The Constitution and Slavery
By 
Slave auction, Charleston, 1856
What’s really amazing about Sean Wilentz’s self-immolation this week isn’t so much that he’s decided to become a hack for Hillary Clinton, but how a once-esteemed U.S. historian has shows such willingness to sacrifice good historical analysis in order to be that hack. That means that his argument was swatted away by many with ease. Just a couple of examples. First, David Waldstreicher:
Another clause in Article I allowed Congress to mobilize “the Militia” to “suppress insurrections”—again, the House with its disproportionate votes would decide whether a slave rebellion counted as an insurrection. Wilentz repeats the old saw that with the rise of the northwest, the slave power’s real bastion was the Senate. Hence the battles over the admission of slave and free states that punctuated the path to Civil War. But this reads history backwards from the 1850s, not forward from 1787. The shaping policies of the early republic were proslavery because the federal government was controlled by southern expansionists like Jefferson and Jackson, who saw Africans as a captive nation, a fifth column just waiting to be liberated (again) by the British.
The refusal to mention slavery as property or anything else in the Constitution means something. But what it meant was embarrassment—and damage control. Domestic and foreign critics had lambasted Americans for their hypocrisy in calling themselves a beacon to human freedom while only a few states moved on the slavery question. The planters didn’t need or even want an explicit statement that slaves were property; it would have stated the obvious while opening up the United States to international ridicule in an era when slavery was coming into question.
On balance, the Constitution was deliberately ambiguous—but operationally proslavery. Perhaps more so than Madison wanted, as Wilentz maintains. But Madison’s putative intentions are all that matters to Wilentz. He’s outdone original-intent jurisprudence in reducing history to a morality play of good founders, bad critics. He loses sight of what actually happened when the ambiguously worded but slavery-suffused Constitution was finally released to an anxious public.
In late July, after two months of wrangling, the convention appointed a five-delegate Committee of Detail to draft, in secret, a prototype constitution. Anyone who has been in business or government knows that creating the working document bestows enormous influence and power. To chair this all-important committee, the delegates unanimously agreed on South Carolina’s John Rutledge, “Dictator John,” the convention’s fiercest, most unapologetic defender of slavery. (James Madison, whose influence had been waning as the months wore on, was specifically excluded.) Rutledge’s selection made certain that whatever terms emerged would protect slaveholders’ interests.
And so they did. When debate resumed, based on the committee’s report, slaveholders won a series of concessions—on the makeup of the Senate, fugitive slaves, admission of new states, the election of the president, and even the Electoral College. In late August, however, the question of the national government’s control of commerce came up. Here, the North would not budge. In a compromise fashioned principally by Rutledge and fellow Committee of Detail member Oliver Ellsworth of Connecticut, the slave trade was extended for 20 years (after which the South would be protected by population shifts) and the free flow of commerce was assured when a proposal by the South to require a two-thirds majority to pass navigation acts was stricken. Virginia delegates were livid, none more so than the influential George Mason, who denounced the “infernal traffic” in a speech for which he has been incorrectly lauded by some historians, since he was convention’s largest slaveholder. (Rutledge was number two.) So upset was Mason that he refused to sign the Constitution, and Virginia, a state that had taken the lead in calling for a new constitution, only barely agreed to adopt the document during the ratifying conventions.
So, perhaps as Professor Wilentz suggests, the Constitution didn’t specifically anoint slavery as a national institution, but in clause after clause it tried to make certain that slavery would endure as one.
Wilentz’s piece reads as if a clear delineation exists between national issues and state issues. It’s true that if you look at how day-to-day social policy was made and implemented, prior to the Progressive era, you find a more limited role for the federal government, and up until the New Deal you find much clearer boundaries. But just because this policy distinction held up, doesn’t mean that it applies to the Constitution or the political system generally. The relationship between federal government and the states was contested all the time. This happened in court cases like McCulloch v. Maryland, over the Constitutional status of the national bank, and Gibbons v. Ogden, which posed the question of control over waterways. The provisions of the Constitution intended to clarify what should be left to the states and what could fall under national control have never been obvious in their meaning. Furthermore, the question of whether the federal government was constituted by a compact of states, or represented a distinct entity on its own – a whole greater than the sum of its parts, legally – was a big controversy in the early republic. Andrew Jackson rejected the “compact theory” approach when he rejected South Carolina’s attempt to nullify tariff laws. Not everyone bought it, as evidenced by the eventual secession of the Confederate states. But to suggest that the early American republic was characterized by a clear boundary between national issues and local issues is to miss the basis of much of the political conflict from the Founding to the Civil War.
What’s notable here is that these historians don’t even have to try to refute Wilentz. The famous Wilentz now writes like an uninformed master’s student with an agenda. It’s pathetic and it’s sad. And so long as Bernie Sanders is in the race, we can probably expect more and we can probably expect the New York Times to publish it.