Lawsuits against the state or the exclusionary rule itself might be the best path to reining in state officials who violate the Fourth Amendment.
Almost from the moment Christopher Columbus made landfall in the New World, European minds began turning toward slavery. “It appeared to me that these people were very poor in everything,” Columbus wrote after his first encounter with the natives of San Salvador, “They ought to be good servants….” Not that this was some eccentric conclusion. Human slavery was as old as antiquity itself, and thrived in Greek, Roman, and Islamic societies, and a trans-Sahara slave trade had been flourishing for two millennia before Columbus. What made Europeans like Columbus reach for slavery was the problem of the New World itself. It soon became clear to Europeans first that no easy way round or through the American landmasses was available, and second that the principal resource the Americas offered was the landmasses themselves. They could be turned to agricultural profit, but only by the deployment of enormous amounts of labor, and by the end of the 17th century, European colonizers had begun to import large numbers of African slaves.
The success of African slavery in North America, however, was interrupted by three problems. The first was the American Revolution, whose disruptions siphoned-off between 80,000 and 100,000 runaways out of an enslaved population of slightly less than 500,000, aided and encouraged by the British. The second was the Enlightenment ideology of natural rights and natural equality espoused by the American revolutionaries, and which stood in frank contradiction to enslavement. The third was the awakening of capitalist economics, which for the first time in human history showed how the accumulation and deployment of capital could overcome problems of time, distance and society that had otherwise seemed for centuries to be intractable. At just the moment when Enlightenment ideas made slavery unwanted, capitalism seemed to offer the resources necessary to eliminate it.
It was in this environment that the Constitution was written, and slavery almost inevitably became a part of the debates surrounding it. On one hand, 26 members of the Constitutional Convention were slaveowners, and five of them owned more than 100. But on the other, many were deeply disturbed by the contradiction in their own principles that slavery represented. While the Revolution was still being fought, James Madison wondered whether “it not be as well to liberate and make soldiers at once of the blacks…? It would certainly be more consonant to the principles of liberty, which ought never to be lost sight of in a contest for liberty.” When the Convention took up the matter of representation in Congress, Rufus King objected to counting slaves for the purpose of determining representation because “he could so little persuade himself of the rectitude of such a practice, that he was not sure he could assent to it under any circumstances.” Gouverneur Morris urged the insertion of “free” before the word “inhabitant” as the description of those entitled to representation because he “never would concur in upholding domestic slavery.”
Nevertheless, the delegates from South Carolina responded that “Interest alone is the governing principle with nations,” and their interests demanded that no restrictions against slavery be incorporated into the Constitution. It was Roger Sherman who urged compromise on the issue, on the grounds that “the abolition of Slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat it.” “Slavery,” predicted Oliver Ellsworth, “in time will not be a speck in our Country.” Hence, the final version of the Constitution contained no explicit allusion to slavery. But it did arrange representation in the new House of Representatives by a calculation that permitted the counting of “three-fifths” of “all other Persons” beyond those who were “free” (Article 1, Section 2); provided for the rendition of fugitives “held to Service or Labour” (Article 4, Section 2); and permitted Congress to terminate the “Migration or Importation of such Persons” after 20 years (Article 1, Section 9).
Madison thought the Constitution had it made it clear by its avoidance of the vocabulary of slavery that it was “wrong to admit . . . the idea that there could be property in men.” Yet slavery persisted and flourished in the American South, because no matter how contrary to the Constitution or the capitalist ethos slavery was, it began producing after the 1790s large quantities of the most vital commodity required by the new Industrial Revolution in Europe—cotton. And so for the next 70 years, pro-slavery and anti-slavery partisans argued incessantly over whether the Constitution was to be construed as a pro-slavery or anti-slavery document. This would ultimately become the fundamental issue that triggered the American Civil War, for if the Constitution is indeed pro-slavery in its intent, all legislative efforts to curb slavery’s operations must also be a violation of that intent, whereas if the Constitution is anti-slavery in intention, slaveholders have no just complaint against federal action to curtail it.
Curiously, the most vehement arguments construing the Constitution as a pro-slavery document came from abolitionists. William Lloyd Garrison denounced the Constitution as an “infamous bargain” that trampled the “solemn and heaven-attested Declaration [of Independence], that all men are created equal.” Frederick Douglass was even more explicit, itemizing the Three Fifths Clause, the 20-year breathing room given to the importation of slaves, the fugitive clause, and even the provisions for suppression of domestic insurrection as deliberately written to befriend slavery.
Modern neo-abolitionist historians have taken up the Garrison-Douglass argument, beginning with Paul Finkelman, who develops an even longer list of provisions in the Constitution which betray a pro-slavery bias—the Electoral College and the direction that assessment of direct taxes, both of which are calculated by using the Three Fifths clause, the ban on export taxes (to favor cotton as an export commodity), and the limitation of civil suits and “privileges and immunities” to “citizens” (Article 3, Section 2). “A careful reading of the Constitution,” Finkelman insists, “reveals that the Garrisonians were correct: the national compact did favor slavery. . . . No one who attended the Philadelphia Convention could have believed that slavery was temporary.” Similar arguments are made by David Waldstreicher, who notes that “Of its eighty-four clauses, six are directly concerned with slaves and their owners,” while “five others had implications for slavery.” In fact, Waldstreicher adds, the motivation for many of the Founders in their Revolution was a desire to protect slavery from what they perceived as increasing British imperial hostility to it, beginning with the Somerset decision in 1772. Hence, in “growing their government, the framers and their constituents created fundamental laws that sustained human bondage.”
Yet, both abolitionist and neo-abolitionist arguments about slavery and the Constitution stand in conflict with many other 19th century abolitionists, and with important modern interpreters of the anti-slavery movement. “Our fathers,” said Massachusetts Senator Charles Sumner, “did not recognize Slavery as a permanent part of our system, but treated it as exceptional and transitory.” The exclusion of slavery was deliberate, added Missouri Senator H. Gratz Brown, “to exclude from that Constitution any national recognition of slavery, to avoid any national obligation to foster or protect it.” If slavery seemed to enjoy constitutional protections, it was only because a slaveholders’ conspiracy—the “Slave Power”—had cleverly hijacked the federal government and twisted interpretation and application of the Constitution to their purposes. “The slaveholders,” wrote Illinois Congressman Isaac Arnold, “now united and became a compact, active, determined, overbearing, despotic, unscrupulous power” which “monopolized the offices of power, profit, and influence under the government.”
Above all, Abraham Lincoln, in his celebrated Cooper Union speech of February 27, 1860, carefully itemized how the members of the Constitutional Convention consistently voted for anti-slavery measures under the new Constitution. “As those fathers marked it, so let it be again marked,” Lincoln concluded, “as an evil not to be extended, but to be tolerated and protected only, because of and so far as its actual presence among us makes that toleration and protection a necessity. . . . An inspection of the Constitution will show that the right of property in a slave is not ‘distinctly and expressly affirmed’ in it.”
Lincoln’s argument has been echoed recently by Don E. Fehrenbacher and James Oakes. Fehrenbacher, in reviewing the work of the Constitutional Convention, dismisses the idea that the Convention ever permitted “the intrusions of slavery” except as “side effects of progress toward a new constitutional design.” If anything, the Founders “believed or hoped that somehow in the flow of time, slavery would disappear,” especially once the abolition of the slave trade came into effect. “The imprint of that expectation is visible in the document they finally approved.” Oakes notes how anti-slavery Republicans in the 1850s argued that since the Constitution gave slavery no explicit sanction— and gave the federal government no power to intervene in it in the states—that slavery was purely a matter of state legislation and action, while the Constitution as a national document assumed freedom to be the rule in all national affairs. Hence the Republican slogan, Freedom national, slavery sectional.
The original abolitionist argument was less a matter of serious constitutional argument and more a sensationalist strategy for awakening Americans to the encroachments of “the Slave Power.” The neo-abolitionist case is a more serious one, but it is marred by a highly partisan reading of the Constitution’s provisions, arising in some measure from a hostility to Constitutional originalism (so that if the Constitution is to be read through an originalist lens, originalism could be embarrassed into supporting slaveholding). The arguments of Lincoln, Fehrenbacher, and Oakes could be construed as suffering from an equal-but-opposite optimism about the Constitution’s pro-freedom intentions. But the proof surely lies in the slaveholders’ response to the election of Lincoln to the presidency in 1860: they were so convinced that the Constitution would not protect slavery that they attempted to secede from the Union, and then wrote a replacement Constitution which did expressly legitimize slavery. Their actions spoke louder than the neo-abolitionists’ words, and testified that the Constitution is a freedom document, after all.