The Legend of the Proslavery Constitution

Law & Liberty ^ | JUNE 26, 2020 | Jason Ross

[Pelham]

Historians today speak of the “proslavery Constitution” and “antislavery constitutionalism”; they almost never speak of the “antislavery Constitution” or of “proslavery constitutionalism.” This fact is a testament to the profound success of the critique of the Constitution leveled by abolitionist William Lloyd Garrison. In his condemnation of the Constitution as proslavery, his resort to Madison’s “Notes from the Constitutional Convention” to demonstrate this case, and his rejection of the Constitution’s authority—all punctuated by his dramatic burning of that document during a Fourth of July address—Garrison has set the terms within which subsequent historical debate on the relationship between the Constitution and slavery has been carried out.

Even historians who disdain Garrison’s caustic critique of the Constitution, who question his partial readings of the Convention’s debates, and who emphasize the development of constitutional arguments that culminated in the Thirteenth, Fourteenth, and Fifteenth Amendments concede at some level Garrison’s premise that the Constitution was intended to be proslavery. Thus, it is sad, but not surprising, to see that the mob rounded up by the New York Times’s “1619 Project” is setting fire to the project of antislavery constitutionalism. Garrison’s belief that the Constitution was intended to be proslavery is an unquenchable fire that will eventually consume all it touches.

[Bull Snipe]

“tacit indication that slavery was accepted under the constitution.”

Slavery is recognized to exist and is accepted. But if slavery was truly protected, there would have been language in the Constitution prohibiting action against the institution.
No such language is found in the Constitution. Since slavery is not protected by the Constitution, states were free to outlaw the institution. By 1804, all states, North of the Mason Dixon Line, had either outlawed slavery or passed laws that would eventually end the practice in their states.

Outlawing slavery does not absolve a state from the Constitutional requirements of Art IV section 2.

[DiogenesLamp]

I have read it awhile back. My recollection is that it reiterates a lot of points I have put forth before.

Yes, this claim that secession is illegal, is a made up phony piece of work imposed by Lincoln, but unsupportable by actual law or history.

http://www.wyomingtalesandtrails.com/Shall_Cromwell_Have_a_Statue.pdf

[DiogenesLamp]

Slavery is recognized to exist and is accepted. But if slavery was truly protected, there would have been language in the Constitution prohibiting action against the institution.

I think Article IV, section 2 clearly qualifies as that.

No such language is found in the Constitution. Since slavery is not protected by the Constitution, states were free to outlaw the institution.

I recently had an exchange of messages with someone on another website who said that court cases were moving in the direction of making it difficult to outlaw slavery in free states. I've already voiced my opinion on the difficulty of banning slavery in free states because of the "privileges and immunities" clause, as well as the 5th amendment protections against taking without just compensation.

From what the fellow was telling me, court cases of that era were moving towards the "you cannot prohibit slavery in free states" position.

Outlawing slavery does not absolve a state from the Constitutional requirements of Art IV section 2.

Clearly, and therein lies the rub. Unless you violate "privileges and immunities", you can't prohibit someone from coming into your state with their slaves. Furthermore, unless you violate the fifth amendment, you cannot take away their slaves for being in your state.

It was only indulged because nobody pushed it into this sort of legal fight.

[Verginius Rufus]

Of the 13 states as of 1787, 6 were states where slavery was sufficiently important that they would not have ratified a document designed to eliminate slavery. So if the Constitutional Convention had produced an anti-slavery document, it would have been ratified by at most 7 states, perhaps fewer.

The drafters of the Constitution avoided using the words "slave" or "slavery" in the text--they first appeared in the Constitution with the Reconstruction Era amendments.

[OIFVeteran]

Lincoln made absolutely nothing up. He was following supreme court decisions on the nature of the constitution. And He simply followed the precedent set by previous Presidents when faced with insurrection/rebellion/secession. In fact South Carolina was warned 30 years earlier by President Andrew Jackson that secession was treason. They should have been under no delusion that secession was constitutional or legal.

“This right to secede is deduced from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior; that because they made the compact they can break it when in their opinion it has been departed from by the other States. Fallacious as this course of reasoning is, it enlists State pride and finds advocates in the honest prejudices of those who have not studied the nature of our Government sufficiently to see the radical error on which it rests.

The people of the United States formed the Constitution, acting through the State legislatures in making the compact, to meet and discuss its provisions, and acting in separate conventions when they ratified those provisions; but the terms used in its construction show it to be a Government in which the people of all the States, collectively, are represented. We are one people in the choice of President and Vice-President. Here the States have no other agency than to direct the mode in which the votes shall be given. The candidates having the majority of all the votes are chosen. The electors of a majority of States may have given their votes for one candidate, and yet another may be chosen. The people, then, and not the States, are represented in the executive branch.

The Constitution of the United States, then, forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same. It is a Government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant. But each State, having expressly parted with so many powers as to constitute, jointly with the other States, a single nation, can not, from that period, possess any right to secede, because such secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State may at pleasure secede from the Union is to say that the United States are not a nation, because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense. Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right is confounding the meaning of terms, and can only be done through gross error or to deceive those who are willing to assert a right, but would pause before they made a revolution or incur the penalties consequent on a failure.

The laws of the United States must be executed. I have no discretionary power on the subject; my duty is emphatically pronounced in the Constitution. Those who told you that you might peaceably prevent their execution deceived you; they could not have been deceived themselves. They know that a forcible opposition could alone prevent the execution of the laws, and they know that such opposition must be repelled. Their object is disunion. But be not deceived by names. Disunion by armed force is treason.”

President Andrew Jackson Nullification Proclamation to the people of South Carolina 1832

[Bull Snipe]

court cases of that era were moving towards the “you cannot prohibit slavery in free states” position

To my knowledge, before 1860 no such ruling was ever issued by any court in the U.S. If you can cite such a case, would appreciate it.
Even the Supreme Court recognized the legal existence of “Free” states in the Scott v. Sanford.

“you can’t prohibit someone from coming into your state with their slaves.

To live there, Yes you can. If slavery is illegal in New York State, you are not denying an Alabama slave owner any of the privileges or immunities that a citizen of New York State enjoys. He can buy land, own horses, sue in court, be tried by a jury, own fire arms etc, as any New York citizen. Since it is illegal for a New York citizen to keep a slave in the State of New York, the Alabama slave owner cannot keep a slave legally in New York State.
That does not violate the immunities and privilege’s clause

[DiogenesLamp]

And what role did Andrew Jackson play in the ratification process?

Also you ignored my question. Are you honest enough to admit I have more proof supporting my side than you do for yours?

[DiogenesLamp]

It denies him the privileges that he enjoyed in his own and several other states at the time.

All states were required to recognize slaves as legal property. That's that Article IV thing. Denying someone the use of their "property" is a fifth amendment violation. You didn't address that point. Slaves are being treated as a "special class" that is undefined in the constitution.

As for court cases moving in that direction, they fellow just claimed there were some, and told me to check out the Wilmont proviso, though I'm not sure what connection he wanted me to see regarding that.

I may look and see if I can find him again and ask for a clarification and some examples.

[BroJoeK]

Bull snipe: "this ought to bring JeffersonDem out"

Don't be bashful, let's invite him... ;-)

[BroJoeK]

from the article: "” New Left historian Staughton Lynd read causation into this coincidence, claiming that Garrison and his followers seized on James Madison’s “Notes” “to show in detail what they had long suspected: that the revered Constitution was a sordid sectional compromise, in Garrison’s words ‘a covenant with death and an agreement with hell.’”"

And Garrison's is just the argument we've seen posted ad nauseum by Lost Causers here -- they say the Constitution "enshrines" slavery!

But the article's author is trying to argue the opposite: no it doesn't, he says, and Madison's "Notes" prove it.

Well, maybe Madison's "Notes" do, we'd certainly wish they do, but as near as I can tell, it's still a matter of perspective and interpretation.
For example: if the US Constitution did indeed "enshrine" slavery, why would the Confederate constitution go to such lengths to explicitly spell out the, ah, "enshrinement" the US Constitution already contained?

I get the sense here that Pelham is delighted to share with us Garrison's original condemnation of the Constitution as "pro-slavery" while he wishes to carefully ignore this article's point that: no, it's not.

[Ohioan]

What the Constitution surely was not, was an effort to force one State or States' morality on any other State. It ws framed in a spirit of mutual respect--just as our foreign policy was formulated to encourage reciprocal respect.

The concept offered is not difficult to fathom. We did not embrace the union to force our interpretations of morality on others; rather to protect the common interests of the peoples involved--a very different idea than forcing uniformity of thought.

[rockrr]

More crap from the America hater.

[DoodleDawg]

It denies him the privileges that he enjoyed in his own and several other states at the time.

So? Article IV is not absolute.

[jeffersondem]

“Don't be bashful, let's invite him... ;-)”

Both the CSA and the USA had pro-slavery constitutions.

Both the CSA and USA had presidents who swore oaths to protect and defend their nation's pro-slavery constitutions.

In fact the USA president swore the oath twice.

In this context, it is important to remember the Confederate states were defeated by the most powerful slave-owning nation on earth.

[Bull Snipe]

“It denies him the privileges that he enjoyed in his own and several other states at the time.”

But it does not deny him the privilege’s and immunities of citizens of the State of New York. He is free to accept those conditions or look for another state to move to.

All states were required to recognize slaves as legal property. That’s that Article IV thing. Denying someone the use of their “property” is a fifth amendment violation. You didn’t address that point. Slaves are being treated as a “special class” that is undefined in the constitution.

Show me the Court decisions that prohibit a State from outlawing slavery within the boundaries of that state.

[Pelham]

It’s a great essay, just too little known.

[mac_truck]

Good grief. Can’t they do something more useful, like debate how many angels can dance on the head of pin? I guess these academic debates still mean something, but it’s still trying to have an honest discussion with a dishonest person.

Meanwhile in Richmond Virginia...

[BroJoeK]

jeffersondem: "Both the CSA and USA had presidents who swore oaths to protect and defend their nation's pro-slavery constitutions."

And how many times did Jefferson Davis take the Oath of Office of loyalty to the USA?
My count is: six times, at least.

Of course, if you're a Southern Democrat, such oaths only mean what they mean when they mean it, right?

[BroJoeK]

OIFVeteran quoting: "President Andrew Jackson Nullification Proclamation to the people of South Carolina 1832"

"...The Constitution of the United States, then, forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same.
It is a Government in which all the people are represented, which operates directly on the people individually, not upon the States; they retained all the power they did not grant.
But each State, having expressly parted with so many powers as to constitute, jointly with the other States, a single nation, can not, from that period, possess any right to secede, because such secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.
To say that any State may at pleasure secede from the Union is to say that the United States are not a nation, because it would be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to their injury or ruin, without committing any offense.
Secession, like any other revolutionary act, may be morally justified by the extremity of oppression; but to call it a constitutional right is confounding the meaning of terms, and can only be done through gross error or to deceive those who are willing to assert a right, but would pause before they made a revolution or incur the penalties consequent on a failure.

The laws of the United States must be executed.
I have no discretionary power on the subject; my duty is emphatically pronounced in the Constitution.
Those who told you that you might peaceably prevent their execution deceived you; they could not have been deceived themselves."

Thanks for a great quote from patriot Andrew Jackson, it's one reason many FR Lost Causers loathe & despise Jackson, and why President Trump supports & defends him.

I have no doubt that Jackson's words also helped guide Lincoln's actions in the spring of 1861.

[jeffersondem]

“And how many times did Jefferson Davis take the Oath of Office of loyalty to the USA?”

George Washington fought for the British.

George Washington fought against the British.

He took these, seemingly conflicting, actions for one reason: he loved his country.