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(In this review, Guyatt skewers Sean Wilentz's new book that defends the
US Constitution as implicitly abolitionist. It goes to the heart of the
WSWS-defended open letter to the NY Times protesting Project 1619.
Beneath the review, you will see an exchange of letters over this
article with John Oakes, another signer of the open letter, defending
Wilentz.)
NY Review of Books, JUNE 6, 2019 ISSUE
How Proslavery Was the Constitution?
by Nicholas Guyatt
No Property in Man: Slavery and Antislavery at the Nation’s Founding
by Sean Wilentz
Harvard University Press, 350 pp., $26.95
Were the Founding Fathers responsible for American slavery? William
Lloyd Garrison, the celebrated abolitionist, certainly thought so. In an
uncompromising address in Framingham, Massachusetts, on July 4, 1854,
Garrison denounced the hypocrisy of a nation that declared that “all men
are created equal” while holding nearly four million African-Americans
in bondage. The US Constitution was hopelessly implicated in this
terrible crime, Garrison claimed: it kept free states like Massachusetts
in a union with slave states like South Carolina, and it increased the
influence of slave states in the House of Representatives and the
Electoral College by counting enslaved people as three fifths of a human
being. When Garrison finished excoriating the Founders, he pulled a copy
of the Constitution from his pocket, branded it “a covenant with death
and an agreement with hell,” and set it on fire.
Garrison was one of the most unpopular men in nineteenth-century
America, and this performance did little to improve his standing with
the moderates of his time. Today’s historians are more sympathetic to
his argument that the Constitution made possible the expansion of
slavery in the early United States. According to Ibram X. Kendi, author
of the National Book Award–winning Stamped from the Beginning: The
Definitive History of Racist Ideas in America (2016), the Constitution
“enshrined the power of slaveholders and racist ideas in the nation’s
founding document.” David Waldstreicher, in Slavery’s Constitution
(2009), charges that the Founders produced “a proslavery constitution,
in intention and effect.”
Their bleak assessments are grounded in the many protections for
slaveholding agreed on at the Constitutional Convention of 1787. Beyond
the three-fifths rule, the international slave trade was exempted from
regulation by the federal government, which otherwise oversaw foreign
commerce. Congress was banned from abolishing the trade until 1808 at
the earliest. The federal government was prevented from introducing a
head tax on slaves, and free states were forbidden from harboring
runaways from slave states. The Founders obliged Congress to “suppress
insurrections,” committing the national government to put down slave
rebellions. The abolitionist Wendell Phillips, an associate of
Garrison’s, summarized the work of the Founders in 1845: “Willingly,
with deliberate purpose, our fathers bartered honesty for gain, and
became partners with tyrants, that they might share in the profits of
their tyranny.”
The effectiveness of constitutional protections for slavery can be
measured in the growth of the institution between the formation of the
federal government in 1789 and the secession of South Carolina in 1860.
Across these seven decades, the number of enslaved people in the United
States increased from 700,000 to four million. The dispossession of
Native Americans and the violent seizure of northern Mexico created a
vast cotton belt that stretched from the Atlantic to the Rio Grande.
Although Congress opted to abolish the international slave trade at the
earliest opportunity in 1808, a vast domestic trade—expressly permitted
by the Constitution—relocated more than a million enslaved people from
upper southern states like Maryland and Virginia to the cotton fields of
the Deep South. Unspeakable crimes were committed against
African-Americans; countless lives were broken or ended. While
individual slaveholders bore their share of responsibility, the
Constitution allowed proslavery forces to use the power of the federal
government to support appalling measures. With the Dred Scott decision
of 1857, which denied the possibility of black citizenship in America
and invited slaveholders to take their property into any state of the
Union, slavery’s domination of national politics seemed absolute.
Sean Wilentz’s No Property in Man concedes the horrors of slavery and
acknowledges that the Constitution benefited slaveholders. For Wilentz,
though, fixating on the Constitution’s proslavery effects or racist
underpinning overlooks a “crucial subtlety” at the heart of the 1787
Constitutional Convention: while the delegates in Philadelphia
encouraged and rewarded slaveholders, they refused to validate the
principle of “property in man.”
Most books about the Constitution, even the ones that largely ignore
slavery, acknowledge that the Convention walked a difficult line on the
question. By 1787, in five of the original thirteen states, the
legislature had outlawed slavery or the state supreme court had ended
it. Pennsylvania, Rhode Island, and Connecticut had passed gradual
emancipation bills, which ensured that slavery in those states would
survive into the nineteenth century. In New Hampshire and Massachusetts,
legal challenges under the new state constitutions brought slavery to a
sudden end. New York and New Jersey had already started debating
emancipation before the Constitutional Convention. They finally opted
for their own gradual schemes in 1799 and 1804, respectively.
Economic and demographic developments encouraged the view that slavery
was in retreat in the 1780s. In Virginia, which had more slaves than any
other state throughout the antebellum period, soil exhaustion and trade
disruption persuaded many white planters to shift from tobacco to less
labor-intensive wheat farming. Virginia’s legislators made it easier for
individual slaveholders to manumit their slaves. Throughout the upper
South, writers and activists disputed the idea that the region’s future
depended on the perpetuation of slavery. The holdouts in this fragile
antislavery moment were the Deep South states, principally Georgia and
South Carolina. Even here, white voices were raised against slavery, but
the political elite was deeply committed to the persistence of human
bondage. “If it is debated, whether their slaves are their property,”
one South Carolina politician had warned the Continental Congress in
1776, “there is an end of the confederation.”
If eleven of the thirteen states were antislavery or skeptical about
slavery’s future, why were Georgia and South Carolina given so much
leeway in the Constitutional Convention? Wilentz offers a familiar
answer: had any plan for emancipation been discussed, “the slaveholding
states, above all the Lower South, would have never ratified such a
Constitution.” There’s a comforting finality about the logic of this:
the delegates at Philadelphia did the best they could, but it was simply
impossible to craft a strong central government in 1787 without sweeping
concessions to slavery.
Wilentz’s book has little to say about two questions that would
illuminate what is often called the “paradox of liberty”: Were threats
of disunion from South Carolina and Georgia credible? And might the
Virginia delegation, under the enlightened leadership of James Madison,
have led the upper South (and the nation) toward a happier future?
Instead Wilentz focuses on the ways in which the Deep South delegates,
occasionally (but not always) supported by their fellow slaveholders in
the upper South, were frustrated in their efforts to obtain an even more
proslavery Constitution. Rather than viewing the Philadelphia delegates
as pusillanimous on the slavery question, Wilentz sees them playing a
long game: by consciously and doggedly affirming “no property in man,”
the Founders insisted that freedom, rather than slavery, was the
principle at the core of the new nation.
Wilentz admits there are problems with this argument. It’s easy to
understand why historians believe that slaveholding interests triumphed
at Philadelphia, “because in several respects they did.” He does not
dispute that slavery emerged intact from the 1787 Convention, but
insists that “the Constitution’s proslavery features appear substantial
but incomplete.” There is a surreal quality to some of his
counterfactuals in this respect. (What if the Deep South had forced the
delegates to pass a five-fifths rule?)
But for the most part he looks to later developments. The exclusion of
“property in man” became “the Achilles’ heel of proslavery politics.” It
offered a critical opening to subsequent generations of antislavery
campaigners and politicians, who could—and eventually did—point to the
absence of absolute constitutional guarantees of slavery’s legitimacy.
Most notably, Wilentz suggests that the Republican Party of the 1850s
used the Constitution as “the means to hasten slavery’s demise.” By
declining to make an explicit declaration in 1787 that slavery was a
foundational principle of the United States, the Founders had
brilliantly facilitated the later Republican cry of “Freedom National,
Slavery Sectional.”
Our view about whether the Constitution hastened abolition may depend on
how we understand slavery’s effects in the seventy-five years between
the Constitutional Convention and the Emancipation Proclamation. As
Calvin Schermerhorn argues in Unrequited Toil (2018), his recent book on
the development of slavery in the United States, the expansion of the
institution under the provisions of the Constitution did incalculable
damage to African-Americans, while hugely increasing the wealth of white
people. By 1860, enslaved people counted for nearly 20 percent of
national wealth and produced nearly 60 percent of the nation’s exports.
Historians and economists debate the centrality of slavery to the
emergence of modern American capitalism, but few dispute that the gains
of slavery—through shipping, banking, insurance, and commerce—were
distributed nationally.
Wilentz writes that the exclusion of an explicit guarantee of property
in man was not just an accident or “technicality” at the Constitutional
Convention. The delegates “insisted” on it, he claims, and he offers a
line from James Madison to prove his point: it would be wrong “to admit
in the Constitution the idea that there could be property in men.” This
quotation is so perfect for Wilentz’s argument that he could not have
invented better evidence in support of it.
But there is some doubt as to whether Madison actually used those words
in Philadelphia. The debates at the Convention were held in secret, and
the only person who kept substantial notes on what had been said was
Madison himself. The legal historian Mary Sarah Bilder won the Bancroft
Prize in 2016 for Madison’s Hand: Revising the Constitutional
Convention, a brilliant study of just how extensively Madison reshaped
the story of what happened at Philadelphia over his long lifetime. On
the subject of slavery, she believes that Madison tinkered with the
transcript of 1787 to make himself seem more righteous than he actually
had been; she suspects that the specific reference to “property in men”
was added at a later date. This doesn’t destroy Wilentz’s argument that
“no property in man” was a discrete principle with political power,
especially in the nineteenth century. But the notion that Madison and
his colleagues planted antislavery language in the Constitution for
Abraham Lincoln and Frederick Douglass to discover in the 1850s is more
exciting than convincing.
Madison is a tantalizing figure for Wilentz. The disputed quotation
decrying “property in men” appears half a dozen times in his book, with
Bilder’s qualms relegated to an endnote. Wilentz explains
sympathetically that when Madison declared during the Virginia
ratification debates that the Constitution provides strong protection
for slavery via the fugitive slave clause, the Founder was “stuck in a
dilemma that made candor impossible.” When evidence of antislavery
intent dries up, Wilentz tells us that Madison was taking an influential
stand against property in man even if he “could not or would not admit
[it], not even, perhaps, to himself.”
Madison failed to free any of his slaves during his lifetime, supported
the extension of slavery into the West during the Missouri crisis of
1819–1821, and ended his life as president of the American Colonization
Society, an institution dedicated to the permanent relocation of
African-Americans to another continent. Like Thomas Jefferson, his
friend and predecessor in the White House, Madison balanced a watery
(and usually private) antislavery sentiment with a profound
squeamishness about living alongside black people in freedom. (In his
1785 Notes on the State of Virginia, Jefferson insisted that American
abolition would require a double effort: black people should be freed
from slavery and then “removed beyond the reach of mixture.”)
The intellectual and political limitations of these antislavery
slaveholders became even clearer after 1815, when the rise of cotton
offered fretful planters in Virginia a lucrative alternative to
manumitting their slaves or persuading them to settle in Liberia or
Haiti. Between 1820 and 1860, for every African-American colonized in
Liberia nearly one hundred were driven from the Upper South to the
cotton and sugar fields of the Deep South. Madison and Jefferson, who
had specified that enslaved people be colonized as a condition of their
emancipation, remained adamantly theoretical in their antislavery
convictions. Both men clung to colonization throughout their long
lives—Jefferson died in 1826, Madison in 1836—despite clear evidence
both that American slavery was expanding and that African-Americans
would not consent to their expatriation. Jefferson, who owned more than
six hundred people across his long life, freed only five slaves in his
will. (Two of those were his sons.) Madison freed none.
In making the case for an antislavery Founding, Wilentz misses the most
obvious and historically plausible defense against the charge that the
Founders facilitated the full horrors of US slavery. In 1787 white
Americans could still indulge in the belief that the historical tide was
turning against human bondage. The cotton gin had not yet been invented,
and the cotton belt remained in the possession of its Native American
inhabitants. In the 1780s, a chorus of international antislavery
activists—such as Thomas Clarkson, William Wilberforce, Phillis
Wheatley, Olaudah Equiano, Anthony Benezet, and Jacques Pierre
Brissot—believed that the force of public opinion could overturn the
power of the slaveholders. Britain and the United States seemed poised
to ban the slave trade; these activists predicted that, without new
arrivals from Africa, slavery would wither and die. Every delegate in
Philadelphia should have known that the Constitution’s protections for
slavery would slow this antislavery tide; but many might have told
themselves that they were only delaying the inevitable.
This interpretation may be overly generous to the Founders, many of whom
had already concluded that racial coexistence after emancipation would
be as great a challenge for prejudiced white people as ending slavery.
But the argument that the Founders couldn’t foresee the horrors of the
cotton belt seems more convincing than the suggestion that James Madison
slipped in antislavery language for Abraham Lincoln to use during the
1860 presidential race. So why is Wilentz so interested in a form of
antislavery originalism? The answer, I think, lies in politics rather
than history. No Property in Man began as a series of lectures at
Harvard in 2015. That year, Wilentz got into a spat with Bernie Sanders
after the presidential candidate told an audience in Virginia that the
United States “in many ways was created…on racist principles.” Wilentz,
in a New York Times Op-Ed, dismissed “the myth that the United States
was founded on racial slavery” and accused Sanders of “poison[ing] the
current presidential campaign.” To describe the Founding as racist was,
Wilentz wrote, to perpetuate “one of the most destructive falsehoods in
all of American history.”
Frederick Douglass
Frederick Douglass; drawing by David Levine
Wilentz has long been a liberal activist. For more than a
quarter-century, he faithfully supported Bill and Hillary Clinton.
During the Lewinsky scandal in 1998, he warned Congress that “history
will track you down and condemn you for your cravenness” if Bill Clinton
was impeached. In a 2008 editorial in The New Republic, he accused
Barack Obama and his campaign team of keeping “the race and race-baiter
cards near the top of their campaign deck” during their battle with
Hillary Clinton for the Democratic nomination. He has been a
particularly sharp critic of those who’ve rallied behind candidates to
the left of the Clintons. In a recent article lamenting the Sanders
phenomenon, Wilentz accused the left of being irresponsible in its
economic promises, solipsistic in its embrace of identity politics, and
disrespectful toward the achievements of the liberal tradition. Trashing
the Founders is, for Wilentz, another sign of progressive immaturity.
At a public event in Florida last spring, the distinguished historians
Joseph Ellis and Gordon Wood also criticized what might be called the
Bernie Sanders view of the Founding. Ellis complained that college
professors were now telling students that the Founders were “the deadest
whitest males in American history.” Instead of learning about the
nation’s many accomplishments, students were getting “anti-history,” in
which slavery and Native American dispossession had been placed at
center stage by reckless educators. “Those are storylines worth
exploring,” Ellis conceded, “but for that to take the form it has taken,
it means young people coming into College don’t learn about the
Revolution, the Constitution, the coming of the Civil War.” No Property
in Man, with its forceful insistence on the Constitution’s antislavery
position, is a perfect response to the “anti-history” produced by a
younger generation of scholars.
Do we weaken our politics when we argue that the Founders protected
slavery or that they struggled to see people of color as equals? Wilentz
thinks so, and he has a powerful figure to help him make the case.
Frederick Douglass became an international celebrity on the abolitionist
lecture circuit in the 1840s. Working alongside William Lloyd Garrison
and Wendell Phillips, he at first embraced Garrison’s view that the
Founders were fatally compromised by their protections of slavery. “The
identical men who…framed the American democratic constitution,” Douglass
told a crowd in London in 1847, “were trafficking in the blood and souls
of their fellow men.” This, he said, was a stain on everyone in the
United States, not only southerners: “The whole system, the entire
network of American society, is one great falsehood, from beginning to end.”
The Garrisonians believed that the northern states had a duty to secede
from the South, and that participating in elections would dignify a
system that was rotten to the core. In the 1850s, Douglass broke with
this strategy. He began to argue that the Constitution was a “glorious
liberty document” that, despite its proslavery effects, contained
“principles and purposes, entirely hostile to the existence of slavery.”
His old ally Phillips had scoffed at “this new theory of the
Anti-slavery character of the Constitution.” Wilentz, however, praises
Douglass for realizing that an antislavery understanding of the Founding
might have more political traction than the theatrical recusals of the
Garrisonians. When Wilentz discusses the Garrisonians’ righteous fury at
the constitutional “compromise” on slavery, it’s hard not to think about
Sanders and his supporters: “For the Garrisonians, morality dispelled
context and bred certitude; anything short of revulsion at that
compromise, rendered as condoning evil for the sake of commercial
profit, signified grotesque complicity in slavery.”
Wilentz casts the Garrisonians as naive dreamers whose ideological
purity stymied their political influence. But No Property in Man has a
narrow understanding of antislavery politics, focused principally on
Congress and debates among white elites about the propriety of slavery’s
expansion. There’s no room in Wilentz’s account for the men and women,
black and white, who struggled to establish pathways out of slavery via
the Underground Railroad, or who waged battles in statehouses, in
courts, and on the streets to establish the rights of black people
within the United States. (Martha S. Jones’s revealing new book
Birthright Citizens, which explores many of these aspects of antislavery
politics, marks a whole field that entirely escapes Wilentz’s gaze.)
Then there’s the unfortunate fact that many of Wilentz’s antislavery
activists—whom he loosely describes as “abolitionists”—were actually
advocates of colonization. The project of removing black people from the
United States drew adherents from the North and upper South until the
1840s and beyond, a fact that appalled the Garrisonians and supported
their belief that slavery and racism were national rather than regional
crimes. If we accept, as Wilentz argues, that northerners, along with
some sympathetic or unconsciously radical Virginians, essentially doomed
slavery by denying property in man in 1787, we indulge a familiar story
in which the racial sins of the United States effectively become sins of
the South. Garrison and his followers were ruthless in dismissing that
convenient fiction. “Slavery is not a southern, but a national
institution,” wrote Garrison’s newspaper in 1843, “involving the North,
as well as the South.” That this was a hard truth for many northerners
to hear—then and now—makes it no less important as a political insight.
Although the subtitle of No Property in Man promises that the book will
explore “slavery and antislavery at the nation’s founding,” it will not
convince historians of the early republic who have struggled to find
antislavery sentiments in the Founders’ intentions. The book is more
interesting on the efforts of legislators, reformers, and radicals to
work out the implications of “no property in man” through debates over
territorial expansion in the following decades, and on the fissure over
principles and political participation in the abolitionist activism of
the 1840s and 1850s. Wilentz falls short of his central goal: to
persuade readers that the Founders planted an antislavery seed that bore
fruit in 1860. His book succeeds when it demonstrates that the political
abolitionists of the 1850s creatively refashioned the founding story for
their own ends. In doing so, they were acting not as historians but as
activists; and it’s no surprise that Wilentz, while approaching us as
the former, is as much the latter as any of his subjects.
---
No Property in Man’: An Exchange
Sean Wilentz and James Oakes, reply by Nicholas GuyattJUNE 27, 2019 ISSUE
In response to:
How Proslavery Was the Constitution? from the June 6, 2019 issue
To the Editors:
Nicholas Guyatt’s review of my No Property in Man [NYR, June 6] charges
that the book isn’t really a work of history at all but, at bottom, a
political polemic disguised as history, an act of projection aimed at
Bernie Sanders and Guyatt’s own “younger generation of scholars.”
Cartoon by John Leech satirizing the hypocrisy of proslavery Americans, 1848
An English cartoon by John Leech satirizing the hypocrisy of proslavery
Americans, 1848
I can only conjecture why Guyatt, a former student in my Princeton
graduate seminar, felt compelled to defame my professional integrity. On
the level of historical scholarship, Guyatt’s constant distortion of the
book’s evidence and contentions betrays a peculiar confusion in which
historical dogma and its imperatives prevail over facts and reason.
At every turn, Guyatt either garbles or corrupts my arguments. According
to him, the book makes a “case for an antislavery Founding” and advances
“a form of antislavery originalism.” It does neither. According to him,
the book offers the “familiar” apology that without “sweeping
concessions” to slavery there would have been no Constitution; and he
says I think that, in his words, “we weaken our politics when we argue
that the Founders protected slavery.” But the first claim is false and
the second fabricated, the exact opposite of what I think.
Guyatt suppresses my main argument. He says my book recognizes the
framers’ proslavery concessions but invents an antislavery founding
anyway. On the contrary, I attempt “to move beyond what has become a
sterile debate among historians over whether the Constitution was
antislavery or proslavery.” The surviving sources show that the
Constitution was both. The concessions to the slaveholders helped secure
slavery where it already existed while leaving open its expansion. Yet
by emphatically refusing to acknowledge the legitimacy of slavery—or, as
the phrase went, “property in man”—the Constitutional Convention
excluded slavery from national law.
While the framers would perforce tolerate state laws recognizing
slavery, they would not enshrine slavery as an institution immune to
federal restriction. The majority at the Constitutional Convention
upheld this view on matters ranging from the privileges and immunities
clause to the abolition of the Atlantic slave trade.
These facts form the heart of my book. Guyatt ignores them. Instead he
fixates on a single powerful quotation from James Madison and on the
chance that Madison may not have spoken those words, or those exact
words, in the convention debate. Petty squabbles aside, it’s not as if
my case rests on one remark.
Guyatt ignores the delegate Elbridge Gerry’s declaration that the
convention should have “nothing to do with the conduct of the States as
to Slaves, but ought to be careful not to give any sanction to it.”
Likewise, the convention’s repudiation of a proslavery proposal that,
Madison recorded, “seemed to wish some provision should be included in
favor of property in slaves.” Likewise, the convention majority’s other
painstaking efforts to remove any implication that “slavery was legal in
a moral view.” Guyatt apparently thinks he can disprove an argument by
disregarding the evidence behind it.
Guyatt gives his game away when he repeatedly twists my actual
conclusion into an absurd claim that the framers deliberately slipped in
antislavery language for later generations to use. The convention
majority was not clairvoyant. It just wanted to limit slavery’s
legitimacy under the new national government. Some antislavery delegates
said those limits were sufficiently strong that, as James Wilson
averred, they would soon lead to “banishing slavery out of this
country.” Proslavery delegates elided the exclusion of property in man
and proclaimed that the Constitution gave slavery iron-clad protection.
The struggle over slavery and the Constitution was there from the
beginning. But that negates the doctrine according to William Lloyd
Garrison to which Guyatt clings, a sectarian doctrine the majority of
abolitionists rejected, insisting that there was no real struggle, no
antislavery inflection; and that the framers simply forged a diabolical
“covenant with death”—facts to the contrary be damned.
Guyatt alleges that my book has no room for anyone outside “white
elites,” and that it dismisses “a whole field” of fugitive slaves and
grassroots activists. In fact, the book describes a crucial part of the
antislavery struggle in which white lawmakers, prominent and obscure,
were of principal importance, but where activists, including Frederick
Douglass, repeatedly played a vital role.
Neither does the book deny that under the Constitution, slavery “did
incalculable damage to African-Americans, while hugely increasing the
wealth of white people,” including Northerners. Guyatt knows very well
that my view of slavery and the antislavery movement embraces and
emphasizes everything he mentions, and that my book relates directly to
that larger history. On a mission to trash No Property in Man, he
pretends otherwise.
Guyatt winds up his review by obliterating the remainder of the
historical record. After snubbing the evidence from 1787, he claims
political abolitionists of the 1850s “creatively refashioned the
founding story for their own ends.” That is, Abraham Lincoln and
Frederick Douglass were just making it up virtually out of thin air when
they said the framers excluded property in man.
Guyatt overlooks the mountain of evidence dating back to 1789, some of
it discussed in my book, that shows agitators as well as political
leaders, including some of the framers, asserting what Lincoln and
Douglass did. Is Guyatt really unacquainted with the foundational
writings of Rufus King, Theodore Dwight Weld, Salmon P. Chase, and their
predecessors? Guyatt achieves his dogmatic airbrushing the same way he
denies the evidence from the Constitutional Convention itself, by
feigning that the evidence doesn’t exist—only this time, he shuns
evidence familiar to any credible scholar in the field. Alternatively,
more charitably, he doesn’t know what he’s talking about.
I’ve been looking forward to an intelligent, sharp, and serious debate
about No Property in Man. Unfortunately, Guyatt’s review, with its ad
hominem attacks, dogmatic factionalism, and historical lesions,
apparently has another agenda.
Sean Wilentz
Princeton University
Princeton, New Jersey
To the Editors:
In his review of Sean Wilentz’s No Property in Man, Nicholas Guyatt
claims on three separate occasions that Abraham Lincoln and Frederick
Douglass concocted an antislavery Constitution out of whole cloth in the
1850s. They did no such thing. Beginning in the early 1790s, antislavery
constitutionalists urged Congress to attack slavery “to the full extent
of your power.” What power? According to William Lloyd Garrison and
Guyatt, it had no power to undermine slavery.
The slave trade clause gave Congress the power to tax every slave
imported into the country, to ban the slave trade in United States
territory, and to prohibit American ships from participating in the
trade, long before 1808. The “needful rules and regulations” clause
authorized Congress to ban slavery in the territories. The “republican
government” clause allowed Congress to make abolition a condition for
admission to the Union. The “exclusive legislation” clause enabled
Congress to abolish slavery in Washington, D.C. All of these arguments
were fully rehearsed in congressional debates well before the mid-1830s,
when Garrison emerged as a national abolitionist leader. In nearly every
case the proslavery response was that Congress could not do those things
because the Constitution protected slavery as a right of property, to
which antislavery advocates responded—quite correctly—that the
Constitution did not create a constitutional right of “property in man.”
Between the late 1830s and mid-1840s an explosive burst of intellectual
energy pushed antislavery constitutionalism much further. The Fourth
Amendment ban on unreasonable seizure, the Fifth Amendment guarantee of
due process, the privileges and immunities clause, the Tenth
Amendment—all were invoked to weaken the fugitive slave clause, protect
the freedom of slaves who rebelled on the high seas, and make it
constitutionally impossible for Congress to allow slavery in the
territories. In 1839 the abolitionist William Jay warned that if the
slave states seceded they would forfeit their constitutional right to
recover fugitive slaves, a doctrine that Lincoln invoked twenty years
later. John Quincy Adams warned that if the South seceded, the war
powers clause of the Constitution empowered the federal government to
emancipate slaves to suppress the rebellion, a policy Lincoln embraced
shortly after the Civil War began. The most radical theorists pushed
antislavery constitutionalism to the logical conclusion that Congress
could actually abolish slavery in states where it already existed. The
mainstream of antislavery constitutionalism never took that last step,
but it went much further than Guyatt realizes.
In 1845, in a startling reaction against this creative burst of
antislavery constitutional theorizing and the antislavery politics it
spawned, Garrison’s ally Wendell Phillips invented the idea that the
Constitution was a proslavery document. Until then only proslavery
extremists made that argument. With unintended irony, Guyatt quotes
Phillips scoffing at “this new theory of the Anti-Slavery character of
the Constitution.” But the theory he dismissed had its origins in the
founding era, and was certainly older than Garrison’s. Guyatt praises
Garrison for insisting that slavery was a national problem, a position
that antislavery politicians repeatedly endorsed long before Garrison
arrived on the scene.
Guyatt’s unawareness of this tradition leads him to assume things he
cannot document. In the first decades of the republic it was widely held
that the slave trade was part of slavery itself and as such under the
control of the states. The Constitution’s clause authorizing the federal
government to abolish the Atlantic slave trade in 1808 marked a major
exception to the “federal consensus” that prevented Congress from
interfering with slavery in the states. It was a grant of power to
Congress, not a restraint on power it would otherwise have had. This
explains why early American abolitionists viewed the slave trade clause
as a great antislavery victory.
Wilentz restores the ambiguous political legacy that inevitably follows
compromises. By 1800, opponents of slavery were complaining about the
advantage the South gained from the three-fifths clause. But without
that clause the South would have had more power in the House of
Representatives and the Electoral College. That’s why, beginning in the
1830s, radical antislavery constitutionalists argued that the clause was
an incentive to the states to abolish slavery and a punishment for those
that did not. That’s also why, by the 1850s, proslavery Southerners were
calling for the repeal of the three-fifths clause. Guyatt, or Wilentz,
or I might agree or disagree about all or parts of the antislavery
interpretation of the Constitution, but it is untenable to claim that
until Lincoln dreamed it up in the 1850s there was no such thing as
antislavery constitutionalism. It was, from the nation’s founding, the
mainstream position of the majority of Northerners—at least as measured
by their votes and speeches in the House of Representatives.
Antislavery constitutionalism enabled thousands of men and women, black
and white, all across the North, to claim that fugitive slaves should be
afforded the rights of due process, that blacks in Northern states were
entitled to the presumption of freedom and the privileges and immunities
of citizens. Those who struggled against slavery and racial injustice
relied heavily on the foundational precept of antislavery
constitutionalism—that the promise of fundamental human equality was
embodied in the Constitution and affirmed in its Preamble. Guyatt claims
that Wilentz leaves no space for such struggles when that is precisely
the space No Property in Man has revealed.
James Oakes
CUNY Graduate Center
New York City
Nicholas Guyatt replies:
I agree with James Oakes that a seam of “antislavery constitutionalism”
dates back to the 1790s and refer to this in the final paragraph of my
review. Where we may disagree is on the extent of its influence before
the 1850s in the face of the Constitution’s bracingly clear provisions.
From the futile 1790 debate in the House of Representatives on whether
Congress could consider petitions to abolish slavery, through the
political bounty offered the South by the three-fifths rule, to the Dred
Scott decision of 1857, which denied black citizenship and the right of
the federal government to restrict slavery, proslavery clauses and
readings of the Constitution consolidated and greatly expanded the reach
of slaveholders.
Congress was able to abolish the external slave trade in 1808—with the
help of upper Southern slaveholders who expected the value of their
slaves to rise as a consequence—but legislators and reformers could not
prevent the spread of slavery across most of the continent or loosen the
grip of slaveholders on national politics. For the abolitionist Wendell
Phillips, writing before the late flowering of antislavery
constitutionalism in the 1850s, the harshness of these facts was
incontestable: Americans should “take the Constitution to be what the
Courts and Nation allow that it is,” Phillips wrote in 1847, “and leave
the hair-splitters and cob-web spinners to amuse themselves at their
leisure.”
Sean Wilentz reminds us of his intention “to move beyond what has become
a sterile debate among historians over whether the Constitution was
antislavery or proslavery.” Most historians of the early United States
would find this issue neither sterile nor worthy of much debate: the
Constitution was plainly proslavery, a fact evidenced by the huge
increase in the enslaved population from 1789 to 1860, and by the
sprawling territories conquered for slavery over that period. To suggest
that the Constitution was both antislavery and proslavery, or to
triangulate (as Professor Wilentz does in his book) by insisting that
the question of slavery and the Constitution was a “paradox,” is to
overstate the antislavery intentions of the Founders and to understate
the effects of their compromises.
Certainly the Constitution might have been even more proslavery than it
was. At Philadelphia in 1787, delegates from states that had already
outlawed slavery (or were contemplating emancipation) rejected language
that might have universalized slaveholding throughout the nation. Many
felt the pang of conscience; some may have assumed that slavery would
expire on its own. But they agreed to a series of concessions that
allowed the institution to do untold damage over the next seventy-five
years. As Michael Klarman writes in The Framers’ Coup (2016), his
history of the Constitution, the most likely explanation for the
proslavery character of the document is the simplest one: “southern
delegates generally were more intent upon protecting slavery than
northern delegates were upon undermining it.”
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