The Constitution and Slavery

There’s been a minor academic dust-up over slavery and the US Constitution.

Historian Sean Wilentz, a history professor at Princeton University and an advisor to Presidential Candidate Hillary R. Clinton, wrote an Op-Ed in the New York Times this past Wednesday in which he claimed the US Constitution was not a proslavery document and therefore the United States was not founded on racial slavery. You can read the Op-Ed here.

He tells us, “The Civil War began over a simple question: Did the Constitution of the United States recognize slavery — property in humans — in national law? Southern slaveholders, inspired by Senator John C. Calhoun of South Carolina, charged that it did and that the Constitution was proslavery; Northern Republicans, led by Abraham Lincoln, and joined by abolitionists including Frederick Douglass, resolutely denied it. After Lincoln’s election to the presidency, 11 Southern states seceded to protect what the South Carolina secessionists called their constitutional ‘right of property in slaves.’ The war settled this central question on the side of Lincoln and Douglass. Yet the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past. The myth, ironically, has led advocates for social justice to reject Lincoln’s and Douglass’s view of the Constitution in favor of Calhoun’s. And now the myth threatens to poison the current presidential campaign.” He says, “in 1787, proslavery delegates to the Constitutional Convention in Philadelphia fought to inscribe the principle of property in humans in the Constitution. But on this matter the slaveholders were crushed.” James Madison, Wilentz tells us, said it was “wrong to admit in the Constitution the idea that there could be property in men.” According to Dr. Wilentz, “The Constitutional Convention not only deliberately excluded the word ‘slavery,’ but it also quashed the proslavery effort to make slavery a national institution, and so prevented enshrining the racism that justified slavery.”

Wilentz allows that the Constitution could not have been passed in the Federal Convention, nor ratified by the slave states [thus potentially breaking up the Union], had it not tolerated the existence of slavery. He distinguishes between this toleration of slavery and the charge that the Constitution made slavery a national institution. He quotes Madison again as saying the proslavery delegates at the convention wanted, “some provision should be included in favor of property in slaves.” He tells us, “The South did win some concessions at the convention, but they were largely consolation prizes. The notorious three-fifths clause tied slaveholding to political power, but proslavery delegates, led by South Carolinians, repeatedly pressed for slaves to be counted as full persons, which Charles Pinckney professed was ‘nothing more than justice.’ They finally conceded to the three-fifths compromise. Over time, the congressional bulwark of the slave power became the Senate, where the three-fifths rule did not apply.”

Wilentz tells us the proslavery delegates wanted to prevent the Federal Government from having the power to ban the slave trade, but the final output allowed the government to ban the trade beginning in 1808. Referencing the so-called “Fugitive Slave Clause,” Wilentz tells us, “In the convention’s waning days, proslavery delegates won a clause for the return of runaway slaves from free states. Yet the clause was a measure of slavery’s defensiveness, prompted by then landmark Northern gradual emancipation laws, and was so passively worded that enforcement was left to nobody, certainly not the federal government. Antislavery Northerners further refined the wording to ensure it did not recognize slaves as property.” According to Wilentz, proslavery advocates interpreted the so-called “Fugitive Slave Clause” as establishing the constitutional principle that there could be property in human beings, leading His Satanic Majesty, John C. Calhoun, to claim in 1840, “[H]ave we not a right, under the Constitution, to our property in our slaves?” According to Wilentz, “Antislavery leaders answered with chapter and verse that the framers had refused to extend a constitutional right to property in slaves, and that therefore Congress was empowered to halt slavery’s expansion, putting slavery, in Lincoln’s phrase, on ‘the course of ultimate extinction.’ Douglass broke with those abolitionists who, he said, ‘hold the Constitution to be a slaveholding instrument.’ Running for president in 1860, Lincoln asserted that the framers had operated ‘on purpose to exclude from the Constitution the idea that there could be property in man.’ He added that ‘[t]o show all this is easy and certain.’ It was so well understood in 1860 that it provoked the Civil War.”

Opposing Wilentz is a coterie of historians such as Edward Baptist and Kevin Gannon [aka @TheTattooedProf]. On Twitter, Dr. Baptist called Dr. Wilentz’s essay “pure comic gold,” saying “Const. is antislavery same way Lincoln was a Jacksonian Democrat.” In expanding on his remarks, Dr. Baptist tweeted, “In particular, it’s not possible to discern an antislavery group. Northerners who opposed slave representation were concerned about Southern power. They make this point repeatedly. One could go on. But the point is: the Constitution protected slavery repeatedly, in ways that the Articles [of Confederation] did not, and that US government pre-1787 did not. The effects over the next 60 years made emancipation far harder to achieve.” Dr. Gannon wrote a guest post for the academic blog, “The Junto.” You can read it here. According to Gannon, the Wilentz piece “was by turns baffling, infuriating, and sad.” He says, “At its root, the essay is a narrow, technical argument trying to disguise itself as an overarching Big Answer to Important Questions.” He characterizes the body of the essay as “a quick retreat into questionable assumptions grounded on technicalities.” In outlining Dr. Wilentz’s argument, Dr. Gannon writes, “What he really means, we discover, is that ‘the proslavery effort to make slavery a national institution’ failed, because slavery was defined as inherently local. Toleration of its existence, Wilentz claims, is not the same thing as providing ‘sanction [to] slavery in national law, as anational institution.’ Ultimately, brave Founders like James Madison thus ‘prevented enshrining the racism that justified slavery.’ You may think such notorious features as the Three-Fifths Compromise and the fugitive slave clause would be that very type of enshrining, but you would be wrong. These ‘were largely consolation prizes,’ indicators of ‘slavery’s defensiveness,’ and insignificant when weighed in the balance of all of the freedom and liberty enshrined in the Constitution. The real point, he argues, is that the Constitution never formally granted the right of property in human beings. And absent positive legal statements that defined people as property, the nation’s supreme charter would ultimately fulfill its Freedom-Drenched Destiny as the tool with which Abraham Lincoln could build emancipation. So Wilentz’s sweeping claim that slavery was never woven into the national fabric at the founding rests upon the absence of a formal clause saying, ‘it’s OK to own other people, y’all.’ This is a precarious foundation on which to rest an argument. But Wilentz’s entire corpus is predicated on the argument that Jacksonian Democracy, in its most Schlesingerian sense, was the motor that drove the inexorable ‘Rise of American Democracy.’ To believe this, though, one has to soft-pedal (at best) the racialized, herrenvolk nature of that Democracy; see the Free-Soilers as the true representatives of the Jacksonian creed instead of actual Jacksonians like James Polk; and argue the moderates and conservatives within Whiggery and abolitionism sped the cause of freedom rather than delayed it. Then, and only then, does it become possible to swallow whole what Wilentz offers up in the op-ed columns of the Times.”

The basic problem, we find, is that “Wilentz does not admit there’s an important difference between the Constitution being used as an antislavery tool and its being inherently antislavery. The former does not depend upon the latter to be true.” His counterargument is “Indeed, the national enshrinement of slavery was predicated upon the very compromises Wilentz blithely dismisses. The preponderance of slaveowners and their allies in the national government due to the Three-Fifths Compromise is one example. The grant of power to reclaim fugitive slaves in free states is another. Wilentz’s insinuation that, since the slaveholders in the Philadelphia Convention didn’t get everything they wanted, the Constitution was thus an unsullied Charter of Freedom elides a more nuanced and complex reality. Slavery and freedom did not exist as a zero-sum game in the early republic. They were bound inextricably together, and no matter how committed one is to a particular interpretive schema, they cannot be stirred apart.” In concluding, he says, “Racism and slavery weren’t accidents. They were not Bad Things that mysteriously appeared amidst an unsuspecting nation of freedom-loving yeoman democrats. If we are to reckon with the ways in which racism and slavery have shaped our society, we cannot truck in wishful thinking and founder-worship. We have to admit that American racism and slavery were built. And what has been built can be dismantled. That is where the important work lies.”

Peter Sagal of NPR and PBS weighed in with a letter to the Times. In that letter, Sagal writes, “That the Southern delegates to the Constitutional Convention in Philadelphia wanted more than they got doesn’t matter, especially not to the millions of slaves whose misery continued. What matters is the text of the Constitution as ratified, which clearly and obviously sanctions slavery, in the three-fifths clause and the fugitive slave clause.” Far from the three-fifths clause being a consolation prize, Sagal says, “By allowing Southern states to count their slaves at all for purposes of representation, while denying those slaves all other civil or human rights, the Constitution granted slave holders magnified political power, while creating an incentive to acquire more slaves.” Not only that, but Sagal also points out, “Electoral votes are granted to states based on the number of representatives in the House. Thus, the South had disproportionate power in presidential elections as well.”

H. Robert Baker, an associate professor of history at Georgia State University, added his perspective at the “Tropics of Meta” blog. He juxtaposed Bernie Sanders’ position, to which Dr. Wilentz was reacting, with Dr. Wilentz’s position, and he declares both of them wrong. “Bernie Sanders’s statement about America’s racist Founding was not a proper argument, nor was it really meant to be. Sanders’s concern is justice today, and whether it is income equality or racial injustice he is targeting, the past is more of a convenient backdrop than a site of serious inquiry. Sean Wilentz’s argument was more substantial, albeit deliberately tendentious. But he is no less wrong than Sanders.”

Dr. Baker tells us, “Wilentz admitted that there were ‘concessions’ to slavery in the Constitution, but called them ‘consolation prizes.’ The ‘notorious’ three-fifths clause was at least better than the southern demand that slaves be counted at five-fifths for the purposes of representation. The slave trade clause (which protected the slave trade from congressional interference until 1808) Wilentz read as a positive—southerners wanted the trade to go on forever, but relented when ‘antislavery Northerners erupted in protest.’ And finally, the fugitive slave clause—a clause that offered slaveholders new protections for their property in the new United States—was ‘a measure of slavery’s defensiveness’ rather than its strength. Slavery’s defensiveness also explains for Wilentz why southerners came to insist on a proslavery reading of the Constitution. In the face of successful policies of gradual emancipation north of the Mason-Dixon line, slaveholders in the 1830s tried to claim that the Constitution wrote slavery into national law. This was the Constitution of John C. Calhoun, the inveterate vampire of southern rights. In the face of such an ideological tirade, antislavery leaders demanded that the original, antislavery Constitution be restored—a Constitution that confined slavery to state borders and did not recognize it as a national institution. That’s a nice argument. It was, roughly, the argument of Salmon P. Chase, of Abraham Lincoln, and of Frederick Douglass. These are powerful historical figures for Wilentz to have in his corner. It infuriates professional historians, many of whom have spent the last thirty years teasing out all the ways that slavery has openly, and sometimes less visibly, been helped by constitutional compromises.” But, he tells us, “Nice arguments are not necessarily good ones.” I think he’s a bit more fair with Wilentz than Gannon was. He tells us, “Wilentz does not have the room in a 750 word op-ed piece to be sophisticated. He should not lose points for being forceful and direct rather than playing the scholar’s game of endless qualification and nuance. Bernie makes muscular arguments, after all, so why should Wilentz not? Nonetheless, historians who disagree ought to strike at the heart of Wilentz’s argument rather than picking at its edges. Of course the three-fifths compromise was more than a consolation prize, and of course the fugitive slave clause was proactive more than it was defensive. But Wilentz was also right to point out that the slaveholders wanted more at the Constitutional Convention and did not get it. Quibbling over details does not vitiate Wilentz’s argument.”

Baker tells us the best counter to Wilentz “is to point to one central, yet unarticulated, assumption that underlies his article: the notion that there was one original project and one original essence to the Constitution which should control our interpretation of it. We know this as originalism. Conservative jurists like originalism because it is a constraining principle—it limits what can be done with the Constitution and thus prevents judges (and presumably legislators) from doing pesky things like discovering a right to privacy in the text of the Bill of Rights, or invalidating Jim Crow laws on the basis of the Fourteenth Amendment [Here I think he falters]. Wilentz’s argument more or less picks up this idea—that we can locate an original Constitution that reflects the document’s true nature and that should guide us today.” But, he tells us, this isn’t true. “In virtually every area that mattered most, the Constitution was forged by debate, compromise, and ambiguity. This is certainly true of slavery. The Constitution protected slavery in critical ways. But it also empowered a national government to take specific actions against slavery in ways that the preceding Articles of Confederation did not. The Constitution gave slaveholders a positive property right to their fugitive servants (read: “slaves”), wherever they might be found in the Union. But it also refused ‘to admit property in men,’ a powerful denial of the very right that the Fugitive Slave Clause guaranteed. The list of ambiguities goes on and on.”

The Framers, Baker tells us, weren’t thinking in terms of the Constitution being “antislavery” or “proslavery.” He agrees with Wilentz that the 1830s was the point where these labels become cemented. This is where slavers demanded a proslavery interpretation of the Constitution while abolitionists sought to craft an antislavery interpretation. Wilentz’s error, he says, “is to assume the mantle of the antislavery argument and read it back into 1787.”

He continues, “But if this makes Wilentz wrong, it does not necessarily make Bernie Sanders (or his more sophisticated academic supporters) right. The idea that America was founded on racism is a platitude. Of course it was. But this platitude elides the very real historical presence of a nascent idea of equality before the law, a principle which had real effect during the 1780s. Certainly this principle existed amidst pervasive and systemic racism. The Constitution’s refusal to acknowledge explicitly the legal disabilities of slavery makes it an anomalous document of sorts in its time. But this does not mean it was unimportant. To the contrary—in the face of gross injustice, it is perhaps only the anomaly that matters. That is the only thing that can spark change.”

David Waldstreicher, the Distinguished Professor of History at the City University of New York, has a response to Wilentz at The Atlantic’s website. He sums up Wilentz’s argument as, “The Constitution that protected slavery for three generations, until a devastating war and a constitutional amendment changed the game, was actually antislavery because it didn’t explicitly recognize ‘property in humans.’ ” He tells us, “Lincoln certainly said so, and cited the same passage from Madison’s notes that Wilentz used. But does that make it so? And does it gainsay Sanders’s inelegant but apparently necessary voicing of what ought to be obvious, what David Brion Davis, Wilentz’s scholarly mentor and my own, wrote back in 1966—that the nation was ‘in many ways’ founded on racial slavery?”

In beginning his rebuttal of Wilentz, Prof. Waldstreicher writes, “But 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.”

Discussing the three-fifths clause, Prof. Waldstreicher says, “No, it wasn’t counting five-fifths, but counting 60 percent of slaves added enormously to slave-state power in the formative years of the republic. By 1800, northern critics called this phenomenon ‘the slave power’ and called for its repeal. With the aid of the second article of the Constitution, which numbered presidential electors by adding the number of representatives in the House to the number of senators, the three-fifths clause enabled the elections of plantation masters Jefferson in 1800 and Polk in 1844. Just as importantly, the tax liability for three-fifths of the slaves turned out to mean nothing. Sure the federal government could pass a head tax, but it almost never did. It hardly could when the taxes had to emerge from the House, where the South was 60 percent overrepresented. So the South gained political power, without having to surrender much of anything in exchange.” He continues by writing, “all the powers delegated to the House—that is, the most democratic aspects of the Constitution—were disproportionately affected by what critics quickly came to call ‘slave representation.’ These included the commerce clause—a compromise measure that gave the federal government power to regulate commerce, but only at the price of giving disproportionate power to slave states. And as if that wasn’t enough, Congress was forbidden from passing export duties—at a time when most of the value of what the U.S. exported lay in slave-grown commodities. This was one of the few things (in addition to regulating the slave trade for 20 years) that Congress was forbidden to do. Slavery and democracy in the U.S. were joined at the 60-percent-replaced hip.”

Waldstreicher places the Militia Clause of the Constitution into the “proslavery” column. “Another clause in Article I allowed Congress to mobilize ‘the Militia’ to ‘suppress insurrections’—again, the House with its disproportionate votes would decide whether a slave rebellion counted as an insurrection. Wilentz repeats the old saw that with the rise of the northwest, the slave power’s real bastion was the Senate. Hence the battles over the admission of slave and free states that punctuated the path to Civil War. But this reads history backwards from the 1850s, not forward from 1787. The shaping policies of the early republic were proslavery because the federal government was controlled by southern expansionists like Jefferson and Jackson, who saw Africans as a captive nation, a fifth column just waiting to be liberated (again) by the British.”

As to the meaning of the Constitution’s not mentioning slavery, Waldstreicher writes, “The refusal to mention slavery as property or anything else in the Constitution means something. But what it meant was embarrassment—and damage control. Domestic and foreign critics had lambasted Americans for their hypocrisy in calling themselves a beacon to human freedom while only a few states moved on the slavery question. The planters didn’t need or even want an explicit statement that slaves were property; it would have stated the obvious while opening up the United States to international ridicule in an era when slavery was coming into question.” While the Constitution was ambiguous on the word “slavery,” Professor Waldstreicher tells us, it was “operationally proslavery. Perhaps more so than Madison wanted, as Wilentz maintains. But Madison’s putative intentions are all that matters to Wilentz. He’s outdone original-intent jurisprudence in reducing history to a morality play of good founders, bad critics. He loses sight of what actually happened when the ambiguously worded but slavery-suffused Constitution was finally released to an anxious public.”

He tells us Northern antifederalists “understood that that the federal government had been strengthened, but that slavery in particular had been shielded from an otherwise-powerful Congress. Ratification ran into trouble in the states where the antislavery criticisms of the Constitution were most articulate and widely publicized: Pennsylvania, Massachusetts, and New York. Some southern antifederalists like Patrick Henry, most concerned about local control, tried to argue that any stronger government would eventually threaten slavery, but the more persuasive voices in the South were those like Charles Pinckney, who testified upon returning to South Carolina that he couldn’t imagine a better bargain could have been made for the planters.”

Regarding James Madison, “Was Madison outraged? Hardly. He went down to the Virginia ratifying convention to assure delegates that Henry was dead wrong: The original intent was indeed to protect slave property. Much of what we know of the Constitutional Convention comes from his notes—which, recent scholarship suggests, he carefully edited for a posthumous audience [see story here]. He made sure, for example, that posterity would know that he objected to the slave trade being guaranteed for another 20 years—but this was a common Virginia position at the time, since Virginians were already net sellers of slavers rather than importers by 1787.” In Federalist 54, according to Waldstreicher, “Madison obliquely distanced himself from the three-fifths clause by saying that one had to admit that slaves were, irrefutably, both people and property. He actually argued that the three-fifths clause was a good example of how the Constitution would lead to good government—by protecting property. He looked forward to the honest census that would result from slaves and other people being both taxed and represented. He put the defense of the proslavery clauses in the voice of a Virginian and then called them ‘a little strained,’ but just.”

Ian Aebel, Visiting Scholar at the University of Iowa, has a response at the History News Network. In it he writes, “Claiming that Southern slaveholders wished to codify the protection of slavery within the Constitution, Wilentz claimed that “antislavery Northerners” fought back by ensuring that the word “slavery” was not included in the Constitution. As such, Wilentz noted, the Constitution helped end the institution of slavery in the United States.” He continues, “While the narrative of the United States as a nation embracing freedom has been popular since the early days of the Republic, it is important to read between the lines in political documents; the things that are not written are usually just as important as those that are. Why, in a document of more than 4,500 words, did the authors not mention the single most dominating trait of the young nation? According to Wilentz, we should trust James Madison, who noted during the Constitutional Convention that most delegates “thought it wrong to admit in the Constitution the idea that there could be property in men.” Yet this statement brings us more questions than answers; why did Madison and his colleagues think it wrong to bring up slavery when nearly all of them were slaveholders?”

Aebel discusses the claim that the Constitution couldn’t have passed or been ratified without the slavery protections built into it: “Although many of the leaders at the Constitutional Convention believed that the institution of slavery was a necessary evil and would eventually be phased out, the courageous move for the delegates would have been to codify its demise within the Constitution. Some historians have argued that such a move would have ensured that the document would not have been ratified by a sufficient amount of states, or a number of Southern states would have detached and formed their own country. These ideas do not stand up to scrutiny, however. Given the anti-slavery rhetoric of the Virginia delegates, certainly the Constitution would have gained ratification and those states that held out would have followed suit. Indeed, as Pauline Maier recently demonstrated (Ratification, 2010), the most vehement opposition to the Constitution was not in the South, but in places like Massachusetts and New York, where the fundamental disagreement was over a federal government that many felt was too powerful.” His conclusion, based on this, is “the Constitutional framers’ failure to adequately address slavery was an act of perpetuating the institution of slavery itself; indeed, the refusal of the delegates to confront slavery and include provisions for its end would be a costly error. With the passage and ratification of the 10th Amendment to the Constitution in 1791, slavery would be constitutionally regulated by the states: ‘The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ ”

Patrick Rael, of Bowdoin College, has an article at the “We’re History” website. He writes, “According to Sean Wilentz’s opinion piece in the September 16 New York Times, the Constitution of 1787 did not make slavery a national institution. The noted American historian cites the anxiety of some of the founding fathers over slavery to counter ‘one of the most destructive falsehoods in all of American history,’ the claim that our national government was established on ‘racist principles.’ Wilentz is wrong. The Constitution incorporated slavery into our national system of governance. If slavery was not legal in every state, it was nonetheless ‘national law,’ protected and upheld by the Constitution.” Rael says Wilentz misinterpreted what happened at the Constitutional Convention. “In his version of history, if most of the Framers did not explicitly defend slavery, they must have stood against it. And if the slaveholders did not get everything they wished, they must have lost. In other words, if the glass was not empty, it must have been full. But for the first eight decades of our country’s life, the devil’s bargain struck in 1787 warped almost every aspect of national politics and national life.” He tells us, “James Madison’s record of the constitutional convention reveals how delegates from slaveholding states held the Union for ransom, repeatedly demanding that unless they received constitutional guarantees for slavery, they ‘would never confederate’ and that ‘the business [of the convention] was at an end.’ Non-slaveholding delegates capitulated, declaring that while they might personally oppose servitude, they ‘thought it more in favor of humanity’ to concede to the slave states rather than exclude them from the Union. As a result, the new national government explicitly upheld the peculiar institution.”

Rael discusses three clauses he says are explicitly proslavery: the three-fifths clause, the slave trade clause, and the fugitive slave clause: “The ‘three-fifths clause’ of the Constitution disproportionately empowered the slave states by permitting them to count 60 percent of their slave populations for apportionment in the House of Representatives and the Electoral College. For the next seventy-three years, the slave states enjoyed an artificial boost of 10 to 12 percent in these bodies – hardly the ‘consolation prize’ Wilentz terms it. The margin of advantage they gained permitted the election of Thomas Jefferson to the presidency in 1800, and the passage of key pieces of pro-southern legislation such as the Indian Removal Act of 1830. Another section of the Constitution prohibited Congress from outlawing the trade in slaves to American shores for two decades. This constraint on national lawmakers heavily favored the slave states by protecting their right to import humans – a notable victory given the strength of sentiment in Congress against the trans-Atlantic traffic in human flesh. James Madison was correct in predicting that ‘twenty years will produce all the mischief that can be apprehended from the liberty to import slaves.’ The period from 1787 to 1808, when Congress did in fact end the trade, brought some 75,000 Africans to American shores, more than 20 percent of the entire volume of the trade to mainland British North America. Yet another gift to slaveholders appeared in a clause in the Constitution guaranteeing that enslaved people who fled from a slave state to a free one would be ‘delivered up’ to their claimants. More than any other, this provision required the federal government not simply to condone slavery but actively uphold it. Whereas in Great Britain merely stepping foot on free soil rendered an enslaved person free, this was not so in the United States. Here, the federal government acted decisively to protect slavery in the nation even where it had been outlawed. In 1793 Congress enacted a law to enforce the fugitive slave provision of the Constitution, guaranteeing slaveholders the right to claim their human property on free-state soil. When in later decades northern consciences resisted the measure, Congress passed the notorious Fugitive Slave Law of 1850, which historian Eric Foner has labeled ‘the most powerful exercise of federal authority within the United States in the whole era before the Civil War.’ Seven years later, the Supreme Court’s ruling in the Dred Scott case prohibited Congress from outlawing slavery in federal Territories. Antislavery politicians worried that more looming cases – such as that of the Lemmon slaves of Virginia, who sought their freedom upon landing on New York soil – might have nationalized slavery had not the Civil War intervened. If the right to enjoy human property could not be denied in the Territories, why should it be in the free states? In the wake of the Dred Scott decision, Abraham Lincoln worried that ‘what Dred Scott’s master might lawfully do with Dred Scott, in the free State of Illinois, every other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in any other free State.’ ”

Another response comes from the University of Alabama’s Joshua Rothman, also at the “We’re History” website. He writes, “Critics of Sean Wilentz’s essay in the September 16 New York Times have rightfully noted that contrary to Wilentz’s claims, the Constitution quite clearly entrenched racial slavery in the national government and made it a national institution. The Constitution contained enough ambiguity to allow antislavery forces to maintain by the middle of the nineteenth century that the federal government could legitimately put slavery on the path toward extinction. But to make the case that the Constitution was nationally antislavery in intent in 1787 is to read history backwards from 1865. Perhaps more significantly, such an argument makes American history in the years between the ratification of the Constitution and the outbreak of the Civil War difficult if not utterly impossible to understand. For if the Constitution was indeed, in Wilentz’s words, ‘based on a repudiation of the idea of a nation dedicated to the proposition of property in humans,’ slavery never should have become an even more powerful force in American life after ratification than it had ever been before. If the Constitution was truly antislavery at a national level, the enslaved population that stood at around 700,000 in 1790 never should have increased nearly sixfold to roughly 4,000,000 people by 1860, at which point the United States had the largest enslaved population on the planet. The landscape of slavery and the number of people imprisoned on it in the United States expanded not because white southerners somehow conspired against the intentions of the framers, but because structurally and politically the Constitution encouraged it.”

Rothman seems to identify the Missouri Compromise as a proslavery measure: “To the extent that Congress used the Constitution to circumscribe slavery at all, it did so in ways that actually entrenched the institution and nurtured its growth. The Missouri Compromise of 1820, for example, drew a line across the Louisiana Purchase above which federal law banned slavery’s expansion. But it simultaneously recognized and affirmed federal support for slavery’s expansion below the line. Then Congress demonstrated its support for that expansion through its program of Indian removal that used federal money and military might to clear Native Americans off millions of acres of cotton land for white slaveholders to exploit.”

He also appears to frame the abolition of the Atlantic Slave Trade as a proslavery action: “Similarly, while Congress did enact legislation to abolish the transatlantic slave trade as soon as it was constitutionally permissible in 1808, it simultaneously gave national license for Americans to engage in the domestic slave trade that had been growing in the United States to feed white demands for labor in the cotton lands. The very same legislation that barred the importation of enslaved Africans for sale placed no restrictions on the sale of enslaved people across state lines. On the contrary, the law required only that ships transporting enslaved people from the failing tobacco fields of Maryland and Virginia to the thriving cotton and sugar regions of the Southwest had to document on their manifests that their cargo had lived in the United States by 1808. Congress thus had the explicit constitutional power to regulate interstate commerce, and at the very moment the minds of its members turned to the horrors of the transatlantic slave trade, they used that power to legitimize the domestic slave trade as an acceptable form of commercial exchange in the United States.”

Matt Pinsker, Professor of History at Dickinson College, is using this argument to be, well, a professor, i.e., teacher. In a post for the blog linked to his US Constitution Seminar, Professor Pinsker took the combatants to task, writing, “Wilentz loves these kinds of fights, but I find them somewhat depressing.  His point, stripped of the polemics, is a powerful intellectual one.  The Framers of the Constitution steadfastly refused to include the principle of slavery –the concept of ‘property in man’– into the nation’s founding charter.  They didn’t just leave the word out; but fought hard over limiting the principle to a very local domain.  Freedom was always national. That matters.  However, even though it matters, it doesn’t negate the realities of color prejudice, the horrors of slavery, or even the unanticipated and dreadful consequences of specific 1787 concessions to the nation’s slaveholders.  Yet that nuance too easily gets lost in this kind of crossfire. Bernie Sanders wasn’t commenting on the Constitution directly at Liberty University, and much of the venom directed at Wilentz by other scholars conflates the realities of early American ‘racism’ with more complicated questions about American constitutional jurisprudence.   That’s what’s so depressing.  They’re talking past each other. Of course, it’s nearly impossible to sort out such issues during abbreviated Q&A sessions, through op-ed pages, or by tweets, but there should be some sense of acknowledgement by participants that this issue is a seriously contested one.  There are no simple facts and no easy conclusions.  Scholars, activists and even scholar/activists need to find ways to defend their views with vigor (and plenty of verve) without also belittling their opposition.”

In a second post, Professor Pinsker takes Professor Waldstreicher’s article into account. He tells us up front, “My position, as someone teaching this topic this semester, is that Wilentz is more right than wrong, and those attacking him now are confusing the politics of the 2016 Democratic primary campaign with what’s really at stake here –a long view of how the antislavery movement in America ultimately defeated the powerful forces of slaveholding.” In referring to Waldstreicher’s article, he says it has “a completely reasonable argument, framed in a powerful way. But it’s wrong. In my opinion. And obviously in Wilentz’s opinion. And, as Waldstreicher also concedes, in Lincoln’s opinion. But this is good debate to have, and one that will almost surely keep escalating because of growing scholarly commitment to reconsider the tactics of the antislavery movement. That’s really what was motivating Wilentz.”

Maybe I’m wrong, but I think Wilentz’s critics above have fundamentally misread his entire argument. I don’t see that he’s saying the Constitution was antislavery. He’s saying it wasn’t proslavery, which is different from saying it was antislavery. The critics appear to me to be engaged in the fallacy of the false choice. In effect, they’re saying, “Okay, Wilentz, either you think the Constitution was proslavery or antislavery, so which is it?” and Professor Wilentz is saying, “Well, I don’t think it was either.” I see Wilentz as saying the Constitution tolerated the existence of slavery in those states whose laws allowed it to exist.

Another critic, Alan Singer of Hofstra University, has an article in the Huffington Post in which he accuses Wilentz of acting out of a political motive, his association with Presidential Candidate Hillary Clinton [indeed, the Huffington Post had an article this past May which called Wilentz “Hillary’s Historian.”]: “But what Wilentz was really about was invoking the names of Lincoln and Douglass to attack the credibility of Vermont Senator and Democratic Party Presidential primary candidate Bernie Sanders. Wilentz charged, ‘the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past.’ He also accused Sanders of perpetuating a myth that ‘threatens to poison the current presidential campaign’ when he stated the United States ‘in many ways was created, and I’m sorry to have to say this, from way back, on racist principles, that’s a fact.’ Wilentz may be a historian, but he was also writing as a political partisan. He has close ties to Bill and Hillary Clinton and was active in Hillary’s 2008 campaign for President, facts that should have been mentioned in the article, but were not. Wilentz called the beliefs about race and American history shared by Sanders ‘one of the most destructive falsehoods in all of American history.’ ‘Far from a proslavery compact of ‘racist’ principles,’ Wilentz wants us to accept his view that ‘the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans.’ ”

Singer also engages in what I view is the same misreading of Wilentz’s argument: “Wilentz claims to agree with Frederick Douglass’ view that the Constitution was not a pro-slavery document. But Douglass did not believe the Constitution was an anti-slavery document either. His position was much more nuanced.” I humbly submit that Professor Wilentz’s critics haven’t appreciated the nuance in his argument.

Along the lines of “there’s nothing new under the sun,” this whole kerfuffle is reminiscent of the middle of the 19th Century. Radical abolitionist William Lloyd Garrison famously called the Constitution “a covenant with death” and “an agreement with Hell.” On December 29, 1832 Garrison wrote in his abolitionist newspaper, The Liberator, “There is much declamation about the sacredness of the compact, which was formed between the free and slave states, on the adoption of the Constitution. A sacred compact, forsooth! We pronounce it the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villany [sic] ever exhibited on earth. Yes–we recognize the compact, but with feelings of shame and indignation; and it will be held in everlasting infamy by the friends of justice and humanity throughout the world. It was a compact formed at the sacrifice of the bodies and souls of millions of our race, for the sake of achieving a political object–an unblushing and monstrous coalition to do evil that good might come. Such a compact was, in the nature of things and according to the law of God, null and void from the beginning. No body of men ever had the right to guarantee the holding of human beings in bondage. Who or what were the framers of our government, that they should dare confirm and authorise [sic] such high-handed villany [sic]–such a flagrant robbery of the inalienable rights of man–such a glaring violation of all the precepts and injunctions of the gospel–such a savage war upon a sixth part of our whole population?—They were men, like ourselves—as fallible, as sinful, as weak, as ourselves. By the infamous bargain which they made between themselves, they virtually dethroned the Most High God, and trampled beneath their feet their own solemn and heaven-attested Declaration, that all men are created equal, and endowed by their Creator with certain inalienable rights—among which are life, liberty, and the pursuit of happiness. They had no lawful power to bind themselves, or their posterity, for one hour—for one moment—by such an unholy alliance. It was not valid then—it is not valid now. Still they persisted in maintaining it—and still do their successors, the people of Massachussetts [sic], of New-England, and of the twelve free States, persist in maintaining it. A sacred compact! A sacred compact! What, then, is wicked and ignominious?” Garrison famously burned a copy of the Constitution before antislavery meetings. It seems to me Wilentz’s critics proudly carry Garrison’s torch in this debate–and that’s not meant as a criticism of them.

Diametrically opposed to the Garrisonians was Lysander Spooner, an abolitionist constitutional theorist, who wrote a pamphlet in which he argued the Constitution was antislavery and slavery was even unconstitutional. In “The Unconstitutionality of Slavery,” Spooner wrote, “It is perfectly clear, in the first place, that the constitution of the United States did not, of itself, create or establish slavery as a new institution; or even give any authority to the state governments to establish it as a new institution.—The greatest sticklers for slavery do not claim this. The most they claim is, that it recognized it as an institution already legally existing, under the authority of the State governments; and that it virtually guarantied to the States the right of continuing it in existence during their pleasure. And this is really the only question arising out of the constitution of the United States on this subject, viz., whether it did thus recognize and sanction slavery as an existing institution? This question is, in reality, answered in the negative by what has already been shown; for if slavery had no constitutional existence, under the State constitutions, prior to the adoption of the constitution of the United States, then it is absolutely certain that the constitution of the United States did not recognize it as a constitutional institution; for it cannot, of course, be pretended that the United States constitution recognized, as constitutional, any State institution that did not constitutionally exist. Even if the constitution of the United States had intended to recognize slavery, as a constitutional State institution, such intended recognition would have failed of effect, and been legally void, because slavery then had no constitutional existence to be recognized.” As to the so-called “Fugitive Slave Clause,” Spooner says, “There are several reasons why this clause renders no sanction to slavery.

“1. It must be construed, if possible, as sanctioning nothing contrary to natural right. If there be any ‘service or labor’ whatever, to which any ‘persons’ whatever may be ‘held,’ consistently with natural right, and which any person may, consistently with natural right, ‘claim’ as his ‘due’ of another, such ‘service or labor,’ and only such, is recognized and sanctioned by this provision. It needs no argument to determine whether the ‘service or labor,’ that is exacted of a slave, is such as can be ‘claimed,’ consistently with natural right, as being ‘due’ from him to his master. And if it cannot be, some other ‘service or labor’ must, if possible, be found for this clause to apply to. The proper definition of the word ‘service,’ in this case, obviously is, the labor of a servant. And we find, that at and before the adoption of the constitution, the persons recognized by the State laws as ‘servants,’ constituted a numerous class. The statute books of the States abounded with statutes in regard to ‘servants.’ Many seem to have been indented as servants by the public authorities, on account of their being supposed incompetent, by reason of youth and poverty, to provide for themselves. Many were doubtless indented as apprentices by their parents and guardians, as now. The English laws recognized a class of servants—and many persons were brought here from England, in that character, and retained that character afterward. Many indented or contracted themselves as servants for the payment of their passage money to this country. In these various ways, the class of persons, recognized by the statute books of the States as ‘servants,’ was very numerous; and formed a prominent subject of legislation. Indeed, no other evidence of their number is necessary than the single fact, that ‘persons bound to service for a term of years,’ were specially noticed by the constitution of the United States, (Art. 1, Sec. 2,) which requires that they be counted as units in making up the basis of representation. There is, therefore, not the slightest apology for pretending that there was not a sufficient class for the words ‘service or labor’ to refer to, without supposing the existence of slaves.

“2.Held to service or labor,’ is no legal description of slavery. Slavery is property in man. It is not necessarily attended with either ‘service or labor.’ A very considerable portion of the slaves are either too young, too old, too sick, or too refractory to render ‘service or labor.’ As a matter of fact, slaves, who are able to labor, may, in general, be compelled by their masters to do so. Yet labor is not an essential or necessary condition of slavery. The essence of slavery consists in a person’s being owned as property—without any reference to the circumstances of his being compelled to labor, or of his being permitted to live in idleness, or of his being too young, or too old, or too sick to labor. If ‘service or labor’ were either a test, or a necessary attendant of slavery, that test would of itself abolish slavery; because all slaves, before they can render ‘service or labor,’ must have passed through the period of infancy, when they could render neither service nor labor, and when, therefore, according to this test, they were free. And if they were free in infancy, they could not be subsequently enslaved.

“3. ‘Held to service or labor in one State, under the laws thereof.’ The ‘laws’ take no note of the fact whether a slave ‘labors,’ or not. They recognize no obligation, on his part, to labor. They will enforce no ‘claim’ of a master, upon his slave, for ‘service or labor.’ If the slave refuse to labor, the law will not interfere to compel him. The law simply recognizes the master’s right of property in the slave—just as it recognizes his right of property in a horse. Having done that, it leaves the master to compel the slave, if he please, and if he can—as he would compel a horse—to labor. If the master do not please, or be not able, to compel the slave to labor, the law takes no more cognizance of the case than it does of the conduct of a refractory horse. In short, it recognizes no obligation, on the part of the slave, to labor, if he can avoid doing so. It recognizes no ‘claim,’ on the part of the master, upon his slave, for ‘services or labor,’ as ‘due’ from the latter to the former.

“4. Neither ‘service’ nor ‘labor’ is necessarily slavery; and not being necessarily slavery, the words cannot, in this case, be strained beyond their necessary meaning, to make them sanction a wrong. The law will not allow words to be strained a hair’s breadth beyond their necessary meaning, to make them authorize a wrong. The stretching, if there be any, must always be towards the right. The words ‘service or labor’ do not necessarily, nor in their common acceptation, so much as suggest the idea of slavery—that is, they do not suggest the idea of the laborer or servant being the property of the person for whom he labors. An indented apprentice serves and labors for another. He is ‘held’ to do so, under a contract, and for a consideration, that are recognized, by the laws, as legitimate, and consistent with natural right. Yet he is not owned as property. A condemned criminal is ‘held to labor’—yet he is not owned as property. The law allows no such straining of the meaning of words towards the wrong, as that which would convert the words ‘service or labor’ (of men) into property in man—and thus make a man, who serves or labors for another, the property of that other.

“5. ‘No person held to service or labor, in one State, under the laws thereof.’ The ‘laws,’ here mentioned, and impliedly sanctioned, are, of course, only constitutional laws—laws, that are consistent, both with the constitution of the State, and the constitution of the United States. None others are ‘laws,’ correctly speaking, however they may attempt to ‘hold persons to service or labor,’ or however they may have the forms of laws on the statute books. This word ‘laws,’ therefore, being a material word, leaves the whole question just where it found it—for it certainly does not, of itself—nor indeed does any other part of the clause—say that an act of a legislature, declaring one man to be the property of another, is a ‘law’ within the meaning of the constitution. As far as the word ‘laws’ says anything on the subject, it says that such acts are not laws—for such acts are clearly inconsistent with natural law—and it yet remains to be shown that they are consistent with any constitution whatever, state or national. The burden of proof, then, still rests upon the advocates of slavery, to show that an act of a State legislature, declaring one man to be the property of another, is a ‘law,’ within the meaning of this clause. To assert simply that it is, without proving it to be so, is a mere begging of the question—for that is the very point in dispute. The question, therefore, of the constitutionality of the slave acts must first be determined, before it can be decided that they are ‘laws’ within the meaning of the constitution. That is, they must be shown to be consistent with the constitution, before they can be said to be sanctioned as ‘laws’ by the constitution. Can any proposition be plainer than this? And yet the reverse must be assumed, in this case, by the advocates of slavery.

“The simple fact, that an act purports to ‘hold persons to service or labor,’ clearly cannot, of itself, make the act constitutional. If it could, any act, purporting to hold ‘persons to service or labor,’ would necessarily be constitutional, without any regard to the ‘persons’ so held, or the conditions on which they were held. It would be constitutional, solely because it purported to hold persons to service or labor. If this were the true doctrine, any of us, without respect of persons, might be held to service or labor, at the pleasure of the legislature. And then, if ‘service or labor’ mean slavery, it would follow that any of us, without discrimination, might be made slaves. And thus the result would be, that the acts of a legislature would be constitutional, solely because they made slaves of the people. Certainly this would be a new test of the constitutionality of laws. All the arguments in favor of slavery, that have heretofore been drawn from this clause of the constitution, have been founded on the assumption, that if an act of a legislature did but purport to ‘hold persons to service or labor’—no matter how, on what conditions, or for what cause—that fact alone was sufficient to make the act constitutional. The entire sum of the argument, in favor of slavery, is but this, viz., the constitution recognizes the constitutionality of ‘laws’ that ‘hold persons to service or labor,’—slave acts ‘hold persons to service or labor,’—therefore slave acts must be constitutional. This profound syllogism is the great pillar of slavery in this country. It has, (if we are to judge by results,) withstood the scrutiny of all the legal acumen of this nation for fifty years and more. If it should continue to withstand it for as many years as it has already done, it will then be time to propound the following, to wit: The State constitutions recognize the right of men to acquire property; theft, robbery, and murder are among the modes in which property may be acquired; therefore theft, robbery, and murder are recognized by these constitutions as lawful.”

There are very few people today who take Spooner’s side in the discussion.

Taking a middle road were Abraham Lincoln and the Republican Party. On August 26, 1852 Senator Charles Sumner of Massachusetts delivered his first antislavery speech in the US Senate. He said, “Painfully convinced of the unutterable wrongs and woes of slavery; profoundly believing that, according to the true spirit of the Constitution and the sentiments of the fathers, it can find no place under our National Government – that is in every respect sectional, and in no respect national that is is always everywhere the creature and dependent of the States, and never anywhere the creature or dependent of the Nation, and that the Nation can never, by legislative or other act, impart to it any support, under the Constitution of the United States; with these convictions, I could not allow this session to reach its close, without making or seizing an opportunity to declare myself openly against the usurpation, injustice, cruelty, of the late enactment by Congress for the recovery of fugitive slaves.”

In talking about the relation of the National government to slavery, he said, “The relations of the Government of the United States – I speak of the National Government – to Slavery, though plain and obvious, are constantly misunderstood. A popular belief at this moment makes Slavery a national institution, and, of course, renders its support a national duty. The extravagance of this error can hardly be surpassed. An institution, which our fathers most carefully omitted to name in the Constitution, which, according to the debates in the Convention, they refused to cover with any ‘sanction,’ and which, at the original organization of the Government, was merely sectional, existing nowhere on the national territory, is now above all other things blazoned as national. Its supporters plume themselves as national. The old political parties, while upholding it, claim to be national. A National Whig is simply a Slavery Whig, and a National Democrat is simply a Slavery Democrat, in contradistinction to all who regard Slavery as a sectional institution, within the exclusive control of the States, and with which the nation has nothing to do. As Slavery assumes to be national, so, by an equally strange perversion, Freedom is degraded to be sectional, and all who uphold it, under the national Constitution, share this name epithet. The honest efforts to secure its blessings, everywhere within the jurisdiction of Congress, are scouted as sectional; and this cause, which the founders of our National Government had so much as heart, is called sectionalism. These terms, now belonging to the commonplaces of political speech, are adopted and misapplied by the most persons without reflection. But herein is the power of Slavery. According to a curious tradition of the French language, Louis XIV, the grand monarch, by an accidental error speech, among supple courtiers, changed the gender of a noun; but Slavery has done more than this. It has changed word for word. It has taught many to say national, instead of sectional, and sectional instead of national. Slavery national! Sir, this is all a mistake and absurdity, fit to take a place in some new collection of Vulgar Errors, by some other Sir Thomas Browne, with the ancient but exploded stories, that the toad has stone in its head, and that ostriches digest iron. According to the true spirit of the Constitution, and the sentiments of the Fathers, Slavery and not Freedom is sectional, which Freedom and not Slavery is national. On this unanswerable proposition I take my stand, and here commences my argument.”

Senator Sumner then expands his point: “The subject presents itself under two principle heads; FIRST, the true relations of the National Government to Slavery, wherein it will appear that there is no national fountain out of which Slavery can be derived, and no national power, under the Constitution, by which it can be supported. Enlightened by this general survey, we shall be prepared to consider, SECONDLY, the true nature of the provision for the rendition of fugitives from labor, and herein especially the unconstitutional and offensive legislation of Congress in pursuance thereof.

“I. And now for the TRUE RELATIONS OF THE NATIONAL GOVERNMENT TO SLAVERY. These will be readily apparent, if we do not neglect well-established principles. If Slavery be national, if there by any power in the National Government to uphold this institution – as in the recent Slave Act – it must be by virtue of the Constitution. nor can it be by mere inference, implication, or conjecture. According to the uniform admission of courts and jurists in Europe, again and again promulgated in our country, Slavery can be derived only from clear and special recognition. ‘The state of Slavery,’ said Lord Mansfield, pronouncing judgment in the great case of Somersett, ‘is of such a nature, that it is incapable of being introduced on any reasons moral or political, but only by positive law. It is so odious, that nothing can be suffered to support it but POSITIVE LAW.’ And a slaveholding tribunal, the Supreme Court of Mississippi, adopting the same principle, has said: ‘Slavery is condemned by reason, and the laws of nature. It exists and can exist only through municipal regulations.’ And another slaveholding tribunal, the Supreme Court of Kentucky, has said: ‘We view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten and uncommon law.’ Of course every power to uphold Slavery must have an origin as distinct as that of Slavery itself. Every presumption must be as strong against such a power as against Slavery. A power so peculiar and offensive, so hostile to reason, so repugnant to the law of nature and the inborn Rights of Man; which despoils its victims of the fruits of their labor; which substitutes concubinage for marriage; which abrogates the relation of parent and child; which, by a denial of education, abases the intellect, prevents a true knowledge of God, and murders the very soul; which, amidst a plausible physical comfort, degrades man, created in the divine image, to the level of a beast; – such a power, so eminent, so transcendent, so tyrannical, so unjust, can find no place in any system of Government, unless by virtue ofpositive sanction. It can spring from no doubtful phrases. it must be declared by unambiguous words, incapable of a double sense. Slavery, I now repeat, is not mentioned in the Constitution. The name Slave does not pollute this Charter of our Liberties. No ‘positive’ language gives to Congress any power to make a Slave or to hunt a Slave. To find even any seeming sanction for either, we must travel, with doubtful footsteps, beyond its express letters, into the region of interpretation. But here are rules which cannot be disobeyed. With electric might for Freedom, they send a pervasive influence through every provision, clause and the word of the Constitution. Each and all make Slavery impossible as a national institution. They efface from the Constitution every fountain out of which it can be derived.

Senator Sumner next goes into the various aspects of the Constitution in detail: “First and foremost, is the Preamble. This discloses the prevailing objects and principles of the Constitution. This is the vestibule through which all must pass, who would enter the sacred temple. here are the inscriptions by which they are earliest impressed. Here they first catch the genius of the place. here the proclamation of Liberty is soonest heard. ‘We the People of the United States,’ says the Preamble, ‘in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.’ Thus, according to undeniable words, the Constitution was ordained, not to establish, secure, or sanction Slavery – not to promote the special interests of slaveholders – not to make Slavery national, in any way, form, or manner; but to ‘establish justice,’ ‘promote the general welfare,’ and ‘secure the blessings of Liberty.’ Here surely Liberty is national.

“Secondly. Next in importance to the Preamble are the explicit contemporaneous declarations in the Convention which framed the Constitution, and elsewhere, expressed in different forms of language, but all tending to the same conclusion. By the Preamble, the Constitution speaks for Freedom. By these declarations, the Fathers speak as the Constitution speaks. Early in the Convention, Governor Morris, of Pennsylvania, broke forth in the language of an Abolitionist: ‘He never would concur in upholding domestic slavery. It was a nefarious institution. it was the curse of Heaven on the State where it prevailed.’ Oliver Ellsworth, of Connecticut, said: ‘The morality or wisdom of Slavery are considerations belonging to the State themselves.’ According to him, Slavery was sectional. At a later day, a discussion ensued on the clause touching the African slave trade, which reveals the definitive purposes of the Convention. From the report of Mr. Madison we learn what was said. Elbridge Gerry, of Massachusetts, ‘though we had nothing to do with the conduct of the States as to Slavery, but we ought to be careful not to give any sanction to it.’ According to these words, he regarded Slavery as sectional, and would not make it national. Roger Sherman, of Connecticut, ‘was opposed to any tax on slaves imported, as making the matter worse, because it implied they were property.’ he would not have Slavery national. After debate the subject was committed to a committee of eleven, who subsequently reported a substitute, authorizing ‘a tax on such migration or importation, at a rate not exceeding the average of duties laid on imports.’ This language, classifying persons with merchandise, seemed to imply a recognition that they were property. Mr. Sherman at once declared himself ‘against this part, as acknowledging men to be property, by taxing them as such under the character of slaves.’ Mr. Gorham ‘thought Mr. Sherman should consider the duty not as implying that slaves are property, but as a discouragement to the importation of them.’ Mr. Madison, in mild juridical phrase, ‘thought it wrong to admit in the Constitution the idea that there could be property in man.’ After discussion it was finally agreed to make the clause read: ‘But a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.’ [Art. 1 Sec. 9] The difficulty seemed then to be removed, and the whole clause was adopted. This record demonstrates that the word ‘person’ was employed in order to show that slaves, everywhere under the Constitution, were always to be regarded as persons, and not as property, and thus to exclude from the Constitution all idea that there can be property in man. Remember well, that Mr. Sherman was opposed to the clause in its original form, ‘as acknowledging men to be property;’ that Mr. Madison was also opposed to it, because he ‘thought it wrong to admit in the Constitution the idea that there could be property in man;’ and that, after these objections, the clause was so amended as to exclude the idea. But Slavery cannot be national, unless this idea is distinctly and unequivocally admitted into the Constitution. Nor is this all. In the Massachusetts Convention, to which the Constitution, when completed, was submitted for ratification, a veteran of the Revolution, General Heath, openly declared that, according to his view, Slavery was sectional, and not national. His language was pointed. ‘I apprehend,’ he said, ‘that it is not in our power to do anything for or against those who are in Slavery in the Southern States. No gentleman within these walls detests every idea of Slavery more than I do; it is generally detested by people of this Commonwealth; and I ardently hope the time will soon come, when our brethren in the Southern States will view it as we do, and put a stop to it; but to this we have no right to compel them. Two questions naturally arise: If we ratify the Constitution, shall we do anything by our act to hold the blacks in slavery – or shall we become partakers in other men’s sins? I think neither of them.’ Afterwards, in the first Congress under the Constitution, on a motion which was much debated, to introduce into the Impost Bill a duty on the importation of Slaves, the same Roger Sherman, who in the National Convention had opposed the idea of property in man, authoritatively exposed the true relations of the Constitution to Slavery. His language was, that ‘The Constitution does not consider these persons as property; it speaks of them as persons.’ Thus distinctly and constantly, from the very lips of the framers of the Constitution, we learn the falsehood of the recent assumptions in favor of Slavery and in derogation of Freedom.

“Thirdly. According to a familiar rule of interpretation, all laws concerning the same matter, in pari materia, are to be construed together. By the same reason, the grand political acts of the Nation are to be construed together, giving and receiving light from each other. Earlier than the Constitution was the Declaration of Independence, embodying, in immortal words, those primal truths to which our country pledged itself with its baptismal vows as a Nation. ‘We hold these truths to be self-evident,’ says the Nation, ‘that all men are created equal, that they are endowed by their Creator with certain unalienable rights; that among them are life,liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.’ But this does not stand alone. There is another national act of similar import. on the successful close of the Revolution, the Continental Congress, in an address to the people, repeated the same lofty truth. ‘Let it be remembered,’ said the Nation again, ‘that it has ever been the pride and boast of America, that the rights for which she has contended were the rights of human nature. By the blessing of the Author of these rights, they have prevailed over all opposition, and form the basis of thirteen independent States.’ Such were the acts of the Nation in its united capacity. Whatever may be the privileges of States in their individual capacities, within their several local jurisdictions, no power can be attributed to the Nation, in the absence of positive, unequivocal grant, inconsistent with these two national declarations. Here, sir, is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation. Thus again is Freedom national.

“Fourthly. Beyond these is a principle of the common law, clear, and indisputable, a supreme rule of interpretation from which in this case there can be no appeal. In any question under the Constitution every word is to be construed in favor of liberty. This rule, which commends itself to the natural reason, is sustained by time-honored maxims of our early jurisprudence. Blackstone aptly expresses it, when he says that ‘the law is always ready to catch at anything in favor of liberty.’ The rule is repeated in various forms. Favores ampliandi sunt; odia restringenda. Favors are to be amplified ; hateful things to be restrained. Lex Anglice est lex misericordia. The law of England is a law of mercy. Anglice jura in oinni casu libertati dant favorem. The laws of England in every case show favor to liberty. And this sentiment breaks forth in natural, though intense, force, in the maxim: Impius el crudelis judicandus est qui libertati non favet. He is to be adjudged impious and cruel who does not favor liberty. Reading the Constitution in the admonition of these rules, again I say Freedom is national.

“Fifthly From a learned judge of the Supreme Court of the United States, in an opinion of the Court, we derive the same lesson. In considering the question, whether a State can prohibit the importation of slaves as merchandise, and whether Congress, in the exercise of its power to regulate commerce among the States, can interfere with the slave-trade between the States, a principle has been enunciated, which, while protecting the trade from any intervention of Congress declares openly that the Constitution acts upon no man as property. Mr. Justice McLean says : ‘If slaves are considered in some of the States as merchandise, that cannot divest them of the leading and controlling quality of persons by which they are designated in the Constitution. The character of property is given them by the local law. This law is respected, and all rights under it are protected by the Federal authorities ; but the Constitution acts upon slaves as persons, and not as property. ‘The power over Slavery belongs to the States respectively. It is local in its character, and in its effects.’ {Groves v. Slaughter, 15 Peters, R. 507.) Here again Slavery is sectional, while Freedom is national.”

Senator Sumner summarizes his argument: “Considering that Slavery is of such an offensive character that it can find sanction only in ‘positive law,’ and that it has no such ‘positive’ sanction in the Constitution; that the Constitution, according to its Preamble, was ordained ‘to establish justice’ and ‘secure the blessings of liberty;’ that, in the Convention which framed it, and also elsewhere at the time, it was declared not to sanction Slavery; that, according to the Declaration of Independence and the Address of the Continental Congress, the Nation was dedicated to ‘liberty’ and the ‘rights of human nature;’ that, according to the principles of the common law, the Constitution must be interpreted openly, actively, and perpetually, for Freedom; that, according to the decision of the Supreme Court, it acts upon slaves, not as property, but as persons; that, at the first organization of the National Government under Washington, Slavery had not national favor, existed nowhere on the national territory beneath the national flag, but was openly condemned by the Nation, the Church, the Colleges, and Literature of the time; and, finally, that according to an Amendment of the Constitution, the National Government can only exercise powers delegated to it, among which there is none to support Slavery; considering these things, sir, it is impossible to avoid the single conclusion that Slavery is in no respect a national institution, and that the Constitution nowhere upholds property in man. But there is one other special provision of the Constitution, which I have reserved to this stage, not so much from its superior importance, but because it may fitly stand by itself. This alone, if practically applied, would carry Freedom to all within its influence. It is an amendment proposed by the first Congress, as follows: ‘No person shall be deprived of life, liberty, or property, without due process of law.’ Under this aegis the liberty of every person within the national jurisdiction is unequivocally placed. I say every person. Of this there can be no question. The word ‘person’ in the Constitution embraces every human being within its sphere, whether Caucasian, Indian, or African, from the President to the slave. Show me a person, no matter what his condition, or race, or color, within the national jurisdiction, and I confidently claim for him this protection. The natural meaning of the clause is clear, but a single fact of its history places it in the broad light of noon. As originally recommended by North Carolina and Virginia, it was restrained to the freeman. Its language was, ‘No freeman ought to be deprived of his life, liberty, or property, but by the law of the land.’ In rejecting this limitation, the authors of the amendment revealed their purpose, that no person, under the National Government, of whatever character, shall be deprived of liberty without due process of law; that is, without due presentment, indictment, or other judicial proceedings. Here by this Amendment is an express guaranty of a Personal Liberty, and an express prohibition against its invasion anywhere, at least within the national jurisdiction. Sir, apply these principles, and Slavery will again be as when Washington took his first oath as President. The Union Flag of the Republic will become once more the flag of Freedom, and at all points within the national jurisdiction will refuse to cover a slave. Beneath its beneficent folds, wherever it is carried, on land or sea, Slavery will disappear, like darkness under the arrows of the ascending sun – like the Spirit of Evil before the Angel of the Lord. In all national territories Slavery will be impossible. On the high seas, under the national flag, Slavery will be impossible. In the District of Columbia Slavery will instantly cease. Inspired by these principles, Congress can give no sanction to Slavery by the admission of new Slave States. Nowhere under the Constitution, can the Nation, by legislation or otherwise, support Slavery, hunt slaves, or hold property in man.”

Sumner says clearly, “But I have already amply shown to-day that Slavery is in no respect national – that it is not within the sphere of national activity – that i has no ‘positive’ support in the Constitution, and that any interpretation thereof consistent with this principle would be abhorrent to the sentiments of its founders. Slavery is a local institution, peculiar to the States and under the guardianship of State Rights. it is impossible, without violence, at once to the spirit and to the letter of the Constitution, to attribute to Congress any power to legislate, either for its abolition in the States or its support anywhere. Non-Intervention is the rule prescribed to the Nation. Regarding the question only in its more general aspects, and putting aside, for the moment, the perfect evidence from the records of the Convention, it is palpable that there is no national fountain out of which the existing Slave Act can be derived.”

Senator Sumner’s powerful speech lays out the Republican Constitutional theory of slavery’s relation to the national government. The Constitution was not proslavery, but instead only tolerated the existence of slavery in states that established the institution by positive law through nonintervention in what the state had done. This ideology would become the basis of Republican antislavery strategy to establish a “cordon of freedom around the states where slavery already existed. Confined within those limits, slavery would eventually shrivel and die.” [James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861-1865, p. 33]

On February 27, 1860 Abraham Lincoln delivered one of his most famous speeches, the Cooper Union Address, in which he said, “An inspection of the Constitution will show that the right of property in a slave is not ‘distinctly and expressly affirmed’ in it. Bear in mind, the Judges do not pledge their judicial opinion that such right is impliedly affirmed in the Constitution; but they pledge their veracity that it is ‘distinctly and expressly’ affirmed there – ‘distinctly,’ that is, not mingled with anything else – ‘expressly,’ that is, in words meaning just that, without the aid of any inference, and susceptible of no other meaning. If they had only pledged their judicial opinion that such right is affirmed in the instrument by implication, it would be open to others to show that neither the word ‘slave’ nor ‘slavery’ is to be found in the Constitution, nor the word ‘property’ even, in any connection with language alluding to the things slave, or slavery; and that wherever in that instrument the slave is alluded to, he is called a ‘person;’ – and wherever his master’s legal right in relation to him is alluded to, it is spoken of as ‘service or labor which may be due,’ – as a debt payable in service or labor. Also, it would be open to show, by contemporaneous history, that this mode of alluding to slaves and slavery, instead of speaking of them, was employed on purpose to exclude from the Constitution the idea that there could be property in man. To show all this, is easy and certain. When this obvious mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it? And then it is to be remembered that ‘our fathers, who framed the Government under which we live’ – the men who made the Constitution – decided this same Constitutional question in our favor, long ago – decided it without division among themselves, when making the decision; without division among themselves about the meaning of it after it was made, and, so far as any evidence is left, without basing it upon any mistaken statement of facts.” If we look at Lincoln’s speeches we can see repeats of these themes. He did not think the Constitution was a proslavery document.

Professor Wilentz has responded to his critics in an email to Prof. Pinsker, which you can read at Prof. Pinsker’s class blog site here: “Of course the Constitution included protections for slavery. My Op-Ed says so. They were not as powerful as historians think they were, but they were there and made a difference. Of course there was a federal consensus built into the Constitution. My Op-Ed says so. It also says that the Constitution would have been impossible without it. Do these historians truly think that it could have been otherwise? Do they think Northern delegates would have, or should have, agreed to a Constitution  which would have allowed the national government to interfere with the property relations established at law by their own states — and thereby, among other things, endangered Northern emancipation?

“Those I have read actually concede my point on the Southern defeat over property in man, but they refuse to see the importance of that concession for any understanding of the Constitution — let alone for the politics of the 1840s and 1850s. Apparently, they cannot even question the underlying belief, which has gained enormous force inside the academy, that the Constitution was founded on slavery, that the Northerners lost (or caved in on) every important argument over slavery, &c.  Apparently, they think of themselves of Garrisonians even as they take Calhoun’s position, which was in many ways essentially the same as Garrison’s.”

What are we to make of this whole thing? It appears to me that Professor Pinsker is right–Professor Wilentz is more right than he is wrong. His critics appear to have misread or misinterpreted his argument, or they may have reacted out of an ideological conviction. I think some of these critics overreached a great deal. As I was reading their arguments the question popped into my head, “Then why was it a state could legally abolish slavery within its borders?” The critics appear to stand with Garrison and Wendell Phillips, and, curiously, John C. Calhoun, Roger B. Taney, and Jefferson Davis, in their interpretation of slavery and the Constitution. Professor Wilentz, it seems, stands with Charles Sumner, Frederick Douglass, and Abraham Lincoln. So do I.

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4 comments

  1. Al, if you had made this just a few paras longer you could have submitted it as your doctoral dissertation 🙂

    I’ve not read the entire post, but I am reading “Freedom National,” and that author makes the point that much of the antebellum abolitionist theory was that the Constitution did not recognize slavery in the absence of local law to support it. I didn’t see the author cited in any of the back-and-forth from the historians, but you are clearly using some of his material. (I think I recall you saying you have read the book already.) I am very much taken with Oakes’ argument, myself. I’d say that the Constitution was *tolerant* of slavery, not actually pro-slavery, and this tolerance was part of the necessary compromises to get the government formed.

    1. What can I say, Jim? People kept writing stuff. 🙂

      Freedom National is an outstanding book, and I do quote it toward the end of the post. It certainly informed my reaction to the whole thing.

  2. Jim stole my thunder. I was surprised no one mentioned the Oakes book. The rebuttals seemed like a lot of people wanting to pontificate. However, I thought the Pinsker piece persuasive.

    1. I agree, Brad. It was very persuasive.

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