A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic
A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic
George William Van Cleve
University of Chicago Press, 2010
408 pp., $48.00

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Slavery's Constitution: From Revolution to Ratification
Slavery's Constitution: From Revolution to Ratification
David Waldstreicher
Hill and Wang, 2009
208 pp., $25.00

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Allen C. Guelzo

"No Union with Slaveholders!"

Slavery and the Constitution.

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Wilson didn't get much of what he wanted (thanks in large measure to those unresponsive congressional mechanisms), but the Progressives who followed Wilson were undissuaded by his failures, and they added a new sting to the Progressive impatience with the Constitution by holding up its embrace of slavery as the prime exhibit of the Constitution's embarrassing backwardness. This same complaint was repeated very recently by Louis Michael Seidman asking (in The New York Times) why we should continue to be guided by a document written by "a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves." And it is repeated again in two extraordinary and thorough pieces of constitutional history by David Waldstreicher and George William Van Cleve, both assuring us with no uncertain voice that the Constitution was not only designed to accommodate slavery, but "simultaneously evades, legalizes and calibrates slavery." If you could desire a telling historical reason to (as Seidman's New York Times op-ed urged) "give up on the Constitution," Waldstreicher and Van Cleve offer it as luxuriantly dressed as you could wish.[2]

The Garrisonians were the first to assault the Constitution as a pro-slavery document. "There should be one united shout of 'No Union with Slaveholders, religiously or politically!' " declared Garrison in 1855, and one particularly good sampling of that disparagement comes from the pen of Frederick Douglass in 1849. Reacting to the insistence of Gerrit Smith and the Liberty Party that the Constitution "is not a pro-slavery document," Douglass replied that it certainly was, and that it "was made in view of the existence of slavery, and in a manner well calculated to aid and strengthen that heaven-daring crime." The proof was in the text of the Constitution itself:

• The Three-fifths Clause (Art. 1, sec. 2) gave the slave states disproportionate power in the House of Representatives.

• The authorization extended to Congress "to suppress insurrections" (Art 5, sec. 8) had no other purpose than suppressing slave insurrections, as did the added pledge (in Art. 4, sec. 4) to protect the states "against Domestic violence."

• The permission given to Congress to end the slave trade after twenty years (Art. 1, sec. 9) was a "full, complete and broad sanction of the slave trade."

• The clause requiring the rendition of any "person held to service or labor in one State, escaping into another," labelled escape from slavery a federal crime (Art 4, sec. 2).

This made the Constitution "radically and essentially pro-slavery, in fact as well as in its tendency."[3]

In more recent times, these arguments were taken up by Leon Higginbotham, Sanford Levinson, Thurgood Marshall, and Mark Graber, mostly as a way of substantiating their larger-view annoyance with the Constitution's intractability to progressive policy changes. But in no place was the "pro-slavery Constitution" accusation laid down in more fiery detail than by Paul Finkelman, in his provocative Slavery and the Founders (1996; 2nd ed., 2001), where Finkelman not only embraced Douglass' bill of indictment but added a few more of his own. It had been part-and-parcel of the New Social History in the 1970s and '80s that slavery and race were the original sin of the American experiment, and that their presence belied any exceptionalist claims that the American founding represented a triumph for human liberty, undimmed by human tears. And in the long view, that was Finkelman's point, too: Slavery and the Founders was written with the "belief that slavery was a central issue of the American founding," and in no way creditable to that founding. Not only were the Three-fifths Clause, fugitive rendition, and the suppression of insurrections proof of the pro-slavery intentions of the Founders, slavery enjoyed special protection from the Constitution's ban on export taxes (which gave a green light to the international marketing of slave-grown products), the dependence of direct taxation and the Electoral College on the Three-fifths Clause, and the limitation of civil suits and privileges-and-immunities to "citizens" (which could only be white people). "A careful reading of the Constitution reveals that the Garrisonians were correct: the national compact did favor slavery," concluded Finkelman. "No one who attended the Philadelphia Convention could have believed that slavery was 'temporary.' "

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