Perhaps no two issues have been more filtered throughout history than that of slavery and the violations of our rule of law in order to preserve it, and eventually unlawfully retaliate against the freed slaves. Many claim the founders themselves were racists while ignoring altogether the actual mindsets of the framers, the early abolition movement, and their utter disdain for slavery (though nothing to do with race, but rather the enslavement of another human being period). It is true, however, that not all were against slavery, particularly those delegates from the South. Compromises/concessions were made in drafting the Constitution, particularly to those with pro-slavery interests. Without doing so, there would be little hope of ratification. This did not preclude our framers from taking meticulous care in wording our Declaration of Independence and Constitution, when originally understood, were the basis for the abolition of slavery. It was only through judicial review/jurisprudence—in particular Dred Scott v. Sanford and Plessy v. Ferguson—not original intent that slavery was read into our Constitution in order justify the lawless Jim Crow laws of the South from the early to mid 20th century.
Slavery is not just a blemish on American history, but the history of mankind. Racism was never a precondition of slavery throughout human history. Most slaves were not racially different from those they enslaved. As Thomas Sowell points out, “Europeans enslaved Europeans, Africans enslaved other Africans, Polynesians enslaved other Polynesians and the indigenous peoples of the Western Hemisphere enslaved other indigenous peoples of the Western Hemisphere” (Sowell, p. 480, Intellectuals). Race wasn’t the primary factor until it became technologically and economically possible to transport peoples of other races from one continent to another. In fact, Pirates transported more than a million Europeans as slaves to the Barbary Coast of North Africa. This is nearly twice the amount of African slaves that were transported to the British colonies. European slaves were also common in the Ottoman Empire as well. Furthermore, whites were still being sold as slaves in the Islamic world long after blacks had been freed in the United States (Sowell, p. 480, Intellectuals).
Two demonstrable facts can be concluded from the aforementioned historical accounts. The first, that the institution of slavery was not based on race. And secondly, whites as well as blacks were enslaved. It is the idea and image alone of racial slavery, and the racism born therein by the antebellum South, that led to egregious misrepresentations of the law that were never intended to preserve slavery, but slowly eradicate it. Many among the intelligentsia will wrongly point to provisions in the Constitution as proof of the framers intent to validate slavery. These voices seldom back up their claims with facts, for doing so will topple their contemporary vision like a house of cards. From the Three-Fifths Clause to the Fugitive Slave Clause, one can find the seeds of the framers discontent with the pro-slavery delegation at our founding.
The Three-Fifths clause of the Constitution is most often mischaracterized as a provision allowing slavery and only counting slaves as “three-fifths” of a person. At first glance, this would seem incredibly demeaning, that is, if one were to look no further in critical analysis. Article I, Section 2, Clause 3 of the Constitution states that the apportionment for Representatives and taxation purposes would be determined by the number of free persons and “three-fifths of “all other persons” (slaves). The southern delegates to the convention, keeping in mind their best interests, supported the idea of counting their slaves as full persons. This would have bolstered their representation in the House. Moreover, counting slaves as full persons would have provided the incentive to import more slaves and further bolster said power and the aggregate amount of slaves in the US (Jenson, p.55). It was the northern delegates that did not want to count the slaves at all to dispel the amount of power given to the southern states. It is significant to point out that the framers never once used the words “slave,” “slavery,” or “property” when referencing the institution or the people, instead opting for the term “persons.” As Dr. Mathew Spalding points out, “Madison recorded in his notes that the delegates ‘thought it wrong to admit in the Constitution the idea that there could be property in men” (Spalding). This will be extremely important later when discussing the jurisprudence associated with slavery.
A more complete account of the framers sentiments can be found in Article I, Section 9, Clause 1 in dealing with slavery. This clause prohibited Congress until 1808 from blocking the importation of slaves into the states. This is a major concession to the pro-slavery delegates, though; it was only temporary exemption from the federal government’s power to limit the slave trade. It also did not proscribe the states from outlawing slavery on their own. Upon the expiration of the prohibition of Congress’ power to limit the slave trade in 1808, Congress did exactly that. Thomas Jefferson signed it into law on January 1, 1808. Speaking of the concession and Congress’ eventual lawful action, abolitionist founder James Wilson noted, “…yet the lapse of a few years and Congress will have the power to exterminate slavery within our borders” (Spalding). Hardly spoken like someone who wanted to preserve slavery. One need not look very deep into Constitutional history and original intent to find the seeds of abolition within our founding documents. This evidence, however, doesn’t stop those from eliding all evidence to the contrary in order to perpetuate a narrative with myth and mantras.
In the Fugitive Slave Clause, the exact wording used was carefully articulated in order to prevent, in the words of James Madison, “the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view” (Spalding, p. 275) The provision initially read “Person legally held to Service or Labour in one state,” before it was changed in the last minute to “Person held to Service or Labour in one state, under the laws thereof” (Spalding, p. 275). This revision made clear that the sates were sanctifying, and made legal, the holding of another as property, and nowhere promulgated in the Constitution. In short, it made clear that slaveholding and the ownership as a human being as property was not based upon either natural law or common law.
It is clear that these concessions made by our most prominent founders to appease those most interested in the institution of slavery and the slave trade. Without doing so, the newly formed government would have little chance at ratification and a successful implementation (Spalding). The Constitution was written not to endorse, condone or perpetuate slavery, but to tolerate it and in some cases do the exact opposite (Congress’ power to block migration and importation of slaves). Frederick Douglass, a former slave and great abolitionist leader elucidates what many people misunderstand today – he said in 1864:
“Abolish slavery tomorrow, and not a sentence or syllable of the Constitution need be altered, it was purposely so framed as to give no claim, no sanction to the claim of property in man. If in its origin slavery had any relation to the government, it was only as the scaffolding to the magnificent structure, to be removed as soon as the building was completed” (Spalding).
With the advent of judicial review as a result of the majority opinion in Marbury v. Madison, a power never explicitly given to the Supreme Court, reinterpretations of the Constitution commenced. It wasn’t until 1857 and the case of Dred Scott v. Sanford that the repercussions of Marbury were felt. From the founding onward slavery was defended and attacked on the principles of morality and the South became increasingly concerned that with a vibrant and prosperous North it could become powerful enough to abolish slavery, the very lifeblood of the South (Bork, p. 29). These simmering tensions rose to the surface when Missouri sought statehood. Congress, with the intention of limiting slave states “ultimately admitted Missouri as a state where slavery was permitted, but balanced that by admitting Maine as a free state…” (Bork, p. 29). Congress also prohibited slavery into the rest of the territory acquired by the Louisiana Purchase north of Missouri’s border. This became known as the Missouri Compromise (Bork, p. 29).
Dred Scott was a slave taken by his owner into the free state of Illinois as well as federal land, which was also considered free soil per the Missouri Compromise. Scott escaped in Illinois but was eventually returned to Missouri as property and later sued for his freedom. His case was predicated on the idea that he became free as soon as stepped foot on free soil. He first sued and won in the Missouri courts where precedent was on his side, only to be later over turned by the Missouri Supreme Court (Bork. p. 29). Scott appealed the decision all the way to United States Supreme Court headed by Chief Justice Roger Taney of Maryland, and comprised of southern sympathizers (Bork, p. 29). The court produced 241 pages containing a string of arguments that were unhinged from any recognizable constitutional basis. What Taney did accomplish, and so intended, was to read into the Constitution the legality of slavery forever. Taney wanted to settle the question and the debate in one fell swoop of his pen (Bork, p.29).
Taney’s decision “denied the power of the federal government to prevent slavery in any state or territory and the power of the federal government to permit a state to bar slavery within its territory” (Bork, p. 30). What this had done was declare the Missouri compromise unconstitutional. Taney went further as he was determined to write into the Constitution a right to own another human being as property. He did so by rewriting the meaning of the Due Process clause of the Fifth Amendment (Bork, p.31). He took a purely procedural clause and gave it substance; ironic considering it clearly contains the word “process” within it. This very decision gave rise to the “substantive due process clause,” which is still used to justify overturning or revising federal and state laws today (Bork p.31). This became an explosive national issue, which ultimately added to the impetus for the Civil war. As Robert Bork so rightly points out, “There is something wrong… with a judicial power that can produce a decision it takes a civil war to overturn” (Bork, p.34). Clearly, there is no way, democratically, a majority of people willing to go to war would’ve supported such an idea.
Unfortunately, this wasn’t the only case where the plain meaning of the Constitution was used against former slaves and blacks. Moreover, it wasn’t the only perversion of the law with serious repercussions. In 1896, the Supreme Court examined the Constitutionality of a Louisiana law requiring railway companies to provide separate coaches for white and black people known as Plessy v. Ferguson (Levin, p. 16). The majority held that “We cannot find that a law which requires the separation of the two races in public conveyances as unreasonable, or obnoxious to the 14th amendment” (Levin, p. 16). The Supreme Court upheld a law that forced private industry to separate individuals on the account of race. This is in direct violation of the plain language used in the 14th amendment guaranteeing equal protection under the law. “Separate but equal” became the law of the land for fifty-eight years, though it was never voted on, nor intended by the framers of the Constitution or the 14th amendment (Levin, p. 16). This doctrine validated and made Constitutional in direct violation of our rule of law (Declaration of Independence/Constitution), the racist and vile Jim Crows of the South. It wasn’t until Brown v. Board of Education in 1954 that it was rightfully overturned (Levin, p. 16). Justice Marshall Harlan’s dissent in Plessy perfectly delineates the Constitutional proviso on law and race:
“But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved….”
De jure discrimination has always been a violation of the natural law principles delineated in our founding documents. De facto discrimination and self-interest that run counter to the rule of law, provided the basis for many of the usurpations of said natural law principles this nation was founded on. It was, is, and always has been a perversion of the law. The state played a huge role in perpetrating and condoning civil rights abuses through jurisprudence and a willful ignorance of our founding documents. These abuses didn’t just begin and end with black Americans. In 1944’s Korematsu v. United States, the state (an activist court) once again upheld executive orders issued by President Franklin Roosevelt “establishing military authority for the forced internment of American’s during World War II” (Levin, p. 14). Over 110,000 mostly Japanese-Americans were rounded up from the coast and relocated to the interior of the Country, all without due process (Levin, p.14). The Supreme Court’s majority opinion was “devoid” of any constitutional basis for such a lawless order (Levin, p.14).
There is little doubt that slavery remains as one of the worst atrocities in American history. There is also little doubt that our founding documents have never condoned it, but have laid the seeds for its demise. Therefore, It is not surprising that Frederick Douglass and Abraham Lincoln turned to the founding documents as a remedy to slavery. As Lincoln so eloquently states, “In the way our Fathers originally left the slavery question, the institution was in the course of ultimate extinction…” (Spalding). Lincoln assumes through federalism that slavery would eventually die out on it’s own. He drastically underestimated the vociferous advocacy and institutional take over by pro-slavery southerners (Bork, p.19). He went on to conclude in 1858, a year after the Dred Scott decision that, “all I have asked or desired anywhere, is that it should be placed back again upon the basis that the Fathers of our government originally placed it upon” (Spalding). Through a subversion and subjective sense of the rule of law, slavery became institutionalized along with the accompanying racism, changing what the founders had originally intended.
The Constitution of the United States did not, and never did condone racism, Jim Crow laws, interment or the ownership of another human being. It’s precisely the opposite, the perversion and reading into the law personal predilections of men with too much power, rather than the objective natural law verities so eloquently and lucidly delineated in our founding documents. Within our polity, only extreme lawlessness and expediency can perpetuate the atrocities that were condoned by some of our most powerful democratic institutions. Ironically, they were all done so in the most undemocratic means, largely insulated from the body politic. At no point did our framers intend for the polity they created to work in such a lawless manner, nor unjustly violate the unalienable rights of man.
– Will Ricciardella