Signposts: New Directions in Southern Legal History

Democracy, and Lynching, in America

193 For most of American history, the Constitution has symbolized the nation’s commitment to liberty and the rule of law, a fundamental pledge to make freedom a national principle. Since 1985, though, questions about whether the Constitution should be properly seen as a freedom document have gained momentum. Much of this criticism cites the powerful role played by white southerners at the 1787 Constitutional Convention in Philadelphia. According to this portrait of the founding, the Three-Fifths Clause gave white southerners an unfair advantage in elections; the Fugitive Slave Clause sanctioned slavery; Article I, Section 9, protected slave imports for twenty years; the Insurrection Clause guaranteed federal help in putting down slave uprisings; and the electoral college allowed southerners to pick the president in most elections. This emphasis on white southerners ’ success in controlling the convention that drafted the nation’s organic law raises questions about white southern distinctiveness. Here the basic argument implicates the entire nation, through its organic law, in that most southern of institutions, slavery. The South, Howard Zinn wrote in 1964, “far from being utterly different, is really the essence of the nation.” Maybe he was right. Claims of a distinctive South rested somewhat more comfortably in an older tradition that saw slavery as merely incidental rather than central to the republican ideology foundational to the American Revolution and the Constitution. In this vision, the American South stands apart from the more progressive national culture, “an abnormal growth on the national body,” as Zinn put it. Rather than slavery, these scholars found that the Framers’ major concerns had to do with representation and sovereignty. Gordon S. Wood wrote that those who lament the Framers’ failure to abolish slavery Democracy, and Lynching, in America Christopher R. Waldrep 194 Christopher R. Waldrep miss the great significance of what they did accomplish—that is, “the Revolution made possible the anti-slavery and women’s rights movements . . . and in fact all our current egalitarian thinking.” The founders, Wood wrote in 1972, were enlightened gentlemen, intellectual aristocrats who sacrificed their own class interests to encourage a democratization of politics that made it extremely unlikely that men of their character and caliber could ever again lead the nation. Part of this democratization involved legitimizing street crowds—mobs—as a way of encouraging the vulgar to take an interest in governing and politics. Wood, Pauline Maier, and John Phillip Reid all thought revolutionary mobbing important, probably because they wrote during and immediately after the 1960s, a time when protesting crowds seemed more legitimate than the formal political processes that had led to Vietnam and segregation. Had they shed their presentism, these scholars could have seen more fully what Maier in fact glimpsed: localized democracy could also take the form of a lynch mob. There is, then, a hint here that mobbing, vigilantism, and lynching, by being present at creation, may not have been uniquely southern. But it was only a hint; in this school of history , white southerners stand apart from the more pacific, progressive national experience. Neither of these two scholarly schools fully connects the dots between Americans’ constitutional commitment to local democracy and racial violence . Long before 1787, white southerners had created a fundamentally lawless relationship with their slaves that had much to do with the nation’s political structure but little to do with the particular articles and sections in the Constitution that directly addressed slavery. “The plantation is a little nation of its own,” Frederick Douglass wrote, adding that “the laws and the institutions of the state, apparently touch it nowhere.” For much of his life, Douglass stalwartly defended the Constitution against its critics, disdaining those who called the document proslavery. There may be a proslavery Constitution, he wrote, “floating in the brains of Pro-Slavery Doughfaces in the North,” but that was not the true Constitution, written in plain words, establishing a rule of law hostile to slavery. This essay takes Douglass’s observations seriously to follow a different approach to southern distinctiveness than either side in the academic debate over the centrality of slavery at the 1787 convention. As Douglass suggested , slavery’s victims experienced an institution that drew sustenance not from the Three-Fifths Clause or even very often the Fugitive Slave Clause but rather from white southerners’ drive to regulate Africans and African Democracy, & Lynching, in America 195 Americans outside the law. According to Douglass, the problem was not organic law as...