"It was deliberately written to avoid establishing a legal precedent for
ownership of human beings"
https://www.nationalreview.com/magazine/2019/05/06/the-constitution-was-never-pro-slavery/
[...]
The accusing finger that links slavery and the Constitution would have
surprised no one more than the delegates to the Constitutional
Convention. At the outbreak of the Revolution, every one of the newly
independent states had legalized slavery. (The numbers varied widely
from place to place: Georgia had 18,000 slaves, Pennsylvania 6,000,
Virginia 200,000, Massachusetts 5,200, and New York 17,000.)
But opinion about the moral legitimacy of slavery was shifting. Benjamin
Franklin bought and sold slaves in colonial Philadelphia, but by 1772 he
had begun denouncing slavery as “a constant butchery of the human
species” and the slave trade as a “pestilential, detestable traffic in
the bodies and souls of men.” New York founded a Manumission Society in
1785, while the Virginia Gazette in 1782 asked the Revolution’s most
logical question: “Whilst we are spilling our blood and exhausting our
treasure in defence of our own liberty, it would not perhaps be amiss,
to turn our eyes towards those of our fellow men now in bondage under
us. We say, ‘all men are equally entitled to liberty and the pursuit of
happiness’ but are we willing to grant this liberty to all men?”
[...]
When truculent slaveowners tried to insist that “slaves are property .
. . by the Constitution guaranteed,” John Quincy Adams just as
truculently replied that “the Constitution does not recognize slavery —
it contains no such word.” In fact, “a great circumlocution of words is
used merely to avoid the term slaves.” Any argument that would make the
Constitution a pro-slavery document has, on the evidence of the Framers’
generation, quite a boulder to roll up the hill.
[...]
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Magazine | May 6, 2019, Issue
The Constitution Was Never Pro-Slavery
By Allen C. Guelzo
April 18, 2019 11:14 AM
(VisionsOfAmerica/Joe Sohm)
It was deliberately written to avoid establishing a legal precedent for
ownership of human beings
In the world of the woke, the U.S. Constitution is, simply on its face,
a document of racial oppression. No one less than Bernie Sanders has
declared that the United States is “a nation” that in “many ways was
created, and I’m sorry to have to say this, from way back, on racist
principles.” Others are less sorry. Paul Finkelman, president of Gratz
College in Philadelphia, argues that the Constitution deliberately
intended to protect slavery, principally through its provisions for
interstate extradition of fugitives from “service” (Art. 4 IV, Sec. 2),
through the notorious three-fifths clause in Article I, Section 2, which
allowed states to count three-fifths of their slave populations toward
representation in Congress, and through the 20-year free pass given to
the slave trade (Art. I, Sec. 9).
In fact, for Finkelman, that’s only the beginning of the Constitution’s
love affair with slavery. Other offenses include the ban on export taxes
in Article I, Section 9 (written to give the products of slave labor an
open trade door); the limitation of “privileges and immunities” to
“citizens” in Article IV, Section 2 (since slaves could not be
“citizens”); the “full faith and credit” requirement between states in
Article IV, Section 1 (this required recognition of legalized slavery
everywhere in the nation); the power of “calling forth the Militia” to
“supress insurrections” in Article I, Section 8 (these “insurrections”
could naturally refer only to slave insurrections); and, of course, the
Electoral College, since its formula for determining electors was
swollen by the numbers of “three-fifths” slaves who would be counted and
thus granted slave states an extra advantage in electing presidents.
This is the reasoning that leads David Waldstreicher of the City
University of New York to claim that “of the 11 clauses in the
Constitution that deal with or have policy implications for slavery, 10
protect slave property and the powers of masters. Only one, the
international slave-trade clause, points to a possible future power by
which, after 20 years, slavery might be curtailed — and it didn’t work
out that way at all.” Even George Van Cleve, the most dispassionate
advocate of the “pro-slavery Constitution,” concludes (in A
Slaveholders’ Union) that the Constitution “was pro-slavery in its
politics, its economics, and its law.” By these reckonings, the
Constitution would have ensured slavery’s perpetuation into the
indefinite future had it not been for the fatal intervention of a civil war.
What often comes next is a demand to rid the Constitution of the
vestigial props for slavery that have somehow survived into our times,
usually beginning with the Electoral College. Or maybe, as with
University of Texas law professor Sanford Levinson, it leads to a call
for junking the whole “We the People” business and starting over with a
new constitutional convention.
The accusing finger that links slavery and the Constitution would have
surprised no one more than the delegates to the Constitutional
Convention. At the outbreak of the Revolution, every one of the newly
independent states had legalized slavery. (The numbers varied widely
from place to place: Georgia had 18,000 slaves, Pennsylvania 6,000,
Virginia 200,000, Massachusetts 5,200, and New York 17,000.)
But opinion about the moral legitimacy of slavery was shifting. Benjamin
Franklin bought and sold slaves in colonial Philadelphia, but by 1772 he
had begun denouncing slavery as “a constant butchery of the human
species” and the slave trade as a “pestilential, detestable traffic in
the bodies and souls of men.” New York founded a Manumission Society in
1785, while the Virginia Gazette in 1782 asked the Revolution’s most
logical question: “Whilst we are spilling our blood and exhausting our
treasure in defence of our own liberty, it would not perhaps be amiss,
to turn our eyes towards those of our fellow men now in bondage under
us. We say, ‘all men are equally entitled to liberty and the pursuit of
happiness’ but are we willing to grant this liberty to all men?”
That question was also being asked among the members of the
Constitutional Convention when it assembled in Philadelphia in May 1787.
Of the Convention’s 55 delegates, 26 were slaveowners, most of them from
southern states — Maryland, Virginia, South Carolina, Georgia — but a
smattering from New York, New Jersey, and Delaware. Still, many were
uneasy with the thought of giving slavery a continued lease on life in
the new republic. James Madison, who was the prime mover behind the
Convention, had long wondered whether emancipation “would certainly be
more consonant to the principles of liberty,” and, though the Madison
family depended on slave labor, he hoped “to depend as little as
possible on the labour of slaves.” When a slave who accompanied him to
Congress in Philadelphia in 1783 refused to return with Madison to
Virginia, Madison simply apprenticed him to a Philadelphia Quaker, since
he “cannot think of punishing him . . . merely for coveting that liberty
for which we have paid the price of so much blood, and have proclaimed
so often to be the right, & worthy the pursuit, of every human being.”
It was not, however, until August 8, well into the deliberations, that
the issue erupted on the floor of the Convention. In the midst of the
ongoing debate over representation in the new Congress, the Convention
was ready to agree to the formula used for Congress in the Articles of
Confederation (the three-fifths ratio) when Rufus King of New York
objected. “The admission of slaves” into a formula for representation
“was a most grating circumstance to his mind” and would only encourage
slaveowners to import more slaves, according to the Convention’s
minutes. He was seconded by the raffish Gouverneur Morris, who attacked
slavery wholesale as “a nefarious institution” that had “the curse of
heaven on the States where it prevailed.” Slavery was “a sacrifice of
every principle of right, of every impulse of humanity,” and Morris
ringingly declared that “he would sooner submit himself to a tax for
paying for all the negroes in the U. States, than saddle posterity with
such a Constitution.”
Morris drew an immediate response from South Carolina’s John Rutledge,
who warned that “religion & humanity had nothing to do with this
question.” If the Convention wanted to meddle with slavery, then the
“question” would become “whether the Southn. States shall or shall not
be parties to the Union.” Anxiously, other members sought to seal the
breach. Connecticut’s Roger Sherman hastily assured Rutledge that “he
disapproved of the slave trade; yet as the States were now possessed of
the right to import slaves, . . . he thought it best to leave the matter
as we find it.” But this concession was worth making because it actually
offered so little. Slavery, Sherman insisted, was dying out on its own:
“The abolition of Slavery seemed to be going on in the U.S.” and “the
good sense of the several States would probably by degrees compleat it.”
Oliver Ellsworth agreed. “As population increases poor laborers will be
so plenty as to render slaves useless,” so that “slavery in time will
not be a speck in our Country.”
But later that month, slavery reappeared in debate — although it now
came in the form of a deal aimed at allaying the hostility of King and
Morris toward importing slaves. Congress would be empowered to tax slave
imports and, after 1808, prohibit slave importation completely (although
the wording of the provision gently tiptoed around using the term
“slave”). An additional provision made the extradition of fugitive
slaves a state obligation — although again gingerly applying it to all
“those held to service” rather than to slaves. On the surface, a great
compromise appeared to have been struck, and southerners went home
congratulating themselves that they had “a security that the general
government can never emancipate [slaves], . . . for no such authority is
granted.”
But they missed the big picture. As Roger Sherman insisted, the
Constitution might contain concessions to the states regarding the
existence of slavery, but nothing in it acknowledged “men to be
property.” As “dishonorable to the National character” as the
concessions were, added James Madison, it would be intolerable “to admit
in the Constitution the idea that there could be property in men.” And
so the fundamental basis on which the entire notion of slavery rested
was barred at the Constitution’s door, even while its practical
existence slipped through.
Just how much distance the Framers wished to put between slavery and the
new Constitution emerged even before the Convention adjourned. On July
13, 1787, the final Congress under the Articles of Confederation,
sitting in New York, adopted the Northwest Ordinance as the instrument
for organizing the territory ceded by Great Britain around the Great
Lakes. The Ordinance’s sixth section provided that “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.” The Ordinance did not at once liberate slaves
living in the Northwest (especially the slaves belonging to old French
colonial families along the Mississippi River), but it did turn the face
of the future away from slavery.
As the Constitution moved toward ratification, one member of the
Massachusetts ratifying convention recognized the same dynamic at work
in the new federal instrument. “It would not do to abolish slavery . . .
in a moment,” conceded Bostonian Thomas Dawes (whose cousin, William,
had ridden with Paul Revere). Nevertheless, even if “slavery is not
smitten with an apoplexy, yet it has received a mortal wound and will
die of a consumption.” And the Pennsylvania abolitionist Benjamin Rush
rejoiced that, by refusing to include slavery or “slaves in this
constitution,” the Framers had saved the republic from “the very words”
that “would contaminate the glorious fabric of American liberty and
government.” The “cloud” of anti-slavery, “which a few years ago was no
larger than a man’s hand, has descended in plentiful dews and at last
cover’d every part of our land.”
And so it seemed. The new Congress created by the Constitution was in a
constant ferment from petitions “teasing and pestering them with
something about slavery,” and one Georgia representative grumbled that
“it was the fashion of the day to favor the liberty of slaves.” In its
first three decades, Congress received proposals to tax slave imports,
impose regulations (including prohibitions on the use of American ports
or shipyards for equipping slave ships) on the slave trade, extend the
Northwest Ordinance’s ban on slavery to the Mississippi territory, and
impose gradual emancipation on the Louisiana territory (after its
acquisition under Thomas Jefferson in 1803), as well as petitions to
“undo the heavy burthens, and prepare the way for the oppressed to go
free, that every yoke may be broken.” When truculent slaveowners tried
to insist that “slaves are property . . . by the Constitution
guaranteed,” John Quincy Adams just as truculently replied that “the
Constitution does not recognize slavery — it contains no such word.” In
fact, “a great circumlocution of words is used merely to avoid the term
slaves.” Any argument that would make the Constitution a pro-slavery
document has, on the evidence of the Framers’ generation, quite a
boulder to roll up the hill.
But rolling that boulder was what slaveholders nearly accomplished in
the generation after the Framing, and they did so not because the
Constitution sanctioned slavery but because of cotton. South Carolina’s
prime champion of slavery, John Caldwell Calhoun, conceded that “many in
the South once believed that it was a moral and political evil.” But
times had changed, and they had changed largely because cotton — the
preeminent commodity grown by slave labor in the American South — had
been transformed by the Industrial Revolution into the white gold of the
transatlantic economy. As late as 1809, cotton was only a secondary crop
for southern agriculture; on the eve of the Civil War, it accounted for
27.5 percent of all United States exports and 57.7 percent of
agricultural exports.
The South now saw slavery “in its true light,” Calhoun said, and
regarded it as “the most safe and stable basis for free institutions in
the world.” In the kingdom of cotton, the Constitution was a relic.
Guarantees of free speech and a free press were disregarded in the
South. Anyone who proposed a discussion of slavery, wrote Alvan Stewart,
an anti-slavery lawyer, “may then provoke a syllogism of feathers, or a
deduction of tar.” Missouri senator Thomas Hart Benton congratulated
mobs that attacked abolitionists for exerting “a vigor beyond all law,”
saying that “they had obeyed the enactments not of the statutebook, but
of the heart.” And so long as he agreed with their spirit, “he cared
nothing for laws written in a book.” In 1836, the Virginia legislature
adopted a statute decreeing the imprisonment of any member of
anti-slavery society so unwary as to enter the Old Dominion. That same
year, Calhoun proposed a post-office bill that would have allowed
postmasters to destroy abolitionist publications — only to have it fail,
narrowly, by a vote of 19 to 25 in the Senate. They were more successful
in passing a “gag rule” to prevent the reading of anti-slavery petitions
in the House of Representatives. The resolution stayed in force until 1844.
In the southern argument, the states were “as independent of each other
as they were before the Constitution was formed,” and in some places
even more so. South Carolina, declared one state legislator, was no
longer a republic but an oligarchy, “an odious cunning, tyrannical
intriguing oligarchy,” determined to “rule or ruin every man who tries
to think, speak or act for himself. Not that this departure from
constitutional government was seriously opposed; to the contrary, it was
the wave of the future.”
“The time must come,” warned Thomas Roderick Dew in 1836, when slavery
would rescue the nation from its outdated laws. “Domestic slavery, such
as ours, is the only institution which I know of, that can secure that
spirit of equality among freemen, so necessary to the true and genuine
feeling of republicanism.”
But slavery’s opponents just as vigorously demanded recognition of the
Constitution’s anti-slavery import. Senator William Henry Seward of New
York defended the Constitution as the shrine of “perpetual, organic,
universal” freedom; slavery had only a “temporary, accidental, partial
and incongruous” presence in it, and only because slavery had the
protection of state, not federal law. The Constitution devotes “the
national domain” to “union, to justice, to defense, to welfare and
liberty” — not to slavery. Ohio governor Salmon Chase (who was known as
the “attorney general for fugitive slaves”) declared that “the founders
of the Republic in framing our institutions, were careful to give no
national sanction” to slavery; “all recognition of the rightfulness of
slaveholding, and all national sanction of the practice, was carefully
excluded from the instrument.”
Above all, Abraham Lincoln, in his great Cooper Union speech in February
1860, appealed to the Framers as proof that the Constitution “marked”
slavery “as an evil not to be extended, but to be tolerated and
protected only, because of and so far as its actual presence among us
makes that toleration and protection a necessity.” Far from justifying
slaveholding as a right, “the Constitution . . . is literally silent
about any such right,” and any impartial inspection of the Constitution
“will show that the right of property in a slave is not ‘distinctly and
expressly affirmed’ in it.” Like Madison, Lincoln resisted the “idea”
that “the Constitution” sanctioned the pretense “that there could be
property in man.”
[...]
Then this happened:
[...]
And when push came to shove, the slaveholders conceded the point. They
seceded from the Union and wrote the kind of constitution the Framers
had not written, one declaring at last that “no . . . law denying or
impairing the right of property in negro slaves shall be passed.”
[...]
And lost.
[...]
To read the Constitution as pro-slavery, in the manner of Finkelman,
Waldstreicher, and even Sanders, requires a suspension of disbelief that
only playwrights and morticians could admire.
[...]
The bottom line is simple, those who claim the Constitution is
pro-slavery are operating from either ignorance, or a desire to
deliberately mislead.