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The Constitution: A Pro-Slavery or Anti-Slavery Document?

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.

Reader Discussion

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on March 14, 2018 at 09:55:39 am

This is exactly right. Even Frederick Douglass came to agree that the Constitution, properly read, was an anti-slavery document. See Frederick Douglass: Selected Speeches and Writing 380-90 (Philip S. Foner, ed., abridged and adapted by Yuval Taylor) (1999).

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Kurt Lash
on March 14, 2018 at 10:40:22 am

This is very true - but Frederick Douglass's anti-slavery view of the Constitution was more radical than Lincoln or other similar Republicans. Guelzo notes that Republicans thought "the federal government [had] no power to intervene in [slavery]in the states," whereas Frederick Douglass thought the Constitution read properly commanded abolition. He developed this view from the Preamble, the Bill of Rights, and specific clauses in the body itself such as the prohibition on bills of attainder. So even if Douglass and Lincoln are right, there will need to be some differentiation over who is right for the right reasons.

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A L I
on March 14, 2018 at 11:40:14 am

Douglass is a complicated figure; radical on some issues, moderate on others. In particular, Douglass accepted--indeed, embraced-- the idea of federalism, states rights, and a federal government of limited power. No doubt he agreed with Radical Republicans that Congress had unenumerated power to enforce enumerated constitutional rights. Moderates agreed Congress should have such power, but insisted this would require the adoption of an amendment (which they got with the fourteenth amendment). At this point, Douglass agreed with moderates regarding the limited grant of power under the 14th and advocated for a fifteenth amendment expressly giving blacks the right to vote (and congressional power to enforce that right). That done, Douglass was content with the moderate idea of constitutional federalism. Lincoln, of course, is an enigma --we will never know his post-bellum theories of constitutional interpretation.

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Kurt Lash
on March 14, 2018 at 11:55:02 am

"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 this despite the fact that Lincoln repeatedly asserted that he did not have the power under the Constitution to abolish slavery.

I suspect that both Lincoln and Slave aristocracy knew it to be (subtly) otherwise.

Odd isn't it how we so often are unable to observe the importance of the *obvious*, i.e. the slavery affirming clauses of the Confederate constitution when considering an argument. Fortunately, Prof. Guelzo is not afflicted by that perceptual disorder and provides us with his usual clear minded analysis.

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gabe
on March 14, 2018 at 11:57:25 am

In the Cooper Union speech, Lincoln glossed over Prigg v. Pennsylvania and his attack on Scott v. Sanford was implicit but not clearly stated for posterity.

The result of Prigg (1843) was that any state in the Union could, by state law, enslave an individual and thereafter no state could set that person free. That was a huge leap beyond what was required by the Constitution.

Also, the authorities referred to in the article don't seem to realize that the slavery practiced in the English proprietary plantation colonies and inherited by the US was not English common law slavery. Under the common law, a slave retained basic civil rights such as the right to petition the government for redress of grievances and sue the master for intentional injuries.

A new kind of bond slavery was created after 1662 when Charles II, Hobbes' pupil, allowed the planters in the West Indies and the Carolinas to enact laws that denied slaves all civil rights and further provided that contrary to the common law, the civil status of slave would be inhered from the mother, who was always known, not the father, who was often unknown. In the English common law if the father was unknown the child was presumed to be free.

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EK
on March 14, 2018 at 13:29:22 pm

Prof Lash:

Let me ask you:

Based upon your understanding of Lincoln, do you suppose that he would have embraced the rather expansive conception of the P*I Clause(s) that the court has seen fit to *bestow* upon us, or would he have had a position somewhat more akin to yours, and perhaps Douglas's constitutional federalism.

Much is made by some of Lincoln's alleged aggrandizement of Federal power, but as Guelzo has shown (elsewhere) such aggrandizement was temporary and war related. I do not see Lincoln as someone who would have permitted Federal intrusion into State Police powers to the extent that we currently *enjoy* - not withstanding his suppression of the arguable "States Rights" affirmed by the Confederacy.

BTW: Any new writings on the horizon?

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gabe
on March 14, 2018 at 13:37:47 pm

Gabe: Lincoln's generous terms for recognizing reconstructed governments in the south suggests (to me) that he would have increasingly found himself aligned with moderate republican in Congress and in conflict with the Radicals. That, in turn, suggests a likely embrace of Moderate Republican theory as the war faded from view. But hard to say--his thinking developed as time went on, and would have continued to do so had he lived.

New writings on the way:
(1) Enforcing the Rights of Due Process: The Original Relationship Between the Fourteenth Amendment and the 1866 Civil Rights Act. Georgetown Law Review (forthcoming).

(2) The Reconstruction Amendments (13, 14 and 15): Essential Documents (2 vols.) (University of Chicago Press, forthcoming).

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Kurt Lash
on March 14, 2018 at 15:45:22 pm

Thanks, I'll make a note of them.

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gabe
on March 14, 2018 at 18:04:03 pm

The interpretive metastasis of Maxine Watersism into constitutional originalism is a disease to be thwarted.

The terrific article by Professor Guelzo and excellent commentary by Professor Lash et al are a healthy preventative .

It is intellectually reinvigorating and morally heartening to see the likes of Beard bearded and Finkelman flustered and to find among the Founders not Anglo-sized Machiavellians but statesmen of high motive and creative public-mindedness.

If America's Founders are not heroes and their work not heroic what country warrants our principled allegiance, what endowing documents our reverence, and whom shall we teach our children to emulate?

Demons of deconstruction's mockery be damned:
"Whom shall he teach knowledge? and whom shall he make to understand doctrine? them that are weaned from the milk, and drawn from the breasts." Isaiah 28:9

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timothy
on March 14, 2018 at 21:36:07 pm

Excellent essay & exchange of commentary!

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Paul Binotto
on March 15, 2018 at 11:13:44 am

Timothy:

Well said.

To those who rail against the alleged hagiography *halo-ing* the founders, I will repeat what I have often said:

The truth is that the reality of these men is EVEN more impressive than the alleged hagiography.

anyway, great comments.

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gabe
on March 15, 2018 at 16:20:26 pm

Thank you, Gabe.

For healthy individuals and healthy nations having real heroes is really important morally, psychologically and politically.
Embracing genuine heroes can be accomplished personally and nationally without resorting to debilitating self-delusion or cultural illusion and without obsessing over their inevitable flaws.

That important cultural task, choosing and honoring our national heroes, had been accomplished with respect to virtually all of the Founders, Lincoln, Grant, Sherman, Lee, Jackson, Marshall, Eisenhower, Patton, the "Greatest Generation," King and Reagan until the time starting circa 1968 when 1) everything in America became politicized, 2) America became obsessed with the politics of race and gender and 3) the race and gender cards became the trump cards in every political contest.

Then our mostly white, all male, mostly dead national heroes became unknowing pawns in America's never-ending war without borders, our culture war, in which, alas, the Founders (for me as with you, the "Greatest Generation") are falling fast.

So it goes.

Arguably, except for baseball heroes like Babe Ruth, Lou Gehrig, Stan Musial, Hank Aron, Joe DiMaggio and Mickey Mantle (and even that list is "suspect" because it's racially and sexually underweighted) the Greatest Generation is all that's left untarnished of our real American heroes.

Sad, very sad to slime our heroes; we have so few.

And all so needless and self-destructive.

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timothy
on March 16, 2018 at 13:00:33 pm

No doubt, our Founding Fathers recognized that our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, is endowed to us from God, not Caesar. Rendering onto Caesar, what belongs to God, will always result in tyranny. God Is The Author of Love, of Life, and of Marriage.

"When God is denied, human dignity also disappears. Whoever defends God is defending man." - Pope Benedict XVI Christmas Address 2012.

Only by denying the spirit of our Constitution, could slavery exist.

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Nancy D.
on March 16, 2018 at 13:22:31 pm

"...the Greatest Generation is all that’s left untarnished of our real American heroes."

Well not if Ken Burns has any more to say about it. The little bit I watched of his WWII production portrayed all these men as remorseful, weak, doubting the value of their considerable and heroic accomplishments. Yes. soldiers do experience fear and apprehension BUT to focus solely on this phenomenon, as does Burns, is to distort the experience, to present such rightful, but surely not most important, psychological condition of the combat soldier as the only noteworthy facet of the experience is, to my mind, another means of diminishing the contributions of these men and of the cause for which they sacrificed so much.
Underlying Burns' entire narrative is the implied assertion that the WWII was a questionable endeavor forced upon unwilling and frightened young boys and that we ought to apologize for the damage that WE did.

As for Burns' "fear", some of us call it *situational awareness* - just another way of saying, "Be damn certain of what you are confronting AND do not let it stop you" - which is precisely what the Greatest Generation, in fact, did.

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gabe
on March 16, 2018 at 13:43:29 pm

Oh! I did not see that PBS series. Your assessment, Gabe, causes me to reconsider my opinion that the Greatest Generation remains the only untarnished American heroism.

If Burns reflects the public sentiment, then EVEN the Greatest Generation has clay feet per the common culture and mass media.

Screw those sources! No way I can adjust my knowledge to conform to the thinking of the common culture and the mass media.

I got my heroes, and I'm sticking with them.

Yet, I would still call WWII folks (at home and abroad) as the "Second Greatest Generation." Tom Brokaw got that one wrong, per usual.

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timothy
on March 16, 2018 at 17:04:54 pm

Did you know any of those people?

I did; they were my and my friends fathers, uncles and mothers. I found Burns's "The War" far too sappy so I didn't watch more than the first half hour.

On the enlisted side, those of my class had been badly damaged by the Depression and the War. They were all born between 1917-21; a few were orphaned by the Flu epidemic, most had never held a steady job until they were drafted, many joined the National Guard after a hitch in the CCC and it seemed like they were all drafted between 1940-42.

It seemed like they all had a long hard war and were profoundly grateful to be caught up in the economic boom of the '50s. Mr. Schwartz, next door, and my father were in New Guinea and the Philippines in the 24th and 32nd IDs and Mr Duggan and Mr Malinowski were in the 1st and 4th IDs in Europe. Mr Sullivan and Mr Keogh were air crewman in the 8th and 15th Air Forces. My own dear mother was an Army nurse in Rheims during the horrible fall and winter of 1944 in the 1st Army area.

None of them really got over it and their great failing was they could never talk about it except late at night at the VFW and Legion halls. It wasn't until we found ourselves in our own war that we began to understand them.

They never considered themselves heroes, they correctly reserved that honor was for the dead.

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EK
on September 29, 2018 at 12:32:32 pm

http://www.blackpast.org/1860-frederick-douglass-constitution-united-states-it-pro-slavery-or-anti-slavery

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Dick Bailey
on September 04, 2019 at 10:49:17 am

[…] What is the modern interpretation of the phrase, “Importation of such persons?” Read The Constitution: A Pro-Slavery or Anti-Slavery Document”, here. […]

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Does America’s First Flag Symbolize “Exclusion and Hate?” Part 1 – Musicians4Freedom
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on September 15, 2020 at 12:24:04 pm

[…] saw through that deception, decrying the Constitution as an “infamous bargain” at odds with the Declaration. In his equally infamous Dred Scott ruling, Chief Justice Roger Taney said that, when the Founders […]

on September 15, 2020 at 12:43:39 pm

[…] saw through that deception, decrying the Constitution as an “infamous bargain” at odds with the declaration. In his equally infamous Dred Scott ruling, Chief Justice Roger Taney said that, when the Founders […]

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