Magazine September 30, 2019, Issue

The Anti-Slavery Constitution

Frederick Douglass (Bettmann/Contributor/Getty Images)
From the Framers on, Americans have understood our fundamental law to oppose ownership of persons

It’s become an article of faith on the left that America was founded by racists who wrote the Constitution in part to preserve slavery. Historian David Waldstreicher calls it “a proslavery constitution, in intention and effect.” Yale law professor Akhil Amar labels the Constitution “pro-slavery.” Author Ibram Kendi claims that the Framers “embraced Black inferiority” and “enshrined the power of slaveholders and racist ideas in the nation’s founding document.” And the New York Times “1619 Project” purports to “reframe” American history by positing not only that the United States was founded “as a slavocracy” but that “nearly everything that has truly made America exceptional” is the result of “slavery — and the anti-black racism it required.”

There’s nothing new about these assertions. The idea that America is premised on white supremacy has been a commonplace of political debate ever since it was proffered by pro-slavery intellectuals in the 1830s. What’s astonishing is the degree to which it has been adopted by today’s progressives. In his 1857 Dred Scott ruling, Chief Justice Roger Taney claimed that when the Founding Fathers said “all men are created equal,” they really meant only white men. Today, many left-wing journalists, lawyers, politicians, and academics would hasten to agree. 

But the reality is more complex and, in some ways, more ennobling. Far from being a given at the time, the constitutional status of slavery was the subject of intense dispute in the decades before the Civil War. One side of that debate argued with much plausibility that slavery was already unconstitutional, decades before adoption of the 13th, 14th, and 15th Amendments. 

Those amendments represented the vindication of the views of pro-Constitution abolitionists who sought to defend what they saw as a “glorious liberty document” against the pro-slavery spin that southern intellectuals were putting on it — and who, after the war, revised the nation’s fundamental law to erase those anti-freedom misinterpretations. Yet their legacy is often ignored in discussions of slavery today. Many scholars, including those who claim to deplore everything associated with slavery and its effects, treat anti-slavery constitutionalism either as a fringe movement or as an honorable but duplicitous effort to weasel out of what they see as the Constitution’s obviously pro-slavery terms. 

This is unjust, and it gives a distorted picture of the legal history of slavery. Abolitionist constitutional thought was a vibrant movement in the pre–Civil War era. To one degree or other, it was endorsed by such luminaries as John Quincy Adams, Abraham Lincoln, Charles Sumner, Chief Justice Salmon Chase, and Frederick Douglass. And it left its lasting mark on the Constitution, in the form of the Reconstruction amendments that remain the law today. Many scholars now blithely dismiss it, seeming to prefer the more radical position espoused by the anarchist William Lloyd Garrison (1805–1879), who denounced the Constitution for protecting slavery and insisted that the Union be dissolved in order to eradicate it. Garrison, however, was in the minority among slavery’s opponents, and for all his eloquence and passion, he achieved remarkably little. More respected at the time, and more effective in actually destroying slavery, were the pro-Constitution abolitionists who advanced both political and legal arguments instrumental to the institution’s demise. 

The story of anti-slavery constitutionalism begins in 1776, when the authors of the Declaration of Independence acknowledged that slavery contradicted the self-evident truth that “all men are created equal.” The Declaration’s principal drafter, Thomas Jefferson, tried to include a passage denouncing slavery, but his words discomfited slave states so much that they were deleted from his draft. Still, Jefferson — more outspoken against slavery than many of his peers — was under no illusions that it could be reconciled with the Revolution’s principles. It was “unremitting despotism,” he wrote in his book Notes on Virginia, and God’s justice would not sleep forever. John Adams agreed, telling his friend that the denunciations of slavery in Notes were “worth diamonds.”

A dozen years later, the Constitution’s drafters dealt delicately with slavery — an institution most of them loathed, though they lacked the political power to destroy it. James Madison made a point of insisting that the final work not include the words “slave” or “slavery” because he considered it “wrong to admit in the Constitution the idea that there could be property in men.” Almost all of his colleagues agreed — although one, Charles Cotesworth Pinckney, unsuccessfully sought protections for slave property. In the end, the Constitution was largely a collection of compromises, and in the half century that followed, intellectuals would clash over the meaning of its words. But one thing was clear: The Constitution contained no express endorsement of slavery. 

It appears that the Framers expected the institution to wither away on its own, as whites came to understand both its injustice and its economic inefficiency. That expectation, of course, proved overly optimistic, both because new technologies made slavery more profitable after 1800 and because, beginning about 1830, southern leaders began espousing a new white-supremacist ideology that explicitly renounced the principles of the Declaration and held that slavery was not evil but a “positive good.” 

This marked a dramatic change in national politics. The founding generation had struggled with the question of racial differences; Jefferson infamously wrote of his “suspicion” that “the blacks” were “inferior to the whites” and believed that the two races could not peacefully coexist in the New World, thanks to “deep rooted prejudices entertained by the whites” and “ten thousand recollections, by the blacks, of the injuries they have sustained.” But while many of his colleagues agreed, they did not conclude that whites were innately superior or that blacks were destined for perpetual servitude. Whatever criticism the Framers deserve for insufficiently envisioning a path to a multiethnic America, the Constitution they wrote protected “persons,” not specific races — unlike, say, the Confederate constitution of 1861, which explicitly forbade any “law denying or impairing the right of property in negro slaves.” By contrast, as Frederick Douglass would later point out, Congress could have eradicated slavery without changing a word in the U.S. Constitution.

The constitutional crisis over slavery erupted in 1819, when Missouri sought admission to the Union as a slave state. Any hopes that slavery might be quarantined and extinguished were suddenly shaken. Anti-slavery figures such as John Quincy Adams, then secretary of state, immediately grasped the legal problems. First, advocates of Missouri’s admission argued that Congress had no constitutional authority to bar slavery in the nation’s western territories — and Adams found himself nearly alone in claiming otherwise. As a result, Adams wrote, slavery’s champions had “been victorious by the means of accomplices and deserters, from the ranks of Freedom.” Second, the admission of Missouri contradicted the prohibition in Article IV of the Constitution against states’ denying Americans the “privileges and immunities” of citizenship. That clause requires states to admit citizens of other states on equal terms. But Missouri’s proposed constitution prohibited free black Americans — who could be citizens in other states — from entering the state. 

The outcome of that debate was the famous Missouri Compromise, which included a provision that waved away this problem with meaningless verbiage. Missouri’s constitution, Congress declared, must “never be construed to authorize the passage of any law . . . by which any citizen . . . shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled.” This was legal gibberish, given the lack of agreement over what these “privileges and immunities” were, and Adams saw through it immediately. Violating the Constitution in order to admit a new slave state, he warned, was the beginning of the end of the union.

Those who hoped the compromise would at least limit slavery’s expansion would also be betrayed. From then until the Civil War, southern leaders amplified their racist rhetoric, along with their demands for more territory and for greater federal assistance in propping up the slave system. Northern cowardice encouraged these demands and emboldened such figures as South Carolina’s John C. Calhoun to promote, almost without resistance, the formulation of a new national consciousness based on white supremacy and the rejection of the principles of the American Revolution. There was “not a word of truth” in the Declaration of Independence, Calhoun declared. People were “in no sense . . . either free or equal.”

Calhoun and his allies made rapid progress. When Adams was elected to the House of Representatives in 1830, he found himself virtually alone in his willingness to confront pro-slavery politicians. Six years later, when an intimidated Congress tried to stifle debate by forbidding the introduction of petitions against slavery, he rang the alarm. That “Gag Rule,” he said, violated the First Amendment’s guarantee for the right of petition. For nearly a decade, he led a campaign against the rule by repeatedly introducing anti-slavery petitions — enraging southerners so much that in 1842 they accused him of treason and tried to expel him from Congress. The Constitution, they claimed, reflected the Founding Fathers’ belief that the United States must be a white nation, with slavery permanently guaranteed. For Adams to undermine that settlement risked disunion. 

That was rich, given that the 75-year-old Adams had personally known practically all the Founders, and he knew that they did not create the nation as a slavocracy. In a lengthy reply on the floor of the House, he indulged in a little reminiscence, going “at some length,” wrote a reporter, into 

the history of his past life, his intercourse and friendship with, and the confidence he had enjoyed of Washington, Jefferson, Madison, and Monroe. . . . In all the intercourse he had had with these men, from Washington down to Monroe, never, in the course of his life, was there a question between them and him on the subject of slavery. He knew that they all abhorred slavery, and he could prove it, if it was denied now, from the testimony of Jefferson, of Madison, and of Washington themselves. There was not an Abolitionist of the wildest character in the Northern States but might find in the writings of Jefferson, at the time of the Declaration of Independence, and during his whole life down to this very last year, a justification for everything they say on the subject of slavery, and a description of the horrors of slavery greater than he had the power to express. 

Adams was no abolitionist — he thought slavery should be ended gradually, not immediately — but he refused to let its advocates rewrite history. 

The Constitution, Adams insisted, must always be interpreted in light of the Declaration. It laid the philosophical foundations for the nation’s legal structure — and that was incompatible with slavery. The Declaration “not only asserts the natural equality of all men, and their unalienable right to Liberty; but that the only just powers of government are derived from the consent of the governed,” Adams wrote in his diary. “A power for one part of the people to make slaves of the other can never be derived from consent and is therefore not a just power.” Calhoun’s argument that rights were essentially permissions that states, as autonomous sovereigns, could give or withhold at will was contrary to the Declaration, and therefore to the Constitution. What’s more, Congress’s powers could and should be used to limit and even eradicate slavery when possible. In fact, Adams suggested, if there ever were a civil war, the president would have the power to abolish slavery as a war measure. In a heated House debate, incensed southern congressmen demanded to know whether Adams was willing to see war break out to free the slaves. “Though it cost the blood of millions of white men, let it come!” Adams shot back.

Adams’s focus on the Declaration meshed well with a British legal precedent, Somerset v. Stewart (1772), which held that slavery was so evil, it could not be tolerated on British soil. It might exist in the empire’s overseas colonies, but any slave who reached the mother country was automatically freed. Adams and his admirers — notably William Seward and Charles Sumner — combined Somerset with the Declaration to argue that slavery could not exist in territory governed exclusively by the federal government. It could exist exclusively by “positive law” — meaning, only where legislation officially authorized it — and that was solely within southern states. This idea, called “freedom national,” meant that the Constitution gave Congress no power to assist in the perpetuation or expansion of slavery. 

The Missouri conflict had proven how crucial that question was. The champions of slavery, heeding Calhoun’s warning that Yankees must never be allowed to bottle it up in the South, saw to it that the United States declared war on Mexico in 1846 to use Texas for slavery’s spread. Adams struggled to block Texas’s admission — which, he emphasized once more, raised constitutional problems. The treaty annexing Texas had been rejected by the Senate, so, instead, slavery’s supporters rammed a joint resolution through Congress by a bare majority — a procedure of dubious legality. Shortly afterward, while voting no on a resolution thanking veterans for their service in the Mexican War, Adams collapsed and died on the floor of the House. 

While these debates went on in Washington, abolitionists were becoming increasingly divided over slavery’s constitutionality. Throughout the 1840s, New York–based writers such as Joel Tiffany and Gerrit Smith challenged William Lloyd Garrison’s anti-Constitution views, arguing that he was wrong to concede the southerners’ claim that the Constitution protected slavery. They argued that the Constitution, properly interpreted, was actually an anti-slavery document that either prohibited slavery already or gave Congress the power to do so if it chose. Smith, an eccentric millionaire who subsidized anti-slavery activists, provided his most important service to anti-slavery constitutionalism by converting Garrison’s protégé, Frederick Douglass. In 1851, Douglass announced his endorsement of anti-slavery constitutionalism.

That theory began — as all constitutional theories do — with rules of interpretation to guide the understanding of ambiguous phrases. Two such rules were particularly important. First, the Constitution should be construed in favor of freedom and against slavery whenever possible. As Chief Justice John Marshall had written in an 1805 case, “where rights are infringed, where fundamental principles are overthrown, . . . legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” This rule, generally accepted among lawyers at the time, even in slave states, is rooted in the time-honored tradition of the “rule of lenity” still used today. 

The second interpretive principle was that the Constitution means only what its words actually say — not what its authors meant to say. So if the Framers had intended to protect slavery but did not actually say so, only their words, not their personal desires, could have legal significance. After all, it was the words, not the motives, that the people ratified. 

Applying these rules to the Constitution revealed a plausible anti-slavery interpretation. First, the text begins with the inclusive phrase “We the People,” without distinction of color. This obviously referred to the same “one people” who found it “necessary . . . to dissolve the political bands” of colonialism in the Declaration — and that document, too, drew no color line. This alone implied that slaves were among “the people of the United States” and were not relegated beyond the pale of constitutional protection. But more: History showed that black Americans had been eligible for citizenship in several states at the time of the Founding and in 1787, and, in some states, had even voted for delegates to the conventions that ratified the Constitution. They and their children must, therefore, be U.S. citizens protected by the Bill of Rights.

Other constitutional provisions were also incompatible with slavery. The preamble, for example, specifies its purposes — to “preserve the blessings of liberty” and to “establish justice,” for example. Since the preamble was plainly a guide for interpreting the Constitution, the anti-slavery constitutionalists insisted that any interpretation that failed to achieve these goals was probably wrong. Yet slavery contradicted all of them.

It also clashed with the Fifth Amendment’s guarantee of due process, the Fourth Amendment’s protection of the security of “persons,” and the prohibition on “bills of attainder.” Race-based slavery was a type of “attainder,” since it destroyed people’s freedom because of their ancestry, and it obviously deprived them of liberty without due process. As for the privileges-and-immunities clause Adams had emphasized in the Missouri crisis, if blacks were among the “people of the United States,” any state law reducing them to slavery unconstitutionally deprived them of the privileges of citizenship.

Most fundamentally, anti-slavery constitutionalists pointed out that those who claimed the Constitution protected slavery bore the burden of proving that claim — which would be hard, given that the document never used the words “slave” or “slavery.” Douglass likened pro-slavery advocates to a man trying to prove he owned a piece of land by pointing to a deed that contained no description of the property. It was “somewhat singular,” he said, “that, if the Constitution were intended to be, by its framers and adopters, a slave-holding instrument, . . . neither ‘slavery,’ ‘slaveholding,’ nor ‘slave’ can anywhere be found in it.”

Slavery’s defenders answered that, while they did not use the word, the Framers had obviously meant to protect the institution. But anti-slavery constitutionalists reiterated their second rule of construction: Only the words on the paper mattered, not the Framers’ intentions. 

What, then, of the provisions that contemplated slavery without using the word? There were five: the fugitive-slave clause; the provision empowering Congress to “suppress insurrections”; the clauses that barred Congress from interfering with the slave trade until 1808 and prohibited any amendment from altering that deadline; and the clause that apportioned congressional representation according to the assumption that three-fifths of the population was not considered “free.” Anti-slavery constitutionalists had answers ready. 

The three-fifths clause did not protect slavery but only recognized that it existed. In theory, it would even reward states that abolished slavery, by giving them more congressional representation. Nor did the two slave-trade clauses protect it; on the contrary, they allowed Congress to ban the trade in 1808, which it did. The insurrection clause was susceptible of an innocent interpretation, too: It contemplated non-slave uprisings such as the 1786 Shays’ Rebellion in Massachusetts or the 1791–1794 Whiskey Rebellion in Pennsylvania. 

As for the fugitive-slave clause, it did not use the word “slave,” but referred to a “person held to service or labor” — which could apply to apprentices or indentured servants. It also referred to “the party to whom such service or labor may be due” — but labor was not “due” from slaves, since they were victims of an injustice who had received no “due” process of law.

Charles Sumner elaborated on this point in his 1852 speech “Freedom National, Slavery Sectional.” He stressed the first rule of interpretation — the Constitution must be construed as anti-slavery whenever possible — by quoting the legendary legal scholar William Blackstone: “The law is always ready to catch at anything in favor of liberty.” Then he emphasized the ambiguous wording of the fugitive-slave clause: “The name Slave — that litany of wrong and woe — does not appear.” The clause should be read, Sumner held, as referring to apprentices, convicts, and indentured servants. In addition, while the Constitution expressly gave Congress power to adopt nationwide laws relating to naturalization, bankruptcy, and other matters, it was silent regarding slavery — implying that such a power had been intentionally withheld. A better reading of the clause, he concluded, was that it prohibited each state from liberating fugitives from other states but gave Congress no power to adopt national statutes protecting human property.

Many see these arguments as strained — William Wiecek, a leading scholar of anti-slavery constitutionalism, calls them “flawed and disingenuous” — but this reflects a misunderstanding of how legal arguments work. Whether the issue is slavery in the 1850s or abortion or gun rights today, constitutional debates do not enquire into the Founders’ personal motives, as historians do, but instead seek to articulate the most objective understanding of the Constitution’s words using the interpretive tools lawyers have fashioned over millennia. 

Those tools emphasize impersonal principles in order to reduce the amount of subjectivity in the law, and to prevent partisan political considerations from influencing a judge’s rulings, so as to ensure that the law achieves public, not private, goals. Where historians might focus on what specific authors had in mind, lawyers focus on what legal words mean in some public or official sense. So, for example, a judge will enforce a contract even if one party later claims that he was only joking when he signed it, because only the words on the paper matter — not the unexpressed intentions of the parties. For the same reason, the personal beliefs of the Framers are among the least relevant considerations in constitutional law. Of course, when the authors write their intentions into the document, they can be relevant. But in the case of the Constitution, as the anti-slavery constitutionalists emphasized, these expressed intentions included preserving liberty, establishing justice, and honoring due process of law, which are irreconcilable with slavery. 

Whatever one might conclude about anti-slavery constitutional theory, it was hardly disingenuous or implausible. And as another leading scholar of the subject, law professor Randy Barnett, concludes, it is “superior to the rival theory presented, for example, by Justice Taney in Dred Scott.” That pro-slavery ruling simply ignored the rules of legal interpretation and relied on non-textual assumptions about the Framers’ personal beliefs: According to Taney, they could not possibly have meant “the enslaved African race” when they wrote that “all men are created equal,” because they did not free their own slaves in 1776. To suggest that they thought black people were created equal meant accusing them of being “utterly and flagrantly inconsistent with the principles they asserted.” 

Yet this focus on the Framers’ intent was not a legal analysis; Taney was relying not on the Constitution’s words but on the (alleged) beliefs of its authors — a point Frederick Douglass seized upon in his speech on the Dred Scott ruling. Taney and his colleagues, Douglass declared, “do not point us to the Constitution itself, for the reason that there is nothing sufficiently explicit for their purpose; but they delight in supposed intentions — intentions nowhere expressed in the Constitution, and everywhere contradicted in the Constitution.” And as Lincoln explained in his own reply to Dred Scott, there were many reasons that the Framers might not have freed the slaves in 1776, including personal hypocrisy — but that hardly proved that they did not mean what they said.

Not content with asserting that black Americans were “so far inferior that they had no rights,” Taney even claimed that slavery was “distinctly and expressly affirmed in the Constitution” and that the federal government was “pledged to protect it in all future time.” This was certainly false: Nothing in the Constitution “distinctly and expressly” protected slavery; Taney’s argument rested on inferences, just as the abolitionists’ arguments did. And between two theories based on inference, there was no compelling reason to choose one that doomed millions to permanent bondage over one that was consistent with the Constitution’s text, with the nation’s founding principles, and with the longstanding rule that the law must “catch at anything in favor of liberty.”

The Confederacy’s defeat in 1865 handed abolitionist statesmen a unique opportunity to obliterate slavery and its legacies. Sumner thought Congress could use the constitutional provision guaranteeing each state “a republican form of government” to force a total overhaul of southern society. Few of his colleagues were willing to go that far, but they were willing to amend the Constitution to protect the rights of former slaves and to put to rest the constitutional controversies that had led to the war. They viewed these amendments, however, not as altering a formerly pro-slavery constitution but as rescuing it from the misinterpretations foisted upon it by Taney and other southern ideologues.

The 13th Amendment, for example, abolished slavery, even though anti-slavery constitutionalists had long thought that it was already unconstitutional. Sumner initially opposed such an amendment on the theory that since “there was nothing in the original text on which this hideous wrong could be founded,” there was nothing to repudiate. He later changed his mind, concluding that it was better to overrule Dred Scott expressly than to leave its unconstitutionality to inference. But when the 14th Amendment, which made former slaves citizens, was proposed, some, including Sumner, again declared it unnecessary. The 13th Amendment had already made them citizens by liberating them, and there was no need to give Congress power to protect their civil rights, since those, too, were already inherent in the Constitution. When the 15th Amendment was proposed, Sumner once more insisted that the Congress already had power to protect voting rights. 

It was doubtless wise to amend the Constitution anyway, to eliminate any ambiguity. But these arguments reveal the degree to which the Reconstruction amendments were seen less as changing the Constitution than as vindicating the anti-slavery constitutional theory. This is also evident in the wording of the 14th Amendment, which begins by declaring that Americans are primarily federal citizens and only secondarily citizens of the state where they reside — thereby erasing any vagueness about the nature of citizenship or federal supremacy — and then protects their federal “privileges or immunities” from state interference. Decades after abolitionists had first pointed to the original privileges-and-immunities clause as an anti-slavery guarantee, the new amendment added a second one to reinforce these rights against state oppression. Finally, the amendment forbids states to deprive people of liberty without due process of law and to deny equal protection to “any person within [their] jurisdiction.” A more succinct encapsulation of anti-slavery constitutionalism could hardly be imagined.

Tragically, it was less than a decade before Reconstruction’s collapse essentially reinstated slavery, thanks primarily to the federal government’s refusal to enforce the amendments. It would be almost another century before federal officials again took seriously these commitments to the rights of all. Among those who witnessed this betrayal was the elderly Frederick Douglass. A year before his death he bemoaned the resurgence of the old canards that the United States was meant only for whites and that blacks should be transported to Africa or somewhere else. “The bad thing,” he said, was that this idea had even “begun to be advocated by colored men.” The “colonization nonsense tends to throw over the negro a mantle of despair,” he said. “It leads him to doubt the possibility of his progress as an American citizen . . . [and] forces upon him the idea that he is forever doomed to be a stranger and a sojourner in the land of his birth, and that he has no permanent abiding place here.” 

This Douglass could not accept. Black Americans, he insisted, were citizens, entitled to constitutional protections no less than whites were. 

The same words apply with equal force to historians and scholars today who, however laudable their motivation to educate Americans about the history and the legacy of slavery, blithely assert that the Constitution was designed as an instrument of racial oppression by statesmen who regarded black people as categorically excluded from the principles of natural rights. That casual endorsement of the thesis of Dred Scott slights the hard work of anti-slavery leaders who, almost from the nation’s birth, strove to protect the Constitution from the vicious stain of white supremacy and who later rescued it at the price of blood and fire. It teaches black Americans to doubt the possibility of their progress as American citizens and to imagine themselves forever doomed to be strangers in their homeland. And it shamefully betrays the countless ordinary men and women — their names lost to history — who strove to vindicate the right of Americans of all races to their stake in that “glorious liberty document.”

This article appears as “The Glorious Liberty Document” in the September 30, 2019, print edition of National Review.

Timothy Sandefur is the Goldwater Institute’s vice president for litigation. He authored a friend-of-the-court brief in Brackeen v. Bernhardt.

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