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"Original intent" is a game constitutional lawyers and political theorists love to play. It can usually be won by playing a single card, marked "slavery." One has only to point to the protections the Constitution originally conceded to slavery—its tolerance of the slave import trade, its willingness to grant the slaveholding states an extra three-fifths worth of representation in the Federal Congress based on their slave populations, its requirement that states return fugitive slaves to their owners—to present a take-all demonstration that the original intentions of the framers of the Constitution are tainted, and consequently useless to modern federal jurisprudence. In the words of constitutional historian Paul Finkelman, the Constitution was a "proslavery compact," and in that case, all notions of limiting judicial interpretation to the "original intent" of the framers become guilty by association.1
This has opened the way for modern constitutional theorists like Charles L. Black, George P. Fletcher, and Mark Tushnet to declare that the Constitution of 1787 is a dead letter, that what we today call the Constitution was only reborn with the Fourteenth Amendment, and that its interpretation is a constantly evolving process, moving inexorably toward a future of Kantian (or Rawlsian) egalitarian absolutism. It also opens the way for the advocates of slave reparations to insert their claim that the Constitution's protections for slavery make the federal government liable for reparations payments, since the Constitution presumably rendered the federal government the central culprit in the establishment of slavery in the United States. And it offers a comforting sense of communion with the most radical heroes of abolitionism—William Lloyd Garrison and Wendell Phillips—who had no compunctions about describing the Constitution as a covenant with death, and burning it publicly in the same spirit of adolescent showmanship that later generations would burn the flag.
On the other hand, this makes for somewhat odd bedfellows, historically speaking, since it lands Black, Tushnet, Fletcher, and Co. in the unpleasant position of echoing precisely the position of the slaveholding South and its most nauseating spokesmen—James P. Holcombe, J. Randolph Tucker, Frank H. Alfriend, Albert Taylor Bledsoe, Jefferson Davis, Alexander H. Stephens, and the whole dreary pageant of indignant Southern fire-eaters who believed that Constitution put the whip and the slave together into their hands. (This is reminiscent of the remark of an Alabamian to John Calhoun, that Wendell Phillips's abolitionist denunciations of the Constitution as a proslavery document could be circulated "to great advantage" in the South merely by dropping a few inconvenient paragraphs.)2
A good deal of this had just been starting to harden into an academic consensus when Don E. Fehrenbacher died suddenly on December, 13, 1997, in the arms of his wife of 53 years, Virginia. Fehrenbacher was a longtime Lincoln scholar, winner of the 1979 Pultizer Prize for The Dred Scott Case: Its Significance in American Law and Politics, and served as the finisher of the late David Potter's Pulitzer-winner, The Impending Crisis, in 1979. Like Potter, Fehrenbacher left unfinished at his own death "my book about the federal government and slavery." Virginia Fehrenbacher commissioned one of her husband's former students, Ward M. McAfee, to complete two partially finished chapters and add a conclusion to what was published four years later as The Slaveholding Republic: An Account of the United States Government's Relations to Slavery. I have only one judgment to offer on it: No book has done more damage to the Constitution's neo-abolitionist detractors in the last 50 years.
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