The 1787 Paradox: A Constitution Designed for Liberty That Protects Slavery [No. 86]


We the People of the United States, in Order
to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves
and our Posterity, do ordain and establish this Constitution for the United States of
America. John Harrison: The question of whether the
role of slavery in the Constitution undermines its authority or makes it fundamentally flawed
has been around for a long time. Goes back to the formation of the Constitution.
Gordon Wood: Well in 1776 I think everyone, all the founders certainly, knew that slavery
was incompatible with their message that they were promoting life, liberty and pursuit of
happiness. They just knew that there was an inconsistency between holding people in servitude
or in slavery. Lots of people of course were in bonded servitude as well, and all of that
comes under assault as a result of the revolution. Randy Barnett: Pretty much everyone conceded
that it was wrong, and then the only question is what to do about it.
Lucas Morel: They discovered during the revolutionary war that they needed to stay a union. They
needed to be unified in order to be independent and that independence was the key to securing
freedom. Now to stay unified, that meant they had to get everybody to stay together. Well,
what if those states still couldn’t get rid of slavery at the time? That’s the situation
where you had to have a compromise. Steve Calabresi: To understand the compromises,
to understand the situation of the Constitution and slavery, it’s important to know that in
all 13 colonies, including even the New England colonies, there was slavery.
Lynn Uzzell: When talking about the Constitution and its relationship to slavery, it is the
most difficult topic that we can confront. Because here is this element of evil that
is part of our history. And at the same time, the Constitution clearly acknowledges it.
But that doesn’t mean that slavery was an intrinsic part of the Constitution. It was
seen for the most part as an institution that resided within the States.
Lucas Morel: The Founders’ Constitution made compromises with slavery, but it wasn’t established
to preserve slavery. One thing we don’t think about a lot or factor into these current debates
about slavery in the founding period is that slavery was not a national institution per
se. It was a state institution. Each state dealt with it differently.
Randy Barnett: The northern states, the free states, or the states that were on the path
to freedom by this point, in no way wanted to enter into a compact that affirmatively
endorsed slavery which is the reason why the Constitution is very, very carefully worded
to avoid, first of all, the use of the word slave, or slavery at all, which would have
had the effect of endorsing slavery, or any words in the Constitution that recognize the
justice of property and man. Steve Calabresi: The framers of the Constitution
all recognized that slavery was wrong. They also recognized as practical politicians,
that there was no way that Virginia, the Carolinas and Georgia, or even Maryland and Delaware,
would ratify the Constitution if it abolished slavery. Some acknowledgement of slavery therefore
had to be made in the Constitution. John Harrison: The Southern states simply
would not have gone along with a stronger union had they been faced with the choice
between a stronger union that was devised to be anti-slavery and simply continuing under
the Articles of Confederation, or continuing as more or less independent sovereigns. One
of the things that’s discussed in the early Federalist papers is the possibility that
the then-existing union would simply collapse, would break up into one, two, or three separate
confederacies. Randy Barnett: What was the compromise? The
compromise was to allow slavery local while preserving freedom national. Slavery local
meant it was a local institution. It was not ratified by the Constitution. The Constitution
doesn’t say slavery is just, it just says we are not touching slavery. It’s something
that’s strictly a matter of local law. Steve Calabresi: The Constitution’s compromises
with slavery were three: the three-fifths clause, the fugitive slave clause, and this
1808 clause. Lynn Uzzell: If the new Constitution was going
to represent states proportionally, they had to decide proportion according to what? And
the two main options were population or wealth. And both of those would have at least implicitly
involved slaves in one way or the other. And in the end, most people thought population
was the best way. Lucas Morel: The abolitionists, if you will,
at the Founding at the Constitutional Convention, you know how much they wanted slaves represented?
Zero-fifths. It was the slaveholding constituents. It was slaveholding states like South Carolina
and Georgia and North Carolina that wanted slaves counted as five-fifths, if you will,
whole human beings because they wanted of course to magnify their power, their authority
at the national level. It was actually the people who were most emphatically against
the institution of slavery that said slaves shouldn’t be counted at all.
Gordon Wood: The North wants, some want no representation for slaves and so the compromise
is three-fifths which becomes a major issue in the early 19th century.
Steve Calabresi: But the South basically said, “Either we get this clause or there’ll be
no Constitution.” What Gouverneur Morris finally said was, “The only hope of abolishing slavery
in the South is to first create a powerful federal government, and then hope that that
federal government over time will abolish slavery in the South.” Of course that’s what
in fact happened. That’s how the three-fifths clause got into the Constitution over the
vehement objections of Northern delegates to the Philadelphia Constitutional Convention.
Gordon Wood: In 1808 the Constitution promises the end of the slave trade, which everyone
assumes it will be also help to kill the institution nationally.
Lucas Morel: The original date that would allow Congress to ban the importation of slaves,
the slave trade into the United States was 1800. South Carolina at century says you,
“You give us 20 years, you give us till 1808 or we’re not going to sign this thing.”
Lynn Uzzell: Now the third clause relating to slavery is the worst of all. The fugitive
slave clause. Steve Calabresi: The fugitive slave clause
provided that if any slave escaped into a free state, the free state was under an obligation
to return him to his master in a slave state. Lynn Uzzell: One of the reasons why it is
the worst of all is because unlike the other two, it was not absolutely necessary. The
Constitution did not have to say anything about the fugitive slaves, but certain members
in the Southern States again insisted that that clause be inserted.
Lucas Morel: In Madison’s notes, as he carefully describes the debates over the votes on the
Three-Fifths Compromise, on the Fugitive Slave Clause, on the Non-importation Clause, he
is actually recording, delegate after delegate after delegate. State delegates both North
and South of the Mason-Dixon line, if you will, are arguing that we can’t shore up slavery.
This is a toxic, this is poison to our republic. We have got to find a way to get rid of it,
but we’ve got this minority that we’ve got to deal with and so they make compromises.
Gordon Wood: The feeling is I think that the slavery will eventually die. That’s why it’s
not going to be mentioned in the Constitution directly but, there is also the provision
for fugitive slaves, servants, bonded people. Again, the term slave is not used.
Randy Barnett: Since they anticipated that slavery would eventually go away, they wanted
a Constitution that wasn’t marred by the reference to slavery in the future. The absence of any
reference to slavery was deliberate. During the Constitutional Convention, when proposals
were made that would seemingly have endorsed slavery, and then it was pointed out that
wait a second, by saying this, it looks like that could be construed as an endorsement,
they immediately voted that out. None of that language made it into the Constitution.
Lynn Uzzell: The Constitution really just set up a framework within which political
debates were meant to happen. Which is to say the Constitution did not really have a
stance about slavery. It had made compromises with slavery. It had made some concessions,
in at least one important respect, it had made an improvement on the condition of slaves
in that it allowed for the prohibition of the slave trade after 20 years.
John Harrison: So it is certainly easy to see a scenario in which the Constitution was
not created at all, and in which Southern slavery lasted longer, or in which the process
of destroying Southern slavery was even more traumatic than it turned out to be, and it
was pretty traumatic in the 1860s. Whereas we know what happened under the actual Constitution.
We know that ultimately the geographical spread of slavery was limited, that that in turn
brought about the Civil War, which brought about abolition and the slow process of the
fuller integration into American economic and political and social life.

3 thoughts on “The 1787 Paradox: A Constitution Designed for Liberty That Protects Slavery [No. 86]

  1. I think Akhil Amar brought up an interesting point in his book on the Constitution that the neutral institutions still had the unfortunate effect of bolstering slavery in the South. It's disappointing that slavery went from being a necessary evil in revolutionary dialogue while being forwarded as the societal good in civil war dialogue

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