“No property in man”
The throughline of Born Equal is the reverence ordinary men and women had for the founding generation. Amar cites countless examples of this: the first five presidents were Founding Fathers, the sixth, the son of one; every major party platform until the 1860s referenced the Constitution and half referenced the Declaration; supporters of proscribing slavery in the new territories pointed to the founding generation’s decision to do the same; descendants of the founders frequently attained high political office; women’s rights activist Elizabeth Cady Stanton bemoaned that immigrants and newly freed slaves would enjoy suffrage before the “daughters of Jefferson.” Amar’s America is one utterly obsessed with decoding and depicting the founders, hailing their character and accomplishments and downplaying their faults.
You cannot understand Republican opposition to slavery, for instance, without also understanding just how they viewed the Constitution’s relationship to slavery. How can anyone sincerely square their opposition to slavery with fidelity to the Constitution, defenders of the peculiar institution asked. The Constitution expressly mandates that states—even free ones!—return fugitive slaves. It counts slaves as 3/5 that of free persons, an enormous boost to the political clout of the South that Amar notes would prove pivotal in several votes (including the election of 1800, which Jefferson would not have won had slaves not been counted in the Census). James Madison, father of the Constitution, was a slaveowner, as was George Washington, John Jay, and several of the other delegates to the Constitutional Convention.
The answer, men like Salmon P. Chase and Abraham Lincoln retorted, is that the Founders did oppose slavery, and not just on pragmatic but also on moral grounds. The Fugitive Slave and 3/5 Clauses were merely concessions a mostly antislavery group had to grant to Southern delegates to ensure they would not bolt. The founders overwhelmingly supported prohibiting slavery in the Northwest territories, and James Madison would ensure that the document would not countenance “property in man” (Amar notes, as other scholars have, that the words “slave” and “slavery” are nowhere in the Constitution). Regardless of their faults, Republicans argued, the Founders in essence had the same position that they did: not total abolition, but restricting slavery enough that it can be said to be on the path of “ultimate extinction.”