Magazine July 27, 2020, Issue

Slavery and the Constitution

(Dieter Spears/Getty Images)
From the beginning, it pointed toward racial equality

A  stunning legal drama unfolded before the King’s Bench in London in early 1772. James Somerset, a slave brought to England from the American colonies, petitioned the court for a writ of habeas corpus, which would free him from confinement on his enslaver’s ship. Lord Mansfield, the judge reviewing the case, granted the writ in a stinging rebuke of Somerset’s captors: “The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory.” As no such law existed in England proper, Somerset was to be freed.

The judgment’s narrow construction intentionally limited its immediate implications. When word of the case crossed the Atlantic, Benjamin Franklin wrote his abolitionist friend Anthony Benezet to denounce “the hypocrisy of this country, which encourages such a detestable commerce by laws for promoting the Guinea trade; while it piqued itself on its virtue, love of liberty, and the equity of its courts, in setting free a single negro.” Somerset’s case would nonetheless put the first chip in the legal edifice of plantation slavery, and with it set the foundations for a neglected tradition of anti-slavery constitutionalism.

When mentioned at all today, Somerset’s case often suffers from the political distortion of our present moment. The New York Times’ 1619 Project attempted to repurpose Mansfield’s ruling as evidence that the American colonies revolted some four years later in response to the existential threat that the case supposedly created for the colonial slave system. In reality, the British Empire still remained a half century removed from emancipation — a cause that found its earliest parliamentary support among Charles James Fox, Edmund Burke, and other Whig supporters of the American revolutionaries. And while the Times grudgingly walked back its claim that protecting slavery provided a primary impetus for the events of 1776, the paper offered no indication that Somerset’s brand of anti-slavery constitutionalism took root in the nascent United States.

The next blow came in Massachusetts in 1783, with future U.S. Supreme Court justice William Cushing instructing a jury in a strikingly similar “freedom suit” that “the idea of slavery is inconsistent with our own conduct and [state] Constitution; and there can be no such thing as perpetual servitude of a rational creature.” The resulting verdict released Quock Walker from bondage, leading the commonwealth to become the first of the original 13 colonies to carry out immediate emancipation.

Freed from London’s oversight, American independence unleashed an early wave of similar actions across the northern states. Between the Declaration of Independence in 1776 and the Constitutional Convention of 1787, Pennsylvania, New Hampshire, Rhode Island, and Connecticut adopted gradual-abolition plans under their newly constituted state governments. The national Northwest Ordinance of 1787 successfully barred the entry of slavery into the modern-day Midwest. And Vermont, which joined the union as a state in 1791, had operated under an anti-slavery constitutional provision since it broke from Britain in 1777 against the backdrop of the Revolution. New York would follow in 1799 and New Jersey in 1804, both with gradual processes.

The political entrenchment of slavery in the southern states obscures this important constitutional legacy today, particularly as revisionist historical accounts such as the 1619 Project attempt to re-center the American founding around the maintenance of a plantation economy. The Times’ Nikole Hannah-Jones accordingly speaks of the founding generation as if they were a unitary voice conspiring to preserve slavery, charging that, “in the texts in which they were making the case for freedom to the world, they did not want to explicitly enshrine their hypocrisy, so they sought to hide it.”

Such simplistic narratives strip this era of its nuance, though, denigrating the constitutional component of the abolitionist project in the process. It is true that the framers of the Constitution omitted direct mention of slavery, even as they accepted the now-notorious three-fifths clause and mechanisms to return fugitive slaves to bondage. Yet many delegates recognized the moral fault of these political concessions. In denouncing a clause that preserved the slave trade until 1808, Constitutional Convention delegate Luther Martin chastised the institution as “inconsistent with the principles of the Revolution, and dishonorable to the American character.” In doing so, Martin echoed the Fairfax Resolves of 1774, in which George Washington and George Mason condemned the British Crown for sustaining this “wicked, cruel, and unnatural trade” in its colonies.

In the legal context of the 18th century, the Constitution’s conspicuous evasion of the word “slavery” carried another meaning, at least among critics of the institution. Just as Mansfield constructed the Somerset ruling on British law’s silence about slavery, the omission — some abolitionists hoped — of the word in the U.S. Constitution might be construed at a future date to deprive the slave system of affirmation in positive law at the federal level.

On the opposing side, southerners pressed for the fugitive-slave clause as an attempt to avoid recurring repetition of the Somerset outcome. “If any of our slaves . . . go [to the North], and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again,” James Iredell explained to the North Carolina ratifying convention. In defending the clause, he then acknowledged that “the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word ‘slave’ to be mentioned.”

The clause conceded to slave owners a horrific tool by which the resources of the federal government could be mustered in subsidy and support for their institution, yet at the same time the Constitution’s unusual evasion of the term set up a legal tension between pro-slavery and anti-slavery constitutional theories that persisted until the Civil War. The political entrenchment of the former lies at the root of most modern critiques of the document, particularly because the “positive good” theory of slavery espoused by John C. Calhoun displaced that peculiar creature of the founding generation, the slave owner whose trepidations about slavery’s moral wrongs led him to cast about for a political solution that might eventually wean the country from its original sin.

Thomas Jefferson would famously “tremble” for his country when he reflected “that God is just: that his justice cannot sleep for ever.” Some three decades later the philosophical tension persisted, but the hoped-for political solution remained elusive. “We have the wolf by the ear, and we can neither hold him, nor safely let him go,” he wrote, summarizing the predicament. “Justice is in one scale, and self-preservation in the other.” Jefferson and others of his mindset explored the possibility of diffusing the institution into the western lands, out of the belief — now known to be mistaken — that it would dwindle away. James Madison lent his support to a solution rooted in colonizing manumitted freedmen abroad in locales such as Liberia. Though hopelessly impractical and at times racist in its designs, the colonization program gained an influential following before the Civil War, passing next to Henry Clay as an advocate of the weaning strategy before being taken up by the moderate but certain anti-slavery voice of Abraham Lincoln.

Distance from the founding generation emboldened a new pro-slavery legal theory that read more-explicit affirmations of slavery into American constitutionalism. In the founding generation, notes legal historian William Wiecek, “even slave-state jurists at first accepted [Somerset’s] anti-slavery premises,” only to work around them by constructing exceptions and exemptions. The ascendance of Calhoun’s pro-slavery doctrine transformed the Constitution’s implicit concessions to slavery into an explicit and affirmative sanction — a legal theory that the 1619 Project casually adopts, albeit as a repurposed indictment of the Constitution itself. As with Calhoun, this step requires rejecting the Founding’s aspirational principle that all men are created equal — “an error” that was “inserted in our Declaration of Independence without any necessity,” according to the South Carolina senator.

Less discussed is the parallel emboldening of Somerset’s anti-slavery constitutionalism in the hands of abolitionists. Consider an 1817 “freedom suit” case in which Justice John McLean of the Ohio supreme court opined, “Were it proper to consider it, the Court, as well as from the principles recognized by our Constitution and Laws, could not hesitate in declaring that slavery . . . is an infringement upon the sacred rights of man.” Within a generation, abolitionist legal theorists William Goodell and Lysander Spooner had each penned elaborate treatises applying Somerset’s reasoning to the U.S. Constitution, contending that it lacked a clear affirmation of slavery as positive law. While modern scholarship is apt to relegate such doctrines to the political periphery, they counted no less than Frederick Douglass among their converts. A direct legal lineage to Somerset may be seen in Douglass’s famous 1852 Fourth of July address, in which he argued precisely the case that the Times today rejects: “Interpreted, as it ought to be interpreted, the Constitution is a glorious liberty document.

Douglass’s appeal entailed more than fiery abolitionist rhetoric, though. In five years’ time another “freedom suit” would come before the U.S. Supreme Court on behalf of a slave named “Dred Scott.” The decision’s infamy derives from its clumsy attempt to enshrine pro-slavery constitutionalism as national doctrine, creating a primary catalyst for the Civil War in the process.

Still, the anti-slavery constitutional message may be seen in the case itself for raising the issue of Scott’s legal claim to freedom. To this end, the same John McLean of the earlier Ohio decision, now sitting as an associate justice of the U.S. Supreme Court, penned one of two dissents. In his biting attack on the ruling of Chief Justice Roger B. Taney, McLean paid homage to a predecessor freedom suit, noting that “it is a sufficient answer to all objections to that judgment, that it was pronounced before the Revolution, and that it was considered by this court as the highest authority.” He was referring to Somerset’s case.

This article appears as “Interpreted as It Ought to Be” in the July 27, 2020, print edition of National Review.

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Phillip W. Magness is a senior research fellow at the American Institute for Economic Research.

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