Humboldt-Universität zu Berlin
Philosophische Fakultät II
Institut für Anglistik und Amerikanistik

Magisterarbeit
zur Erlangung des akademischen Grades Magister Artium (M.A.)
im Fach Amerikanistik

The Concepts of Freedom and Equality in the American Constitution

Jan Geisler

Contents

Preface ... 5

1. The Legacy of Slavery ... 11

1.1. The Social Place of African Americans Today: An Introduction ... 11
1.2. From the Abolitionist Movement to Reparations ... 15

2. Slavery, Racism and Democrazy in the early American Society ... 20

2.1. The African American Population: Free and in Bondage ... 20
2.2. Prejudices Turning into Racism ... 26
2.3. The Sources of the American Constitution ... 29
    2.3.1. The Shaping of the American Character ... 29
    2.3.2. Preconstitutional Papers and Documents ... 35

3. Freedom and Equality as Philosophical Concepts ... 41

3.1. The Concept of Freedom ... 41
    3.1.1. Freedom and the American Constitution ... 44
        3.1.1.1. Freedom and Property ... 46
        3.1.1.2. Freedom vs. Liberty ... 48
3.2. The Concept of Equality ... 51
    3.2.1. Equality and the American Constitution ... 53
3.3. Freedom vs. Equality ... 55

4. Equality as Ultimate Freedom - A Shift of Paradigms ... 57

4.1. From Freedom to Equality: Controversies and Contradictions ... 57
4.2. A New Approach and the Question of Reparations ... 72

5. Epilogue ... 85

Bibliography ... 91

Webliography ... 94

Preface

On March 26, 2002, Deandria Farmer-Paellmann filed suit in a New York federal court to seek reparations for the slavery she states her ancestors endured. Although reparations have been debated in the political arena for years, this filing marked the first time that reparations claimants have sought compensations by suing private companies. Her lawsuit was brought against Aetna Insurance, FleetBoston Financial Corporation and the railroad company CSX, claiming those firms and others have profited from slavery.
The concept of reparations originated with Civil War General William T. Sherman on his infamous march to the sea across the Old South. Sherman faced the problem of about 20.000 freed slaves who became camp followers of the Union Army. Since he commanded an army and not a refugee camp, he decided to issue Special Field Order No 15, which granted each freed slave forty acres of land and the means to work it. In fact, there was more to it than a desire to redress the evils of forced servitude; Sherman was deep in enemy territory, and by promising land to the liberated he had every reason to hope that blacks might turn on their masters.
Today, the phrase of “forty acres and a mule” represents a promise broken by the government. After the victory of the Union forces, President Andrew Johnson ordered the freedman’s land returned to its former owners. Since then, the broken promise has been a symbol for continued injustices against the former slaves and their descendants. Although the Reconstruction Amendments were designed to guarantee those people a status of equality, legal justice did not necessarily mean justice in everyday life. The gap between intention and individual experience is a cultural heritage and still a political and social reality the whole American society suffers from. Thus, the filed suit by Ms Farmer-Paellmann appears to be successful.

In 1789, when the American Constitution was drafted, one of the basic principles was the one of a maximum expression of individual freedom, at least against the federal government. The Bill of Rights, the first ten amendments adopted in 1791, was designed to safeguard not only basic freedoms of speech, religion, and assembly. It carved out a space for each person to stand alone, free of governmental interference. Yet the Constitution of the first American Republic¹ stood as well for the right of the white population to seize control over the lives of people having a black skin. Although this had not been distinctively expressed in the Constitution it was supported by Article I, Section 2, which classifies the American population as “free Persons”, “Indians” and “all other Persons”. This easily can be interpreted as a distinction regarding the citizen’s status and their right to vote since “all other Persons” were counted by only three fifth (three-fifth clause). In Article IV, Section 2, this classification was stated even more distinctively when referring to a “Person held to Service or Labour”.
The Civil War ravaged the country from April 1861 to April 1865. It began with one set of purposes and ended with another. The original motive for resisting Southern secession was preserving the Union, which was in danger due to a set of reasons. The resulting and final idea was to abolish the institution of slavery and reinvent the United States on the basis of a new set of principles. The center stage of this postbellum order has been taken by the so-called Reconstruction Amendments – the Thirteenth, Fourteenth and Fifteenth Amendments – ratified in the years 1865 to 1870. These amendments displaced constitutional articles supporting race-related injustices since the term “all other persons” meant nothing else than the African tribesmen, who were shipped from Africa to America especially with the object to be slave workers. Now the Fourteenth Amendment, which was adopted in July 28, 1868, stated in Section 2: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” Slavery as such was legally abolished by the Thirteenth Amendment, Section 1 by ruling that “Neither slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction”. In general, this so-called second constitution², as whose preamble the Gettysburg Address has widely been interpreted, emphasized not individual freedom but equality under law as it is “dedicated to the proposition that all men are created equal ... The state would have to do more than leave us alone. It would have to ensure the equal protection of the laws for all.”³ The Civil War called forth a new constitutional order with principles rather different from the original Constitution represented also by the sharp contrast between the two opposites of freedom and equality.
This exactly is the focus of my paper. It intends to relate the concept of freedom to the concept of equality concerning the political and social backgrounds of those years. Therefore I regard it important to go back to the origins and traditions of the two concepts and the history of the American Constitution. Moreover, it is my special interest to draw the line from the somehow philosophical approach to the cultural and social conditions of that time as much as to the current debates on reparations. Furthermore, to display the obstacles for the Founding Fathers in formulating a constitution designed to include each and every citizen (here also it may be helpful to discuss the term citizen) the problem of slavery and its history along with current consequences will be granted the space necessary. Hence, the paper will attempt to represent historical developments as an integrated part of the Zeitgeist at that time.
Among the developments to be described is the way of how prejudices resulted in racism and what influence they have on American society today. The average person’s view will be worth a look as much as the conflict the Founding Fathers were exposed to - the conflict between the liberal ideas of their time and the everyday life they were part of. Concerning this I will work with various sources among which are private correspondence of politicians, governmental and legal documents. As to the time my examinations will be directed primarily to the period from around the American Revolution to the postbellum period of the Civil War due to the fact that the contrast between intention and reality appears to be most obvious at that time. Certainly, also the outcomes of the Civil War and of the postbellum period will be discussed, since the legal structure for the American society of today regarding equality was mainly written down then. However, the focus of my paper will be on the contradictions and the struggle which evoked these basic structures.
My special interest is the current debate on reparations linked with Ms Farmer- Paellmann’s lawsuit, because it verifies the fact that the foundations laid in the so-called second constitution are still in need to become reality and thus represent an ideal. Hence, those struggles can not be considered over. They are still a latent part of the political life and influence our time so immensely. Being a burning question, the controversy on reparations as such reflects a recurring antagonism in American history; a history of a nation which likes to present itself as a place offering equal chances for everyone. Thus, the relation to contemporary issues plays an important role in my paper and marks its starting-point. My way will be to analyze the links between the lawsuit and the paradigmatic constitutional shift from freedom to equality. Moreover, the shift will also be analyzed in the light of the lawsuit to suggest a distinct reading and an approach which is relevant for the current debate.
The way to argue the subject is constituted by the necessity to explain and analyze the causes for and backgrounds of current problems. Due to the alteration of attitudes throughout the time and to the fact that today’s standards can hardly be used to measure historical developments, it appears to be problematic to value yesterday’s injustices on the one hand. On the other hand, it is essential to analyze those injustices and to relate them to the whole body of ideas and attitudes that composed early American society. Also, it is necessary to name those injustices and their causes and to realize their consequences for democratic societies today in order to constructively face prejudices and remove social deficits.

[...]

1 Fletcher, 3.
2 Ibid.
3 Ibid.