Thursday, June 22, 2017


Paul Finkelman


This symposium asks important questions about the relationship between race and the American constitutional order. Lawyers and legal scholars usually focus their attention on the present. What are the issues that we must address today? How can we solve current problems? What are the legal policies and litigation strategies that will move us towards greater racial justice in the next year orthe next decade? These are the questions that lawyers ask. They are good questions and questions that must be considered. However, in seeking answers to these questions, a long historical perspective may also be helpful. The race problem in America did not begin recently. A century ago the great black scholar W.E.B. DuBois predicted, "the problem of the Twentieth Century is the problem of the color line." But, well before 1903, when DuBois was writing, the problem of race was already highly visible. It stemmed of course, from the existence of racially based slavery. The problems created by slavery-the moral and political legacies of slavery-were further complicated by the fact that the national constitution protected slavery in a myriad of ways.

We should not be shocked or surprised that the Constitution protected slavery. Slavery, after all, was a powerful economic institution. In 1787 the value of all the slaves in the United States exceeded that of any other form of property except real estate. In 1787 slavery was legal in all but two states, and in five southern states slavery was the central economic institution. Almost all the leaders in five states-including the largest state, Virginia-were slaveowners. While a form of property found almost everywhere, slavery was also clearly a special, even peculiar, kind of property. Slaves were also people. They could resist their enslavement and try to escape from it; they were thinking beings who could challenge, in a variety ways, their condition. Furthermore, many Americans and Europeans hadbegun to question both the morality and wisdom of slaveholding. Given its economic importance and its vulnerabilities, it is not surprising that the southerners at the Constitutional Convention demanded, and won, huge concessions to protect their "peculiar institution," as even they called it. Slavery was the key to economic prosperity in the South, and southerners could not imagine how their society would work without it. Thus, on purely economic grounds, we should not be surprised to discover that an important and clearly unusual form of property received special protection in a Constitution. But, slavery in the United States was more than simply an economic system designed to extract labor, at a relatively low cost, from those who were enslaved.

Slavery was also a system of racial control. In a society predicated on the assumption that all people were "created equal," slaveholders and their white non-slaveholding neighbors were certain they knew better; they were convinced, that blacks were fundamentally inferior to whites. Illustrative of this position were the arguments set out by Thomas Jefferson in his book, Notes on the State of Virginia. Jefferson claimed he had never found a black who "had uttered a thought above the level of plain narration; never seen an elementary trait of painting or sculpture." He found "no poetry" among blacks. Jefferson argued that blacks' ability to "reason" was "much inferior" to whites, while "in imagination they are dull, tasteless, and anomalous," and "inferior to thewhites in the endowments of body and mind." Jefferson conceded blacks were brave, but this was due to "a want of fore-thought, which prevents their seeing a danger till it be present." He wrote:

In general, their existence appears to participate more of sensation than reflection. To this must be ascribed their disposition to sleep when abstracted from their diversions, and unemployed in labour. An animal whose body is at rest, and who does not reflect, must be disposed to sleep of course. Comparing them by their faculties of memory, reason, and imagination, it appears to me, that in memory they are equal to the whites; in reason much inferior, as I think one could scarcely be found capable of tracing and comprehending the investigations of Euclid; and that in imagination they are dull, tasteless, and anomalous.

He speculated that blackness might come "from the colour of the blood." Absurdly, he suggested that blacks might breed with the "Oran-ootan."

Jefferson may have been the first southerner to set out these ideas in such a careful analysis, and he surely articulated them with a greater sense of style and careful thought than most southern slaveowners. But his ideas were clearly acceptable to most southern whites. Throughout the Revolutionary period most southern leaders made it clear that the only role they saw for blacks was as slaves. A few enlightened southern leaders of the Revolution--General George Washington and Colonel John Laurens for example--were willing to accept blacks as free people and comrades in arms. But most were not. Thus, at the Constitutional Convention southerners-especially the delegates from South Carolina-jealously protected their interest in slavery.

By the time of the Constitutional Convention slavery had begun to evolve into a sectional institution. Slavery was still legal in most states. Only two, Massachusetts and New Hampshire, had actually abolished it. But three others, Pennsylvania, Connecticut, and Rhode Island, had passed gradual abolition acts, which meant they would eventually become free states. The putative state of Vermont, which would become the fourteenth state shortly after the ratification of the Constitution, incorporated a gradual abolition provision in its two prestatehood Constitutions. Thus, it was clear to the southern delegates that they were entering a union that would be part slave and part free. Even though most southerners at the Convention were convinced of the morality, justice, and necessity of slavery, they understood that many Americans, especially in the North, did not agree with them on this issue.

Thus, at the Convention the delegates from the South, especially the Deep South, fought tenaciously to protect slavery in a variety of ways. In the end, they were enormously successful. When General Charles Cotesworth Pinckney returned to South Carolina after serving as a delegate to the Convention, hetold the state legislature, "In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but on the whole, I do not think them bad." General Pinckney had good reason to be proud of his role in Philadelphia. Throughout the Convention Pinckney and other delegates from the Deep South tenaciously fought to protect the interests of slaveholders. In these struggles they were usually successful.

The clauses that Pinckney and other southerners worked hard to create set the stage for a government that both protected slavery and was deeply influenced by it. This in turn shaped American race relations, not only in the antebellum period, but during Reconstruction and beyond. In addition, the jurisprudence of slavery had long-term implications for American constitutional law. To this day, inequities associated with race, racism, and racial separation trouble our society and our legal system. Race remains America's greatest social problem, as it has been since before the founding of the nation. Since 1776 Americans have repeatedly failed to implement our national credo, that all people "are created equal, that they endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness."

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