“On the Fourth of March, 1861, Abraham Lincoln took the oath of office as the six-teenth president from Chief Justice Roger Brooke Taney—and managed, at the same time, to box the chief justice on the judicial ear. Or, at least, to draw a bright line of constitutional understanding between himself and the author of Dred Scott v. Sanford. “There is some difference of opinion,” Lincoln announced, about whether the Constitution’s fugitive slave clause “should be enforced by national or by state authority.” This distinction might be immaterial to the fugitive, but if Congress was to pass laws on the subject, shouldn’t “all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not, in any case, surrendered as a slave?” And just to make sure that no one assumed that he was merely calling for more accurate identification of suspects, Lincoln asked whether any such legislation should also explicitly “provide by law for the enforcement of that clause in the Constitution which guaranties that ‘The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States?’ “
A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic
University of Chicago Press
408 pages
$72.50
To the naked eye, there seems nothing particularly momentous in that question. But there was. The “free man” who should not be mistaken and “surrendered as a slave” could only be a free black man, otherwise it would have been impossible to mistake him for a slave in the first place. And Lincoln was here suggesting that congressional legislation should protect that free black man because, under the Constitution, “citizens of each State” are entitled to the procedural protections of the Constitution’s privileges and immunities clause. Citizens. Only four years before, the chief justice sitting behind Lincoln had pronounced in Dred Scott v. Sanford that the Constitution did not and could not recognize black people as citizens, whether they were free or slave. Now, on almost the anniversary of Dred Scott, Lincoln threw Taney’s own words back at him.
But he did more. Everything which was, at that moment, dividing the republic and threatening to tip it into civil war was, Lincoln said, strictly an argument about constitutional theories, not about the things the Constitution actually said. “Shall fugitives from labor be surrendered by national or by State authority?” Lincoln asked. “The Constitution does not expressly say. May Congress prohibit slavery in the territories? The Constitution does not expressly say. Must Congress protect slavery in the territories? The Constitution does not expressly say.” What reasonable American would want to smash the Union when the grounds of disagreement hung on theories? No one, presumably—unless of course the chief justice had, four years before, proclaimed that the Constitution did say, expressly, that Congress could not prohibit slavery in the territories, and that Congress really is obliged to protect it there because the Constitution “distinctly and expressly” affirms the “right of property in a slave.” If the Constitution recognizes the “right of property in a slave,” then that property has no rights of its own, and the owners of that property have every ground on which to demand its protection and sustenance by the federal government.
But what Taney announced as fact, Lincoln relegated to opinion. In 1858, during his celebrated debates with Stephen A. Douglas, Lincoln flatly declared that “the right of property in a slave is not distinctly and expressly affirmed in the Constitution.” Now, Lincoln was president, and the Constitution he had sworn to preserve, protect, and defend would be understood by him to offer no national recognition to slavery at all. From that seed, you might say, the Civil War sprang.
That Lincoln revered the Constitution is not really to say anything different from what almost every other American of his generation would have said about it. “No slight occasion should tempt us to touch it,” Lincoln warned in 1848. “Better, rather, habituate ourselves to think of it, as unalterable. It can scarcely be made better than it is …. The men who made it, have done their work, and have passed away. Who shall improve, on what they did?” Only the most radical of abolitionists were inclined to regard it, in William Lloyd Garrison’s kindling terms, as “an infamous bargain … a covenant with death and agreement with hell” because it seemed to offer shelter to chattel slavery. But by the 1880s, there were many more voices of question about the untouchable perfection of the Constitution, and unlike Garrison, they were expressing eerie parallels to voices in that same decade which were beginning to question the untouchable perfection of the Bible. “The Constitution of the United States had been made under the dominion of the Newtonian Theory,” wrote Woodrow Wilson, whose PhD dissertation in 1883 on Congressional Government: A Study in American Politics frankly questioned the wisdom of a government of separated powers. “The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.”[1] The 18th century had no sense of historical progression, development, and evolution, Wilson objected; it believed that certain fixed truths were available to be discovered, whether in physics or in government. Wilson’s century thought it knew better, and understood that the intricately balanced mechanisms of the U.S. Constitution were like one of David Rittenhouse’s orreries, and needed to be superseded by something more efficient, supple and responsive to changes in the national environment.
Wilson didn’t get much of what he wanted (thanks in large measure to those unresponsive congressional mechanisms), but the Progressives who followed Wilson were undissuaded by his failures, and they added a new sting to the Progressive impatience with the Constitution by holding up its embrace of slavery as the prime exhibit of the Constitution’s embarrassing backwardness. This same complaint was repeated very recently by Louis Michael Seidman asking (in The New York Times) why we should continue to be guided by a document written by “a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves.” And it is repeated again in two extraordinary and thorough pieces of constitutional history by David Waldstreicher and George William Van Cleve, both assuring us with no uncertain voice that the Constitution was not only designed to accommodate slavery, but “simultaneously evades, legalizes and calibrates slavery.” If you could desire a telling historical reason to (as Seidman’s New York Times op-ed urged) “give up on the Constitution,” Waldstreicher and Van Cleve offer it as luxuriantly dressed as you could wish.[2]
The Garrisonians were the first to assault the Constitution as a pro-slavery document. “There should be one united shout of ‘No Union with Slaveholders, religiously or politically!‘ ” declared Garrison in 1855, and one particularly good sampling of that disparagement comes from the pen of Frederick Douglass in 1849. Reacting to the insistence of Gerrit Smith and the Liberty Party that the Constitution “is not a pro-slavery document,” Douglass replied that it certainly was, and that it “was made in view of the existence of slavery, and in a manner well calculated to aid and strengthen that heaven-daring crime.” The proof was in the text of the Constitution itself:
• The Three-fifths Clause (Art. 1, sec. 2) gave the slave states disproportionate power in the House of Representatives.
• The authorization extended to Congress “to suppress insurrections” (Art 5, sec. 8) had no other purpose than suppressing slave insurrections, as did the added pledge (in Art. 4, sec. 4) to protect the states “against Domestic violence.”
• The permission given to Congress to end the slave trade after twenty years (Art. 1, sec. 9) was a “full, complete and broad sanction of the slave trade.”
• The clause requiring the rendition of any “person held to service or labor in one State, escaping into another,” labelled escape from slavery a federal crime (Art 4, sec. 2).
This made the Constitution “radically and essentially pro-slavery, in fact as well as in its tendency.”[3]
In more recent times, these arguments were taken up by Leon Higginbotham, Sanford Levinson, Thurgood Marshall, and Mark Graber, mostly as a way of substantiating their larger-view annoyance with the Constitution’s intractability to progressive policy changes. But in no place was the “pro-slavery Constitution” accusation laid down in more fiery detail than by Paul Finkelman, in his provocative Slavery and the Founders (1996; 2nd ed., 2001), where Finkelman not only embraced Douglass’ bill of indictment but added a few more of his own. It had been part-and-parcel of the New Social History in the 1970s and ’80s that slavery and race were the original sin of the American experiment, and that their presence belied any exceptionalist claims that the American founding represented a triumph for human liberty, undimmed by human tears. And in the long view, that was Finkelman’s point, too: Slavery and the Founders was written with the “belief that slavery was a central issue of the American founding,” and in no way creditable to that founding. Not only were the Three-fifths Clause, fugitive rendition, and the suppression of insurrections proof of the pro-slavery intentions of the Founders, slavery enjoyed special protection from the Constitution’s ban on export taxes (which gave a green light to the international marketing of slave-grown products), the dependence of direct taxation and the Electoral College on the Three-fifths Clause, and the limitation of civil suits and privileges-and-immunities to “citizens” (which could only be white people). “A careful reading of the Constitution reveals that the Garrisonians were correct: the national compact did favor slavery,” concluded Finkelman. “No one who attended the Philadelphia Convention could have believed that slavery was ‘temporary.’ “
Finkelman lays the groundwork for both Waldstreicher and Van Cleve (Finkelman is cited more often in A Slaveholders’ Union than any other modern historian), who in turn raise Finkelman’s claims for a pro-slavery Constitution to yet higher degrees. Waldstreicher is the shorter of the two, and more in the nature of a general summation of the neo-Garrisonian viewpoint. Like Finkelman, Waldstreicher believes that the Founders created a national “compact” which consciously sustained slavery (six out of the Constitution’s 84 clauses, he notes, bear on aspects of slavery), and allowed slavery’s interests to prevail in the federal Congress (since the house most responsible for fiscal matters was the place where the Three-fifths Clause brought its greatest weight to bear). But more than Finkelman, Waldstreicher does not believe that this was merely the result of paradox or political log-rolling in the Constitutional Convention. The Revolution itself was caused by the panic slaveholders felt over the implications of the 1772 Somerset decision in the Court of King’s Bench, which rendered slavery a legal impossibility in England. By denying slavery legal standing anywhere in the empire outside the colonies, Somerset alarmed American slaveholders, who were thus rendered instant converts to a revolution against imperial authority. In turn, the Constitution went out of its way to reassure American slaveholders, since the Constitution actually made it harder to get rid of slavery than before.
Van Cleve is less polemical, but longer and more methodical than Waldstreicher. In his reading, both the Revolution and the Constitution acted to strengthen slavery, either by sanctioning the colonial status quo on slave labor or by providing new protections for its expansion. Like Waldstreicher, Van Cleve believes that Somerset profoundly frightened American slaveholders—20 percent of all American wealth, Van Cleve adds, was invested in slaves—and the Constitutional Convention went out of its way to secure slavery’s place in American life. Not only did the Three-fifths clause and the fugitive rendition provisions side entirely with pro-slavery forces, but the state delegations to the convention were given no instructions to seek an end to slavery, and none of the ratification debates (including the Federalist Papers) made slavery an issue. Southerners who took up ratification as their cause in the Southern ratifying conventions actually campaigned for ratification precisely “because the Constitution did not authorize the federal government to take action against it.” Nor does Van Cleve find it difficult to find Southerners quite candid in their belief that “without security for their slave property … the union never would have been completed.” In that light, Chief Justice Taney’s dictum that the Constitution explicitly recognized slaves as property was merely the final corroboration of the Constitution’s lethal pro-slavery tilt.
Yet, in all of these assertions, from Douglass to Waldstreicher and Van Cleve, there creeps in an air of special pleading, an Eyore-ish determination to read the Constitutional glass as perpetually half-full, if not empty. Van Cleve, for instance, always takes the slaveholders’ word as the statement of the Constitution’s sober fact, while anti-slavery observers are dismissed as wrong when they see slavery being diminished by the Constitution. And the notion that the Constitution’s provisions for the termination of the slave trade can be read as “protecting the interests of slave traders and those of states that wanted to import slaves” must crinkle the brow of any disinterested reader. Above all, this pleading has to engender the puzzled question of how a regime based on such a pro-slavery Constitution could, within the span of a single lifetime, bring to the east front of the Capitol a president who could deny that the Constitution gave slavery any sanction at all.
Waldstreicher offers an explanatory hint in Slavery’s Constitution by suggesting that anti-slavery forces simply abandoned the Constitution and appealed instead to a “higher law,” in the form of a natural-law right to liberty. “Antislavery survived the post-Revolutionary backlash epitomized by the Constitution because some Americans refused to believe that the Constitution, or even America, was the ultimate source of their cherished ideals.” What gets lost in Waldstreicher’s description of the “higher law” appeal was how much it was based on the contention that the Constitution embodied natural law. That made the Constitution susceptible only of a reading which (like Somerset) made freedom the default position of national law, and limited the legalization of slavery only to local or state law. James Oakes, in his marvelous new history of emancipation, Freedom National: The Destruction of Slavery in the United States, 1861-1865 (2013), reads the Constitutional glass as not just half-full but running over with anti-slavery assumptions: “The delegates at the Constitutional Convention … were certain the system was dying anyway,” based on their reading of natural-law economics and natural-law moral philosophy, and “concluded that the progress of antislavery sentiment was steady and irreversible.” Slavery was deliberately crowded off the national table by the Constitution. Why, after all, asked anti-slavery voices at the time of the Missouri debates in 1820, had the Constitution permitted the Northwest Ordinance to stay in effect, or allowed the banning of the slave trade, if slavery was constitutionally-protected property? Why did the Constitution turn such linguistic somersaults to avoid actually using the word slave? Why did the fugitive slave provisions never specify that it was the federal government’s responsibility to render-up fugitives? And in arguments made by both John Quincy Adams (in his plea for the release of the Amistad rebels) and William Henry Seward, the Constitution is presented as a component of the law of nations, which is itself (according to the guiding lights of international legal theory, Vattel, Grotius, and Wheaton) based on natural law.
As if to confirm the suspicion that Finkelman et al. were arguing for a conclusion rather than making a case, Don Fehrenbacher’s last book, The Slaveholding Republic: An Account of the United Sattes Government’s Relations to Slavery (2001) set out a bristling phalanx of reasons why the Constitution had never been designed as a pro-slavery document. The convention itself, Fehrenbacher contended, was rent by bitter debates over slavery and its status, and the resulting document represented, not a triumph of a slaveholding consensus, but the hardly-won survival of an institution under heavy attack. The members of the convention were, in the end, content to curtail slavery rather than exterminating it, partly because they were a Constitutional Convention charged with keeping the American union together rather than an anti-slavery revival meeting calling sinners to repentance, and partly because they were confident that measures like the prospective ban on the slave trade would hasten the death of slavery on their own. The wonder is that slavery managed to survive as long as it did before the anti-slavery assumptions of the Constitution forced slaveholders into rebellion. The proof, for Fehrenbacher, was in the pudding of secession: the secessionists promptly wrote a new constitution, defining, legalizing, and extending slavery, “in stark contrast to the Constitution of 1787 that had embarrassingly used euphemistic language to mask the existence of the tyrannical institution in a land presumably dedicated to liberty.”
Fehrenbacher’s chief labor was to be to show how, if the Constitution cast that chilly an eye on slavery, southerners managed to defend and extend the instituiton for so long; his answer was politics. Southerners adeptly seized control of the executive branch from the very first, and spun the helm of the federal government hard-over in their favor. It was only in 1860, when they decisively lost that control, that the pretense of a pro-slavery Constitution was abandoned, along with the Union itself. All through the decades between 1790 and 1860, anti-slavery voices kept up a steady drumbeat of resistance to the “pro-slavery Constitution,” over and over again declaring that the Constitution was a natural-law document whose baseline was freedom. Lemuel Shaw’s decision in Commonwealth v. Aves (1836) saw no constitutional right of property in slaves.[4] Even a Southern court, in Rankin v. Lydia (1820), held that “freedom is the natural right of man,” and William Jay justified the revolt of the slaves on the Creole in 1841 on the grounds that, as soon as the Creole cleared Virginia waters, it came under control of the law of the sea, which was in turn a subsection of natural law.[5] And then there was Lincoln, who in his breakthrough speech at the Cooper Institute in February 1860, announced that the Constitution, far from recognizing slavery, actually empowers Congress to vaporize it any moment slavery puts a foot outside the states where it has been legalized. “An inspection of the Constitution will show that the right of property in a slave is not ‘distinctly and expressly affirmed’ in it.”
In the murk of historical interpretation, whether the Constitution was pro-slavery or anti-slavery will depend very much on whether someone is inclined to grant more authority to Lincoln than Douglass, to Finkelman than Fehrenbacher, to Lemuel Shaw than Roger B. Taney. Which means, in turn, that the deciding factor is likely to be buried a priori in whether one can be satisfied that an 18th-century Newtonian document should still be allowed to prevail in a political world which is surrounded by 19th-century evolutionary assumptions about adaptation to changing mores and social conditions. That decision will be aggravated by the current furor over “gridlock” and “obstruction” in the federal government, and whether one branch of government has the privilege of slowing the rest of the government’s reaction-times to an unscientific crawl. If “efficiency” (the demon-god of Wilsonian Progressives) or problem-solving or “responsiveness” is the prime desideratum in government, then the Constitution will surely appear as an outdated recipe for chronic political constipation. Hence, Seidman’s complaint that “Our obsession with the Constitution has saddled us with a dysfunctional political system” and “kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.” And the temptation to tack on slavery as proof of the Constitution’s immoveability will probably be irresistible—as Seidman attests. Never mind that this evolutionary times-are-not-now-as-they-were argument is ironically what Missouri Chief Justice William Scott used in denying Dred Scott’s appeal in the original hearing of the case.
The problem with Madison is not that his version of government is 225 years old, or that it is Newtonian or mechanistic. It is that Madison and his fellow delegates in Philadelphia did not care a wet slap for efficiency in government. They wanted liberty, and anything which slowed the pace of governmental decision-making, or which exhausted the power of one branch in argument with another, and made government as safely unresponsive as it could be short of inanition, was by their lights precisely what a republic of liberty should prize (even if that guaranteed a large measure of inanition about slavery). What we want the Constitution to be has always had a peculiar way of determining what we think the Constitution was, and is.
Allen C. Guelzo is the Henry R. Luce Professor of the Civil War Era and a professor of history at Gettysburg College. He is the author most recently of Fateful Lightning: A New History of the Civil War and Reconstruction (Oxford Univ. Press) and Gettysburg: The Last Invasion, just published by Knopf.
1. Wilson, Constitutional Government in the United States (Columbia University Press, 1908), p. 56; Terri Bimes and Stephen Skowronek, “Woodrow Wilson’s Critique of Popular Leadership: Reassessing the Modern-Traditional Divide in Presidential History,” Polity, Vol. 29 (Fall 1996), pp. 27-63.
2. Louis Michael Seidman, “Let’s Give Up on the Constitution,” The New York Times (December 30, 2012).
3. Douglass, “The Constitution and Slavery,” The North Star (March 16, 1849).
4. Shaw, in Commonwealth v. Aves, held that “by the general and now well established law of this Commonwealth, bond slavery cannot exist, because it is contrary to natural right, and repugnant to numerous provisions of the constitution and laws, designed to secure the liberty and personal rights of all persons within its limits and entitled to the protection of the laws.” See Reports of Cases Argued and Determined in the Supreme Judicial Court of Massachusetts, ed. Octavius Pickering (Boston, 1840), p. 219.
5. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (Yale Univ. Press, 1975), pp. 95-96; Stephen P. Budney, William Jay: Abolitionist and Anticolonialist (Praeger, 2005), pp. 66-67.
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