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NY Review of Books, JUNE 27, 2019 ISSUE
No Property in Man’: An Exchange
Sean Wilentz and James Oakes, reply by Nicholas Guyatt
In response to:
How Proslavery Was the Constitution? from the June 6, 2019 issue
(https://www.nybooks.com/articles/2019/06/06/how-proslavery-was-the-constitution/)
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.”
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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