In the world of the woke, the U.S. Constitution is, simply on its face, a document of racial oppression. No one less than Bernie Sanders has declared that the United States is “a nation” that in “many ways was created, and I’m sorry to have to say this, from way back, on racist principles.” Others are less sorry. Paul Finkelman, president of Gratz College in Philadelphia, argues that the Constitution deliberately intended to protect slavery, principally through its provisions for interstate extradition of fugitives from “service” (Art. 4 IV, Sec. 2), through the notorious three-fifths clause in Article I, Section 2, which allowed states to count three-fifths of their slave populations toward representation in Congress, and through the 20-year free pass given to the slave trade (Art. I, Sec. 9).
In fact, for Finkelman, that’s only the beginning of the Constitution’s love affair with slavery. Other offenses include the ban on export taxes in Article I, Section 9 (written to give the products of slave labor an open trade door); the limitation of “privileges and immunities” to “citizens” in Article IV, Section 2 (since slaves could not be “citizens”); the “full faith and credit” requirement between states in Article IV, Section 1 (this required recognition of legalized slavery everywhere in the nation); the power of “calling forth the Militia” to “supress insurrections” in Article I, Section 8 (these “insurrections” could naturally refer only to slave insurrections); and, of course, the Electoral College, since its formula for determining electors was swollen by the numbers of “three-fifths” slaves who would be counted and thus granted slave states an extra advantage in electing presidents.
This is the reasoning that leads David Waldstreicher of the City University of New York to claim that “of the 11 clauses in the Constitution that deal with or have policy implications for slavery, 10 protect slave property and the powers of masters. Only one, the international slave-trade clause, points to a possible future power by which, after 20 years, slavery might be curtailed — and it didn’t work out that way at all.” Even George Van Cleve, the most dispassionate advocate of the “pro-slavery Constitution,” concludes (in A Slaveholders’ Union) that the Constitution “was pro-slavery in its politics, its economics, and its law.” By these reckonings, the Constitution would have ensured slavery’s perpetuation into the indefinite future had it not been for the fatal intervention of a civil war.
What often comes next is a demand to rid the Constitution of the vestigial props for slavery that have somehow survived into our times, usually beginning with the Electoral College. Or maybe, as with University of Texas law professor Sanford Levinson, it leads to a call for junking the whole “We the People” business and starting over with a new constitutional convention.
The accusing finger that links slavery and the Constitution would have surprised no one more than the delegates to the Constitutional Convention. At the outbreak of the Revolution, every one of the newly independent states had legalized slavery. (The numbers varied widely from place to place: Georgia had 18,000 slaves, Pennsylvania 6,000, Virginia 200,000, Massachusetts 5,200, and New York 17,000.)
But opinion about the moral legitimacy of slavery was shifting. Benjamin Franklin bought and sold slaves in colonial Philadelphia, but by 1772 he had begun denouncing slavery as “a constant butchery of the human species” and the slave trade as a “pestilential, detestable traffic in the bodies and souls of men.” New York founded a Manumission Society in 1785, while the Virginia Gazette in 1782 asked the Revolution’s most logical question: “Whilst we are spilling our blood and exhausting our treasure in defence of our own liberty, it would not perhaps be amiss, to turn our eyes towards those of our fellow men now in bondage under us. We say, ‘all men are equally entitled to liberty and the pursuit of happiness’ but are we willing to grant this liberty to all men?”
That question was also being asked among the members of the Constitutional Convention when it assembled in Philadelphia in May 1787. Of the Convention’s 55 delegates, 26 were slaveowners, most of them from southern states — Maryland, Virginia, South Carolina, Georgia — but a smattering from New York, New Jersey, and Delaware. Still, many were uneasy with the thought of giving slavery a continued lease on life in the new republic. James Madison, who was the prime mover behind the Convention, had long wondered whether emancipation “would certainly be more consonant to the principles of liberty,” and, though the Madison family depended on slave labor, he hoped “to depend as little as possible on the labour of slaves.” When a slave who accompanied him to Congress in Philadelphia in 1783 refused to return with Madison to Virginia, Madison simply apprenticed him to a Philadelphia Quaker, since he “cannot think of punishing him . . . merely for coveting that liberty for which we have paid the price of so much blood, and have proclaimed so often to be the right, & worthy the pursuit, of every human being.”
It was not, however, until August 8, well into the deliberations, that the issue erupted on the floor of the Convention. In the midst of the ongoing debate over representation in the new Congress, the Convention was ready to agree to the formula used for Congress in the Articles of Confederation (the three-fifths ratio) when Rufus King of New York objected. “The admission of slaves” into a formula for representation “was a most grating circumstance to his mind” and would only encourage slaveowners to import more slaves, according to the Convention’s minutes. He was seconded by the raffish Gouverneur Morris, who attacked slavery wholesale as “a nefarious institution” that had “the curse of heaven on the States where it prevailed.” Slavery was “a sacrifice of every principle of right, of every impulse of humanity,” and Morris ringingly declared that “he would sooner submit himself to a tax for paying for all the negroes in the U. States, than saddle posterity with such a Constitution.”
Morris drew an immediate response from South Carolina’s John Rutledge, who warned that “religion & humanity had nothing to do with this question.” If the Convention wanted to meddle with slavery, then the “question” would become “whether the Southn. States shall or shall not be parties to the Union.” Anxiously, other members sought to seal the breach. Connecticut’s Roger Sherman hastily assured Rutledge that “he disapproved of the slave trade; yet as the States were now possessed of the right to import slaves, . . . he thought it best to leave the matter as we find it.” But this concession was worth making because it actually offered so little. Slavery, Sherman insisted, was dying out on its own: “The abolition of Slavery seemed to be going on in the U.S.” and “the good sense of the several States would probably by degrees compleat it.” Oliver Ellsworth agreed. “As population increases poor laborers will be so plenty as to render slaves useless,” so that “slavery in time will not be a speck in our Country.”
But later that month, slavery reappeared in debate — although it now came in the form of a deal aimed at allaying the hostility of King and Morris toward importing slaves. Congress would be empowered to tax slave imports and, after 1808, prohibit slave importation completely (although the wording of the provision gently tiptoed around using the term “slave”). An additional provision made the extradition of fugitive slaves a state obligation — although again gingerly applying it to all “those held to service” rather than to slaves. On the surface, a great compromise appeared to have been struck, and southerners went home congratulating themselves that they had “a security that the general government can never emancipate [slaves], . . . for no such authority is granted.”
But they missed the big picture. As Roger Sherman insisted, the Constitution might contain concessions to the states regarding the existence of slavery, but nothing in it acknowledged “men to be property.” As “dishonorable to the National character” as the concessions were, added James Madison, it would be intolerable “to admit in the Constitution the idea that there could be property in men.” And so the fundamental basis on which the entire notion of slavery rested was barred at the Constitution’s door, even while its practical existence slipped through.
Just how much distance the Framers wished to put between slavery and the new Constitution emerged even before the Convention adjourned. On July 13, 1787, the final Congress under the Articles of Confederation, sitting in New York, adopted the Northwest Ordinance as the instrument for organizing the territory ceded by Great Britain around the Great Lakes. The Ordinance’s sixth section provided that “there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” The Ordinance did not at once liberate slaves living in the Northwest (especially the slaves belonging to old French colonial families along the Mississippi River), but it did turn the face of the future away from slavery.
As the Constitution moved toward ratification, one member of the Massachusetts ratifying convention recognized the same dynamic at work in the new federal instrument. “It would not do to abolish slavery . . . in a moment,” conceded Bostonian Thomas Dawes (whose cousin, William, had ridden with Paul Revere). Nevertheless, even if “slavery is not smitten with an apoplexy, yet it has received a mortal wound and will die of a consumption.” And the Pennsylvania abolitionist Benjamin Rush rejoiced that, by refusing to include slavery or “slaves in this constitution,” the Framers had saved the republic from “the very words” that “would contaminate the glorious fabric of American liberty and government.” The “cloud” of anti-slavery, “which a few years ago was no larger than a man’s hand, has descended in plentiful dews and at last cover’d every part of our land.”
And so it seemed. The new Congress created by the Constitution was in a constant ferment from petitions “teasing and pestering them with something about slavery,” and one Georgia representative grumbled that “it was the fashion of the day to favor the liberty of slaves.” In its first three decades, Congress received proposals to tax slave imports, impose regulations (including prohibitions on the use of American ports or shipyards for equipping slave ships) on the slave trade, extend the Northwest Ordinance’s ban on slavery to the Mississippi territory, and impose gradual emancipation on the Louisiana territory (after its acquisition under Thomas Jefferson in 1803), as well as petitions to “undo the heavy burthens, and prepare the way for the oppressed to go free, that every yoke may be broken.” When truculent slaveowners tried to insist that “slaves are property . . . by the Constitution guaranteed,” John Quincy Adams just as truculently replied that “the Constitution does not recognize slavery — it contains no such word.” In fact, “a great circumlocution of words is used merely to avoid the term slaves.” Any argument that would make the Constitution a pro-slavery document has, on the evidence of the Framers’ generation, quite a boulder to roll up the hill.
But rolling that boulder was what slaveholders nearly accomplished in the generation after the Framing, and they did so not because the Constitution sanctioned slavery but because of cotton. South Carolina’s prime champion of slavery, John Caldwell Calhoun, conceded that “many in the South once believed that it was a moral and political evil.” But times had changed, and they had changed largely because cotton — the preeminent commodity grown by slave labor in the American South — had been transformed by the Industrial Revolution into the white gold of the transatlantic economy. As late as 1809, cotton was only a secondary crop for southern agriculture; on the eve of the Civil War, it accounted for 27.5 percent of all United States exports and 57.7 percent of agricultural exports.
The South now saw slavery “in its true light,” Calhoun said, and regarded it as “the most safe and stable basis for free institutions in the world.” In the kingdom of cotton, the Constitution was a relic. Guarantees of free speech and a free press were disregarded in the South. Anyone who proposed a discussion of slavery, wrote Alvan Stewart, an anti-slavery lawyer, “may then provoke a syllogism of feathers, or a deduction of tar.” Missouri senator Thomas Hart Benton congratulated mobs that attacked abolitionists for exerting “a vigor beyond all law,” saying that “they had obeyed the enactments not of the statutebook, but of the heart.” And so long as he agreed with their spirit, “he cared nothing for laws written in a book.” In 1836, the Virginia legislature adopted a statute decreeing the imprisonment of any member of anti-slavery society so unwary as to enter the Old Dominion. That same year, Calhoun proposed a post-office bill that would have allowed postmasters to destroy abolitionist publications — only to have it fail, narrowly, by a vote of 19 to 25 in the Senate. They were more successful in passing a “gag rule” to prevent the reading of anti-slavery petitions in the House of Representatives. The resolution stayed in force until 1844.
In the southern argument, the states were “as independent of each other as they were before the Constitution was formed,” and in some places even more so. South Carolina, declared one state legislator, was no longer a republic but an oligarchy, “an odious cunning, tyrannical intriguing oligarchy,” determined to “rule or ruin every man who tries to think, speak or act for himself. Not that this departure from constitutional government was seriously opposed; to the contrary, it was the wave of the future.”
“The time must come,” warned Thomas Roderick Dew in 1836, when slavery would rescue the nation from its outdated laws. “Domestic slavery, such as ours, is the only institution which I know of, that can secure that spirit of equality among freemen, so necessary to the true and genuine feeling of republicanism.”
But slavery’s opponents just as vigorously demanded recognition of the Constitution’s anti-slavery import. Senator William Henry Seward of New York defended the Constitution as the shrine of “perpetual, organic, universal” freedom; slavery had only a “temporary, accidental, partial and incongruous” presence in it, and only because slavery had the protection of state, not federal law. The Constitution devotes “the national domain” to “union, to justice, to defense, to welfare and liberty” — not to slavery. Ohio governor Salmon Chase (who was known as the “attorney general for fugitive slaves”) declared that “the founders of the Republic in framing our institutions, were careful to give no national sanction” to slavery; “all recognition of the rightfulness of slaveholding, and all national sanction of the practice, was carefully excluded from the instrument.”
Above all, Abraham Lincoln, in his great Cooper Union speech in February 1860, appealed to the Framers as proof that the Constitution “marked” slavery “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.” Far from justifying slaveholding as a right, “the Constitution . . . is literally silent about any such right,” and any impartial inspection of the Constitution “will show that the right of property in a slave is not ‘distinctly and expressly affirmed’ in it.” Like Madison, Lincoln resisted the “idea” that “the Constitution” sanctioned the pretense “that there could be property in man.”
And when push came to shove, the slaveholders conceded the point. They seceded from the Union and wrote the kind of constitution the Framers had not written, one declaring at last that “no . . . law denying or impairing the right of property in negro slaves shall be passed.”
To read the Constitution as pro-slavery, in the manner of Finkelman, Waldstreicher, and even Sanders, requires a suspension of disbelief that only playwrights and morticians could admire. Yes, the Constitution reduced slaves to the hated three-fifths; but that was to keep slaveholders from claiming them for five-fifths in determining representation, which would have increased the power of the slaveholding states. Yes, the Constitution permitted the slave trade to continue; but it also permitted Congress to shut it off, which it did in 1808. Yes, the Constitution banned export taxes, required “full faith and credit,” and limited “privileges and immunities” to citizens. But the debates over those provisions betrayed no inkling that the hidden subject was slavery. And the accusation that the militia clause was meant to suppress slave insurrections was actually only a speculation tossed off at one moment of energetic accusation by Gouverneur Morris, not a deliberately conceived strategy by scheming slaveholders.
Smearing the Constitution by characterizing it as a contract for the perpetuation of slavery is worse than trying to see as half empty a glass that’s half full; it is to see as bone dry a glass that’s nearly full, or even to see no glass at all. As the late Don Fehrenbacher wrote in The Slaveholding Republic (2002), “the Constitution as it came from the hands of the framers dealt only minimally and peripherally with slavery.” Its authors, even when they turned a blind eye to slavery, did so believing that “slavery would disappear” and that “the imprint of that expectation is visible in the document they finally approved.”
What gives the “pro-slavery Constitution” an audience is its sensationalism, its worldly-wise invitation to peer behind the curtain of the obvious and glimpse an unseemly reality. As a rhetorical strategy, this has great power, and it blends conveniently with a postmodern sensibility that seeks to reduce all of politics to mere power. It was the rhetorical shock of the expression “pro-slavery Constitution” that attracted Frederick Douglass, the foremost black abolitionist, to it in the 1840s, leading him to call it “radically and essentially pro-slavery.”
But by the 1850s, Douglass had changed his mind, insisting instead that the Constitution, when “construed in the light of well-established rules of legal interpretation,” must be “wielded in behalf of emancipation” as “a glorious liberty document.” What convinced Douglass was the same thing that the Framers had hoped would win the day: silence. “If the Constitution were intended to be, by its framers and adopters, a slave-holding instrument,” then why could “neither slavery, slaveholding, nor slave . . . be anywhere found in it”? That is the question the anti-constitutional sensationalists have yet to answer.
This article appears as “Slavery and the Constitution: A Defense” in the May 6, 2019, print edition of National Review.