Balkinization  

Wednesday, April 05, 2006

Slavery and the Framers

Mark Graber

Over the weekend, I had the privilege of attending a wonderful conference on DRED SCOTT put on by Sandy Levinson, Jack Balkin, and Paul Finkelman. One of the central issues raised at that conference is the extent to which the constitution was a pro-slavery or anti-slavery document. I've never liked either of the alternatives. Those who claim that the constitution committed Americans to the eventual abolition of slavery treat the antislavery utterances of various framers as central to the constitution (and ignore South Carolina and Georgia). Those who claim the constitution was a proslavery document treat antislavery utterances as exercises in hypocrisy and ignore evidence that most framers did hope slavery would eventually disappear (along with, to be fair, free persons of color).

The better explanation, in my opinion, is that abolition was a tertiary constitutional value. Most framers hoped that slavery would disappear, but that was not the primary purpose of any constitutional provision. Indeed, a few scattered framing comments aside, no one thought that the constitution was likely to have any immediate effect on slavery, one way or the other. They did write a constitution that could be interpreted as committed to antislavery values, but that interpretation was for the future to decide. In many ways, this is rather a nice finding, a finding that the framers did not commit us to their values. The constitution gives as a choice as to what our central values will be, and looking for answers in 1787 simply begs the question, as all they did was create a serious of institutions that they hoped would promote serious debate over slavery and other fundamental matters of justice.

Comments:

I'm not a historian, but I've read one ... Akhil Reed Amar's new book America's Constitution is polemical on this topic--the Constitution was indeed "objectively pro-slavery," to coin a phrase.

But rather than look at statements of this or that Founder, he looks at the Constitution itself, the way it worked.

The 3/5 Clause gave the South pretty much a lock on the Congress, a huge leg up on the Presidency, & thus dominance of the Supreme Court as well. There was precious little chance that the system expressly created by the Constitution could ever outlaw slavery.

In 1861, Amar writes, the North was offering a constitutional amendment expressly *guaranteeing* slavery, just to keep the South in the Union. But the dumbasses shelled Fort Sumter rather than seize the opportunity.
 

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.
 

Mark, I just don't find those points very persuasive.

(1) "The very fact of republican government" is pretty abstract, and even you have to concede that slavery was "subject to majority rule in theory if not in practice." This simply ignores the effect of the 3/5 Clause.

(2) Your point about Congressional power ... same problem. Congress was stacked in favor of the South and slavery.

I'm not waving the bloody shirt or anything; I am skeptical that the South would've come in without the 3/5 Clause or something as pernicious, & I can see the priority of the Union over abolition. But I do think the argument by Amar, Garry Wills, & others whom I've forgotten, is a powerful one.

(And of course, by commenting here, I hope to be set straight if I'm mistaken.)
 

"In 1861, Amar writes, the North was offering a constitutional amendment expressly *guaranteeing* slavery, just to keep the South in the Union. But the dumbasses shelled Fort Sumter rather than seize the opportunity."

If you believed in 1861 that the preservation of slavery was worth fighting a war over, then you might not have been a dumbass to reject the proposed constitutional amendment. This is because, even if the amendment would have prevented Congress from abolishing slavery where it existed, it would not have prevented Congress from stopping the spread of slavery to the territories, which would eventually become states. The slave states would have become a smaller and smaller minority, and could not have prevented a repeal of the amendment. According to Richard Striner's new book, Father Abraham: Lincoln's Relentless Struggle to End Slavery, Lincoln for years "had predicted that the institution of slavery would wither and die if Americans could manage to contain it." The South apparently saw it that way too.
 

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.
 

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.
 

Interesting Blog.
----------------------------
safecutt says
 

There is good revisionism and bad revisionism. This is bad. Consider the situation of the slaves at the time of the founding and what, if any, rights they had under the Constitution (despite the Declaration's "All men are created equal ...."). Other "civilized" nations had declared slavery not only immoral but illegal well prior to the Civil War. The events following the founding up to the Civil War should add some meaning to originalism regarding slavery. Perhaps when the slavery issue was raised during the founders' debates, one of them said: "It's the economy, stupid!" (No, it would not have been Clinton DeWitt.)
 

Mark Graber says, ". . . a few scattered framing comments aside, no one thought that the constitution was likely to have any immediate effect on slavery, one way or the other" and that abolition was only a "tertiary constitutional value." He is correct in his assertion that most of the framers thought that slavery would disappear, but this belief was put to the test by the debate on the legalization of the slave trade. Unlike the debate on the 3/5 clause, this debate was manifestly about supporting the institution of slavery. At the time, every state except Georgia had either banned or suspended the slave trade or effectively curtailed it with prohibitive duties. South Carolina and Georgia, however, had lost thousands of slaves during the Revolution, and their planters wanted to be able to import new slaves from Africa. Hence, the Committee of Detail, chaired by South Carolina’s John Rutledge, reported out a draft that not only explicitly permitted the slave trade but also prohibited taxing either the trade or slaves themselves, which would have made slaves the only import exempt from taxation. This proposal clearly was pro-slavery in its intent. As we all know, after heated argument -- in which the South Carolinians resorted to their usual bullying tactics -- the delegates compromised on keeping the slave trade open for at least 20 years and limiting the tax on imported slaves to $10.

Madison’s warning about the likely effect of the legalization of the slave trade strikes me as something more than a scattered comment. He worried that "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 than to say nothing about it in the Constitution." He was right. By the time the external slave trade was finally banned in 1808, an additional 170,000 or so slaves had been imported into the South. At the time the Constitution was written, there were about half a million slaves in the United States; by 1820, there were more than a million and a half. By the Civil War, there were about 4 million, making the United States, a colleague tells me, the largest slave society the world has ever known
 

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.
 

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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