Bench Memos

The Redactable Constitution, and the Place of Slavery In It

I thank my friends Matt Spalding and Shannen Coffin for their comments on my post here yesterday, about the unfortunate decision of the House Republicans yesterday to read an incomplete version of the Constitution, with the provisions “superseded by amendment” left out.  I’m glad Matt and Shannen both agree with me that this was a mistake, and I am happy to agree with them that the error did not make the entire exercise pointless.  It was a good thing to read the Constitution, and I hope members of Congress do it again–and read the whole thing in future.

Mark Krikorian’s point is rather like Adam White’s–that the representatives did the right thing by reading only those parts that are “operative” and to which their oath as members currently binds them.  But as I pointed out yesterday, it was evidently not so easy for the members to know which parts are “operative” in the Constitution, as they read parts that seem to be dead letters (Art. I, sec. 9, cls. 1 and 4), dropped others that make the remainder harder to understand (like the Eighteenth Amendment) and omitted parts that still have some operative effect (like the sliver left out of Art. III, sec. 2., cl. 1).  The safest course, the smartest one, and the only one immune from substantive criticism, would have been to read every word of a true copy of the Constitution. 

The most interesting part of this whole kerfuffle is the almost universal assumption that this was all about avoiding a public reading of the Three-Fifths Clause, and perhaps of the Fugitive Slave Clause as well.  I have seen no report that records an admission from the House Republican leaders that this was their objective.  Perhaps, as Mark says, it was only about reading those parts that still bind an oath-taker.  But that isn’t what most people surmise.

And then there is David Frum, taking the view of Democrats and defenders of slavery Stephen Douglas, Roger Taney, and John C. Calhoun as against the view of the first Republican president, Abraham Lincoln:


The Constitution “as understood by those who wrote it and their contemporaries” had as one of its primary intentions the protection of slave property. . . . Slavery was not some minor dispensable detail. It was integral to the whole system of government as originally intended, and it took a terrible war to put an end to the consequences of that original intent. [My emphasis.]

In fairness to Frum, this was also the view of the abolitionist William Lloyd Garrison, who called the Constitution a “devil’s pact” because of what he saw as its contribution to the perpetuation of slavery.  Frederick Douglass thought this too, early in his career, but ultimately came around to a view he shared with Lincoln, saying this in one of his most famous speeches, in 1852:

Fellow-citizens! there is no matter in respect to which, the people of the North have allowed themselves to be so ruinously imposed upon, as that of the pro-slavery character of the Constitution.  In that instrument I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.  Read its preamble, consider its purposes.  Is slavery among them?  Is it at the gateway? or is it in the temple?  It is neither.  While I do not intend to argue this question on the present occasion, let me ask, if it be not somewhat singular that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, why neither slavery, slaveholding, nor slave can anywhere be found in it.  

So too, Lincoln argued over and over that “in the way our fathers originally left the slavery question [in the Constitution], the institution was in the course of ultimate extinction, and the public mind rested in the belief that it was in the course of ultimate extinction.”  Douglass, and Lincoln, would have denied utterly the claim of Frum–fashionable though it is in the left-dominated academy today–that slavery was “integral to the whole system of government as originally intended.”

Sad to say, reading the whole Constitution, leaving nothing out, would have helped restore the wisdom of Douglass and Lincoln to the public mind.


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