George Washington Makes Justice Scalia like argument on Slavery (or Vice Versa)

In American liberal democratic (or constitutionally republican) politics, slavery typifies the inherent problem of individual rights v. democratic majority rule. Harry V. Jaffa termed it the "The Crisis of the House Divided." The slavery issue is now settled, but whenever a democratic majority denies individual or minority group rights (for instance, Prop. 8 in California) America has the issue of slavery to invoke. There are individual rights that are antecedent to majority rule; the Declaration of Independence teaches this. Yet, the US Constitution makes a compromise with slavery. Eventually we got a democratically vetted constitutional abolishment of slavery (and even then there are problems with just how "democratic" or "consensual" the Southern states' ratification of the 13th and 14th Amendments were).

Comparing any kind of issue, especially same sex marriage, to slavery is a bit over the top. But the point is NOT to make an equivalence, but merely to invoke the principle that our system is predicated on the notion that individual rights or minority rights (as groups of individuals) are antecedent to majority rule. The Claremont Institute trumpets this aspect of Founding era liberalism, though read through the strict lens of an Aristotle-Aquinas natural law that yields desirable socially conservative results. Democratic majorities should not, they argue, determine the issue of abortion or even homosexuality; these things are "pre-political." Just as those in favor of gay rights say even if a majority frowns upon homosexuality, that doesn't matter, Jaffa et al. flip that on its head and assert even if a majority approves homosexuality, that wouldn't matter; and a democratically enacted gay marriage statute nonetheless violates the "higher law" (which by the way, Jaffa argues correctly that the Founders derived from "reason/nature" not the Bible).

Enter Justice Scalia who argues contra Jaffa et al. Scalia puts the focus on democratic majorities/legislatures as the ultimate guarantors of individual rights and "deciders" of public policy issues. As Scalia argues:

It just seems to me incompatible with democratic theory that it's good and right for the state to do something that the majority of the people do not want done. Once you adopt democratic theory, it seems to me, you accept that proposition. If the people, for example, want abortion the state should permit abortion. If the people do not want it, the state should be able to prohibit it.

[...]

The whole theory of democracy…is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.

[...]

[Y]ou either agree with democratic theory or you do not. But you cannot have democratic theory and then say, but what about the minority? The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.

Here is Jaffa's response:

Justice Scalia says that if the people want abortion, the law should permit it. By the same reasoning, if the people want slavery, or any other form of plunder, there is no principled ground to oppose them (3).

He thinks he nails Scalia with the slavery reductio ad absurdum. Jaffa is famous for arguing that America should be read through the lens of its ideals (which hold slavery violates natural law/natural rights) and not through its compromises with those ideals (the Constitution makes a major compromise with slavery, permitting the practice of slavery to continue, which was necessary for the slave states to ratify the US Constitution).

On policy, I agree with Jaffa. I'm an individual rights loving, liberty loving classical liberal who does NOT sympathize with democratic majorities, especially as they would deny rights to individual or minority groups. But the problem doesn't resolve so easily. What do we do when the positive law, like American Founding era pro-slavery positive law, violates the natural rights in the Declaration of Independence? The solution that many small l liberals (and capital L Liberals) offer is to have countermajoritarian institutions (i.e., courts) strike down those democratically enacted laws. And again, I'm sympathetic.

There is also the even more radical notion of civil disobedience; even if the courts aren't yet on board, simply disobey positive law that violates "higher law." Many abolitionist heroes notably violated the positive law that guaranteed the "rights" of slave owners to their slave "property."

Yet, I've discovered George Washington didn't take Jaffa's approach to the dilemma or that of the abolitionists; Washington's thoughts are consonant with Jaffa's notion of ideals and compromises with ideas. Yet, he resolves the "Crisis" exactly as Justice Scalia would. As we saw above, Jaffa thought he nailed Scalia with a slavery reductio ad absurdum, but in the process he nails George Washington. I don't write this because I approve of Justice Scalia's/George Washington's approach to individual rights/slavery. As noted, I sympathize more with the other view, as I think Jefferson and Madison would too. I simply uncover these facts as an honest historian.

The context of George Washington's letter is a bunch of Quakers have violated American positive law by helping and encouraging slaves to escape. George Washington notes that he believes slavery is wrong and hopes for the day that it is abolished (hence evincing an anti-slavery ideal of the Founding) but notes it's up to LEGISLATURES to decide when that will be and in the meantime the Quakers are wrong to violate pro-slavery positive law. It's ironic that the Quakers followed English positive law when they refused to take up arms against Great Britain and George Washington violated the same by leading an armed insurrection against Great Britain (and of course Washington and the Whigs based their case on the natural law of the Declaration of Independence). Now the shoe is on the other foot and Washington argues for the positive law, the Quakers the "higher law."

As Washington writes To ROBERT MORRIS, April 12, 1786:

Dear Sir: I give you the trouble of this letter at the instance of Mr. Dalby of Alexandria; who is called to Philadelphia to attend what he conceives to be a vexatious lawsuit respecting a slave of his, which a Society of Quakers in the city (formed for such purposes) have attempted to liberate; The merits of this case will no doubt appear upon trial. but from Mr. Dalby's state of the matter, it should seem that this Society is not only acting repugnant to justice so far as its conduct concerns strangers, but, in my opinion extremely impolitickly with respect to the State, the City in particular; and without being able, (but by acts of tyranny and oppression) to accomplish their own ends. He says the conduct of this society is not sanctioned by Law: had the case been otherwise, whatever my opinion of the Law might have been, my respect for the policy of the State would on this occasion have appeared in my silence; because against the penalties of promulgated Laws one may guard; but there is no avoiding the snares of
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individuals, or of private societies. And if the practice of this Society of which Mr. Dalby speaks, is not discountenanced, none of those whose misfortune it is to have slaves as attendants, will visit the City if they can possibly avoid it; because by so doing they hazard their property; or they must be at the expence (and this will not always succeed) of providing servants of another description for the trip.

I hope it will not be conceived from these observations, that it is my wish to hold the unhappy people, who are the subject of this letter, in slavery. I can only say that there is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of it; but there is only one proper and effectual mode by which it can be accomplished, and that is by Legislative authority; and this, as far as my suffrage will go, shall never be wanting. [Rowe: Bold mine.] But when slaves who are happy and contented with their present masters, are tampered with and seduced to leave them; when masters are taken unawares by these practices; when a conduct of this sort begets discontent on one side and resentment on the other, and when it happens to fall on a man, whose purse will not measure with that of the Society, and he looses his property for want of means to defend it; it is oppression in the latter case, and not humanity in any; because it introduces more evils than it can cure.

I will make no apology for writing to you on this subject; for if Mr. Dalby has not misconceived the matter, an evil exists which requires a remedy; if he has, my intentions have been good, though I may have been too precipitate in this address. Mrs. Washington joins me in every good and kind wish for Mrs. Morris and your family, and I am, &c. 19