THE Civil War began over a simple question: Did the Constitution of the United States recognize slavery — property in humans — in national law? Southern slaveholders, inspired by Senator John C. Calhoun of South Carolina, charged that it did and that the Constitution was proslavery; Northern Republicans, led byAbraham Lincoln, and joined by abolitionists including Frederick Douglass, resolutely denied it. After Lincoln’s election to the presidency, 11 Southern states seceded to protect what the South Carolina secessionists called their constitutional “right of property in slaves.”
The war settled this central question on the side of Lincoln and Douglass. Yet the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past. The myth, ironically, has led advocates for social justice to reject Lincoln’s and Douglass’s view of the Constitution in favor of Calhoun’s. And now the myth threatens to poison the current presidential campaign. The United States, Bernie Sanders has charged, “in many ways was created, and I’m sorry to have to say this, from way back, on racist principles, that’s a fact.”
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But as far as the nation’s founding is concerned, it is not a fact, as Lincoln and Douglass explained. It is one of the most destructive falsehoods in all of American history.
Yes, slavery was a powerful institution in 1787. Yes, most white Americans presumed African inferiority. And in 1787, proslavery delegates to the Constitutional Convention in Philadelphia fought to inscribe the principle of property in humans in the Constitution. But on this matter the slaveholders were crushed.
James Madison (himself a slaveholder) opposed the ardent proslavery delegates and stated that it would be “wrong to admit in the Constitution the idea that there could be property in men.” The Constitutional Convention not only deliberately excluded the word “slavery,” but it also quashed the proslavery effort to make slavery a national institution, and so prevented enshrining the racism that justified slavery.
The property question was the key controversy. The delegates could never have created a federal union if they had given power to the national government to meddle in the property laws of the slave states. Slavery would have to be tolerated as a local institution. This hard fact, though, did not sanction slavery in national law, as a nationalinstitution, as so many critics presume. This sanction was precisely what the proslavery delegates sought with their failed machinations to ensure, as Madison wrote, that “some provision should be included in favor of property in slaves.” Most of the framers expected slavery to gradually wither away. They would do nothing to obstruct slavery’s demise.
The South did win some concessions at the convention, but they were largely consolation prizes. The notorious three-fifths clause tied slaveholding to political power, but proslavery delegates, led by South Carolinians, repeatedly pressed for slaves to be counted as full persons, which Charles Pinckney professed was “nothing more than justice.” They finally conceded to the three-fifths compromise. Over time, the congressional bulwark of the slave power became the Senate, where the three-fifths rule did not apply.
The proslavery delegates desperately wanted the Constitution to bar the national government from regulating the Atlantic slave trade, believing it would be an enormous blow against slavery. The first draft of the Constitution acceded to their bluster. But antislavery Northerners erupted in protest and proposed that the new government have the power not only to regulate the trade but also to abolish it after 1800. The proslavery men, over Madison’s furious objection, got the date extended to 1808, but it was a salvage operation.
In the convention’s waning days, proslavery delegates won a clause for the return of runaway slaves from free states. Yet the clause was a measure of slavery’s defensiveness, prompted by then landmark Northern gradual emancipation laws, and was so passively worded that enforcement was left to nobody, certainly not the federal government. Antislavery Northerners further refined the wording to ensure it did not recognize slaves as property.
As slavery was abolished throughout the North and as Southern slavery became an internal empire, proslavery advocates tried to reverse the framers’ work, claiming that, with the fugitive servant clause, the Constitution actually established slaves as property in national law. “[H]ave we not a right, under the Constitution, to our property in our slaves?” Senator Calhoun declared in 1840. This became the foundation for proslavery arguments about the expansion of slavery into the national territories that divided the nation in the 1850s.
Antislavery leaders answered with chapter and verse that the framers had refused to extend a constitutional right to property in slaves, and that therefore Congress was empowered to halt slavery’s expansion, putting slavery, in Lincoln’s phrase, on “the course of ultimate extinction.” Douglass broke with those abolitionists who, he said, “hold the Constitution to be a slaveholding instrument.” Running for president in 1860, Lincoln asserted that the framers had operated “on purpose to exclude from the Constitution the idea that there could be property in man.” He added that “[t]o show all this is easy and certain.” It was so well understood in 1860 that it provoked the Civil War.
Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.
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