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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."

I. Slavery in the Constitutional Structure


The word "slavery" appears in only one place in the Constitution--the Thirteenth Amendment, where the institution is abolished. In the main body of the Constitution, slaves are referred to as "other persons," "such persons," or in the singular as a "person held to Service or Labour." Why is this the case?

Throughout the Constitutional Convention the delegates talked about "blacks," "Negroes," and "slaves." But the final document avoided these terms. The final language was designed to make the Constitution more palatable to the North. In a debate over representation, William Paterson of New Jersey pointed out that the Congress under the Articles of Confederation "had been ashamed to use the term 'Slaves' & had substituted a description."

This argument was more than a little disingenuous. It is hard to imagine that the many slaveholders in the Continental Congress were truly "ashamed" over owning slaves. For example, during one debate in the Continental Congress over taxation, Thomas Lynch of South Carolina asserted: "If it is debated whether (our) slaves are (our) property, there is an end of the confederation." Indeed, throughout the Confederation period slaveholders protected slavery in a number of ways in the Congress. Similarly, in the treaty ending the Revolutionary War, the southerners in Congress were careful that their interest in slaves was made clear, demanding that the departing BritishArmy refrain from "carrying away any negroes or other property of the American inhabitants." Britain failed to comply with this provision and also refused the return slaves taken when the Army left America. Thus " (f)rom 1783 onward, Congress repeatedly instructed its diplomatic emissaries abroad to seek satisfaction for the thousands of slaves carried off in disregard of the treaty." Clearly, the members of the Continental Congress were not embarrassed by slavery or afraid to use the term--or simply to use the racial term Negroes--when it suited their purpose. However, when the Congress did avoid a direct use of the term it was because the delegates in Congress understood that some people in America found slavery distasteful, and that in Europe many who were naturally sympathetic to the revolutionary movement were also opposed to slavery. Not a few Englishmen read the Declaration of Independence and wondered, as did Samuel Johnson, "How is it that we hear the loudest yelps for liberty among the drivers of negroes?" Thus, during the Revolution and immediately after it, the politicians of the new nation understood that it made sense to sometimes avoid the word " slave" and substitute a description for it.

Delegates to the Constitutional Convention understood that the word "slave" made some people uncomfortable, even though they were not ashamed to use it. Similarly, many used the terms "Negro," "black," and "slave" interchangeably, illustrating the extent to which race was tied to slavery. Fewmade any apology for the institution. James Madison, for example, in discussing how the president should be elected, told the Convention that "the people at large" were "the fittest" to choose the president. But he rejected this idea because the "right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes." Madison, who was as humane a slaveowner as one might find, was hardly embarrassed by arguing that Virginia should get political power for its slaves. Indeed, almost none of the slaveholders at the Convention felt any great shame over their human property. South Carolina's Charles Pinckney, the cousin of the more famous General Charles Cotesworth Pinckney, declared that, "(I)f slavery be wrong, it is justified by the example of all the world." He then "cited the case of Greece Rome & other ancient States; the sanction given by France England, Holland & other modern States." Pinckney reminded the Convention that "In all ages one half of mankind have been slaves."

Nor were a number of leading non-slaveowners at the Convention embarrassed by slavery. Indeed, some of the northerners were clearly uninterested in raising any questions about the morality of slaveholding. During a debate over the slave trade, for example, Oliver Ellsworth of Connecticut refused to even consider the"morality or wisdom of slavery," simply asserting that " (w)hat enriches a part enriches the whole." Ellsworth asserted thatbecause he "had never owned a slave," he "could not judge of the effects of slavery on character." Similarly, in the same debate, Roger Sherman of Connecticut declared his personal disapproval of slavery and his desire to see it eradicated in his home state, but he refused to condemn it in other parts of the nation. In opposing a prohibition of the African slave trade he asserted that "the public good did not require" an end to the trade. Noting that the states already had the right to import slaves, Sherman saw no point in taking a right away from the states unnecessarily because "it was expedient to have as few objections as possible" to the new Constitution.

Indeed, in the end it was "expedient" behavior, not ideology or shame that led framers to avoid using the word "slave" in the Constitution. This was made clear during the debates over the African slave trade. Under the proposed Constitution, Congress would have had the power to regulate all foreign commerce, which meant that Congress could have banned the African slave trade if it had chosen to do so. The delegates from the Carolinas and Georgia vigorously demanded that the African trade remain open under the new Constitution. They wanted a specific exemption for the trade from the normal operation of what became the Commerce Clause. Gouverneur Morris of Pennsylvania, furious at what he considered an immoral compromise, suggested that the proposed clause read: the "Importation of slaves into N. Carolina, S.Carolina & Georgia" shall not be prohibited. Connecticut's Roger Sherman, who voted with the deep South to allow the trade, objected, not only to the singling out of specific states, but also to the term "slave." He declared that he "liked a description better than the terms proposed, which had been declined by the old Congs & were not pleasing to some people." George Clymer of Pennsylvania "concurred with Mr. Sherman" on this issue. When he returned from the Philadelphia Convention, James Iredell explained to the North Carolina ratifying convention that "(T)he word 'slave' is not mentioned" because "(t)he northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word 'slave' to be mentioned."

In the end the Convention avoided using the term "slave" or "Negro" because it was expedient to do so. Northern delegates wanted to avoid antagonizing their own constituents, who might support a stronger Union but were hostile to slavery; southerners were ready to acquiesce on this point because the description was clear and unmistakable. But, despite the circumlocution, the Constitution directly sanctioned slavery in five provisions:

Art. I, Sec. 2. Cl. 3. The "three fifths clause" provided for counting three-fifths of all slaves for purposes of representation in Congress. This clause also provided that, if any "direct tax" was levied on the states, itcould be imposed only proportionately, according to population, and that only three-fifths of all slaves would be counted in assessing what each state's contribution would be.

Art. I, Sec. 9, Cl. 1. The "slave trade clause" prohibited Congress from banning the "(M)igration or Importation of such Persons as any of the States now existing shall think proper to admit" before the year 1808. Awkwardly phrased and designed to confuse readers, this clause prevented Congress from ending the African slave trade before 1808, but did not require Congress to ban the trade after that date. The clause was a significant exception to the general power granted to Congress to regulate all international commerce.

Art. I, Sec. 9, Cl. 4. The "capitation tax clause" insured that any "capitation" or other "direct tax" had to take into account the three-fifths clause. It ensured that, if a head tax were ever levied, slaves would be taxed at three-fifths the rate of free people. The "direct tax" portion of this clause was redundant, because that was provided for in the three-fifths clause.

Art. IV, Sec. 2, Cl. 3. The "fugitive slave clause" prohibited the states from emancipating fugitive slaves and required that runaways be returned to their owners "on demand."

Art. V. The amendment provisions prohibited any amendment of the slave importation or capitation clauses before 1808.

Taken together, these five provisions gave the South a strong claim to "special treatment" for its peculiar institution. The three-fifths clause also gave the South extra political muscle--in the House of Representatives and in the electoral college--to support that claim.

Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some provisions that indirectly guarded slavery, such as the prohibition on taxing exports, were included primarily to protect the interests of slaveholders. Others, such as the guarantee of federal support to "suppress Insurrections" and the creation of the electoral college, were written with slavery in mind, although delegates also supported them for reasons having nothing to do with slavery. The most prominent indirect protections of slavery were:

Art. I, Sec. 8, Cl. 15, empowered Congress to call "forth the Militia" to "suppress Insurrections," including slave rebellions. This clause would be implemented to help suppress Garbiels' rebellion, the Nat Turner Rebellion, and John Brown's attempts to make war on slavery in Virginia.

Art. I, Sec. 9, Cl. 5, prohibited federal taxes on exports and thus prevented an indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice, and eventually cotton.

Art. I, Sec. 10, Cl. 2, prohibited the states from taxing exports or imports, thus preventing an indirect tax on the products of slave labor by anonslaveholding state. This was especially important to the slave states because almost all slave states produced export products--tobacco, rice, and eventually cotton which were shipped out of Northern ports.

Art. II, Sec. 1, Cl. 2, provided for the indirect election of the president through an electoral college based on congressional representation. This provision incorporated the three-fifths clause into the electoral college and gave whites in slave states a disproportionate influence in the election of the president. This clause had a major impact on the politics of slavery as well as American history in general. Thomas Jefferson's victory in the election of 1800 would be possible only because of the electoral votes the southern states gained on account of their slaves. Thus Jefferson, who spent most of his career quietly and privately protecting slavery while publicly trying to avoid any conflict over slavery, was elevated to the presidency in part because of slavery.

Art. IV, Sec. 3, Cl. 1, allowed for the admission of new states. The delegates to the Convention anticipated the admission of new slave states to the Union.

Art. IV, Sec. 4, through this provision, known as the "guarantee clause," the United States government promised to protect states from "domestic Violence," including slave rebellions.

Art. V required a three-fourths majority of the states to ratify anyamendment to the Constitution. This Article ensured that the slaveholding states would have a perpetual veto over any constitutional changes. The power of this provision in protecting slavery was profound. It effectively prevented any normal constitutional end to slavery. Had all 15 slave states that existed in 1860 remained in the Union, they would to this day be able to prevent an amendment on any subject. In a 50-state union, it takes only 13 states to block any amendment.

Besides specific clauses of the Constitution, the structure of the entire document ensured against emancipation of slaves by the new federal government. Because the Constitution created a government of limited powers, Congress lacked the power to interfere in the domestic institutions of the states. Thus, during the ratification debates only the most fearful southern antifederalists opposed the Constitution on the grounds that it threatened slavery. Most southerners, even those who opposed the Constitution for other reasons, agreed with General Charles Cotesworth Pinckney of South Carolina, who crowed to his state's house of representatives: "We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states."

From the perspective of modern constitutional analysis, it is of coursepossible to imagine numerous ways in which Congress or the President might have undermined slavery. Under modern law Congress could have limited the interstate movement or sale of slaves, or even the products of their labor. This would certainly have ended the institution, just as Congress was able to end child labor or establish a minimum wage. But, modern commerce clause jurisprudence did not emerge until the 1930s. In the Nineteenth Century it was impossible to imagine Congress using its powers in this way and it is equally impossible to image the Supreme Court allowing it. Congress might also have abolished slavery in the nation's capital, using its power to govern the District of Columbia. Indeed, during the Civil War Congress would do this. It is of course doubtful that the Supreme Court under Chief Justice Taney would have upheld an emancipation act for the District of Columbia, given the Court's position in Dred Scott. But, even if Congress had ended slavery in the District of Columbia, and the Court had allowed this to go forward, this would have been just a minor victory affecting only a small number of slaves. Thus, when we consider how the Constitution protected slavery, it is vital to understand the Constitution within the context of the late eighteenth century and the period up to the Civil War. In that context it is clear that the Constitution created in 1787 gave enormous protection to slavery and made it impossible to end slavery within the existing constitutional structure.

Southerners understood this. At the Virginia ratifying convention, Edmund Randolph denied that the Constitution posed any threat at all to slavery. He challenged opponents of the Constitution to show, "Where is the part that has a tendency to the abolition of slavery?" He answered his own question asserting, "Were it right here to mention what passed in (the Philadelphia) convention... I might tell you that the Southern States, even South Carolina herself, conceived this property to be secure" and that "there was not a member of the Virginia delegation who had the smallest suspicion of the abolition of slavery." South Carolinians, who had already ratified the Constitution, would have agreed with Randolph. As I noted earlier, in summing up the entire Constitution, General Charles Cotesworth Pinckney, who had been one of the ablest defenders of slavery at the Convention, proudly told the South Carolina House of Representatives: "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." On this point he was truly correct.

II. The Constitutional Legacy of Slavery


The protections about which Pinckney bragged set the stage for a proslavery national government and a proslavery jurisprudence in the nineteenthcentury. The United States still lives with some of the legacy of these political decisions and jurisprudential developments.

The three-fifths clause is the most obvious example of how Constitutional arrangements protected slavery. Starting with the debate over the Missouri Compromise the South won a series of close Congressional votes on issues involving slavery. Supporters of slavery were usually able to muster a majority in the Senate. Until 1850 there was almost always an equal number of slave and free states. For a brief time in the 1840s there were actually more slave states than free states, as Texas and Florida achieved statehood before Iowa and Wisconsin were admitted to the Union. Representation in the House, however, was based on population. The free population of the South was vastly smaller than that of the North. From the first census on the South was in the minority in the House of Representatives. Without the three-fifths clause the South would have been overwhelmingly outvoted in the House. But, with its representation augmented by the three-fifths clause, the South was often able to hold its own in the House with the help of a few allies from the North.

If the South had not had its extra representation based on the three-fifths clause the outcome of many of these votes would have been different. The South simply would not have been able to muster enough northern support to get its way. Counterfactuals are of course impossible to prove, but possible scenarios seem plausible. In 1820 Missouri might have come into the Union as a freestate, or with a gradual emancipation scheme built into its new Constitution. This might very well have altered the whole trajectory of national politics. The debate over slavery in the West might have been stopped before it could begin. The annexation of Texas as a vast territory for the expansion of slavery might similarly have been thwarted, either by not annexing the Republic or by forcing some gradual end to slavery. It is similarly difficult to imagine the passage of the draconian fugitive slave law of 1850 if the three-fifths clause had not provided so many members of Congress for the slave states. That law squeaked through the House only because the master politician, Stephen A. Douglas, was able to persuade a number of northern representatives to stay away from Congress on the day of the vote. With fewer southerners in the House, it would probably have been impossible for Douglas to accomplish this victory. Other votes, not directly related to slavery, might also have been changed. Southerners generally opposed internal improvements, federal support for railroad development, protective tariffs, the national bank, and a uniform bankruptcy law. A substantially smaller southern delegation in the House of Representatives might have led to quite different policies in these areas. From the late 1820s until the Civil War the South dominated the Democratic Party. With fewer southerners in the House, northern Democrats would have had more power within their own party. At the same time, the total number of Democrats in the House might have been reduced, thus making the Whig Partymore competitive.

Perhaps the most obvious example of southern power in the House of Representative concerns the "gag rule," first adopted by the House in 1836. In the early 1830's the emerging abolitionist movement embarked on a strategy of flooding Congress with antislavery petitions. These were designed to both express the petitioners' disgust with slavery and to stimulate public debate on the institution. In 1836 the House adopted a "gag rule," requiring that all petitions over slavery be tabled without being read or debated. The rule remained in effect until 1844, when southerners could no longer muster enough northern support to push it through the House. Without the three-fifths clause it is unlikely such a rule could ever have been adopted.

The gag rule symbolized the danger of slavery to the body politic. Many northerners found the rule oppressive because it so blatantly and directly denied their constituents the constitutional right "to petition the government for a redress of grievances." The policy ultimately backfired, by allowing opponents of slavery to link their cause to fundamental constitutional rights and to simultaneously make the obviously correct claim that slavery threatened the civil liberties of whites as well as blacks. The rule also closed off opportunities to debate slavery and prevented southerners from hearing how deeply many northerners felt about slavery. Most of all, the rule encouraged southern arrogance in Congress that damaged sectional harmony.

It is unlikely-indeed it seems impossible to imagine-that it would have ever been possible to achieve a peaceful political solution to the problem of slavery. But, it is possible to imagine a government that was less protective of the institution.

Another example of the importance of the southern power in House and the Democratic Party concerns the suppression of the African slave trade. In 1807 Congress passed legislation prohibiting the importation of foreign slaves. Many southerners, including almost all Virginia politicians, agreed with this legislation. The Virginian support for this legislation is complicated. Collectively, Virginia had more slaves than it needed, and had become a net exporter of slaves. It would remain so until the Civil War. Thus, unlike their counterparts in Georgia and South Carolina, few, if any, Virginians had a personal interest in importing slaves from Africa. Those Virginians who did own more slaves than they needed understood that closing the African trade would increase the value of their own surplus slaves. Thus, narrow economic self-interest put Virginians and Marylanders (who also had excess slaves) firmly in the camp of those wished to end the trade. Many Virginians, including Thomas Jefferson, believed that blacks were inherently dangerous, and thus ending the trade would help the nation by setting the stage for a reduction in the percentage of blacks in the society. Others believed that people recently enslaved and freshly imported from Africa weremore likely to rebel than those raised as slaves in the United States. Thus, stopping the trade was a wise move. Finally, some Virginians and other southerners undoubtedly believed that the African trade was truly immoral. They could make a moral distinction between owning people who were born into slavery, and enslaving those who were captured in Africa and brought here. Thus, for a variety of reasons, Members of Congress from Virginia and other slave states joined their northern counterparts in voting to end the African slave trade. The Three-Fifths Clause had no effect on this outcome.

However, banning the slave trade did not end it. Slaves were still available in Africa and were being brought to the New World. They remained a valuable commodity and demand for them was high, especially as the cotton kingdom expanded west from the Carolinas into Georgia, Alabama, the Mississippi Delta and beyond. There was always market for illegally imported slaves, and incentives for smuggling them were high. While southerners had voted to ban the trade in 1808, they were never fully committed to actually suppressing it. Thus, from 1808 until the Civil War the illegal trade continued. Under its own statutes as well as international agreements, the United States was obligated to help suppress the trade. But, Congress never properly funded the Africa Squadron, and thus smugglers were rarely intercepted. Had the South not had its extra muscle from the three-fifths clause, it is likely that Congress would have provided sufficient resources to suppress the trade.

As already noted, the three-fifths clause affected presidential elections through the electoral college. The electors created by slaves provided Jefferson's margin of victory over Adams in 1800. This outcome had a profound effect on our relationship with Haiti, and most likely on that nation's subsequent history. On the eve of the election of 1800 the United States was on the verge of extending full diplomatic relations to Haiti. The United States was already Haiti's most important trading partner. Had Adams been reelected, the United States and Haiti would have remained close friends. The United States would not only have provided a market for Haiti's goods, but could also have provided a model for Haiti to emulate. In the century-and-a-half before Independence the American colonists had been involved in their own governance, run elections, and held public office. Thus, the people of the new American nation were superbly prepared for self-government. They were arguably the best prepared colonial population in the history of the world. The Haitians, on the other hand, had been slaves up to the time they threw off their French masters and French rule. As slaves they had no experience with voting, holding office, or government. They were perhaps the most ill-prepared people to ever gain their independence from an imperial master. The Haitians looked to the United States for guidance. They wanted to do more than trade with us; they wanted to learn from us. Had Adams been reelected this might have occurred. In addition, diplomatic recognition ofHaiti would have brought to the United States a diplomat who was a person of color-a black or mulatto. This would have been at least a minor blow to the white supremacy endemic to official Washington in the nineteenth century. But, the election of Jefferson changed all this.

Haiti was Jefferson's-and the South's-worst nightmare. Immediately after his election, Jefferson withdrew all American diplomatic personnel from Haiti. Any chance of diplomatic recognition was over. Then, with "implacable malice" toward the black republic, Jefferson did everything in his power to undermine the Haitian Revolution, including banning trade with the island and offering to aid the French in re-conquering the island. In 1806 Congressman John Wayles Eppes, Jefferson's son-in-law, declared he would "pledge the Treasury of the United States that the Negro government should be destroyed." On this issue Eppes was clearly the spokesman for his father-in-law, the President. Once in office Jefferson instituted an embargo against Haiti, which was designed to crush the young nation's economy. While not wholly successful, Jefferson's actions surely harmed the struggling country.

Because of Jefferson's hostility to Haiti, and the proslavery tenor of American politics in the next six decades, the United States did not grant diplomatic recognition to Haiti until the Lincoln administration. We can never know how the history of the hemisphere would have turned out,but it is not hard to imagine that that half of the world would be a better place if the United States had developed, early-on, a better relationship with Haiti. Today, when the United States deports desperate Haitian refugees, seeking an escape from their dire poverty, we can only wonder what their world, and our world, would be like if proslavery compromises at the Constitutional Convention had not sent John Adams into retirement in 1801.

III. Slavery and Constitutional Jurisprudence


From the adoption of the Constitution until 1861 slavery was an enormously important economic institution. The aggregate value of all the slaves in the nation exceeded that of any other from of property except real estate. Not surprisingly, slavery affected constitutional jurisprudence.

The jurisprudence of slavery has often been ignored by most legal and constitutional scholars. In recent years a few constitutional law casebooks have begun to take note of slavery, but usually it is isolated into a separate section on slavery or civil rights. Such an approach misleads students (and professors) because it implies that slavery is either a dead issue, which is only of historical interest, or that slavery needs only to be understood in the context of American race relations. Surely we cannot understand American race relations without understanding slavery. That alone is enough of a reason for studying slavery as part of a law school curriculum.How, we might properly ask, can we possibly imagine what the purpose of the 13 th Amendment was if we do not understand the institution it was abolishing? How can we understand the 14 th Amendment without understanding the racism of Dred Scott v. Sandford that the Amendment overturned.

The jurisprudence of slavery goes well beyond race, however, it shows up in cases that were not directly about slavery. The development of American federalism was greatly influenced by slavery. The slave states insisted on limitations on the national government precisely because they were afraid (correctly as it turned out) that some day despite all the proslavery aspects of the Constitution, a national administration deeply hostile to slavery might take power. As I noted elsewhere in this article, after the Convention South Carolina's General Charles Cotesworth Pinckney told his state legislature: "We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states." Pinckney's point illustrates the importance of slavery to federalism, and federalism to slavery. No other institution was so vulnerable to hostile legislation at the national level, and so no other institution needed the protections that federalism created.

In large part to protect slavery, the Supreme Court developed thenotion of state police powers. The doctrine was first articulated in Mayor of New York v. Miln, an 1837 case decided during Roger B. Taney's first term as Chief Justice. On the surface the case had nothing to do with slavery. It was about the regulation of immigrants. A New York law required all vessels docking in the state to provide a list of passengers and further required that the owners of the ship post security in the event any of these passengers became public charges. As such, the statute was aimed at white immigrants, especially poor Irish immigrants. Miln, the master of a ship bringing immigrants into New York, had failed to provide a list of passengers and also did not post a bond. The city then sought to collect the statutory penalty for his failure to file the report. Miln argued that the state law violated the Commerce Clause, which vested all powers over interstate and foreign commerce in the Congress. In upholding New York's law, the Court carved out an exception to the Commerce Clause argument, invoking, for the first time, what later came to be called the state police power--the right of a sovereign to take all necessary steps to protect the health, safety, and welfare of its citizens. Thus, the Court held that New York was competent "to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence, which may arise from unsound and infectious articles imported."

While not readily apparent to modern readers, Miln was directly tied to thegrowing sectional tension over slavery and the rights of free blacks. In the 1820s South Carolina and other states adopted laws restricting free blacks from entering their jurisdictions. Known as "black seamen's laws," the acts provided for the incarceration of free black sailors who entered the state. South Carolina's law required that black sailors entering the state be kept in jail as long as their ship was in port. They would be released to the custody of their ship captain when the ship was to depart, but only if the black sailor or his captain paid the cost of the incarceration.

These laws, and the issue of regulating the interstate movement of people, first emerged in the United States Circuit Court for South Carolina as Elkison v. Deliesseline. Sheriff Francis G. Deliesseline of Charleston, South Carolina had arrested and jailed Henry Elkison, a British subject, under the state's 1822 "black seamen's act." Elkison turned to the federal courts for relief. Justice William Johnson, while riding circuit, declared in dicta that the South Carolina law violated the Commerce Clause. However, for procedural reasons Johnson did not order Elkison's freedom. Counsel for South Carolina argued that his state had as much right to "quarantine" free blacks as New York had to quarantine immigrants who might enter the country with diseases.The constitutional questions in this case were about states rights, federal powers, federalism, the Tenth Amendment, and the meaning of the Commerce Clause. But the heart of the case was about slavery and racerelations. In essence, Elkison raised the question of whether the states or the federal government could control the movement of people in and out of states. Justice Johnson avoided the question in this case and the Supreme Court never faced it with regard to free blacks.But, in Miln the Court gave the answer the South wanted: the states were free to regulate who could enter their domains. By the time the Court decided Miln almost all legal scholars, jurists, and politicians understood the value of uniform rules for international commerce. Better regulation of international and interstate commerce was one of the main goals of the Constitutional Convention. Any state laws, which interfered with international or domestic commerce clearly infringed on the powers of Congress. Statutes like South Carolina's black seamen's act or the act at issue in Miln threatened such commerce. Thus, the logical approach of the Court in Miln would have been to overturn the New York law, holding that Congress had plenary power over international commerce and that, in the absence of any federal law, the states could not ban or regulate citizens of one country (or another state) from entering their ports. Such a decision would have been consistent with the Court's very popular decision in Gibbons v. Ogdenand would have created a uniform rule for ships entering American harbors. But, a decision striking down the New York law on Commerce Clause grounds would also have threatened slavery and the ability of the southern states to regulate race relations. Therefore, the Court developedthe "police powers doctrine," which allowed states to regulate commerce at the local level if it was necessary for what the Court called a "police power." Preventing poor immigrants or free blacks from entering a state fit into this analysis.

This result is striking. In the 1830s it was well understood, as it is today, that the regulation of immigrants is an issue of national concern as well as a marker of national sovereignty. By ceding this power to the states in Miln the Court set the stage for vastly different rules for ships involved in interstate and international commerce. The Court understood quite well that the issues here were tied to slavery. In Miln counsel argued that the regulation of immigrants was similar to state laws banning the African slave trade before the federal ban in 1808. Implicit in these cases was the Court's recognition that the South had a special interest in protecting its slaves from the "corruption" of free blacks from other places. Some of the opinions in these cases refer directly to this problem.

The Court continued this jurisprudence in the License Cases, which allowed for state bans on liquor. Here again a decision was affected by slavery, even though issues involving slavery were not directly before the Court. Northerners and southerners alike recognized that banning certain commercial products from interstate commerce might be necessary for both the protection of the slave states and the free states.

Many other aspects of modern constitutional law are also rooted in slavery. The preemption doctrine emerged from Prigg v Pennsylvania, where the Court struck down state laws that protected free blacks from being kidnapped as fugitive slaves. In that case Justice Story also articulated the first constitutional principle of unfunded mandates. The Fugitive Slave Law of 1793 authorized state magistrates to implement the law. In his opinion, Story concluded that state officials were free to enforce the law if they wished to do so, and that in fact they had a moral obligation to do so under the Constitution. He further argued that the states were equally under a moral obligation to enforce the law. But, since the federal government did not employ the state judges, Story also agreed that the states could refuse to enforce the law. That is, the federal government could not impose an unfunded mandate on state officials to enforce a federal law. Thus Story suggested "it might well be deemed an unconstitutional exercise in the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the Constitution."

The great fear among some people over the power of the central government and the meaning of the Tenth Amendment is also tied to slavery. Obviously, states' rights theory, as it developed in the 19th century and as it has been used ever since, was deeply rooted in debates over slavery. As early as 1790 southernstates began to articulate claims of states' rights in controversies involving slavery. By the end of the antebellum period both southern and northern states had made assertions of states rights in the context of slavery. Modern states rights arguments, sometimes framed in 10th Amendment jurisprudence, are often a recycling of these older arguments about slavery.

Finally, of course, the doctrine of substantive due process was first articulated by the Supreme Court in Dred Scott v. Sandford. In that case the Court also asserted that blacks had no rights under the Constitution and could never be citizens of the nation, even if they were free. The Fourteenth Amendment was adopted in part to reverse that decision. But, the legacy of racism and pain caused by Chief Justice Taney's decision remains part of our culture and our legal heritage.

IV. The Founding and Slavery: The Memory of Our Original Sin


Many Americans are uncomfortable with the connection between slavery and the founding of the nation. Over the years politicians, judges, lawyers, teachers, and even professional historians offered us a comfortable myth. The myth asserts that after the Revolution slavery was dying and that, had it not been for the cotton gin, slavery would have died out easily and simply. If the Founders truly believed this, then they were correct in doing nothing aboutslavery at the Constitutional Convention. The myth further tells us that the Founders saw slavery as a potential powder keg--which might explode if they tried to deal with it. Their strategy was to ignore slavery and wait for it to collapse under its own economic dead weight. They could safely secure the Union knowing the evil would just go away. Thus, the myth tells us, the Framers rightly ignored slavery.

Under this analysis, the Founders did not betray America by failing to face up to America's greatest problem; instead, history betrayed the Founders, by allowing the cotton gin to save slavery from economic collapse. It is not the failure of the framers, or the unwillingness of all Americans to face the enormity of the problem, that set the stage for secession and civil war. Rather, in an ironic twist for a society that has always been driven by invention and "progress," it is technology that doomed the United States to civil war.

Serious historical scholarship demonstrates that slavery was profitable throughout the colonial period and that slavery remained profitable in the wake of the Revolution. Robert McColley, for example, found that in the 1780s and 1790s, before the invention of the cotton gin, slave prices in Virginia were high. Similarly, in Maryland, where cotton could not be grown, the trade in slaves was brisk both before and after the invention of the gin. In Baltimore, throughout the early national period, slaves were inhigh demand as servants, skilled laborers, and for various jobs in the maritime industry. The Framers did not need such analysis however. They had the words of their fellow delegates. Late in the Convention during a debate over the slave trade, General Charles Cotesworth Pinckney observed that a prohibition of the slave trade would be "an exclusion of South Carolina from the Union." As he had made clear at the beginning of his speech, "S. Carolina and Georgia cannot do without slaves." John Rutledge and Pierce Butler of South Carolina added similar sentiments, as did Abraham Baldwin of Georgia and Hugh Williamson of North Carolina.

In the end we cannot ignore the fact that the Framers in 1787 built a government that protected slavery at every turn. They left their children and grandchildren with a proslavery legacy that was not easily eradicated. During the ratification struggle a number of Antifederalists complained about the Constitution's concessions to slavery. A New Yorker complained that the Constitution condoned "drenching the bowels of Africa in gore, for the sake of enslaving its free-born innocent inhabitants." A Virginian who was skeptical about slavery thought the slave trade provision was an "excellent clause" for "an Algerian constitution: but not so well calculated (I hope) for the latitude of America." But the slave trade was only part of the problem. Three opponents of the Constitution in Massachusetts noted that the Constitution bound the states together as a "whole" and "the states" were "underobligation. . . reciprocally to aid each other in defense and support of every thing to which they are entitled thereby, right or wrong." Thus, they might be called to suppress a slave revolt or in some other way defend the institution. They could not predict how slavery might entangle them in the future, but they did know that "this lust for slavery, (was) portentous of much evil in America, for the cry of innocent blood, . . . hath undoubtedly reached to the Heavens, to which that cry is always directed, and will draw down upon them vengeance adequate to the enormity of the crime."

The events of 1861-1865 would prove the three Massachusetts antifederalists of 1788 correct. Only after a civil war of unparalleled bloodshed and three constitutional amendments could the Union be made more perfect, by finally expunging slavery from the Constitution. As we enter the 21st Century it is clear that the cost of slavery for our national culture--and our Constitution-- has perhaps not yet been paid. Perhaps some of the debt must still be paid in the coin of the realm, with investments in education, cultural institutions like museums and monuments, and in the creation of real economic opportunity for all Americans. But, before we contemplate such payments, we must first come to terms with our history, our culture, and the proslavery origins of our Constitution and our nation.

[a1]. Chapman Distinguished Professor of Law, University of Tulsa Collegeof Law.