Balkinization: Slavery and the Framers

Comments:

I think Amar is a little too hard on the Founders there. Yes, the Southern states did negotiate protections for slavery in the form of the 3/5 clause, the fugitives clause, etc. But, and it's a big "but", there also were important considerations in favor of freedom.

One was the very fact of republican government. In the long run, that would operate according to the will of the people. No clause of the Constitution forbade the abolition of slavery, so it was always subject to majority rule in theory if not in practice.

Another was the flexibility of the Constitutional language giving Congress power over, e.g., the territories and interstate and foreign commerce. If Congress had used these powers vigorously, it could have pushed slavery pretty hard towards extinction. If, in practice, Congress didn't do that, it tells us that abolition wasn't a high priority for many citizens. Don Fehrenbacher sets out this case in considerable detail.

I basically agree with Mark Graber that the Founders considered the problem unsolvable by them and left it to the future. Like they did with most values.

# posted by

Mark Field : 4:40 PM

I agree with Henry. The Republican platform -- no slavery in the Territories -- was a call for the exercise of Constitutional majority rule which was widely perceived to be the first step in slavery's demise. That's certainly how Lincoln justified it. As Henry points out, the South acted very rationally (by its own lights) in leaving the Union for that reason.

There's no doubt that the 3/5 clause stacked the deck. But there's also no doubt that the Founders left open the possibility of ending slavery even if they made it difficult. The fact that the Republicans were able to use Constitutional means towards that end does vindicate the Founders in some degree.

I don't mean to let them off the hook entirely. The "Great Compromise" in the Convention was IMO the most corrupt bargain in the history of democratic government, saddling us simultaneously with the 3/5 clause and an unrepresentative Senate. But I also think we have to consider the steps they did take: slow but irreversable abolition throughout the North; the Declaration of Independence; the Northwest Ordinance; the abolition of the slave trade (imperfect though that was); the adamant refusal to give express Constitutional sanction to slavery; the doctrine of republican government, which is fundamentally inconsistent with slavery.

# posted by

Mark Field : 7:23 PM

Re 3/5: can't recall where I ran across this, but the question is: compared to 0/5? or 5/5? There's apparently some support for the notion that the principal alternative was to count slaves as part of the population, period. Just the way women were? I'm personally 100% on board with favoring 0/5 over 3/5, but that may not have been the political choice back then.

Also, I've never quite believed in the "slavery would have just died out" theory. Seems to me something a whole lot like slavery worked just fine for quite a while in South Africa, despite the lack of a cotton industry. There was lots of mining to be done out West, and with sufficient ruthlessness, it could have been done with slave labor or something not much different.

# posted by

Thomas Nephew : 12:23 AM

I would partially answer Amar with Don Fehrenbacher (author of a seminal work on Dred Scott), whose last book questioned the "slavery constitution" thesis.

As to the 3/5 Clause. I disagree it gave a "lock" to the South on Congress. By 1850, the South had a clear minority of the electorate, even with the check. The clause also btw assumes black freeman are constitutionally protected contrary to Dred Scott.

And, some writers aside, it very well might not have been determinative in the Election of 1800. Jefferson had strong support in NY and PA, where slavery was on its way out, and extramajority in some other states.

Anyway, a national candidate would assumingly accept slavery. And, even w/o the provision, the states could have banned black voting ... via property requirements alone mostly.

As to the SC, that's weak too. The reason why they had the SC locked up was size. Each justice covered a particular circuit, and the South took up a sizable amount of real estate. And, the confirmation of justices is in the Senate: that body, not the 3/5 clause, might be a better focus.

"The North" really did not support the last ditch "13A" to uphold slavery. I really doubt it was that seriously accepted. Anyway, it would not guarantee it in new states -- slavery in the territories was a major concern after all. And, Lincoln was a symbol of a new future that was scary for any number of reasons.

btw as to slavery dying out, it did end in Brazil w/o a Civil War, but our situation was different enough not to compare different nations too exactly.

# posted by

Joe : 7:23 PM

This thread highlights some beginnings of some important matters. I began to look at the contrast of population density, then growth of the populace as the colonies increased from 13 to the US' condition at the time of the census in 2000.

In the southern 4 colonies in 1790 there were 1.4 million people; the north housed 2.1 million.

Massachusetts has gone from 378,000 inhabitants then to 6.3 million in our times.

Georgia has grown from 82,000 population to 8.2 million.

Former colony PA now is home to 1.9 million adults age 65 or older.

CA in 2000 had 2.4 million children age 5 or below.

I wonder how one interprets growth viewed in the light of historical balances at the negotiating tables where constitutional matters are shaped.

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