by this collapse—to dwell on its destructiveness—seems not to have been widely replicated at the time or particularly prominent subsequently. In truth, it’s hard to avoid the sense that alongside the mounting post-1820 willingness to picture panics, (perhaps part of what made that willingness possible), were certain hesitations. More concretely, it’s hard to avoid the sense that there existed concern in these years that if graphics placed too much stress on the grim consequences of economic crises, pictures of such crises might, even more than images of ongoing poverty, provoke doubts about the ultimate soundness of the American political economy. Picturing downturns was one thing. But Clay may have marked the limit in illuminating the suffering they produced. Too many overly vivid illustrations of the social carnage wrought by a specific panic might themselves arouse panic.

The likelihood that such concern was indeed at work is bolstered by the pictorial reactions to the 1857 crash. On the one hand, this collapse was probably more fully imaged than any previous American economic crisis. On the other hand, the images responding to this Panic often seem to pull their punches. To begin with, political cartoons were rarely in evidence, which meant that the vehicle through which Clay unleashed his survey of distress was less available than twenty years earlier. One reason for the relative scarcity of political cartooning about this collapse may have been that it was less easy to assign precise partisan blame for what transpired in 1857 than for what had happened in 1837. Another factor, however, may have been that by the 1850s, political cartoonists were heavily preoccupied with sectional tensions and disputes over slavery, and in the context of those controversies hard-edged graphic commentaries about the new economic downturn might well have seemed too threatening. At any rate, what emerged in place of free-standing political cartoons were scattered paintings of mostly well dressed Wall Street crowds at key moments of the implosion. What emerged most of all, however, were prints in the periodical press. And what emerged, too, was that these prints were tilted in special ways. Newspapers and magazines ran articles covering the 1857 downturn from many angles, including accounts of forlorn job searches and suicides among desperate working folk. At the same time, the periodicals carrying pictures—mainly the era’s more amply resourced magazines (or journal-magazines)—now and again published pictures registering the steady beat of poverty during the years surrounding the crash. Notably, however, the images that the most picture-heavy periodicals fixed directly on this crisis tended to downplay its human cost.

We can see this in the issues of Harper’s Weekly that appeared toward the end of 1857. Launched earlier in the same year, Harper’s Weekly was among the most lavishly illustrated of contemporary magazines (providing assignments, as fig. 7 reveals, to promising young artists like Winslow Homer). It was also a publication that enjoyed a remarkably hefty circulation and devoted a remarkably large number of images to the Panic (its treatment of the downturn probably playing out as often in pictures as in written articles). So while its immediate readership may have drawn more heavily from middling and upper ranks than from lesser sorts (and while periodicals catering to laboring folk may occasionally have struck their own pictorial notes), Harper’s Weeklyhad sufficient resonance across the milieu, and gave sufficiently pronounced graphic attention to the collapse, that its graphics went far to shape America’s overall pictorial engagement with this bout of hard times.

How, then, did it image the 1857 Panic? Now and again there are images reporting scenes outside failed banks (fig. 12 and fig. 13). Confined to male figures, these illustrations range from documenting irreverent naughtiness (the pickpocketing youth) and well-heeled figures displaying smug confidence, on the one hand, to noticings of despair (the older man seated on the curb), and of fiscal tumblings (the rag picker fetching up a newly worthless note), on the other. But these latter noticings are just elements of the narratives. And the images as a whole contain enough humor and variation to prevent them from becoming anything like declarations of unalloyed catastrophe. So too, scattered pictures of stores holding frantic sales (“epidemics” as they were called) take the same modulated tone by confining poor folk to the background or to mentionings of mischievous boys, while giving pride of foregrounded place to unattractive but manifestly un-suffering wealthier folk (fig. 14).

Such prints succeed in acknowledging yet also deflecting the painful impact of the crisis. But the magazine accomplished these same twinned goals even more effectively by making heavy use of images designed to be fully humorous. Almost from its inception Harper’s Weekly printed what amounted to non-political cartoons: images that relied on social types but not on partisan politics—cartoons of social manners. This brand of picture was of course neither new in the 1850’s nor confined to this magazine. And Harper’s Weekly itself marshaled cartoons of this kind to explore many subjects. Yet if (as suggested) its pictorial treatment of the 1857 Panic was influential in the nation’s aggregate graphic handling of the downturn, much of how Harper’s Weeklyeffected its ramifying treatment was through cartoons which perform the joint task of recognizing the crisis and offsetting fears.

So, for example, the magazine’s cartoons soft-pedaled the heightened deprivations the crisis inflicted on those already poor. Now and again, trading on findings of some contemporary investigative journalists, this was done by illustrating the destitute faking their misery. Alternatively, the poor (signaled by ragged costumes and often sporting Irish physiognomy) are shown sufficientlyundesperate to turn down charity offered in doubtful currency (fig. 15). While on some level such merry tempering of neediness could undercut the separateness of the poor (and even the strangeness of poverty as a condition), the hard-pressed are still kept at a distance in these images by unattractive stereotyping, by contrasts to the non-poor, or by both together. And the larger truth in any case is that these cartoons concentrate as much on better sorts as on the destitute. In some instances the cartoons (coming as close as they allow themselves to personal accusations) present the better-off as businessmen enmeshed in distasteful or cowardly behavior (see fig. 16). More commonly, the goal is to demonstrate that, whatever financial reversals it caused, the Panic did not really harm the non-needy. At times this message is transmitted indirectly, by having “Wall Street” worries mouthed—and thus trivialized—by down-at-the heels (or barefoot) youths (fig. 17). Generally, though, notions of middle and upper ranks escaping largely unscathed are advanced quite overtly. So, for example, the Panic’s purportedly “Dreadful Effects” on these constituencies are shown to actually entail little more than going without crinoline or stylish facial hair (fig. 18).

But there is another dimension to these jocular visions of better-off Americans in 1857. In asserting that these people had little to complain about, the images frequently imply that such individuals believed they were facing grave sacrifices, and were foolish to hold that view. Once again (as in Clay’s cartoon), the negative stereotyping impulse carries beyond the lowly, with the Harper’s Weekly cartoons often fitting the non-poor into the tartly unflattering type of self-indulgent, whining, lovers-of-luxury entirely oblivious to how their situation compared to the really unfortunate.

More than that, these figures are ignorant of how, as a type, they have contributed to the downturn. For in their depictions of better-off Americans these cartoons effectively corroborate an analysis of the 1857 Panic widely heard at the time: that over and above this or that nefarious merchant and banker, the root cause of the crisis was a mounting embrace of luxury sadly at odds with the nation’s founding republican devotion to simplicity. Hungering for extravagance (so ran this view) Americans were living beyond their means, “trusting to some bold stroke…or lucky adventure to supply the deficiency,” all of which encouraged ruinous speculation. Although not an unprecedented perspective on economic downturns, this line of interpretation was unquestionably emphasized in 1857. And it clearly echoed through theHarper’s Weekly cartoons, providing them with an explanatory prism comparable to Clay’s more precisely partisan interpretation. As writers advancing this view often implied, moreover, and as the Harper’s Weeklycartoons commonly suggest, a key expression of this fall from ascetic grace was a hankering for fashionable appearance, perhaps particularly (drawing on republicanism’s long-standing doubts about female self-discipline) the hankering of women for fine clothing. Just as important, however, many observers, again manifestly including the cartoonists published in Harper’s Weekly, believed it was members of “the higher classes of society,” men and women alike, who were most culpable. For (it was intimated) these were the people especially prone to the “melting down” of “honor and principles” that was corrupting the commonweal.

Hence the barbed cartoons of better sorts. Yet there are further twists to these images. The luxury-loving swells they chastise are of the same broad socio-economic standing as many readers of Harper’s Weekly. So that for all intents and purposes these prints deploy negative representations, and indeed (ringing yet further changes on stereotypes) negative caricatures, that are not distancing, or at least not only distancing. Up to a point, the silly fops and belles in the cartoons are joined with portions of the magazine’s assumed audience in collaborative guilt. Indeed, the cartoons unleash what may be characterized as a kind of collective consumerist jeremiad. We have done wrong, these pictures say, and brought this disaster upon ourselves. What’s more, the solution is as obvious as our trespasses. We must return to virtuous simplicity. So we will don last year’s fashions and pawn our finery (fig. 19 and fig. 20).

But then come more twists. First, it’s all a joke. The down-dressers are more silly than reformed and the lady does her pawning from a carriage, all suggesting the charge of immorality is issued tongue in cheek and the changes called for may well be less than profound. Second, perhaps in the end there is a kind of distancing. Even leaving aside that Harper’s Weekly likely attracted at least some plebeian followers, the better sorts viewing the magazine’s funny pictures were exposed to differentiations among themselves. For surely tucked into these cartoons is the quiet thought that you and I, the right-thinking better sorts reading Harper’s Weekly, can go on largely unchanged because we are more like the plain lady in figure 18 than the mincing fools of these pictures. We are proper; they are reprehensibly different. Indeed they are so different that even as these pictures attribute the collapse less to discrete policies than to moral declension (and even as the cartoons, in some degree, diminish the separateness of poor folk and of poverty), the images still delimit the Panic itself as an anomaly: the appalling consequence of particularly appalling individuals. And in doing this much, of course, the cartoons also, implicitly or explicitly, enclose distancing distinctions that allow decent better sorts to condemn excess and still remain blameless.

Such was the broadly reverberating imagery Harper’s Weekly directed toward the 1857 collapse: a cluster of graphic offerings that modulated rather than punctuated misery; that traded on humor as much as on ghastly revelations; that depicted the non-poor as frequently as the needy; and that found ways at once to scold better sorts, chuckle about the scoldings, and finally let these individuals quite completely off the hook. It was, all told, a fitting dénouement to how want was pictured in the Republic between the Revolution and the Civil War. For it demonstrated that alongside the cumulatively greater imagery of American poverty and downturns there was another continuing story of pictures approaching these topics through particular inflections and perspectives, and indeed through hesitancies and constraints that diminished but never disappeared. Against this background was it not appropriate that Harper’s Weekly illustrated the collapse of 1857 in ways that noticed what was happening—but also looked away?

As we have suggested, the graphic record stretching across these decades was by no means homogeneous. And it is doubtless true the non-pictorial engagements with material want in early national and antebellum America enclosed their own inflections and limitations. Yet the burgeoning role of images in the culture, combined with the way images approached destitution and downturns, ensured that from early on the manner in which the Republic met economic bad news was flavored by ambivalence. It was flavored, that is, by tendencies to find poverty and sudden collapses increasingly difficult to ignore and yet continuously important to muffle in one way or another. The pattern hardly stopped with the Civil War. A further version is evident in the complex responses—from celebrations of high society to detailings of despair—kicked up by the Great Depression of the 1930s. But the particular ambivalence toward want apparent in the nation’s pictorial record between the 1776 and 1861 was clearly an important expression of what the Republic of these years did and did not choose to face: even, we might say, an important expression of what itwas.

Further reading

Since this essay deals with pictorial silences as well as with affirmative representations, the following titles often touch only obliquely on the subject of “images of want.” But they can provide points of departure for those interested.

Tyler Anbinder, Five Points: The 19th Century New York City Neighborhood That Invented Tap Dance, Stole Elections, and Became the World’s Most Notorious Slum (New York, 2001); Paul Boyer, Urban Masses and Moral Order in America, 1820-1920 (Cambridge, 1978); Joshua Brown, Beyond the Lines: Pictorial Reporting, Everyday Life, and the Crisis of Gilded Age America (Berkeley, 2002); Elna C. Green, This Business of Relief: Confronting Poverty in a Southern City, 1740-1940 (Athens, 2003); Stephen Hess and Milton Kaplan, The Ungentlemanly Art: A History of American Political Cartoons (New York, 1968); John A. Kouwenhoven, Columbia Historical Portrait of New York: An Essay in Graphic History in Honor of the Tricentennial of New York City and the Bicentennial of Columbia University (New York, 1953); Bernard F. Reilly, Jr., American Political Prints, 1766-1876: A Catalog of the Collections in the Library of Congress (Boston, 1991).

The author would like to thank Michael Zakim for helpful editorial suggestions on an earlier draft of this essay. Thanks are also due to Kelly Erby and Jacob Schulman for research assistance, and to Sarita Alami and John Klingler for help in digitizing the images.

This article originally appeared in issue 10.3 (April, 2010).

Jonathan Prude teaches history and American Studies at Emory University. His current project is “The Appearance of Class: The Visual Presence of American Working People From the Revolution to World War I.”

Half a century after the American Revolution, mid-Atlantic urban workers toasted Thomas Paine. In the streets and taverns of Philadelphia and New York, they praised the author of Common Sense and Rights of Man. These men realized that poverty and inequality were not inevitable but could instead be overcome. One of them was Thomas Skidmore, the leader of the New York workingmen’s movement that went on strike against plans to extend the workday in 1829. The publication of Skidmore’s four-hundred-page treatise, The Rights of Man to Property!, coincided with the strong showing of the Workingmen’s ticket in the state elections held in November 1829. Skidmore argued that all laws favoring the perpetuation of property ran counter to the democratic principles on which the American Republic had been founded. This deeply held conviction about the legal basis of economic inequality explains why Skidmore, unlike so many of his peers, did not exalt Paine for being a revolutionary hero of 1776 or laud his legacy as the voice of “common sense.” Instead, Skidmore attacked Paine’s theories of political economy, directing his readers’ attention away from Paine’s more familiar patriotic writings and toward his lesser-known Dissertations on Government; The Affair of the Bank; and Paper Money. This pamphlet revealed the problematic implications of the famous radical’s thought when viewed in a different temporal context, one marked both by political democratization and economic inequality.

Skidmore saw in the American Revolution, not only the democratic legacy of 1776, but also the unjust foundation of a republic based on economic inequality. In his opinion, the creation of the national and state finance structures set forth in the Constitution—the institution of banks, the formalization of public debt, and a private credit system—had initiated a process of “accumulation,” by establishing an economy that favored the concentration of wealth in the hands of a few. Reading Paine’s Dissertations alongside Skidmore’s The Rights of Man to Property! helps us chart the tensions between the political revolutions of the eighteenth century and the economic revolutions of the nineteenth. By the time that Skidmore took up his pen, the expansion of suffrage had emancipated white laboring men throughout the North, opening politics up to citizens who criticized the alarming levels of poverty and economic dependence engendered by the exploitation of wage labor. As the expectation of personal independence inherited from the Revolution gave rise to a pointed critique of wage labor, a new generation of radicals, Skidmore included, began to revise older ideas to suit their own circumstances.

Skidmore and Paine in 1829 New York City

In 1828, the democratic reforms sweeping the United States culminated in the election of President Andrew Jackson. Over the course of the 1820s, this spirit of reform had worked in New York to gradually open the vote to all adult white males, including laborers who were beset by a serious economic recession. The economic downturn placed additional financial pressure on employers, who attempted to increase their profit margins by lengthening the workday from ten to eleven hours. In March 1829, journeymen—a mixed lot of propertyless men, mainly white, who worked in different trades as blacksmiths, carpenters, tailors, masons, and so on—called public meetings to declare their refusal to work for more than ten hours per day.

The strike was successful, and even after employers renounced their plans to lengthen the workday, the journeymen continued meeting. They expanded their critique of the U.S. economy, shifting their focus from working conditions narrowly defined to broader questions about politics and society. They also challenged the partisan structure of the Second Party System by attacking politicians in both the Whig and Democratic parties as “aspiring demagogues, who have … feelings—no interest, in common with workers.” Far from serving the public, according to the laborers’ critique, these men were party hacks who were “prompted only by ambition and avarice.” For this reason, New York’s radical journeymen decided to enter the November 1829 New York state election by running a slate of their own candidates, men who stood independent of the political establishment. The candidates ran on a platform that included a call for changes in the prevailing working conditions in shops and manufactories, but their proposals also extended far beyond the realm of wage labor. They demanded a string of reforms (ranging from the repeal of chartered banks to the abolition of commercial monopolies) that were calculated to appeal to the economic interests of small artisans and wage earners. When the votes were counted, the platform’s appeal was undeniable; the Workingmen’s ticket managed to poll nearly one-third of the total vote.

This was the social and political context in which Skidmore published Rights of Man to Property! Born in 1790 into a struggling family in Newton, Connecticut, Skidmore moved to New York City at the age of twenty-nine and set up shop as a machinist. Unlike most other artisans of the era, he would not remain confined to the obscurity of his workshop. His encounter with Paine’s writings when he was a boy and his continuing immersion in political theory pushed him into New York’s fervid political scene. By the end of the 1820s, Skidmore’s experiences in the workplace and at the polls led him to connect the revolutionary legacy of 1776 to a biting critique of the economic hierarchies that continued to structure society. In Rights of Man to Property!, he criticized “great wealth” as “an instrument which is uniformly used to extort from others [the workers], their property in their personal qualities and efforts.” In his opinion, the interest that the debtor paid the banker or creditor, the rent that the worker paid for his house or land to large proprietors, and the profit that the employer made by selling goods produced by workers all contributed to what he called “overgrown wealth.”

Skidmore’s trenchant attack on capital accumulation was not new. Paine himself had explicitly cited “accumulation” as a primary cause of economic inequality. In his 1796 pamphlet Agrarian Justice, which borrowed from a wide-ranging British dissident literature, Paine criticized the monopolization of land in Europe, arguing that “it has dispossessed more than half of the inhabitants of every nation of their natural inheritance,” forcing a growing number of men to sell their labor for wages. Like Paine, Skidmore denounced the rising disparity between the material conditions of the many (who were weighed down by the demands of labor) and the few (who enjoyed the privilege of significant property). But unlike Paine, Skidmore pressed these remarks to their logical conclusion, arguing that “all men should live on their own labor, and not on the labor of others.” In his opinion, “the possessors of property … have no right to their property when they use it, for the purpose of converting their fellow beings into slaves to labor for their use.” Workers had been reduced to the status of “possessions growing out of injustice.” To find the origins of this insidious inequality, Skidmore looked back to the foundational moment of the young republic: the American Revolution. Remarkably, he pointed his finger at Thomas Paine, the man who many of Skidmore’s allies associated with the promise of liberty launched by the Revolution.

Skidmore’s case against Paine rested on the latter’s Dissertations on Government; The Affair of the Bank; and Paper Money, published in 1786. With the Dissertations, Paine entered a bitter controversy over public finance and banking. In September 1785, popular protests forced the Pennsylvania Assembly to repeal the charter granted in 1781 by the Continental Congress and the State of Pennsylvania to establish the nation’s first bank, the Bank of North America. Funded by merchants’ voluntary subscriptions, the bank was intended to finance the Revolutionary War. Indeed, this is precisely why Paine supported the bank and why he subscribed five hundred dollars of his own money to support it. But Robert Morris—Philadelphia merchant and the bank’s major subscriber, congressional representative, and superintendent of finance from 1781 to 1784—and his economic partners and political allies lent their support to the bank with an additional political project in mind.

The Bank of North America was more than a commercial bank used for private transactions. It was also intended to serve as a national bank, holding government funds and issuing notes that Morris and his allies hoped would come to serve as the national medium of exchange. When Congress incorporated the subscribers by recognizing them as a corporation “able and capable in law,” it gave them de facto power to control both money lending and the quantity of money in circulation. As Robert Morris argued before the Continental Congress on July 29, 1782, the Bank of North America could do more than manage the war debt; it was positioned to “distribut[e] property into those hands which could render it most productive.” In other words, the bank and its governors could and would exert enormous influence on the economy. In practice, that meant reducing the money supply and restricting credit. The former policy raised interest rates, making it more difficult for debtors to get out of debt while ensuring that creditors received a substantial return on what they had loaned. Some men were forced to sell their property to cover their debts; others saw their property foreclosed. The restriction of credit limited access to capital to a small circle of merchants, and it frustrated workers’ ambitions to achieve economic independence by acquiring land or a workshop. Moreover, the “necessity” of redeeming the public debt incurred by the war served to justify national taxation, thus serving the financial interests of the bank’s primary subscribers or stockholders. Put simply, the nation’s first bank, along with the system of public debt and private credit, facilitated what Skidmore later termed “overgrown wealth.” This fact was not lost on Pennsylvania’s farmers, artisans, and radicals, who were incensed by the bank’s refusal to accept the paper money printed by the Pennsylvania Assembly to relieve debtors in the hard times that followed the Revolution; it was their outrage that prompted the assembly to repeal the bank’s charter in 1785.

Surprising as it may seem, in the conflict over the bank charter’s repeal, Paine sided with the merchants and creditors. His Dissertations on Government; The Affair of the Bank; and Paper Money argued against the acts that repealed the charter and expanded the printing of paper money to discharge debts. According to Paine, these were policies unfit for a representative government because they violated private contracts and depreciated the value of money. Moreover, the acts gave state governments too much power—namely, the power to violate the right of private property. “There can be no such power in a republican government, the people have no freedom, and property no security where this practice can be acted,” he warned. Paine insisted that, since no law could revoke a private contract, the act repealing the bank was “unconstitutional.” Ultimately, Paine, Morris, and the bank prevailed. After a year and a half of acrimonious debates, the Bank of North America was rechartered.

Looking back on this early bank war from the vantage point of the 1820s, Thomas Skidmore aligned the Paine of the Dissertations with the founders and with the federal Constitution, which stipulates that “no State can coin money” or “pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,” thus giving private contracts and private property the force of law. Paine’s support for the Bank of North America and all it represented explains why Skidmore singled out the Dissertations for criticism, rather than the more familiar Common Sense or Rights of Man. Skidmore aimed to show that Paine had committed “such a blunder, as that of attempting to erect an equal government, upon a foundation where inequality had already found an existence.” Far from dismantling economic inequality, the federal government took “measures to perpetuate it.” In Skidmore’s opinion, Paine, like the founders, “never seemed to have perceived” that “their system of rights, in its practical effect, went to give to one human being living under it, the privilege of taking so much of the property of the preceding generation as would enable him to live in idleness on the productions of the labour of others.” In other words, accumulation, coupled with inheritance, was the problem. Although Skidmore acknowledged that Paine had “supported the rights of the people of all nations, with an energy, and an ability, perhaps never excelled,” he also argued that he had “wandered into some misconceptions.” From Skidmore’s perspective, Paine failed to understand what was at stake in the bank’s repeal and, by extension, in the creation of a federal government. Paine had failed to realize that debates centering on the purpose and structure of government had obscured a question that was of crucial importance to Skidmore: “How long does a man own property?” The property law championed by Paine in 1786 and enshrined in the Constitution not only enabled a few men to accumulate a disproportionate amount of property; it also enabled them to pass it along to their sons. It all but guaranteed that economic inequality engineered by one generation would be perpetuated in the next. In the Dissertations, then, Skidmore discerned a first important attempt to use constitutional authority to sanction economic inequality. It set the stage, in his opinion, for the inequities built into the federal Constitution, which constructed property law to consolidate the political influence of merchants—stockholders of the bank—over public finance and private credit.

Skidmore offered a complex vision of the Revolution, one that could not be reduced to the promise of liberty in 1776, and implied a radical critique of the constitutional order that emerged out of the Revolution. Indeed, he argued that the federal government had made possible a “first appropriation” and then the “transmission” of property. This two-fold process had invested a specific class with the power to ensure that subsequent generations could only gain property through wage labor (if they were able to gain it at all). Looking back at the debates about debt and property that followed the Revolution, Skidmore identified the moment when American society was “divided into two distinct classes; proprietors and non-proprietors; those who own the world, and those who own no part of it.”

Reading Paine and Skidmore together allows us to chart the changing meaning of the revolutionary language of 1776. Skidmore did not deny the Revolution’s radical legacy, nor did he condemn Paine altogether. However, he could not celebrate Paine in 1829 without requiring the expiation of Paine’s sin in 1786—his endorsement of a government based upon economic inequality. Once this sin was paid for, Skidmore could again use the more familiar figure of Paine—that of the revolutionary hero of 1776—to inspire the workingmen’s movement. In order to overthrow the “the present edifice of society, and to build a new one,” Skidmore borrowed from Common Sense and Rights of Man the political principle that no government could hold the power to bind the next generation. But he extended this definitive democratic ideal from politics per se to the realms of the economy and society more generally. In Skidmore’s terms, the fundamentally undemocratic accumulation of wealth that was encouraged by early national property law ran counter to “the rights of every subsequent generation.”

In other words, the democratic language that emerged from Skidmore’s critical reading of Paine was rooted in questions of class that the American Revolution left unresolved. These questions were political in the broadest sense; they focused not only on what constituted a democratic government but also on the socioeconomic hierarchies that shaped it. At the same time, the class meaning that Skidmore ascribed to the revolutionary language of 1776 testifies to the enduring expectation of personal independence that citizens of the early republic inherited from the Revolution. In the revolutionary eighteenth century, Common Sense offered a common language that united master artisans and journeymen in support of political emancipation and unfettered trade. Half a century later, Skidmore enriched the eighteenth-century lexicon with new words like appropriation and class. In so doing, he attempted to revise the revolutionary language of 1776, rendering it better suited to address questions of economic andpolitical democracy. Consider the title Skidmore chose for his treatise: if The Rights of Man to Property! pays homage to Paine’s eighteenth-century radicalism, it also extends that radicalism to nineteenth-century social and economic problems.

Which Paine for Americans?

The Thomas Paine who emerges from a reading of Skidmore’s 1829 text is more complicated than the familiar revolutionary author of Common Senseand Rights of Man; he is more contradictory than the stock character of the American radical tradition who appears two centuries later in Philip Roth’s I Married a Communist. Instead, another Paine comes into view. This one is an ambiguous figure caught up in a hard-fought political battle in which there was more at stake than the foundation of representative government; the battle also helped establish the legitimacy of the initial processes of accumulation. The point here is not to reveal an inconsistency within Paine’s thinking and much less to fault him for failing to anticipate the class-divided society of fifty years later. After all, American society had been fundamentally transformed between the 1780s and 1829. Rather, the point is to take another look at what we think we know about Paine and to examine how his shifting significance can help us understand a pivotal moment in American history.

From Skidmore’s vantage point, Paine appears as a problematic writer and a flawed revolutionary. On the one hand, Paine condemned debtors who wanted to curb the accumulation of wealth. On the other, he never abandoned the democratic thrust of Common Sense. If he argued that property rights helped protect the fruits of men’s hard labor, he also helped legitimate a constitutional order in which those same rights became tools for profit and exploitation. Paine’s 1786 intervention in defense of the Bank of North America and Skidmore’s 1829 criticism of Paine remind us of the connections between politics and economics, both at the nation’s founding and in the decades that followed. Paine himself never expressly addressed the development of capitalism in the United States, much less its relation to legal and political structures. But by tracing Paine’s obscure pamphlet from its role in an early bank controversy through its resonance for radical politics in the early republic, we can begin to consider the problematic relationship between the creation of the federal government and the initial process of private financial accumulation, which was an indispensable prerequisite for the transition to capitalism.

Further Reading:

On politics, labor, and democratization in the early republic, see Eric Foner, The Story of American Freedom (New York, 1998) and Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York, 2005) and Chants Democratic: New York City and the Rise of the American Working Class, 1788-1850 (New York, 1984). All quotations from Skidmore come from Thomas Skidmore, Rights of Man to Property!(New York, 1829). On Paine’s reputation in the early republic, see Eric Foner, Tom Paine and Revolutionary America (New York, 1976); Alfred F. Young, “The Celebration and Damnation of Thomas Paine,” in Liberty Tree: Ordinary People and the American Revolution (New York, 2006); and Harvey J. Kaye, Thomas Paine and the Promise of America (New York, 2005). Paine’s Dissertations on Government has been reprinted in Philip S. Foner’s edition of the Complete Writings of Thomas Paine, vol. II (New York, 1945). On Robert Morris and his associates, see E. James Ferguson, The Power of the Purse: A History of American Public Finance (Chapel Hill, N.C., 1961) and more recently Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending of the American Revolution (New York, 2007). The ordinance of December 31, 1781, and Robert Morris’s 1782 speech before the Continental Congress are reprinted in Worthington C. Ford, ed., Journal of the U.S. Continental Congress, 1774-1789, vols. XXI-XXII.

The author is indebted to Eric Foner for characterizing Skidmore’s title (The Rights of Man to Property!) as an homage to Paine and an extension of Paine.

This article originally appeared in issue 9.4 (July, 2009).

Matteo Battistini has a Ph.D. from the department of politics, institutions, and history, at the University of Bologna. He is the author of “L’epoca di Paine. Società e politica nella Rivoluzione atlantica,” in Scienza & Politica 39 (2008). He is currently planning a book on Thomas Paine and the revolutionary foundation of the United States of America in the Atlantic world.

These days it’s rare to find a United States history textbook that does not include a reproduction of Robert Koehler’s 1886 painting, The Strike. Indeed, a quick survey of leading college-level textbooks finds that it is the most popular image used to open a chapter on the industrial revolution. What is it about the painting that accounts for this appeal? Making sense of this question requires both a detailed analysis of the painting as well as a discussion of the Gilded Age context in which it was created.

The Strike captures a moment of confrontation as workers pour out of a factory to gather outside the office of their employer. Their many conversations and quizzical looks, not to mention their hurried movements, indicate that the strike has been called only moments before. This stop-action, photographic quality (note the boy running on the right) lends the scene an air of palpable tension, suggesting to the viewer that something dramatic is about to happen.Unlike most scenes of labor unrest painted or drawn in the late nineteenth century, Koehler presented these workers as sympathetic characters, painting each as an individual rather than as nondescript members of a mob. Many also appear to be of foreign birth, but again Koehler shuns the popular trope of depicting the immigrant worker as a wild-eyed, violent anarchist. The ubiquity of the latter is evidenced in figures 2 and 3 that illustrate two prominent labor clashes in the spring of 1886, the same time Koehler first displayed his painting. Notice the violent postures of the workers in both images as they destroy property and brandish stones and guns. Such scenes suggest workers who are incapable of rational discourse and who reflexibly turn to violence to get their way. In contrast, Koehler presents even the striker speaking to the factory owner—presumably a leader and one especially fired up about the perceived injustice that triggered the walkout—as earnest but calm. Looking upward at the boss (a clever depiction of their upper- and lower-class status), he gestures toward the gathering crowd as if to say, These men will not accept the wage cut, or the speed up, or the dangerous conditions.

This theme of moderation is also conveyed by Koehler’s liberal use of square hats on the strikers. Made of paper, they were originally developed by skilled woodworkers, most likely to keep sawdust out of their hair. But nineteenth-century artists placed square hats on any worker they wished to distinguish as skilled, regardless of trade. In so doing, they suggested to viewers their subjects were respectable, hardworking men of American birth who might belong to unions but were less prone to strike than their recently arrived, unskilled, foreign-born counterparts. By including so many of these workers in the crowd, Koehler reveals his pro-labor sympathies. The painting suggests a work environment so deplorable that even the skilled, sober-minded, American-born workers have walked out.

Yet at the same time, The Strike is fraught with tension, indicating that at any moment the workers’ composure might dissolve into violence. Clearly, the strike has been called only minutes earlier, as we see workers pouring out of the factory (the only one in the scene with no smoke emanating from its chimney), several of them pulling on their coats and many speaking in clusters, seeking additional information. Behind them dark, foreboding storm clouds loom on the horizon. Most notable is the worker in the foreground stooping to pick up a rock. Maybe he is only a moment away from hurling it at the boss, an act that will surely trigger more violence and lead to clashes with the police or militia. Maybe he will opt for an act of symbolic violence and throw it through a window. Maybe he will simply toss it up and down in his hand as a dramatic but ultimately harmless show of anger. Similarly, we see in the center foreground a woman trying to calm down another angry worker, presumably her husband. As with the worker picking up the rock, the viewer is left hanging, wondering whether peace or violence will prevail. Will she succeed in deterring him from a rash act? Koehler provides no answer.

This theme of pervasive tension and anxiety over what will happen next is also furthered by the mother with two children at the far left. Apprehension verging on terror is evident on the faces of the mother and of child standing next to her. Here Koehler is presenting a familiar element in Gilded Age labor-capital conflict imagery—the powerless and vulnerable wife and children standing on the edge of a scene dominated by male workers, police, and employers. The message in this set piece is that the fate of innocent women and children hang on the decisions of men. As indicated in the accompanying examples (see figures 4 and 5) from Puck, the vast majority of labor-capital conflict scenes took the side of the employer and thus criticized the deluded American worker for shirking his primary responsibility of providing for his family in favor of pursuing a misguided strike or boycott. Note how the woman in figure 4 pleads with her husband to resist the power of the power-hungry labor agitator. Figure 5 presents an even starker scene of half-starved women and children victimized by their husbands’ succumbing to the wily deceptions of the union leader. Again, as with his positive depiction of the gathering workers, we see how Koehler departs from a dominant trope. While he presents the mother and children as powerless and vulnerable people who will likely suffer the consequences of the action unfolding, he leaves open the question of culpability. If the workers persist in their strike, their families will suffer for lack of income for food and rent. But they will also suffer if the strikers relent before the capitalist and accept his wage cut.

This theme of ambiguity extends to Koehler’s depiction of the factory owner. On the one hand, he appears like Ebenezer Scrooge (replete with a nervous Bob Cratchit figure behind him), standing stiff and emotionless as the worker below him makes his appeal. Note also how Koehler’s creation of two distinct worlds—the hardscrabble, grimy landscape of the workers’ world and the elegant, ordered space of the factory owner—serves to heighten the sense of widening class distinctions and intensifying class conflict. From this perspective, the viewer is inclined to see him as the quintessential cold-hearted capitalist. There seems little chance that he will accede to the workers’ demands. And yet, there he is, willing to come before his workers and listen. Perhaps his grim countenance reflects not hostility toward his workers, but the great dilemma he faces: he might want to agree to the workers’ demands that he restore a wage cut, or reduce the hours of labor, but doing so would raise his costs and imperil his business in an age of intense competition. Again, Koehler leaves his audience wondering.

This uncertainty in the painting over both what is about to happen and which side is in the right —workers or employer—illuminates the dilemmas posed by rapid industrialization in the late nineteenth century. Many people agreed that social turmoil threatened the future of the republic, but they disagreed over its causes and, especially, its solutions. Koehler presents us with workers who appear hardworking and worthy of sympathy. Yet, his inclusion of the man picking up the rock suggests that he is acknowledging a troubling tendency among some workers to embrace radicalism and violence. Similarly, Koehler presents a factory owner willing to talk to his disgruntled workers, suggesting that not all capitalists were greedy and heartless. Yet the man’s stern gaze and the rough landscape of the workers’ world (and the fact that they have just called a strike) serves as an admission that some capitalists bear responsibility for the current labor-capital strife. Koehler is content only to highlight this dilemma and he declines to offer a solution.We can deepen our understanding of Koehler’s intentions in crafting so complicated yet uncertain a scene by taking a close look at the period in which he lived and worked. The Gilded Age, defined roughly as the period from 1865-1900, was an era of dualities. As the name suggests, many considered it a golden age, one marked by spectacular advances in industrial output and technological innovation that transformed the United States from a predominantly agricultural nation that ranked well behind England, Germany, and France to the world’s most formidable industrial power by 1900. Americans celebrated one astonishing achievement after another, from the completion of the transcontinental railroad (1869) to the opening of the Brooklyn Bridge (1883), from the laying of the Atlantic Cable connecting London and New York by telegraph (1866) to the unveiling of the Statue of Liberty (1886). On these occasions and seemingly at any opportunity, Americans invoked the optimistic themes of progress, expansion, growth, and success. “[E]very American citizen must contemplate with the utmost pride and enthusiasm the growth and expansion of our country,” offered President Grover Cleveland in a typical address in 1893, “… the wonderful thrift and enterprise of our people, and the demonstrated superiority of our free government.” Nowhere was this ebullient spirit more evident than at the world’s fairs held in Philadelphia (1876) and Chicago (1893), events that afforded superb opportunities to showcase the wonders of American technological genius.

And yet, in both instances, the year following these world’s fairs witnessed massive railroad strikes (the Great Uprising in 1877 and Pullman in 1894) that offered vivid evidence that there was more to this upbeat vision of national development than initially met the eye. Put another way, the name Gilded Age also suggests a disturbing superficiality to all this evidence of progress. As with a gilded piece of jewelry, one needed only to scratch the surface of the thin gold layer to find the cold, hard, black iron that lay beneath. What many Americans found were the darker consequences of industrialization, especially the immense power accrued by big businesses and capitalists, the growing number of workers living in squalid slums, and the frequent episodes of labor-capital violence (the period 1880-1900 witnessed nearly 37,000 strikes). If these were the trends of the future, warned an aging Walt Whitman in 1879, then “our republican experiment, notwithstanding all its surface-successes, is at heart an unhealthy failure.”

Whitman was hardly a lone voice of concern, for the Gilded Age produced a profusion of books and articles focused on what many at the time referred to as “the labor question” or “the social question.” No less than three special congressional committees (1879, 1883, and 1898) convened to investigate and take voluminous testimony “on the relations between labor and capital.” One of the most pointed and widely read analyses of the Gilded Age’s social turmoil was the book Progress and Poverty, written in 1879 by the social reformer Henry George. The title itself captured perfectly the vexing duality emerging in late-nineteenth century America: industrialization brought both greater progress for a few and increased poverty for many. “It is as though an immense wedge were being forced, not underneath society, but through society,” wrote George. “Those who are above the point of separation are elevated, but those who are below are crushed down.” George warned that the very fate of the republic was at stake. “This association of poverty with progress,” he asserted, “is the great enigma of our times… It is the riddle which the Sphinx of Fate puts to our civilization, and which not to answer is to be destroyed.”

Workers and farmers echoed these concerns about economic inequality. In 1878, for example, the Knights of Labor adopted a Constitution, the preamble to which denounced the “recent alarming development and aggression of aggregated wealth” that if left unchecked “will inevitably lead to the pauperization and hopeless degradation of the toiling masses.” In 1892, Populist leader Ignatius Donnelly sounded a similar alarm. “[W]e meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress, and [the Courts] … The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind; and the possessors of those, in turn, despise the republic and endanger liberty.” Most farmers and workers demanded the government take a greater role in regulating the economy in the name of preserving the republic.

Conservatives, however, offered a very different interpretation of both increased social turmoil and poverty. In the 1870s, middle- and upper-class Americans celebrated and embraced as never before laissez-faire individualism, the most extreme form of which was social Darwinism. According to this view, the greatest danger to the American republic was not the widening gap between the rich and the poor, but rather the possibility that the poor would mobilize collectively against their betters, either via the ballot or the bullet, and take what did not belong to them. “To rising Americans,” writes historian Heather Cox Richardson, “it seemed as if the system worked for everyone and faced threats only from those who had no intention of working and planned to use the government to redistribute wealth to them.”

As a consequence, members of the middle- and upper-classes in the 1870s demonized the poor as unfit, grasping losers and took steps to sharply curtail charity, which they deemed dangerous to the morals and manners of the needy. This spirit of social Darwinist hostility toward the poor was most famously captured in a widely reprinted sermon by Rev. Henry Ward Beecher, the nation’s most renowned preacher. Dismissing the claims of workers that they could not live in dignity on wages of a dollar a day, he asserted that too many workingmen “insist on smoking and drinking beer.” A frugal workingman could support his family on a diet of bread and water, argued Beecher, and “the man who cannot live on bread and water is not fit to live.” This hostility also manifested itself in the widespread agreement among elites that working-class protesters be met with state-sponsored violence. The declaration of the Independent, a religious weekly, was typical. If “the policeman, knocking out the brains of the rioter” failed to put down the mob, “then bullets and bayonets, canister and grape—with no shame or pretense, in order to frighten men, but with fearful and destructive reality—constitute the one remedy and one duty of the hour. … Napoleon was right when he said the way to deal with a mob is to exterminate it.” To speed the military response and provide a haven for themselves should the “dangerous classes” arise, wealthy urbanites sponsored the construction of large armories in major cities.

Central to wealthy and powerful Americans’ dismissal of the protests of workers and the pleas by reformers like Henry George was the idea that these agitators had become infected with one or more of the varieties of European radicalisms like socialism, communism, and anarchism, a notion vividly illustrated in figure 3, the image from Harper’s showing the labor leaders involved in the Haymarket bombing looking like crazed European radicals. The United States, they insisted, was a classless society. “[W]e have among us a pernicious communistic spirit,” wrote Allan Pinkerton, head of the Pinkerton Detective Agency (whose real business was, of course, violent strikebreaking) in the wake of the great 1877 railroad strike, “which is demoralizing workmen, continually creating a deeper and more intense antagonism between labor and capital … it must be crushed out completely, or we shall be compelled to submit to greater excesses and more overwhelming disasters in the near future.”

It was in this context that Robert Koehler commenced painting what became his best-known work, The Strike. Born in Hamburg in 1850, he came to the United States at the age of four with his family. They settled in Milwaukee where his father, a skilled printer, enjoyed a successful career. Young Robert grew up studying art and working as a lithographer. At age twenty-three he traveled to Munich to study with some of Germany’s leading painters. Returning to New York in 1875, he continued his studies at the New York Academy of Design and Art Students League. He returned to Munich in 1879, maintaining his primary residence there until 1892, but also returning to the United States nearly once a year.

It is not entirely clear when Koehler commenced work on The Strike, but according to the artist’s own account, its initial inspiration was the great railroad strike of 1877, a nationwide event known as the Great Uprising that saw more than a hundred workers killed by police, militia, and federal troops. He did not witness the violence personally, but the events received extraordinary coverage in the press, including the illustrated weeklies like Harper’s Weekly and Frank Leslies Illustrated Weekly, for weeks afterward. Although inspired by events in the United States, he began the project in Germany. As Koehler later recalled,

The Strike was in my thoughts for years… Its actual inception was in Munich and there the first sketches were made. I had always known the working man and with some I had been intimate. My father was a machinist and I was very much at home in the works where he was employed. Well, when the time was good and ready, I went from Munich over to England and in London and Birmingham, I made studies and sketches of the working man—his gestures, his clothes. The atmosphere and setting of the picture were done in England, as I wanted the smoke. The figures were studied from life, but were painted in Germany.

Reflecting these diverse sources of inspiration, as well as the universality of labor-capital conflict in the industrialized world, Koehler set his painting in an unidentified, nowhere-but-everywhere archetype of an industrial town.

Koehler first exhibited the painting in the United States in 1886, one of the most tumultuous years of labor-capital strife in the nation’s history. Despite this tense context and the painting’s subject matter, it received very positive reviews. The reviewer for the New York Times, for example, while criticizing Koehler for being overly dramatic in places (notably, the inclusion of the mother and children on the left) nonetheless hailed it as “the most significant work” of the Academy of Design’s spring exhibition. One month later Harper’s Weekly, the nation’s leading illustrated journal of news, politics, and culture, brought the scene before an enormous audience by publishing a reproduction. The painting later was exhibited in Germany and France, where in 1889 it won Honorable Mention at the Paris Exhibition.

But this achievement marked the apex of Robert Koehler’s international fame. In 1892, he left Germany for good and moved to New York. After spending more than a year there as a portrait artist, he accepted an invitation to join the faculty of the Minneapolis School of Fine Arts. He spent the rest of his life in Minneapolis, teaching, writing, and painting portraits and landscapes. In 1900 he organized what became an annual exhibition of artwork in Minneapolis, the continued success of which led eventually to the erection of a large building for the Minneapolis Society of Fine Arts in 1915. Koehler died two years later on April 23, 1917, at the age of 66.

Koehler’s most famous work, The Strike, faded into obscurity. In 1901, Koehler had sold it to the Minneapolis Society of Fine Arts, which subsequently gave it to the Minneapolis Public Library. The library eventually placed the painting in storage, where it languished all but forgotten until 1971. A leftist literary critic named Lee Baxendall saw a reproduction of The Strike in a book and was so taken he set out to find it. To his astonishment, the Minneapolis Public Library sold it to him for a mere $750. Baxendall arranged for the painting to be restored and then hung it in the headquarters of a New York labor union. In 1974 he lent the painting to the Whitney Museum of American Art in New York for inclusion in its The Painters’ America: Rural and Urban Life, 1810-1910 exhibition. The painting’s great size and powerful tableau drew significant attention, especially when compared to the rest of the works on display. “A harsh, brutal painting bullied its way into the Whitney Museum’s 19th Century ‘Painter’s America’ exhibition recently,” observed a reviewer from the Village Voice. “Amid the genteel genre works depicting ‘Afternoon Tea’ and ‘Country Wedding,’ it shoves for attention and gets it.”

Indeed, from this point forward, The Strike has never lacked for attention. Three factors explain its popularity. First, apart from its artistic merit, the work reflects better than perhaps any other image produced in the Gilded Age the conflicting visions and resulting debate over the proper role of government in regulating the economy, the rights of workers to form unions and strike for better wages and working conditions, and the impact of growing disparities of wealth on America’s republican traditions. Koehler himself seems to have recognized the unique power of the painting. “Yes, I consider The Strike the best,” offered Koehler in a 1901 interview, “that is the strongest and most individual work I have yet done.”

Second, the recent popularity of The Strike is also explained by the emergence of social history in the 1960s. Historians committed to writing “history from the bottom up” uncovered/illuminated a vibrant new labor history that took workers seriously as historical agents who struggled to protect their families and communities against large and impersonal forces of industrial capitalism. Although painted in the 1880s, Koehler’s work reflects a similar disposition.

Finally, the popularity of The Strike reflects a more recent trend in history: the treatment of images as historical documents that make complex cultural statements, rather than as mere illustrations. Or as I often put it to audiences of students or teachers, historical images are primary sources that are every bit as valid as traditional primary sources such as letters, diaries, speeches, and editorials. Analyzing and unpacking historical images can reveal important information about an era’s politics, social relations, and cultural values. But because the creation and preservation of historical images necessarily privileged those who possessed greater resources and power, we find that while labor-capital conflict in the Gilded Age generated a vast number of images, the great majority, as noted earlier, depicted workers in a negative light. As one worker observed in 1877, “[I]f a workingman speaks his mind, the public have theirs so full of pictures of him and his doings in the illustrated papers, that he is listened to as if he was a convicted rough.” On the rare occasions that an artist depicted workers in a neutral or positive light, it was most often as an individual laborer doing his or her job. On the rare occasions when groups of workers were shown in a neutral or positive manner, artists most often chose quiet scenes, such as Winslow Homer’s 1873 Harper’s illustration “Morning Bell” of workers walking to the factories in Lowell, Massachusetts. Or they showed workers engaged in harmless activities that contain no suggestion of oppression, discontent, or collective resistance, such as Thomas Anshutz’s 1880 painting “The Ironworkers’ Noontime,” which shows a group of men washing up and resting on their lunch break. In other words, because Koehler’s largely positive depiction of workers in The Strike is quite rare for the Gilded Age, it appeals to historians, museum curators, documentary filmmakers, and textbook writers seeking to present a social history perspective.

Further reading

Notable works that discuss the life and work of Robert Koehler include: Rena Neumann Coen, Painting and Sculpture in Minnesota, 1820-1914 (Minneapolis, 1976), Patricia Hills, The Painters’ America: Rural and Urban Life, 1810-1910 (New York, 1974); Peter C. Merrill, “Robert Koehler: Artist in Milwaukee,” Hennepin County History (Minneapolis, 1988); Thomas O’Sullivan, “Robert Koehler and Painting in Minnesota, 1890-1915,” in Michael Conforti, ed., Minnesota 1900: Art and Life on the Upper Mississippi, 1890-1915 (Newark, Del., 1994).

The New York Times commentary on The Strike in the 1886 exhibition at the Academy of Design is found in “The Academy of Design: Spring Exhibition of Paintings and Sculptures,” New York Times, April 4, 1886, p. 4. The 1901 interview with Robert Koehler in which he explains the origins of The Strike is found in Milwaukee Journal, March 23, 1901 (cited and quoted in Hills, The Painters’ America, p. 123)

The best overviews of the Gilded Age include Jack Beatty, Age of Betrayal: The Triumph of Money in America, 1865-1900 (New York, 2007), Rebecca Edwards, New Spirits: Americans in the Gilded Age, 1865-1905 (New York, 2006), Jackson Lears, Rebirth of a Nation: The Making of Modern America, 1877-1920 (New York, 2009), Nell Irwin Painter, Standing at Armageddon: United States, 1877-1919 (New York, 1988), Heather Cox Richardson, The Death of Reconstruction: Race, Labor, and Politics in the Post-Civil War North, 1865-1901 (Cambridge, Mass., 2001), and Alan Trachtenberg, The Incorporation of America: Culture and Society in the Gilded Age (New York, 1982).

Works detailing the thought and action of American workers in this period include: David Montgomery, Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market during the Nineteenth Century (New York, 1993), Kim Voss, The Making of American Exceptionalism: The Knights of Labor and Class Formation in the Nineteenth Century (Ithaca, N.Y., 1993), and Robert E. Weir, Beyond Labor’s Veil: The Culture of the Knights of Labor (University Park, Penn., 1996).

Books on labor-capital conflict in the late nineteenth century include James Green, Death in the Haymarket: A Story of Chicago, the First Labor Movement and the Bombing that Divided Gilded Age America (New York, 2006), David O. Stowell, Streets, Railroads, and the Great Strike of 1877 (Chicago, 1999), Philip Foner, The Great Labor Uprising of 1877 (New York, 1977), Paul Krause, The Battle For Homestead, 1880-1892: Politics, Culture, and Steel (Pittsburgh, 1992), and Richard Schneirov, Shelton Stromquist, and Nick Salvatore, eds., The Pullman Strike and the Crisis of the 1890s: Essays on Labor and Politics (Urbana, Ill., 1999).

For works on the intellectual and philosophical response to labor-capital conflict in the Gilded Age, see Nancy Cohen, The Reconstruction of American Liberalism, 1865-1914 (Chapel Hill, N.C., 2001), Maureen A. Flanagan, America Reformed: Progressives and Progressivisms, 1890s-1920s (New York, 2006), Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York, 1955), Edward T. O’Donnell, Talisman of a Lost Hope: Henry George and Gilded Age America (forthcoming, Columbia University Press), Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, Mass., 1988).

For works on the rising hostility of middle- and upper-class Americans toward workers and the labor movement, see Sven Beckert, The Monied Metropolis: New York City and the Consolidation of the American Bourgeoisie, 1850-1896 (New York, 2001) and Heather Cox Richardson, West from Appomattox: The Reconstruction of America after the Civil War (New Haven, Conn., 2008).

Examples of books and articles that treat images as historical documents include Joshua Brown, Beyond the Lines: Pictorial Reporting, Everyday Life, and the Crisis of Gilded Age America (Berkeley, Calif., 2002), Kirk Savage, Standing Soldiers, Kneeling Slaves (Princeton, N.J., 1997), Shawn Michelle Smith, Photography on the Color Line: W. E. B. Du Bois, Race, and Visual Culture (Durham, N.C., 2004), Gregory M. Pfitzer, Picturing the Past: Illustrated Histories and the American Imagination, 1840-1900 (Washington, D.C., 2002), Melissa Dabakis, Visualizing Labor in American Sculpture: Monuments, Manliness, and the Work Ethic, 1880-1935 (New York, 1999), and David Jaffee, “Thinking Visually as Historians: Incorporating Visual Methods,” Journal of American History (2006).

This article originally appeared in issue 11.1 (October, 2010).

Edward T. O’Donnell teaches history at the College of the Holy Cross, Worcester, Mass. He is co-author (with Jennifer Keene and Saul Cornell) of Visions of America: A History of the United States, a new textbook that makes visual analysis of historical images a central part of the narrative.

As I write this column, I gaze upon my poolside deck contemplating the various rituals to be undertaken there on Labor Day (which will have passed by the time you read this). What manner of meat shall I burn on the Weber? Will my son refuse sunscreen? Will my six-year-old daughter once again defy all reason and insist that the baseball Cubs, who have drawn her father from poolside to Sony-side, are in fact baby bears? Will my wife begin to doubt the professed irony with which I excuse my interest in whatever Nascar race happens to be on TV (Ricky Bobby . . . I love you, man!!)? Will we all make our way through the day with the knowledge that, in Florida, Labor Day is even more meaningless than elsewhere in the country? Here, it marks no beginnings—school begins in mid-August. And it marks no endings—summer for us lasts at least another two months, depending on whether or not you consider an average daily temperature of eighty-eight degrees true “fall weather.”

The fact that most Americans pay tribute to labor with leisure is not terribly surprising. Even on what are supposed to be somber holidays—Memorial Day and Martin Luther King Day, for example—most people watch sports or go shopping or do something recreational. Few of us use holidays for what the politicians intended when they established them. But never mind all that. Nobody will be surprised to learn that it takes a lot more than an act of Congress to bring Americans off the national sofa.

As a columnist, however, it is my solemn duty to address the obvious and to compel you, dear reader, to smirk, giggle, and perhaps even raise a clenched fist in outrage.

So let me return to Labor Day. What are we to make of a holiday intended to pay tribute (according to the U.S. Department of Labor Website) “to the contributions workers have made to the strength, prosperity, and well-being of our country”? Who among us—even those who actually labor for a living—ever ponders just what form such a tribute should take? Part of the problem may simply be that few of us these days have any idea of exactly who’s receiving our tribute. Who in fact are those “workers” we memorialize as we throw another hot dog on the barbeque?

Judging from the origins of the holiday, they are not salaried workers. The founders of Labor Day were one or another nineteenth-century labor organizer named McGuire. Peter had been general secretary of the Brotherhood of Carpenters and Joiners; Matthew was secretary for the Paterson, New Jersey, local of the International Association of Machinists. From the early 1880s the holiday took hold in the industrialized states, and then in 1894, the same year he sent federal troops to break the Pullman Strike, President Cleveland signed legislation declaring the first Monday in September an official holiday in the District of Columbia and the Territories.

So the workers for whom the holiday was founded were principally industrial workers—battered and literally beaten by American industry. The purpose of the holiday was not simply to give workers a much-needed break from the endless twelve-hour tedium of factory work. It was, in the view of its organizers, a way for workers to reveal their political potency. Hidden away in the crevices of industry or the working-class ghettos of American cities, the laboring hordes were easily ignored by politicians. It took good Samaritans with the missionary zeal of Jane Addams to find them and do the hard work of transforming them into citizens. Perhaps a day dedicated to laboring people, a day of parades and picnics and other happy occasions, would be an efficient way for labor to rear its head.

Organizers faced an uphill battle. For the holiday to have its desired effect, it had to be broadly observed. A special day in New York City would have little effect on the consciousness of national political parties. But a national holiday would need the support not only of state and national politicians but also of employers. The early laws and ordinances endorsing Labor Day carried no legally binding requirement of observance in the private sector. If your boss wanted to keep you working, he was free to do so (and still is, assuming he doesn’t work for the government). Organizers also faced the extraordinarily difficult problem of persuading the xenophobic American middle class that the face of labor was neither the corrupt Irish drunk nor the bomb-throwing central European anarchist.

That is why, in its heyday, the celebrations of Labor Day were as polite and decorous as a Victorian tea party. Parade and picnic banners were more likely to feature patriotic proclamations than the radical slogans of the Industrial Workers of the World. 

By the early twentieth century, labor organizers were discovering that few workers were inclined to spend their holidays in carefully circumscribed public demonstrations—not because they craved more radical fare but because they too sought a piece of the great American leisure pie. Hence, in some cities, labor picnics became spectacular affairs, sometimes held at beaches or amusement parks and featuring baseball games, boxing matches, bicycle races, strength and beauty contests, as well assorted contests testing the skills of tradespeople. The industrial workforce—or at least the industrial workforce the holiday put on display—was every bit as leisure loving as the rest of America.

The delicate act that Labor Day used to be—a political act but also a patriotic and American act—explains why it is that we pay tribute to workers in September and the rest of the world does so on May 1. Our workers are Americans first, workers and laborers second. As if that point had not been amply demonstrated by, say, workers’ performance in World War II, we took a firm stand against worker internationalism when President Eisenhower declared May 1 National Loyalty Day. As President Bush put it not long ago in his own strange twist on what might better be called “Red Scare Day,” the first of May is a day to “reaffirm our allegiance to our country and resolve to uphold the vision of our Forefathers.”

The days when respectable Americans worried that lurking behind the walls of every union hall was some manner of conspiring foreign radical are thankfully gone. Nobody feels safer anymore because four months separate our labor day from the rest of the world’s. And while we still have our civil Labor Day parades, the shrinking industrial workforce and the blurring social and ethnic boundaries between the underpaid, indebted middle class and the underpaid, indebted working class have made the working class even less visible. Democrats still pay lip service to labor, but it’s with the soccer moms and Nascar dads (oh dear God . . . that’s me!!) that they believe their bread is truly buttered. We don’t even have that vestige of working-class activism, the “Labor Party.” It exists in Britain, Israel, and elsewhere in the industrialized world, but in America no political party has ever wanted to stand up and declare itself the party of labor—except perhaps the socialists, and we know where that’s gotten them.

America’s ambivalence about labor is nothing new. In the colonial era the ruling class had nothing but contempt for anything that could be justly called “work.” An eighteenth-century American gentleman went to great pains to demonstrate to the world that he did not labor with his hands. His painted portrait featured, in the very center of the frame and beneath that carefully quaffed periwig, those delicate, feminine hands, unsoiled by any manner of toil, usually clasping a philosophical treatise or quill pen. The founders of the Jamestown colony died in droves in part because they were unable to enslave the supposedly docile Native population that was to do all the hard work of building a colony—work that they themselves, young gentleman that they were, had no intention of doing.

Benjamin Franklin, that apostle of the modern American work ethic, was so dedicated to hard work that at age forty-two he retired from the printing business to pursue a gentleman’s life of public service and philosophical inquiry.

In early America, the point is, there was little dignity in labor. The very definition of the term carried with it almost no positive connotations. According to the eighteenth-century English lexicographer Samuel Johnson, labor was simply “the act of doing what requires a painful exertion of strength, or wearisome perseverance; pains; toil; travail; work.” Hence, one of its definitions was that most undignified of early modern experiences: childbirth, which Johnson also defined as “travail.” For Johnson and his ilk there was no romance, no soul-purifying catharsis in hard physical work. It was simply another form of misery the unwashed, impoverished hordes could not escape.

“Labour for labour’s sake,” John Locke observed, “is against nature.” If you were fortunate enough to have the option not to labor, you would defy the very laws of nature—those rules of motion that bound the natural, physical, social, and psychological worlds into one seamless, well-functioning whole—by voluntarily enduring sweat and toil. It was the rare iconoclast who imagined the leisure class becoming the sweaty class. “Those who are not obliged to labour by the condition in which they were born,” wrote the early eighteenth-century English essayist and playwright Joseph Addison, “are more miserable than the rest of mankind, unless they indulge themselves in that voluntary labour which goes by the name of exercise.”

We’ve come a long way. Never mind the romanticizing of labor by social realist artists and folkies in the last century. Now we have presidents appearing on their “ranch,” swinging axes and whacking bushes. One thing’s for sure, you would never have seen George Washington or Thomas Jefferson hoeing a row.

So where does this leave those of us who do not actually “work” for a living, in the sense understood by the founders of Labor Day? What of the vast libertariat out there that makes its living behind computer screens and in air-conditioned offices and that scoffs at the hypocrisy of our blue-blood leaders sweating through their expensive western apparel? What do we do with Labor Day? How are we to pay tribute to the people who actually do sweat their way through a work day? Go to parades and admire working people from afar? I myself do a version of this anyway. When they replace a water main on my street, I’m out there yakking away with the public works guys.

Maybe the best way for the non-laboring to pay tribute to the laboring is to lay around by the pool and reflect on the fact that this is not, for a change, our day. This is somebody else’s day, and we should let them have it. Or maybe the thing to do is take this day as an opportunity to reflect on exactly what it is we do do. In the immortal words of Kurt Vonnegut, “we are here on Earth to fart around, and don’t let anybody tell you any different.”

Further Reading:

Michael Kazin and Steven J. Ross, “America’s Labor Day: The Dilemma of a Worker’s Celebration,” The Journal of American History, vol. 78: 4 (March, 1992): 1294-1323. And Keith Thomas, ed., The Oxford Book of Work (New York, 1999). Also, on the history of Labor Day, see the Department of Labor Website. The Vonnegut quote is from a marvelous 1994 interview that originally appeared in Inc. Technology. The interview can be viewed at the Vonnegut Web.

This article originally appeared in issue 7.1 (October, 2006).

Edward Gray is associate professor of history at Florida State University and editor of Common-place.