Monday, January 23, 2023

Was the Constitution Pro-Slavery?

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Randy E. Barnett           

In recent years, I have publicly complained that members of the conservative legal movement in general—and originalists in particular—have paid too much attention to the Founding and the Framers and not enough attention to the Reconstruction amendments and the Republicans who made them a part of the Constitution. I have argued that the Constitution that needs defending from unwarranted criticism is the amended Constitution we have today, not the original Constitution of 1789. This single-minded focus on the original Constitution of 1789 has left originalism vulnerable to the now-familiar objection that the Constitution was a made by, and for the benefit of, slave holders.

Since Balkinization was founded 20 years ago, the view that the original Constitution was illegitimate because it sanctioned slavery and its framers were slave-holding knaves has moved from the margins to the mainstream of academic thought and has now entered the public’s consciousness. According to this narrative, because of this original sin, it is immoral to adhere to the original meaning of the Constitution (even as amended). Statues of the Framers should be removed from public view. Their images should be treated with the same scorn as those depicting Chief Justice Roger Taney, the author of the execrable decision in Dred Scott v. Sandford.

            In recent years, originalist scholars have done important work rectifying the previous neglect of the original meaning of the Fourteenth Amendment. This work includes not only Evan Bernick’s and my book The Original Meaning of the Constitution: Its Letter and Spirit. It also includes the writings of such originalist scholars as well as Nathaniel Chapman, John Harrison, Kurt Lash, Michael McConnell, Ryan Williams, and Ilan Wurman.

I still urge the grassroots of the conservative legal movement to focus more on the Republican party and Reconstruction, and less on the Framers and the original Constitution. But in this post, I want to challenge the starkly negative pro-slavery characterization of the original Constitution and its Framers that is today offered to undercut the legitimacy of our Constitution. Ironically, today’s vociferous critics of the Constitution and the Framers have adopted the views of the justly maligned Roger Taney.

I begin by reframing the Founding.


Reframing the Founding


            The United States was not founded in 1789 and the Constitution is not our founding document. The United States was founded in 1776, and our founding document is the Declaration of Independence that was unanimously adopted by the Congress of the United States. The Declaration officially announced the American theory of government, which can be summarized as “first come rights; and then comes government.” Specifically, the Declaration affirmed the individual, natural, and inalienable rights to life, liberty, and the pursuit of happiness. It then affirmed that “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

            On their face, these words seem completely hostile to the institution of slavery. So, in Dred Scott, it was necessary for Chief Justice Taney to explain them away. Taney admitted that the “general words” of the Declaration “would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood.” In other words, by 1856, Taney affirmed that the public meaning of these words was anti-slavery.

            However, Taney then claimed that in 1776, “it is too clear for dispute that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this declaration.” This was because, “if the language, as understood in that day” had included enslaved persons, “the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted.”

            In short, Taney admitted that the words of the Declaration were flagrantly inconsistent with the institution of slavery. The only way to render the Declaration consistent with slavery was to appeal to the original intentions of its framers. In this way, a pro-slavery reading of the Constitution starts with claiming a pro-slavery reading of the Declaration—a reading that the two dissenting justices in Dred Scott vehemently disputed. The dissenters claimed that, while enslaved people were undeniably excluded from the polity, free blacks of African descent were considered a part of the “people” who established the Constitution.

            Taney’s history of the Founding, like the history of those who today criticize the Constitution, is deeply misleading. The institution of chattel slavery was as old as mankind, worldwide, and by no means limited to the enslavement of African people. In 1776, the United States was on the leading edge of the modern movement to abolish chattel slavery.

            As Princeton University historian Sean Wilentz has noted in No Property in Man: Slavery and Antislavery at the Nation’s Founding, “In 1775, five days before the battles of Lexington and Concord, ten Philadelphians, seven of them Quakers, founded the first antislavery society in world history, the Society for the Relief of Free Negroes Unlawfully Held in Bondage.” This group was later reorganized as the Pennsylvania Society for Promoting the Abolition of Slavery.

            Just five months after the Declaration, in January of 1777, the Vermont Republic was founded as an independent state. Its constitution declared that “all men are born equally free and independent.” This language was borrowed from George Mason’s draft of the Virginia Declaration of Rights that he had written just weeks before Jefferson drafted the Declaration. The constitution of the Vermont Republic was the first constitution in human history to abolish slavery.

Mason’s language was also included in the Massachusetts constitution. Four years before the Constitution was drafted, in three cases decided between 1781 and 1783, the Massachusetts high court relied on this language to hold chattel slavery unconstitutional in that state.

This timeline is important. In 1776, when the United States of America was founded, the legal institution of slavery existed in every state in the union. But by 1787—when the Constitution was being written in Philadelphia—five of these states had abolished or begun to abolish slavery. Then, in 1791, the free state of Vermont became the fourteenth state of the Union, bringing the count to six. In 1799, New York began the process of emancipation by enacting a gradual abolition law. Five years later, New Jersey followed with its own gradual emancipation law.

During the same summer that the Philadelphia convention was deliberating over a new constitution, the Articles of Confederation Congress sitting in New York enacted “An Ordinance for the Government of the Territory of the United States North-West of the River Ohio,” popularly known as the Northwest Ordinance. Adopted on July 13, 1787, the ordinance contained the following language: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” It was this language that the Republicans in Congress copied when drafting the Thirteenth Amendment to abolish slavery in the whole of the United States. 

Thus, slavery was abolished in 1787 from a vast area of the United States, which included the future states of Ohio, Indiana, Illinois, Michigan, Wisconsin, and about a third of what later became Minnesota. In a sign of the times, the Northwest Ordinance was approved by delegations from every state, including every delegate of every slave state.  The only no vote was by Peter Yates of New York. (One explanation of this vote was provided in a letter to Rufus King by Nathan Dane of Massachusetts who said that Yates “appeared, in this case, as in most others, not to understand the subject at all.”)

True, the Northwest Ordinance contained its own Fugitive Slave Clause. But its wording did not reference slavery explicitly. Instead, it referred to “any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States.” However, this reference to “the original states” indicates that, going forward, slavery was assumed to exist only within one of the original states that had not yet abolished it—as opposed to any future state.

This is a remarkable amount of progress towards implementing the political theory of the Declaration in a very short period—a mere eleven years! Yet, as we all know, this progress was stopped in its tracks. Historians are generally agreed that what stymied this antislavery tide was the invention of the cotton gin by Eli Whitney in 1791. By mechanically separating the cotton fiber from the sticky seeds, which formerly had to be done by hand, the plantation farming of cotton using slave labor became enormously profitable. Later the invention of the steam engine made it feasible to more cheaply transport cotton north via the Mississippi as well as along the coast.

Prior to these technological developments, when the Constitution was drafted, slavery was widely viewed as an economically dying institution. After technology made plantation cotton farming highly lucrative, for the first time in America there arose a pro-slavery ideology that increased in its vehemence over time.

But what matters for evaluating the original Constitution is not what came soon after it was drafted. What matters is the fact that the Constitution was written before this change occurred. It was written on the cusp of half the states in the union turning away from slavery, and the Northwest Ordinance barring slavery in the territories from which future states would be formed. It was written before the rise of a pro-slavery ideology arrested what seemed like an inevitable and rapid progress towards a United States that was fully consistent with the principles officially adopted in the Declaration of Independence. In short, when the Constitution was written in 1787, the United States was on the leading edge of the movement to end the world-wide practice of chattel slavery.

To be sure, some slave holders, especially in the deep south, were adamantly insistent on preserving slavery. And even the many who conceded its injustice had deeply self-interested motives to kick the can of its demise down the road. Much of their wealth was bound up in their slaves. Some of them feared violent retaliation by those persons they had enslaved. But the point here is that at the moment that the Constitution was drafted, these resisters were thought to be on the wrong side of history. Of course, in the long run, they were on the wrong side of history thanks, in part, to how the Constitution was worded.


Reframing the Framing


The text of the original Constitution of 1789 reflects this remarkable progress. Nowhere in the document is slavery mentioned by name. This reflects the intellectual consensus that slavery was unjust and would inevitably be no more. Nor, contrary to the claim made by Chief Justice Taney, does the document expressly endorse the morality of slavery, or the concept of property in man.

      In No Property in Man, Sean Wilentz detailed the lengths to which states from the deep South went to get an expressed endorsement of the concept of property in man included in the Constitution. At every turn, their efforts were consistently denied by a coalition of Northern antislavery delegates and members of the Virginia delegation.

            For example, the initial draft of what became the Fugitive Slave Clause of Article IV referred to enslaved people by the same language employed by the Northwest ordinance: persons “from whom labor or service is lawfully claimed” in one of the original states. As Wilentz notes, with this language the “slave states property laws would be respected without compelling the free states to acknowledge the legitimacy of property in man.”

            The day after an extensive debate on the propriety of this clause, Pierce Butler of South Carolina replaced the phrase “lawfully claimed” with the phrase “shall be delivered up to the person justly claiming their service or labor.” Because the term “justly” would imply not merely the legality but also the justice or morality of the claim to service or labor, it was resisted by a coalition of Northern states and Virginia.

            The delegate who spoke out most vociferously against slavery at the Convention was Gouverneur Morris, who delivered an impassioned speech against what he called the nefarious institution of slavery. Morris insisted that “it was the curse of heaven on the States where it prevailed.” Given that Morris was tasked with writing the actual text of the Constitution as a member of the Committee on Style, it would be surprising if the text of the Constitution endorsed the concept of property in man.

            In Morris’s hands, the Fugitive Slave Clause deleted the term “justly” from the clause. But the Committee on Style’s draft language still began “No person legally held to service or labor in one State....” This too proved to be unacceptable to the body of the Convention when it considered the final wording of the Constitution. The language was revised to read “No person held to Service or Labour in one State, under the Laws thereof.” In his notes, Madison explained that this change was made “in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.”

Later, the phrase “under the laws thereof” was key language justifying the position of constitutional or political abolitionists that the Constitution adopted the view of “freedom national” and “slavery local.” This distinction was first enunciated by antislavery constitutionalist and Free Soil Senator Salmon Chase in his 1850 Senate speech, “Freedom is national; slavery only is local and sectional.” When it came to the exercise of its national powers, the federal government was fully empowered to end slavery within its domain. The only protection afforded to slavery by the Constitution was that one of the six original states could continue to maintain it solely as a matter of their positive law.

            In 1852, this position was presented at length on the floor of the Senate by Charles Sumner, the Free Soil party Senator from Massachusetts. Sumner’s speech received far more attention than had Chase’s speech in 1850. After meticulously parsing the debates in Philadelphia, he concluded that:

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 [Fugitive Slave] 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. (emphasis added.)

Instead, slavery was a creature entirely of local law to be tolerated but in no way endorsed or expanded by the Constitution. This position became the organizing principle of the antislavery Liberty, Free Soil, and eventually the Republican parties.

            But wait, there’s more. The original Constitution affirmed the power of Congress to abolish the slave trade with other nations, though it postponed any exercise of this power until 1808—20 years after the adoption of the original Constitution. At the time, this was considered by antislavery activists to be a major blow against slavery. In 1808, President Jefferson proposed the abolition of that trade, and Congress swiftly acted to do so. What power was Congress exercising when it abolished the slave trade? According to Edmund Randolph, the first attorney general, it was Congress’s power “to regulate commerce...with foreign nations” that empowered it to ban slave trading with other countries. Indeed, prior to the abolition of slavery, Congress exercised its Commerce power to regulate the interstate slave trade.

            On this reasoning, however, the Commerce Clause in the original Constitution also gave Congress the power to abolish the interstate slave trade as well. In his speech to the Senate in 1850, Salmon Chase also made this Commerce Clause argument, adding “Is it less cruel, less deserving of punishment, to tear fathers, mothers, children from their homes and each other, in Maryland and Virginia, and transport them to the markets of Louisiana or Mississippi?”

            Then there is the wording of the Fugitive Slave Clause in Article IV. Unlike the Full Faith and Credit Clause and the Republican Guarantee Clause, the Fugitive Slave Clause in Article IV lacked a Congressional enforcement power. As a young attorney representing fugitive slaves in the 1830s, Salmon Chase contended that Congress lacked any enumerated power to enforce what amounts to a treaty obligation of one sovereign state to another. Of course, Justice Story rejected this argument in Prigg v. Pennsylvania. He did so by interpreting the Necessary and Proper Clause even more capaciously than did the New Deal and Warren Courts. But we today should not reflexively accept that the Prigg decision, made by a Supreme Court dominated by the Slave Power, as correct. (More on the Slave Power below.)

            Further, Article IV included the enumerated power of Congress to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United State.” And Congress also had an enumerated power “[t]o exercise exclusive Legislation in all Cases whatsoever, over” the District of Columbia. This seems obviously to grant to Congress the same power to abolish slavery in the territories, on federal government installations, and in the District of Columbia as did the seven original states that chose to abolish slavery prior to the Civil War. 

            The only constitutional objection to this federal power to abolish slavery in these locals was formulated in 1836 in a report by a House Select Committee upon the Subject of Slavery in the District of Columbia, chaired by Representative Henry Pinckney of South Carolina. In its report, the committee claimed that Congress’s right to legislate within the District, though exclusive, was “evidently qualified” by the Due Process Clause. “We lay it down as a rule that no Government can do anything directly repugnant to the principles of natural justice and of the social compact. It would be totally subversive of all the purposes for which government is instituted.” Consequently, “[n]o republican could approve of any system of legislation by which the property of an individual, lawfully acquired, should be arbitrarily wrested from him by the high hand of power.”

            According to this theory, the Due Process Clause protection of life, liberty, and property, qualified the federal power over the District by preventing it from denying slave holders of their rightful property in their slaves. This was exactly the argument that Chief Justice Taney would employ some twenty years later in Dred Scott in extending the argument to Congress’s power over the territories.

            But, as I have already explained, Taney was making it up in Dred Scott when he contended that “the right of property in a slave,” he claimed, “is distinctly and expressly affirmed in the Constitution.” This claim was denied by dissenting Justice McLean, who explained that, “we know as a historical fact that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.” Wilentz shows that McLean was right and Taney was wrong.


Distinguishing the Original Meaning of the Constitution from its Implementation


            In the spring of 1851, Douglass publicly changed his stance on the Constitution, repudiating the Garrisonian reading and joining the ranks of the political abolitionists. In 1860, Frederick Douglass was invited to debate the question of whether the Constitution was pro-slavery or anti-slavery. In his remarks, Douglass took care to distinguish between the Constitution of the United States and the government of the United States. In thinking about the original Constitution today, we would be wise to heed Douglass’s framing of the issue. The question, he said:


is not whether slavery existed in the United States at the time of the adoption of the Constitution; it is not whether slaveholders took part in the framing of the Constitution; it is not whether those slaveholders, in their hearts, intended to secure certain advantages in that instrument for slavery; it is not whether the American Government has been wielded during seventy-two years in favour of the propagation and permanence of slavery; it is not whether a pro-slavery interpretation has been put upon the Constitution by the American Courts — all these points may be true or they may be false, they may be accepted or they may be rejected, without in any wise affecting the real question in debate.


The real question, said Douglass, is: “Does the United States Constitution guarantee to any class or description of people in that country the right to enslave, or hold as property, any other class or description of people in that country?”

            To answer this question, Douglass adopted a version of the public meaning method of interpretation developed by Lysander Spooner in response to Wendell Phillips’ pamphlet, The Constitution: A Pro-Slavery Compact, which relied on evidence of the original intentions of the Framers.  Douglass specifically rejected the approach of those he called “the Garrisonians”:


It should also be borne in mind that the intentions of those who framed the Constitution, be they good or bad, for slavery or against slavery, are respected so far, and so far only, as we find those intentions plainly stated in the Constitution. It would be the wildest of absurdities, and lead to endless confusion and mischiefs, if, instead of looking to the written paper itself, for its meaning, it were attempted to make us search it out, in the secret motives, and dishonest intentions, of some of the men who took part in writing it. It was what they said that was adopted by the people, not what they were ashamed or afraid to say, and really omitted to say.


            In this post, I did not deny that the Constitution left slavery as it found it in the original states where it still existed in 1789. Contrary to Lysander Spooner, slavery was not unconstitutional under the original Constitution. But, as Salmon Chase contended, the original Constitution also gave the federal government ample power to confine slavery within the borders of these states, prevent its further expansion, and indirectly undermine its continued existence.

            The reason slavery grew more powerful was not due to its endorsement by the Constitution, but because of the political forces that supported its existence and expansion and how they came to dominate the national government. This political domination was abetted by allowing Southern states to count each of their slaves as three-fifths of a person for purposes of representation in Congress, which also enhanced their power in the Electoral College. And it was the President, with the advice and consent of the Senate, who chose the justices of the Supreme Court. Thus, all three branches came under the sway of what anti-slavery activists called the Slave Power. This was indeed one of several structural flaws in the original Constitution.

            The three-fifths compromise with the slave states proved disastrous when the economics of slavery changed markedly after the invention of the cotton gin. It enabled the Slave Power to thwart any use of federal power to undermine slavery. But the three-fifths clause cannot take all the blame. It was not responsible for the Northern Democrats, and not a few Northern Whigs, who marched in political lockstep with the Southern slave holders, in some cases due to their profiting by trading the products of slave labor. These people, not the original Constitution, are to blame for failing to utilize the powers that the original Constitution gave the national government to all but abolish slavery.

            Having largely failed in the courts, the end of slavery required the decades-long, tireless anti-slavery political action led by Salmon Chase, Frederick Douglass, and many others. In 1860, under the rules of the original Constitution, their efforts culminated in the anti-slavery Republican party prevailing in the Electoral College in a four-way race for the presidency. Republicans also captured control of Congress. With the Republican victory, Southern states saw the writing on the wall. They began seceding from the Union even before the Republicans could take office to implement their antislavery program using the existing powers of Congress. That is how much power the Southerners believed the Constitution gave an antislavery national government to restrict slavery.

            If the original Constitution was as pro-slavery as the Garrisonians and Chief Justice Roger Taney had claimed, and as is widely preached today, these fears would have been entirely unwarranted; there would have been no need for the Southern states to secede. But the Southerners were right to be afraid. And as historian James Oakes details in his masterful book, Freedom National: The Destruction of Slavery in the United States, 1861-1865, after taking office, the Republicans, now unopposed due to the absence of Southern representatives, moved swiftly to enact their policies using the powers granted to Congress by the original Constitution.


Two Caveats


            In this post, I have only scratched the surface of how the original Constitution contributed to the ultimate demise of slavery. For example, I did not discuss the important role that federalism played. Before concluding, however, let me offer two important caveats.

            First, as I already mentioned, while the original meaning of the Constitution was not pro-slavery, neither was it antislavery—meaning it made slavery unconstitutional as Lysander Spooner, William Goodell, Gerrit Smith, and Joel Tiffany had contended. Rather, as Salmon Chase contended, the Constitution gave an anti-slavery national government enough power to put slavery on the road to its ultimate extinction.

            Second, opposing slavery was not the same as rejecting racism or white supremacy. For example, slavery could be opposed because it was thought to compete unfairly with free white labor. Many who opposed slavery also favored the “colonization” of freed slaves. If the Thirteenth Amendment was needed to abolish slavery, the Fourteenth and Fifteenth Amendments were needed to combat the system of coercive white supremacy that embedded itself after slavery’s demise. (But neither should we go too far in this direction. Many opponents of slavery, like Salmon Chase, had very liberal views on race.)

            Law professors and the general public should be far more aware of both anti-slavery constitutionalism and the anti-slavery Republican party that amended the Constitution to end slavery, and then amended it again to combat white supremacy. But so too should we be far more aware of how much the founding generation opposed slavery in principle and planted the seeds of its demise in the text of the original Constitution they drafted and ratified.

            Think twice before you adopt the views of Roger Taney as your own.

Randy E. Barnett is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center. You can reach him by e-mail at

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