Balkinization: Slavery and the Constitution

Slavery and the Constitution

Mark Graber

Sean Wilentz in the September 16 edition of the New York Times presents the romantic Lincolnian story of the Constitutional Convention. In this narrative, “proslavery delegates” who “fought to inscribe the principle of property in humans in the Constitution . . . were crushed.” The resulting “Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans,” and “without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.

A reader of Wilentz’s oped piece would be stunned to discover that at no point in the written record (which is admittedly incomplete) did any proslavery delegate propose to “inscribe the principle of property in humans in the Constitution” or that, contrary to his claim that northerners refused to accede to slaveholding demands for opening the international slave trade, Virginians led the fight against that commerce, which many northern delegates were perfectly willing to stomach in return for commercial concessions. More to the point, southerners for the most part got what they wanted at the constitutional convention. Whether that was a pro-slavery constitution depends on one’s perspective and hindsight.

All parties to the debate over whether the constitution was pro-slavery or anti-slavery in 1787 rely on selective quotations. Proponents of the antislavery constitution cite the northern Quaker who declared that the power to abolish the slave trade after 20 years encompassed the opportunity “of abolishing slavery forever.” Proponents of the proslavery constitution are fond of quoting Charles Cotesworth Pinckney, who informed South Carolinians that “We have a security that the general government can never emancipate them, for no such authority is vested.” Madison more accurately captured the spirit of the drafting convention when during the debate over the Connecticut Compromise, he observed, “the real differences of interests lay, not between the large & small but between the N. & Southern States.”

The crucial compromise that proslavery and antislavery forces reached in 1787 was over the structure of the national government. Contrary to Wilentz, southern delegates did not seek to inscribe “the principle of property in humans in the Constitution.” They sought to structure a federal government that would always be friendly to proslavery interests. Contrary to Wilentz, slaveholders thought they succeeded. The main demand slaveholders made at the constitutional convention was that total population, including slave population, be the means for allocating representation in all elected governing institutions. Southerners wanted representation by population because everyone in 1787 was confident that population was flowing southward. Georgia with a tiny population in 1787, consistently voted against state equality in the Senate, confident that in 20 years that state would have a population greater than Pennsylvania. What slaveholders got was a House of Representatives they were likely to control, a 3/5s clause that augmented southern control of the House of Representatives and the presidency, and a Supreme Court whose members were likely to be appointed by the Virginians who were likely to hold the presidency. Given their expected control over national institutions, slaveholders did not need or ask for many parchment protections for their human property. At the very least, they could veto any proposal that damaged their interests. More likely, from their perspective, they could pass affirmative legislation, such as fugitive slave laws, that placed the federal government on the side of human bondage. South Carolinians in 1787 had no interest in state rights, particularly when compared to the delegates from the small New England states.

What seems relatively clear when examining the constitutional convention becomes less clear when the ratification conventions are added to the analysis. Framers in different state conventions had very different ideas of the constitutional status of slavery. Framers in New England ratified a constitution that had more to do with commerce than slavery. Attitudes towards slavery ranged from “none of our business” to the more Lincolnian hope that slavery was on “a course of ultimate extinction.” South Carolinians ratified a proslavery constitution. Many insisted that northerners would become increasingly proslavery over time once they realized the profits to be made in the slave trade and commerce in slave goods. Virginians ratified a constitution they expected to be controlled by Virginians. “We will soon outnumber them,” George Nicholas said, so that “this Government will be very shortly to our favor.”

The main lesson these debates teach is twofold. First, structures are more important to constitutional framers then rights. When thinking about what a constitution protects, we should first look to whose rights and interests constitutional structures privilege and not to the parchment barriers enumerated in Bills of Right. Both the persons responsible for the Constitution of 1787 and the persons responsible for the Constitution of 1868 were more concerned with the sort of government structures that might protect certain rights and interests than with enumerating rights provisions explicitly protecting those rights and interests. The framers in 1787 sought to construct a government that would be sympathetic to southern interests. The framers in 1868 sought to construct a government that would implement the constitutional ban on slavery in good faith. Second, constitutional development is often driven by the failure of constitutional structures to function as expected. Framers consistently fail to anticipate the future. Slavery became a polarizing issue because population went northwestward instead of in a southerly direction. Emancipation occurred in 1865 because contrary to the framers' expectations, the north had more troops than the south, unbeknownst to the framers, the north had more railroads than the south, and, frankly, because a Confederate general misplaced his orders at Antietam. The Republican Party after 1868 soon lost its strong commitment to protecting persons of color. Our constitutional politics today is contentious, not because we fail to appreciate the Constitution in its pristine form, but because we are trying to perform the impossible task of operating the Constitution in its pristine form.

[The longer version of this essay can be found in Dred Scott and the Problem of Constitutional Evil]

Posted 2:08 PM by Mark Graber [link]