Constitutional interpretation claims to be faithful to neutral legal principles. However, a definitive original meaning is nonetheless saddled by contemporary politics and views of morality.
“David Waldstreicher’s intriguing book brilliantly shows the founding fathers’ republican constitution to be, in important part, central to their many evasions of slavery’s antirepublican nature.” —William W. Freehling Black History month and Martin Luther King celebrations will soon be sprouting up, once again, around the country. With race already at the forefront of the dialogue with heated debates about profiling and police brutality, it is a good time to revisit some vital discussions about how our nation took shape. Famously, the Constitution never mentions slavery. And yet, of its eighty-four clauses, six were directly concerned with slaves and the interests of their owners. Five other clauses had implications for slavery that were considered and debated by the delegates to the 1787 Constitutional Convention and the citizens of the states during ratification. Some scholars, such as Waldstreicher, place slavery slavery’s place at the heart of the U.S. Constitution.This “peculiar institution” was not a moral blind spot for America’s otherwise enlightened framers, nor was it the expression of a mere economic interest. Slavery was as important to the making of the Constitution as the Constitution was to the survival of slavery.
By tracing slavery from before the revolution, through the Constitution’s framing, and into the public debate that followed, Waldstreicher rigorously shows that slavery was not only actively discussed behind the closed and locked doors of the Constitutional Convention, but that it was also deftly woven into the Constitution itself. For one thing, slavery was central to the American economy, and since the document set the stage for a national economy, the Constitution could not avoid having implications for slavery. Even more, since the government defined sovereignty over individuals, as well as property in them, discussion of sovereignty led directly to debate over slavery’s place in the new republic.Finding meaning in silences that have long been ignored, Slavery’s Constitution is a vital and sorely needed contribution to the conversation about the origins, impact, and meaning of our nation’s founding document.While the compromise on representation was a critical turning point at the Constitutional Convention, the issue of slavery was just as important. By the 1830s, slaveowners told opponents of slavery that the Constitution protected slavery, representatives from the slave states would never have signed it otherwise, and everyone at the Constitutional Convention knew it. The discussion of the international slave trade at that convention underscores this reality.
Some historians maintain that Southerners at the convention never really contemplated a separate nation. Indeed, the three South Carolina delegates who voice such threats in this extract supported a strong national government. Nevertheless, the belief that their threats were serious had become dogma by the 1850s. Thus the debate began a pattern of threats by slaveowners that eventually resulted in secession.
These deliberations are like a chorus in a classical Greek play opening our great national drama.
While Northerners were, to varying degrees, opposed to the South's "peculiar institution,"
Southerners believed that their economic well-being depended on the slave trade. They declared that they would walk out of the Convention before they consented to a government that disallowed slavery. Similar objections from the South had been raised during the deliberations of Second Continental Congress. The Declaration of Independence had originally included a rejection of slavery as immoral, but Southern state delegates refused to sign it until the statement was removed.Once again, the rest of the delegates were forced to choose between condemning slavery outright or condoning it so the broader interests of the nation could be pursued. It was not an easy choice.
On the issue of slave trade, the proposal was made that slaves could be "imported" for twenty years after the Constitution was ratified, after which bringing new slaves into the country would be illegal.
Of this provision, Madison originally remarked: "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the National character than to say nothing about it in the Constitution," according to Thisnation.com.
To secure the support of the Southern states for the Constitution, however, it was a compromise that Madison later embraced. In The Federalist No. 42, he wrote:
It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has long and so loudly upbraided the barbarism of modern policy; that within that period it will receive considerable discouragement from the Federal government and be totally abolished, by a concurrence of the few States which continue the unnatural traffic in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans if an equal prospect lay before them of being redeemed from the oppression of their European brethren! Understanding the myriad of ways in which past and present are linked is absolutely critical for a thorough analysis of current conditions. Also at issue was how slaves were to be counted for purposes of representation and taxation. Delegates from the Southern states wanted slaves to be counted for the purposes of allotting congressional seats to the states, but not for the purposes of levying taxes. This, of course, was not acceptable to the Northern states who were not inclined to let the South have it both ways. They would either have to count them for both purposes or for neither. Once again, the convention was at an impasse. It was the second major compromise of the summer that salvaged the Convention once again. Under the so-called Three-Fifths Compromise, slaves would be counted as 3/5 of a person for both purposes. While seemingly an arbitrary number, by counting only three out of every five slaves, there would be a rough balance in representation between the Northern and Southern states in the new Congress. This was important to the Southern delegates because they feared that a North-dominated Congress would outlaw slavery as one of its first items of business. The website says that while it is easy to second-guess the decisions made about slavery at the Constitutional Convention, the delegates left with no illusions that the slavery question had been permanently solved. Instead, it had been put off until a later date. Indeed, given the violence with which the Southern states opposed the abolition of slavery during the Civil War, it is certain that the United States of America, as it was established by the 1787 Constitution, would have never existed if compromises on slavery had not been made.The reach of slaveholders' property rights into the free states, the rights of free blacks, and the relative powers of the federal and state governments are core issues in this dialogue. Crucial questions still need to be explored, regarding the place of slavery in the Constitution. What was the role of the courts in protecting it in antebellum America?
Waldstreicher has written the first book to place slavery at the heart of the U.S. Constitution.
Finding meaning in silences that have long been ignored, Slavery’s Constitution is a vital and sorely needed contribution to the conversation about the origins, impact, and meaning of our nation’s founding document. Further Reading: The Half Has Never Been Told: Slavery and the Making of American Capitalism by Edward E. BaptistPrigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (Landmark Law Cases and American Society) by H. Robert Baker