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Allen C. Guelzo

Slavery and Original Intent

Was the Constitution rotten at the core?

"Original intent" is a game constitutional lawyers and political theorists love to play. It can usually be won by playing a single card, marked "slavery." One has only to point to the protections the Constitution originally conceded to slavery—its tolerance of the slave import trade, its willingness to grant the slaveholding states an extra three-fifths worth of representation in the Federal Congress based on their slave populations, its requirement that states return fugitive slaves to their owners—to present a take-all demonstration that the original intentions of the framers of the Constitution are tainted, and consequently useless to modern federal jurisprudence. In the words of constitutional historian Paul Finkelman, the Constitution was a "proslavery compact," and in that case, all notions of limiting judicial interpretation to the "original intent" of the framers become guilty by association.1

This has opened the way for modern constitutional theorists like Charles L. Black, George P. Fletcher, and Mark Tushnet to declare that the Constitution of 1787 is a dead letter, that what we today call the Constitution was only reborn with the Fourteenth Amendment, and that its interpretation is a constantly evolving process, moving inexorably toward a future of Kantian (or Rawlsian) egalitarian absolutism. It also opens the way for the advocates of slave reparations to insert their claim that the Constitution's protections for slavery make the federal government liable for reparations payments, since the Constitution presumably rendered the federal government the central culprit in the establishment of slavery in the United States. And it offers a comforting sense of communion with the most radical heroes of abolitionism—William Lloyd Garrison and Wendell Phillips—who had no compunctions about describing the Constitution as a covenant with death, and burning it publicly in the same spirit of adolescent showmanship that later generations would burn the flag.

On the other hand, this makes for somewhat odd bedfellows, historically speaking, since it lands Black, Tushnet, Fletcher, and Co. in the unpleasant position of echoing precisely the position of the slaveholding South and its most nauseating spokesmen—James P. Holcombe, J. Randolph Tucker, Frank H. Alfriend, Albert Taylor Bledsoe, Jefferson Davis, Alexander H. Stephens, and the whole dreary pageant of indignant Southern fire-eaters who believed that Constitution put the whip and the slave together into their hands. (This is reminiscent of the remark of an Alabamian to John Calhoun, that Wendell Phillips's abolitionist denunciations of the Constitution as a proslavery document could be circulated "to great advantage" in the South merely by dropping a few inconvenient paragraphs.)2

A good deal of this had just been starting to harden into an academic consensus when Don E. Fehrenbacher died suddenly on December, 13, 1997, in the arms of his wife of 53 years, Virginia. Fehrenbacher was a longtime Lincoln scholar, winner of the 1979 Pultizer Prize for The Dred Scott Case: Its Significance in American Law and Politics, and served as the finisher of the late David Potter's Pulitzer-winner, The Impending Crisis, in 1979. Like Potter, Fehrenbacher left unfinished at his own death "my book about the federal government and slavery." Virginia Fehrenbacher commissioned one of her husband's former students, Ward M. McAfee, to complete two partially finished chapters and add a conclusion to what was published four years later as The Slaveholding Republic: An Account of the United States Government's Relations to Slavery. I have only one judgment to offer on it: No book has done more damage to the Constitution's neo-abolitionist detractors in the last 50 years.

There is both madness and method in the title, because it was Fehrenbacher's abiding contention that the authors of the Constitution had no intention at all of making slavery a permanent or national institution. "The intrusions of slavery into the work of the [Constitutional] Convention were largely side effects of progress toward a new constitutional design," Fehrenbacher insisted. "Even the fugitive-slave clause was a late-hour extension of the provision for interstate rendition of fugitives from justice." Surveying the members of the Constitutional Convention in 1787, Fehrenbacher found scant evidence that slavery was much of a topic of discussion. "A good many delegates, including some of the slaveholders, seem to have believed or hoped that somehow in the flow of time, slavery would disappear," and consequently took no pains in the writing of the Constitution to grant slavery "any legitimacy in federal law."

The Convention mysteriously pulled shy even of using the word slave or slavery in the Constitution itself (preferring the euphemism, "persons held to service"), and the few places where it did allude obliquely to the South's peculiar institution—the allowance for twenty years more of the slave trade, the three-fifths clause—were actually tilted in an antislavery direction. The three-fifths clause was intended to keep slaveholders from packing Congress by basing representation from their states on a count that included all of their slaves; the slave-import allowance was more significant for the fact that at the end of 20 years, the federal government was empowered to shut it down (which it did).

What governed the writing of the Constitution was neither an overtly proslavery, or overtly antislavery, bias; if anything, it was controlled simply by the unwillingness of the Convention to involve the Constitution at all in the slavery issue, beyond absolute necessity. In pursuit of a consensus which would allow the Constitution to be quickly ratified and implemented, slavery was left out of the Constitution and left in the hands of the individual states, where presumably the shutdown of the slave trade would lead gradually to slavery's abolition.

What was significant about the Constitution, Fehrenbacher noted, was an issue which was unrelated to slavery itself, but which came to be the principal point of rage over the next half-century. That was the substantial expansion of the federal government's powers granted by the new Constitution. Compared to the mere pittance of authority conceded by the Articles of Confederation, the Constitution awarded the federal government responsibility for organizing the federal lands beyond the Appalachians into territories, and then states. It granted Congress immediate jurisdiction over the District of Columbia (which was sandwiched between two slave states, Virginia and Maryland), and put control over foreign relations in the bailiwick of the executive branch.

And while none of those constitutional powers had anything to do directly with slavery, slaveholders and abolitionists alike quickly reached for those powers in an effort to turn the Constitution to their purposes. "The Constitution as it came from the hands of the framers dealt only minimally and peripherally with slavery and was essentially open-ended on the subject," Fehrenbacher wrote. But it could be made into a proslavery or antislavery document, depending on how the federal government could be made to implement it.

That, of course, depended on who succeeded in winning control of the executive, legislative and judicial branches of the federal government. And from 1800 until 1860, pro-slavery Southerners won that dominance with almost insolent ease. Between Jefferson and Lincoln, eight of the presidents were Southerners and slaveholders, while three others were Northern "doughfaces" who were party-ridden into proslavery policies. Over the same period, Southern Democrats (with the help of the three-fifths clause) controlled the House of Representatives in every session but 1841-43 and 1847-49, while the two long-lived chief justices of the Supreme Court from 1801 to 1864, John Marshall and Roger Taney, were both Southerners.

This meant that every issue which involved slavery and federal jurisdiction was liable to jump in a pro-slavery direction, not because the Constitution mandated it, but because the document was mute enough on the subject to allow pro-slavery conclusions to be enforced as federal law. Despite long-standing agitation to end slavery and the slave trade in the District of Columbia, the Southern majority in the federal government fended off all efforts to end slavery in the national capital. Abolition in the District would have to wait until April 1862, and even then, Maryland slaveholders demanded the right to retrieve from the District any of their fugitive slaves who had fled there for freedom. (One Maryland Congressman, Charles Calvert, actually wrote directly to Lincoln to have the president direct him "what course to pursue to have the Fugitive Slave Law executed.")3

In foreign affairs, a State Department consistently top-heavy with Southern appointees signed treaties that recognized the legality of slavery, demanded (and paid) compensation for slaves lost in wartime, and acquired border territories like Florida and Texas in order to expand slavery's boundaries and deny fugitives safe havens. And although Congress banned the importation of slaves in 1808, as permitted by the Constitution, that did nothing to keep Americans from participating in the larger international slave trade.

But what went up would inevitably come down. Southerners disastrously overreached themselves in 1854 by shuttling the Kansas-Nebraska Act through Congress, opening almost half of the old Louisiana Purchase to slave settlement. They tried to quiet the storm Kansas-Nebraska raised with an even more provocative over reach, the 1857 Dred Scott decision, handed down by Roger Taney, which forbade the territories from erecting their own barriers to slavery.

It was exactly this overreach which triggered the election of Lincoln as president in 1860, and that election exposed just how flimsy the constitutional platform underneath slavery really was. The capture of the presidency for the first time by an avowed enemy of slavery made cruelly clear how little slaveholders had to expect from the actual letter of the Constitution. Under Lincoln, all executive appointments, from cabinet selection to the appointment of postmasters, would go to antislavery decision-makers, and they would lift no eager hand to protect slaveholders in the manner to which they were accustomed. A Republican vice president, Hannibal Hamlin, would preside over the Senate, and Republicans would enjoy a majority in the House and elect its Speaker. Army commissions would go to anti-slavery officers, and those officers would take command of arsenals and forts all over the South.

Reading the electoral demographics and knowing that they could probably never elect a proslavery Southern president again, the Southern states tried to form a breakaway slave republic, the Confederate States of America. The Confederate Constitution, Fehrenbacher delights in pointing out, did what the federal Constitution did not—it explicitly recognized slavery.

Fehrenbacher's book makes no secret of its intention to overthrow the "neo-Garrisonians" who dismiss the Constitution "as culpably proslavery," and Fehrenbacher's determined plea for the comparative neutrality of the Constitution on the slavery issue will sit uneasily with those constitutional anti-literalists who build their contempt for "original intent" on the imbecility of reverencing a Constitution that established slavery in the heart of the Republic. Still, he was careful not to make the equally untenable plea of many antebellum Republicans that the Constitution was an antislavery document in drag: "The case for an antislavery Constitution is just as strong as the case for a proslavery Constitution, but both depend upon special pleading that ignores the evidence." So there is not much advantage to be gained for "original intent" theorists either, since, as far as slavery is concerned, there wasn't any clear "intent" on the part of the Founders to take account of.

Curiously, this puts Fehrenbacher somewhat at odds with the main subject of the final chapters, Abraham Lincoln. By political instinct a constitutional literalist, Lincoln picked his ground carefully by interpreting the Constitution rather as Fehrenbacher does—not perhaps as literally antislavery, but certainly not proslavery. "I believe that the right of property in a slave is not distinctively and expressly affirmed in the Constitution," Lincoln said in 1859,

… a European, be he ever so intelligent, if not familiar with our institutions, might read the Constitution over and over again and never learn that Slavery existed in the United States. The reason is this. The Framers of the Organic Law believed that the Constitution would outlast Slavery and they did not want a word there to tell future generations that Slavery had ever been legalized in America.4

Yet Lincoln was substantially more confident than Fehrenbacher that the Founders were guided by an original intention against slavery which, even if it was not written into the Constitution, could still be discerned pretty directly and could still have interpretive authority: "There was nothing said in the Constitution relative to the spread of slavery in the Territories, but the same generation of men said something about it in [the] ordinance of [17]87," the Northwest Ordinance which restricted the spread of slavery into the old Northwest Territory. This, Lincoln explained, was why he had not stepped forward as an anti-slavery partisan before the Kansas-Nebraska bill. "I have always hated it, but I have always been quiet about it until this new era of the introduction of the Nebraska bill began. I always believed that everybody was against it, and that it was in the course of ultimate extinction … The adoption of the Constitution and its attendant history led the people to believe so."5 Certainly, there was no sense in which Lincoln regarded the Constitution as a wax nose which each generation could rework as it saw fit.

All of this suggests that slavery, far from being a ward of the Constitution, acted more in the role of a sinister perverter of it, a notion which sits well beside Leonard L. Richards's revival of the theory of the "Slave Power" in The Slave Power: The Free North and Southern Domination, 1780-1860 (2000). What is left hanging in the air, though, is the problem of why Lincoln, if the Constitution was slavery-neutral and the original intent of the Founders so patently antislavery, dallied so long in moving to emancipation. That was to have been the burden of Fehrenbacher's final chapter, "The Republican Revolution," and in McAfee's reconstruction, that last chapter offers a vigorous defense of Lincoln's bona fides as the Great Emancipator.

But this defense of Lincoln is also strangely disconnected from the larger argument The Slaveholding Republic makes about the Constitution and the federal government, since most of "The Republican Revolution" is concerned with explaining and defending Lincoln's progress toward the Emancipation Proclamation, not about the Constitution, the federal government, and slavery. One looks in vain for a discussion about the key constitutional issue in emancipation—Lincoln's "war powers" as president—even though that would have been the logical complement to showing how antislavery as well as proslavery politicians were adept at making the Constitution ventriloquize for them. It is almost as though Fehrenbacher or McAfee, having cleansed in some measure the reputation of the Constitution, felt similarly burdened to cleanse Lincoln on emancipation. Gratuitous almost—but still worth every word.

Allen C. Guelzo is dean of the Templeton Honors College at Eastern University and the author most recently of Abraham Lincoln: Redeemer President (Eerdmans, 1999).

1. Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (M.E. Sharpe, 1996), p. 31.

2. Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (Oxford Univ. Press, 1970), p. 86.

3. Calvert to Lincoln, May 6, 1862, in the Abraham Lincoln Papers, Library of Congress.

4. Lincoln, "Speech at Elwood, Kansas," November 30, 1859, in Collected Works of Abraham Lincoln, ed. Roy P. Basler (Rutgers Univ. Press, 1953), Vol. 3, p. 496.

5. Lincoln, "Speech in Chicago," July 10, 1858, and "Speech in Indianapolis," September 19, 1859, in Collected Works of Abraham Lincoln, Vol. 2, p. 492, Vol. 3, p. 465; "Fifth Joint Debate at Galesburg," in The Lincoln-Douglas Debates, ed. Harold Holzer (HarperCollins, 1993), p. 263.

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