Arguing Over Slavery in the Constitution

By Matthew Pinsker

Originally written in fall 2015, this post has been revised and updated slightly in fall 2019.

The words “slavery” or “slave” did not appear in the original US Constitution adopted by the Framers on September 17, 1787 and ratified by the states in the following year.  That’s either an important triumph for late eighteenth-century antislavery sentiment, or just a thin, hypocritical facade that merely hid a series of concessions to rising slaveholder power in the new country.  It all depends on your point of view.

Sean Wilentz (Daniel Kramer)

That’s always been the hotly contested case, both then and now.  As we celebrated Constitution Day in 2015, we have been reminded of this often-bitter debate because of a spat that has erupted in the wake of the Democratic primary campaign.  While speaking at Liberty University in Virginia on September 14th, presidential contender Bernie Sanders made a comment during Q&A that ignited some controversy.  He reminded the audience of evangelical Christian students that the United States was “in many ways created … from way back on racist principles.”  “That’s a fact,” he observed calmly, before crediting the country with having “come a long way” over the years, most recently by electing Barack Obama as president in 2008.

Sanders’s comments provoked some backlash in conservative media always on the look out for politically correct assaults on the dogma of American exceptionalism, but it also seemed to motivate a particularly feisty New York Times op-ed from Princeton historian Sean Wilentz, who happens to be a leading advisor to Hilary Clinton.  Wilentz adamantly denied that the US constitution was a pro-slavery document, and went so far as to call it a “myth that the United States was founded on racial slavery,” claiming that this misunderstanding “persists, notably among scholars and activists on the left who are rightly angry at America’s racist past.”

That’s what they call in the academic business, “drawing the battle lines.”

What happened next therefore should have been predictable, but it still caught me by surprise.  The comments section at the New York Times website exploded, the blogosphere lit up, and a number of leading scholar / activists “angry at America’s racist past” wrote their own op-eds or took to social media to berate Wilentz for his ignorance.  The most thoughtful column in this debate probably came from historian David Waldstreicher in The Atlantic on September 19, 2015.  One of the angrier tweets that hit me hardest, however, was by noted slavery scholar Ed Baptist from Cornell.  He openly mocked Wilentz, one of the most distinguished figures in our field, calling his op-ed “pure comedy gold.”

In another tweet, Baptist dismissed Wilentz’s piece as “utterly unconvincing” and went so far as to accuse him in public of “hauling water for Hilary and Bill.” Siva Vaidhyanathan, a media professor from University of Virginia, blasted Wilentz’s argument as “shallow” and “unbecoming a historian.”  Kevin Gannon from Grand View University (who, admittedly, has one of the best historical twitter handles:  @thetattooedprof) found himself “baffled” by the Wilentz reading of the Constitution, and then produced a blog post which went even further, labeling the effort “infuriating” and “sad.”

I emailed Wilentz and he has generously agreed to share his initial response to these criticisms with my students.  He wrote:

Of course the Constitution included protections for slavery. My Op-Ed says so. They were not as powerful as historians think they were, but they were there and made a difference. Of course there was a federal consensus built into the Constitution. My Op-Ed says so. It also says that the Constitution would have been impossible without it. Do these historians truly think that it could have been otherwise? Do they think Northern delegates would have, or should have, agreed to a Constitution  which would have allowed the national government to interfere with the property relations established at law by their own states — and thereby, among other things, endangered Northern emancipation?

Those I have read actually concede my point on the Southern defeat over property in man, but they refuse to see the importance of that concession for any understanding of the Constitution — let alone for the politics of the 1840s and 1850s. Apparently, they cannot even question the underlying belief, which has gained enormous force inside the academy, that the Constitution was founded on slavery, that the Northerners lost (or caved in on) every important argument over slavery, &c.  Apparently, they think of themselves as Garrisonians even as they take Calhoun’s position, which was in many ways essentially the same as Garrison’s.

That email came to me in 2015, but I just recently (September 2019) solicited a response to this response from David Waldstreicher:

But if results matter, numbers matter. And the unavoidable fact is that despite the impressive amount of self-liberation during the revolutionary war and the epochal beginnings of state-by-state emancipation in the north which created a nation half-slave and half free and gradually turned the slave trade and especially fugitive slaves into wedge issues, slaveholders nevertheless won freedom to determine the future of slavery, under a constitution that protected their interests in multiple, complicated, and especially political ways. The three-fifths clause is only the most notorious and apparent of the ways the nation was governed through slavery. The best metaphor I have been able to come up with is that the constitution hard-wired slavery into the political order, much like the wiring in our walls, without even needing to mention it, enabling the liberals of 1787 to walk away having not admitted “property in man” but having done much that would prove to be worse.

With friends like these, unwilling to admit of property in man but willing to structure government around it, the enslaved hardly needed enemies. Quickly, systematically, the number of free people of African descent rose in the north and in southern towns, but the number of enslaved increased far more. The domestic slave trade encouraged and facilitated by the new national market moved a million people and actually un-domesticated slavery, making it if anything worse than it already was. It’s debatable whether any of that would have happened in anything like the way that it happened without the sovereignty and power that the Revolution and Constitution accorded to the master class, the ways it freed them from imperial or national oversight.

I was grateful that both scholars responded in such a thoughtful way over email to help further explain their positions to my students.  But much of the earlier social media debate I found somewhat depressing.  Wilentz’s point, stripped of the polemics, is a powerful intellectual one.  The Framers of the Constitution steadfastly refused to include the principle of slavery –the concept of “property in man”– into the nation’s founding charter.  They didn’t just leave the word out; but fought hard over limiting the principle to a very local domain.  Freedom was always national. That matters.  However, even though it matters, it doesn’t negate the realities of color prejudice, the horrors of slavery, or even the unanticipated and dreadful consequences of specific 1787 concessions to the nation’s slaveholders.  Yet that nuance too easily gets lost in this kind of crossfire. Bernie Sanders wasn’t commenting on the Constitution directly at Liberty University, and much of the venom directed at Wilentz by other scholars conflates the realities of early American “racism” with more complicated questions about American constitutional jurisprudence.   That’s what’s so depressing.  They’re talking past each other. Of course, it’s nearly impossible to sort out such issues during abbreviated Q&A sessions, through op-ed pages, or by tweets, but there should be some sense of acknowledgement by participants that this issue is a seriously contested one.  There are no simple facts and no easy conclusions.  Scholars, activists and even scholar/activists need to find ways to defend their views with vigor (and plenty of verve) without also belittling their opposition.

I want to devote part of this semester, in both my senior seminar on the US Constitution and in my general survey of early American history (and now in my first year seminar), to seeking a better, more effective way to teach this great and profoundly important battle of interpretations.