Slavery and Freedom in American State Constitutional Development

In 1972, Edmund Morgan delivered the presidential address to the Organization of American Historians on the relationship between slavery and freedom in American political development. He argued that “the rise of liberty and equality in this country was accompanied by the rise of slavery,” and “that two such contradictory developments were taking place at once … is the central paradox of American history.”¹ Morgan’s narrative is often cited because it is philosophically counterintuitive, yet compelling. He claimed that slavery reduced the demand for white indentured servants and alleviated the attendant problem of a discontented, landless class of single men.² Moreover, the expansive growth of the evil institution united whites and minimized class differences.³ The great irony is that these conditions made possible the development of ideas regarding freedom and equality that flowed from men like Thomas Jefferson and James Madison—Virginia statesmen, American Founders, and slave masters.⁴

The revelation that “the rights of Englishmen were preserved by destroying the rights of Africans” also applies to state constitutional development.⁵ Alexander Keyssar, Laura Scalia, Rogers Smith, Alan Tarr, and others have catalogued how, during the first half of the nineteenth century, greater access to the vote for white men came with limitations and outright restrictions on access to the vote for black men.⁶ This unfortunate phenomenon took place in new and old states, North and South. There was, however, another similarly disturbing development in state constitutions. In slave states, the expansion of rights for white men, including universal male suffrage, was dependent on the continued dominance of black men, so democratization came at a cost: the constitutional protection of slavery. The cost was borne exclusively by African Americans. Few southern whites were abolitionists, so the exchange of additional slaveholder security for new political power seemed to be a bargain without a downside.

The end of the eighteenth and beginning of the nineteenth century marks a dynamic period in the politics of race and slavery. In Virginia, some planters used the prospect of freedom to motivate slaves, and many actually followed through on promises of manumission.⁷ Debates over emancipation, deportation, and African colonization arose in Virginia, Maryland, and Tennessee. These efforts failed, and southern constitution makers then moved to protect and perpetuate the existing order. Securing slavery required several steps. First, those in bondage had to remain in bondage, so constitutional guarantees against legislative emancipation and protections for immigrant slaveholders were essential. Second, free blacks, regardless of wealth, education, or profession, would be relegated to a lower social and political status than all whites, hence the attack on African American voting rights. And finally, southern elites created the illusion of a herrenvolk democracy by expanding the rights of white men. In reality, elevating racial differences and minimizing economic differences perpetuated existing power structures and ensured continued, if not intensified, subjugation of African Americans. Furthermore, the constitutionalization of slavery lodged the institution into the fundamental law, which both legitimized it and set it on a path of expansion, rather than extinction.

Delegates to southern state constitutional conventions were often members of the slaveholding aristocracy seeking to protect their own interests, but as will become clear, the fight over democratization did not simply amount to planters vs. yeoman farmers. Elites feared a loss of political power as much or more than emancipation. In fact, threats to slavery might have been more imagined than real. Many poor whites aspired to own slaves as part of their quest for success and prosperity.⁸ Additionally, people in all manner of industries—merchants, shippers, manufacturers, bankers, lawyers—depended on the fruits of slave labor to make their living.⁹ Every exchange of money and goods in parts of the South was directly connected to the plantation system, and the tainted wealth flowed into the North and across the Atlantic.

Some scholars of southern state constitutional development have treated slavery provisions as ancillary add-ons included to accommodate the peculiar system of labor. Fletcher Green argues in his 1930 study of Maryland, Virginia, North Carolina, South Carolina, and Georgia that antebellum state constitutional development in...