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A Slaveowners' Constitution

From: Reviews in American History
Volume 39, Number 2, June 2011
pp. 254-260 | 10.1353/rah.2011.0060

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Despite the vast historiography on the American revolutionary era, there has never been a book that focuses directly on the relationship of slavery to the Constitution and vice-versa. It is therefore timely for David Waldstreicher to offer the first monograph on the subject. Slavery's Constitution is designed to appeal not just to specialists on slavery and the American revolutionary era but also to educated readers of U.S. history. In three concise chapters, Waldstreicher analyses the colonial background to political discussions of slavery in the new republic; the debates over slavery during the Philadelphia Constitutional Convention in 1787; and the place of slavery in the ratification debates of 1787–88. The book does not continue beyond that date to consider the Quaker petitions to the first U.S. Congress in 1790. Nor does it explore how slavery informed public debate in the United States during the heightened years of political tension triggered by the French Revolution and the massive slave revolt that overturned the French plantocracy in Saint-Domingue. But some long-term implications of slavery in the debates over the framing and ratification of the Constitution are considered in the conclusion.

Some historians have regarded the U.S. Constitution as essentially a neutral, open-ended document on slavery—a founding statement that deliberately omitted the words "slavery," "slave" or "slave trade," and substituted "other persons," and "the Migration or Importation of such Persons." For those historians, the Constitution is essentially concerned with political ideology and federalism, with slavery being a relative sideline. The late Don E. Fehrenbacher summarized this view when he wrote that "the Convention made no calculated effort to affect the institution of slavery, and its members never conceived of themselves as having any power or responsibility to do so." The silence over slavery was of course intentional, as was widely understood at the time; and historians of U.S. slavery have found plenty of interpretative scope for exploring this silence in the context of the Founding Fathers' motives. Other historians have written histories of the Constitution in which slavery plays a minor part. This is justified when such books focus on legal and constitutional theory. Waldstreicher considers, however, that the U.S. Constitution was not neutral on slavery but was proslavery in effect, and that understanding of its drafting and ratification is incomprehensible without considering slavery. Thus, "slavery was as important to the making of the Constitution as the Constitution was to the making of slavery" (p. 17) and "the Constitution enacted mechanisms that empowered slaveholders politically, which would prevent the national government from becoming an immediate or likely impediment to the institution" (p. 114). Six of the Constitution's eighty-four clauses are directly concerned with slavery and slaveowners, including Article I, Section 2, the "three-fifths clause"; Article I, Section 9, which prevented Congressional interference with the slave trade until 1808; Article IV, Section 2, the fugitive slave clause; and Article V, which forbade an amendment to the ninth section of the first article for twenty years. Five other clauses have further implications for slavery. Beyond this, traces of slavery can be found throughout the entire document. Slavery was central to federal compromise on taxation and representation; it brought together an unlikely coalition between New England and the Lower South; and it was therefore the means through which nationalism was secured and unity preserved for the American republic.

The first chapter explores the entry of slavery into American politics during the early 1770s. It concentrates on Lord Mansfield's legal judgment to uphold the rights of runaway slave James Somerset against his former owner, an American customs official who wanted to put Somerset on board ship at London bound for Jamaica. Mansfield ruled that, in accordance with English common law, a master did not have the legal right to seize a servant and transport him overseas; he did not rule that slavery was unlawful. This decision marked a major turning point in public consideration of slavery in North America. Mansfield was reaffirming British sovereignty over the colonies. His decision meant that it became "impossible to deal with key constitutional questions without engaging in the politics of slavery" (p. 41). Details of the...