September 25, 2007
False impression at Finkelman lecture
Having spent many years studying and writing about the formation of the U.S. Constitution, I fear that some who attended professor Paul Finkelman’s Constitution Week lecture (Sept. 18) may have gotten a false impression about how the American Founders dealt with slavery.
Professor Finkelman listed compromises the Founders made with slavery and claimed the Founders inexcusably wrote a “pro-slavery” Constitution. But the broader context shows quite a different picture.
The Founders did make concessions to slavery. But that fact is less remarkable than the fact that the slaveholders had to make concessions, too. Why? After all, slavery had existed for millennia. It had long been almost universal. Why was it suddenly on the defensive?
About 30 years earlier, the English-speaking peoples had begun the first movement in history toward eventually eradicating slavery from most of the world. The process was difficult, and lasted over a century.
By the time the Constitution was debated, state after state had adopted or was on the cusp of adopting, laws to end slavery. Ten out of 13 states already had banned the slave trade. In several states, free African-Americans voted and participated in public life. By 1790, Peter Elkay, a black man whose daughters had been kidnapped, could rely on his status as a citizen of Massachusetts to sue the kidnapper in federal court - to the praise of nearly all, both North and South. People believed slavery was against natural law and on the road to extinction (although they did not predict its temporary resurgence due to perfection of the cotton gin).
Indeed, within a few decades of the Founding, a system that had been nearly universal became so localized within the English-speaking world that even its friends began to refer it as the “peculiar institution.”
At the time of the Constitutional Convention, slavery was still entrenched in some states. But slaveholders found they had to compromise to an extent unthinkable a few years earlier. Professor Finkelman pointed out that the North conceded a constitutional formula that increased slave state representation in Congress. But he did not mention that under the same formula, slave states could be punished with higher taxes. He also noted that South Carolina and Georgia won a 20-year window for the slave trade. But he didn’t mention the offsetting part of the deal: The slave trade would remain illegal in most states and that in 20 years Congress would almost certainly abolish it – as Congress did.
Here are some other parts of the lecture that could create false impressions:
* Professor Finkelman observed that concessions to slaveholding Georgia probably weren’t necessary to get that state to join the union. But he overlooked that those concessions were also important to the Carolinas, and if those states had not ratified, almost certainly other states would have stayed out, too. The Constitution never would have gone into effect, and the country might have been fragmented into multiple republics and confederacies.
* He argued that including slave states in the Union led to the carnage of the Civil War. But a fractured United States would have led to even more bloodshed. The Founders knew that European powers would have fomented disagreement among the divided states. America would have been the scene of recurrent European-style warfare.
*Professor Finkelman counted the doctrine of federal enumerated powers as a victory for slavery. The truth is that the enumerated powers proposal (1) came from a committee with a northern majority, (2) replaced an non-enumeration plan proposed by slaveholding Virginia, (3) was strengthened by proposals for a “federalism amendment” (eventually, the Tenth) arising in anti-slavery Pennsylvania and Massachusetts, and (4) was endorsed by several other free states but not by several slaveholding states.
All but a handful of the leading American Founders opposed slavery to some degree. But no one gets to choose the time in which he lives. The Founders had to create the Constitution when the Anglo-American project of abolishing slavery was still in process, not after it was mercifully complete.
Given the political realities of the time, the Founders probably did about as well as anyone could have to both unify the country and create a structure where slavery would not last.
Rob Natelson is a professor of law at the University of Montana.
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