To what extent did the Constitution of the United States protect slavery?



The Constitution, which was composed in the summer of 1787 at the Philadelphia Convention does not mention slavery directly. It refers obliquely to the external slave trade in Section 9 of Article I only to emphasise that it would be taxed until 1808 and then banned. However, it does allow for representation in Congress to be based in part upon slaves and native Americans in the infamous ‘three fifths’ formulation (Article I Section 2). This allowed for the over-representation of slave-holding states in the House of Representatives, and by extension the electoral college, although of course women and non-voters were virtually represented everywhere without actually having the franchise. Both section 5, which allows for the houses of Congress to set quorum rules, and the Article V rules on amendment which require 2/3 majorities in each house and ¾ majorities in the states allow for the South to have a least a blocking number on both day-to-day and constitutional business. The Congress (section 8) and indirectly the president (by dint of a section 2 power to federalise the militia) are required to suppress insurrections and rebellions, including presumably by slaves.  In such circumstances the Congress is empowered to pass laws allowing for the suspension of habeas corpus. Section I of Article IV also requires all states to give full faith and credit to the acts and proceedings of each. In regard to slavery, this latter clause is buttressed by the direct requirement under the third paragraph of Article IV that escapees be delivered back to those who have a legitimate claim on their service or labour when they have crossed state lines.

This exhaustive reading of the sections of the Constitution that may be said to uphold slavery might give the impression, as the later Calhounites and early fire-eaters once argued, that slavery was a domestic institution which was absolutely protected by the most basic federal law. However, one of the key things about the Constitution is that it is born of a political philosophy that emphasises compromise and eschews clarity. One cannot read, for instance, Federalist 10 and 51, two key pamphlets written by authors of the Constitution, without understanding that there were no ‘firm lines’ other than those that led to negotiation in the document. The Constitution was and is a basic statement, to be elaborated or adapted rather than slavishly followed; in fact it is impossible to follow it in any simplistic way.

On one reading, for instance, the presidency was designed to be weak and the Senate strong—a situation that did not survive President Jefferson. The Speaker of the House might have been a weak office were it not for Henry Clay in 1811. Though nullification and secession are nowhere mentioned, and though there is an implied argument against them, serious people could and did argue that they followed from the general context of the Constitution. There is no elaborative guidance on the commerce clause, nor the status of Indian tribes. There is a vast ‘implication’ of power to Congress to do everything ‘necessary and proper’ in the last paragraph of Article 1 section 8.

It can also easily be argued from the context of the Philadelphia meeting, and from the jurisdiction of the Supreme Court (Article III S.2), the powers of Congress as enumerated in Article 1 s.8, the republican guarantee of Article IV s.4, and the second paragraph of Article VI detailing constitutional supremacy that the whole point of the Constitution is to limit the States and their powers. It follows that institutions which were not universal across the states, even in 1787, were peculiar to those states and subject to the higher power. Thus, Connecticut had an established Church at the time of the Constitution; Massachusetts provided for the establishment of religion, and New Jersey had a Test Act until 1799. There was no suggestion that all states had to obey, nor indeed that, even without the Bill of Rights, that this situation was anything more than a peculiarity of the state that would pass.

In fact, a majority of the States which ratified the Constitution moved to abolish slavery within ten years of doing so.  5 were free at the time of the Philadelphia Convention—Pennsylvania, New Hampshire, Massachusetts, Connecticut and Rhode Island; New York and New Jersey followed by 1804, and Vermont, which was an independent republic, had already abolished it.  This followed from the North West Ordinance, which had disallowed slavery in the territory.

Contradicting this point, however, is the fact that the new Congress felt it necessary to create ‘slave states’ like Kentucky and Tennessee to balance the free ones. This illustrates the point that the Constitution emerged from both a political context and what political scholars would call a regime—a mindset of conventions, rules and laws which supplemented and elaborated it. Many of the founders and their successors owned slaves, and most would have argued for the ‘American-ness’ of the Southern states that upheld the practice; indeed many American nationalists resiled from abolitionism as a British fetish. This attitude underlaid the structure of American government and was accompanied by a general racism that expressed itself in distaste for African- and Native- American culture and rights.

In any event, it is a cliché (because it is rooted in truth) that most of the founders viewed slavery as a doomed institution. The development of technologies that allowed the institution to expand, principally the cotton gin in 1793-4, fundamentally changed the terms of the debate, and made slavery profitable. In that context, the failure of the constitution to outlaw the institution, or to put it on a path to destruction, becomes much more than a morally neutral one and more like a protective warrant.

The founders, by promoting the idea of ‘balance’ in the regime underpinning the constitution, left the document ill-equipped to deal with constitutional expansion. As good Hobbesians, They placed their hope in compromise, and the inevitability of decline, perhaps forgetting the ultimate conservative principle that everything ends in failure. In so doing, they managed to create a structure that preserved slavery and the Union for a human lifetime, but no longer. Once the Union expanded, either it or formalised human bondage had to go. 

 As fate would have it, the nineteenth century saw two huge growths, via the Louisiana Purchase and the Mexican cession, which preyed upon this weakness. When confronted with the impossibility of maintaining the fiction of a continental line in Missouri, arguments devolved into the Calhoun, Cass and Douglas doctrines. One argued that slavery was to be protected as a state institution in all federal territories as all property was; one that free soil precluded slavery; and one was that it was for citizens of the local area to vote on. All of these viewpoints were constitutionally correct, because agreement on the regime had broken down.

This happened in large part because the Constitution traded clarity for flexibility. As soon as a majority evolved with the capacity to overwhelm the South’s vetoes, and which could elect a president without a Southern vote—and therefore appoint a Supreme Court that would institutionalise a new regime—the constitution was of little protection. That is why the fire-eaters and Calhoun before the Civil War, and General Grant after it, and Jefferson upon hearing the fire-bell in the night in 1824, were correct; the constitution could not protect slavery when the majority were opposed to it, and to maintain it required a radical division of the Union that had been set up in contemplation of slavery’s premature prediction of death.













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