The Slavery Provisions of the U.S.
Constitution: Means for Emancipation
he Declaration of Independence asserts that all men are created
T equal and that just governments derive their powers from the
consent of the governed. The Federal Constitution not only says
nothing explicitly about equality but contains several clauses protecting slaveholders in their enjoyment of property in other men. Chattel
slavery denies some men equal rights and the dignity of being ruled
by laws to which they have consented, moral possessions proper to
human beings, simply as human beings, according to the Declaration.
Then are the provisions regarding slaveholding in the United States
Constitution consistent with those "self-evident truths" maintained
in the Declaration to be the foundations of all just regimes?
The question did not escape the attention of participants in the
Constitutional Convention of 1787. At least two of the Framers
answered in the negative. On the floor Gouverneur Morris inveigh ing against the augmentation of Southern representation by counting
three-fifths of their slaves protested that slavery was wickedly anomalous in "a government instituted to protect the rights of mankind
Shortly after the conclusion of the convention Luther Martin fired off an eloquent indictment of what he conceived to be the
contradiction created by the slavery provisions between the Declaration and the Constitution. He told the Maryland ratifying convention:
It was said, that we had just assumed a place among independent
nations, in consequence of our opposition to the attempts of Great
Britain to enslave us; that this opposition was grounded upon the
preservation of those rights to which God and nature had entitled
us, not in particular, but in common with all the rest of mankind; that
we had appealed to the Supreme Being for his assistance, as the God
of freedom, who could not but approve our efforts to preserve the
rights which he had thus imparted to his creatures; that now, when
we scarcely had risen from our knees, from supplicating his aid and
protection, in forming our government over a free people, a government formed pretendedly on the principles of liberty and for its
preservation,-in that government, to have a provision not only putting it out of its power to restrain and prevent the slave-trade, but
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even encouraging that most infamous traffic, by giving the states
power and influence in the Union, in proportion as they cruelly and
wantonly sport with the rights of their fellow creatures, ought to be
considered as a solemn mockery of and insult to that God, whose
protection we had then implored and could not fail to hold us up in
detestation, and render us contemptible to every true friend of
liberty in the world.' [Emphasis in original]
Martin's indignation was well-founded but could have been extended
back to the Articles of Confederation or, for that matter, to the conduct of the Revolutionary War itself since the Revolution did not
repudiate chattel slavery even as it sought to deliver white Americans
from the political subjugation they charged was their enslavement.
Martin surely penetrated to the quick of the irony when he emphasized that Americans had based their claims not merely on the
prescriptive rights of British subjects but upon rights they claimed to
possess "in common with all the rest of mankind." Insofar as the
Declaration justifies the colonies' independence on the grounds of a
right to revolution based on the right to be governed by laws to
which one consents, the Declaration would appear to deny that
slavery can be right by nature. During the Revolutionary period
James Otis drew the conclusion that the American arguments for
political liberty required the eventual abolition of slavery'
1. Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven; Yale
'
University Press, 1966, first printing 1911), vol. III, 211. Gouverneur Morris s remark
was made August 8 during debate on the basis of representation, vol. II, 222.
2. Otis called for emancipation in his 1764 pamphlet, The Rights of the British Colonies
Asserted and Proved.
Richard Wells challenged Americans to "reconcile the exercise of SLAVERY with
our profession of freedom" [emphasis in original]. A Few Political Reflections (1774)
cited in Bernard Bailyn, Pamphlets of the American Revolution: 1750-1776 (Cambridge, Mass.: Harvard University Press, 1965), vol. I, 145.
John Allen decried the inconsistency of American libertarians: Blush ye pretended votaries for freedom! ye trifling patriots! who are making a vain parade
of being advocates for the liberties of mankind, who are thus making a mockery
of your profession by trampling on the sacred natural rights and privileges of Africans; for while you are fasting, praying, nonimporting, nonexporting, remonstrating, resolving, and pleading for a restoration of your charter rights, you
at the same time are continuing this lawless, cruel, inhuman, and abominable
practice of enslaving your fellow creatures... .
The Watchman's Alarm to Lord N----h (1774) cited in Bailyn, vol. I. 146.
"
And in 1776 Samuel Hopkins reproached his countrymen at length for their gross,
barefaced, practical inconsistence." A Dialogue Concerning the Slavery of Africans;
Spewing It To Be the Duty and Interest of the American Colonies to Emancipate All the
African Slaves, cited in Bailyn, vol. I, 149.
SLAVERY PROVISIONS OF THE CONSTITUTION
243
Recently Harry V. Jaffa has renewed Luther Martin's charge that
the Constitution stultifies its claims to be a charter for free government by incorporating the slavery provisions. In his essay "The
Doughface Dilemma" Jaffa maintains:
The Constitution of 1787 contained legal guarantees and legal advantages to the institution of chattel slavery-despotism-which
were absent from the Articles of Confederation. The intention or
purpose of the Constitution, concerning these guarantees and advantages, could not be inferred in any anti-despotic sense, from the
language of the Constitution itself.3
In another writing Jaffa argues that "The Constitution was perfectly
ambiguous with respect to whether it commanded freedom or slavery
in the territories," 4 and, on the basis of observations such as these, he
concludes that the Constitution possesses insufficient credentials of
its own to establish a republican character but becomes a democratic
instrument only insofar as the Declaration is incorporated to resolve
its ambiguities in favor of freedom and equality. The understanding
of the slavery clauses I propose seeks to mitigate Martin's and Jaffa's
charges against the Constitution while agreeing with both men that
the principles of the Declaration are the ends which the Constitution
ought to promote and the standard by which it ought to be judged.
Slavery does indeed appear to be indefensible on the premises of
modern republican thought, for the first principle of modern republicanism is the equal title of all men to have respected their natural
rights and to be ruled by laws to which they have given their consent.
Slavery opposes both the principle of equal rights and its cognate, the
requirement of rule by consent.
The question, however, is whether the Framers did not take care to
acknowledge this anomaly while also contriving means whereby the
anomalous institution might be eradicated and, hence, the two founding documents be brought into a more perfect conformity.
This view of the function of the slavery provisions of the Constitu tion has found an exponent fully as eloquent as Martin or Jaffa. Lincoln argued in the Cooper Institute Address that the men who
devised the Constitution saw in slavery "an evil not to be extended,
3. Harry V. Jaffa, "The Doughface Dilemma or The Invisible Slave in the American
'
"
'
Enterprise Institute s Bicentennial (Claremont, CA: The Claremont Institute for the
Study of Statesmanship and Political Philosophy, 1983), 43.
4. Harry V. Jaffa, How to Think About the American Revolution (Durham, NC: Carolina
Academic Press, 1978), 91.
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but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection a
necessity. "5 The Constitution did not institute slavery but rather established laws to regulate a condition already existing, and the
manifest purpose of the regulations agreed upon in 1787 was to confine slavery to those places where it then existed with the view of setting slavery on a course of eventual extinction.
'
I consider that Lincoln s position was essentially correct. He may
have unwarrantably stretched the evidence upon which his argument chiefly rested, namely, opinions of Framers allegedly hostile to
slavery inferred from their actions in Congress subsequent to 1787.
And there can be little doubt that the Cooper Institute Address underestimates the extent and the resoluteness of even the early
Southerners' determination to hold on to their slaves. But Lincoln's
contention can be supported by an analysis of the Constitution pur sued on terms somewhat different from the reasoning he himself em
ploys in the Cooper speech. I shall try to supply that analysis by considering the interrelatedness of the several clauses bearing upon
slavery in the Constitution.
Given the existence of slaveholding in several of the former
colonies in 1787 what constitutional arrangements would best promote liberty and equality? First, a government competent to secure
liberty and equality for the eighty-five percent of the population not
subject to slavery. In the absence of a strong general government
nothing could ever be done to alter some of the states' reliance upon
slaveholding. Yet in the absence of a strong national government
determined to safeguard rights pertaining to men, precisely as men,
no one would ever move to enact laws to diminish that reliance.
Second, a constitution consistent with the equality and consent propositions of the Declaration would need somehow to convey the view
that holding property in human beings was repugnant to the essential
principles of the regime therein established. Although a constitution
consistent with the Declaration might permit slavery to continue for
a time under the constraint of some necessity, it could not without
denying its principles countenance a perpetual toleration of a condi tion that denies a certain class of men rights deemed to be a parcel of
human nature. Third, a constitution that sought to eliminate slavery
within a country where it was already long-established would need to
5. Roy P. Basler, ed., The Collected Works of Abraham Lincoln New Brunswick, N.J.:
1953), vol. III 535.
SLAVERY PROVISIONS OF THE CONSTITUTION
245
insure the safety of the former slaves once they were emancipated as
well as the safety of the former owners. And, if property in slaves was
extensive, it would be wise to provide compensation to those who
would be required to relinquish their slaves. Proponents of emancipation in slave states would not find it easy to work emancipation
through their own legislatures these being largely subject to the influence of slaveholders. Hence, for the sake of initiating legislation
for freeing slaves as well as for bearing the expense of compensation
and transition to freedom, slaveholding states would have to be
drawn into a wider sovereignty, and a sovereignty so designed as to
be dominated eventually by nonslaveholding citizens. Fourth, in
order to ensure the union of old states under the new and wider
sovereignty, that is, to keep the slaveholding states from breaking off
while the bonds of union were still tenuous and fragile, it would be
necessary to secure these states from premature and irregular acts of
emancipation agitated by abolitionists in the nonslaveholding states.
Fifth, a constitution seeking to eliminate already established slavery
would need to incorporate in its provisions definite powers adequate
to the task of eventual emancipation. A constitutional amendment of
the sort eventually produced in the post-Civil War Congress could
not have won the assent of three-fourths of the states under ordinary
circumstances. Hence, by provisions adequate to the task we should
understand regular processes of legislation requiring nothing like a
concurrent majority distributed throughout the states. Moreover, to
meet the requirement of gradualism for the sake of domestic tranquility and for the sake of funding compensation by installments, a
scheme of emancipation working through ordinary legislative measures and implementing its plan in stages would be preferable to an
amendment not likely to be so. flexible.
If the criteria just enumerated are indeed the conditions for success in devising a constitution that could bring equality of rights to a
slaveholding regime, how well do the provisions of the Federal Constitution accord with these. criteria? Creditably well, if not so perfectly as one could wish.
It is estimated that in 1787 the slave population in the three southern states of North Carolina, South Carolina, and Georgia stood at
about thirty-five percent.' A national authority so deferential to the
will of individual states as was the government under the Articles of
6. Donald L. Robinson, Slavery in the Structure of American Politics 1765-1820 (New
York: Harcourt Brace Jovanovich, Inc., 1971), 38-53.
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Confederation could not hope to begin the task of setting slavery on a
course of eventual extinction. The fate of Jefferson's article indicting
the slave trade in the Declaration-struck out at the insistence of rep resentatives from South Carolina-exemplifies the plight of any antislavery legislation under a system in which the states must be
treated as merely confederated sovereignties enjoying vetoes over
any legislation deemed to encroach on their domestic affairs. The
scheme of bicameral representation finally settled upon at the Convention ensures that the minority of slaveholding states shall not be
empowered to enforce their views on the rest of their countrymen.
The second part of the great compromise on representation also conduces to acting upon slavery with deliberate speed. It is true that the
so-called "Federal ratio" (three-fifths of slaves counted toward apportioning Representatives) awards a bonus to slaveholders. But the
increment to slaveholding power in Congress came to about five percent and would have diminished if those favoring emancipation had
held firm on keeping slavery out of the territories. Even as it was, the
increment afforded by the Federal ratio never provided Southerners
with a margin sufficient for a majority in the House where the percentage of seats held by Southerners actually declined a little from
1789 to 1820.' What the bonus in representation to slaveholders did
provide was assurance that any act of emancipation could not be
easily won, nor soon. By winning some of what they desired (the
Southern delegates in 1787 wanted slaves counted equally with
freemen in allotting seats in the House) the Southerners bought time.
In the event, Southern congressmen, Senators and Presidents bought
the entire game, but not because the Constitution set matters in favor
of slaveholders, but because antislavery forces failed to make the
most, or indeed to make much at all, of the emancipatory potential of
the Constitution. For the purpose of giving the South sufficient
weight to ensure that the process of eradicating slavery be responsible and fair, the Federal ratio was about right, whereas that provision did not give slaveholders power sufficient to block a determined
majority in the free states.
Besides defining and apportioning governmental powers the Constitution is in some sort a statement of principle declaring what usages
and institutions deserve respect. The language of the document conveys a stance towards slavery that can be fairly characterized as a
stance against it in principle. Madison was aware of the status of the
7. See Robinson, Slavery, 180.
SLAVERY PROVISIONS OF THE CONSTITUTION
247
Constitution as a moral pronouncement when he said in the debates
on Article 1, Section 9 that "he thought it wrong to admit in the Constitution the idea that there could be property in men." 8 Everyone
knows the instances of euphemism and circumlocution resorted to by ,
the Committee on Detail and then the Committee of Style in order to
avoid saying slave. The one thing evidently agreed upon between the
delegates from slaveholding states and their opponents at Philadelphia was the propriety of excising any direct mention of slavery from
the clauses that would regulate the institution. Hence whenever
grammar requires some reference to the unfortunate subjects of
these regulations they are designated under such verbal camouflage
as "all other Persons" (Art. 2 Sec. 2, the "Federal ratio"), " such Persons as any of the States now existing shall think proper to admit"
(Art. 1 Sec. 9), " Person held to Service or Labour in one State " (Art. 4
Sec. 2). Consequences attach to the Framers' verbal fastidiousness.
Disinfecting the document of any direct acknowledgment of slavery
imparts to the concessions regarding the census and the return of
fugitive slaves a shame-faced character. Those who insisted on keeping the offensive word off the pages of the fundamental law thereby
succeeded in making the Constitution blush. Lincoln said that the
draftsmen of the Constitution "left this institution [slavery] with
many clear marks of disapprobation upon it. "9 Conspicuous omission
of the term is one such mark of disapprobation. More substantial for
antislavery constitutionalism the avoidance of any explicit acknowl edgment of slavery suggests that one cannot look to the supreme law
of the land for authorization in owning human beings. Ownership of
men will not derive from federal authority. Indeed one clause makes
it quite clear that the title to slaves is held only by the authority of
state laws. This is the force of the language of Article 4 Sec. 2, "a Person held to service ... in one State, under the laws thereof ' [emphasis
added]. The original form of the clause had spoken of persons legally
held to service, but upon objections that the word favored "the idea
that slavery was legal in a moral view " the phrase "under the Laws
thereof' was substituted coming after the word State. 10 Similarly, the
8. Farrand, Records, II, 417. Madison's pronouncements in Philadelphia differed,
however, from his remarks subsequently to the Virginia ratifying convention where he
assured doubting slaveholders that' their property was protected against punitive taxation or other means of manumission. See Jonathan Elliot, ed. The Debates in the
Several State Conventions on the Adoption of the Federal Constitution, 2nd ed. (New
York: Burt Franklin, 1888), vol. III, 453 and 621-22.
9. In the debate with Douglas at Alton, Oct. 15, 1858; in Basler, III, 308.
10. Farrand, Records, III, 628.
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clause respecting importation of slaves specifies that the federal
government prior to 1808 shall not be authorized to interfere with
the importation of such persons as any of the states now existing
shall think proper to admit." It may be going too far to maintain as Justice Curtis did in his dissent from Taney ' s Died Scot decision, that the
Constitution bespeaks a view that slavery violates the natural law and
is solely the creation of positive law,' but the careful limitation of the
legal sanction for slaveholding to the states does make the statement
that slavery is the creation of some of the states and not of the general
government.
Admittedly the Constitution does not go the length of stating that
the United States shall not permit slavery within its boundaries, nor
does the temporary limitation upon interdicting importation of slaves
give assurance that even that most odious aspect of the traffic in men
would certainly cease after the twenty years had expired. Yet something was gained nonetheless in keeping out of the document any
statement upholding the idea that one can justly make property of
men. If such a statement hadfound its way into the Constitution, then
Taney's contention that slaveholding is a right enjoyed by any
American citizen anywhere the flag flies would have been sound interpretation and not, as it was, a perverse imposition upon the Constitution. A statement supporting a right to property in human
beings would have meant that nothing other than a constitutional
amendment would suffice to remove.the blight. If, on the other hand,
only state law sustains slaveholding, ordinary legislation at the federal
level could, by virtue of the supremacy clause, displace such local
laws favoring slavery. More important, there is nothing to give slavery
a foothold in the federally administered lands not yet organized
into states.
The word chosen to designate the victims of involuntary servitude
was persons. A. person need not be assured of all the privileges and
immunities of the citizens of any' state (Art. 4, Sec. 2). On the other
hand, this designation-rather than, say, slave or even inhabitantseems to accord a certain dignity that the designee would not enjoy if
he were deemed merely property, In the state constitutions it is
11. 19 Howard 393 at 791. Curtis was not alone in this view. He referred to the
opinion of the U.S. Supreme Court in Prigg v. Pennsylvania (1842) and to that of the Su
preme Court of Kentucky. Curtis aligned himself with a tradition of jurisprudence
going back to the British case of Somerset v. Stewart (1772) in which Lord Mansfield
held that slavery was contrary to natural law and could legitimately exist in AngloAmerican territory only where protected by the positive law.
SLAVERY .PROVISIONS OF THE CONSTITUTION
249
regularly the person, not the citizen, who is the possessor of rights.
The sovereign agents ordaining the Constitution are the people, not
the citizens, of the United States. The Fourth and Fifth Amendments
followed the usage of the state constitutions and bills of rights and
thus established the legal status of a person in the United States, for
the amendment makes person (not citizen) the subject of rights of
property and liberty. One would think therefore that in the federallyadministered territories the slave's rights merely as a person would
prevail over the " privileges and immunities of, say, an emigrating
Georgia slaveholder-citizen though the slaveholder might be. Freesoilers in the 1850s based their slogan "freedom national, slavery sectional" precisely on this understanding of the Fifth Amendment.
Congress had exclusive authority over the territories, and therefore
state laws enforcing slavery could not reach across state lines to affect
negroes in territories. At the same time, the Fifth Amendment set
limits to congressional encroachment upon rights of liberty and property. The free-soilers completed their case by interpreting due process as what today is termed "substantive due process." That is to say,
they held to the view that no regulation which deprived a man of his
liberty to dispose of his own labor just on account of his race, no such
regulation could accord with due process of law no matter how proper might have been the processes by which that regulation was enacted and enforced.
The Constitution conveys a rhetorical disapprobation of slavery by
conspicuous euphemism, dissociates the new government from supporting theprinciple of slaveholding by defining slavery as the creature of state law, and sets the nation on the course of abolishing the
worst part of the slave trade by establishing the national government's authority to end importation. Most decisively, the Constitution
also secures arrangements that show fairly clearly how the process of
emancipation should proceed. The constitutional instruments re quired for a deliberate yet inevitable reversal of slaveholding can be
discerned in the four provisions that bear directly on slavery.
Each of the sections that appear at first merely concessions to slave
owners carries also a stinger that can inflict damage upon those who
profit from the peculiar institution. We have seen that the "fugitive
slave" provision confines the legality of slaveholding to state law. The
concession regarding the apportionment census also holds a promise
for antislavery legislation to the extent that congressional policy in
the territories should succeed in bringing a preponderance of new
free states. Further, Art. 1 Sec. 2 prescribing the ratio in which slaves
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would be counted for representation is tied to Art. 1 Sec. 9 which
states that "No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before directed to
be taken." The debates in convention make it clear that the clause
was exacted as part of the price slaveholders would pay for their
bonus in representation. The master would be vulnerable to a tax
upon every black he owned, although for each slave he would pay
only three-fifths of the amount of the tax on his own head. As long as
the tax were levied in this proportion non-slaveholders might not be
avid to pass a capitation that would cost them something even though
it cost the master of numerous slaves much more. Still, the Southern
interests feared taxation as a means of curtailing or even abolishing
slavery and therefore secured the concession that prior to 1808 no
amendment might alter either the census provision or the proportion
of taxation provision tied to it (Article 5).
Because the capitation tax is put in double shackles by the requirement of an amendment for its enactment coupled with the extraordinary exclusion from the amendment process prior to 1808, and
because, even in the absence of these impediments, Northerners
could not be expected to push fervently for such a universal tax, the
prospect could not be good of employing capitation as an instrument
of emancipation. Yet one must think that Southern fears of abolition
through some sort of hostile taxation were well-founded because
although the slaveholding interests succeeded in warding off the capitation they did not succeed in protecting themselves against other,
indeed other more practicable forms of taxation. In other words, the
capitation tax may have been something of an ignis fatuus, whereas
modes of framing tax legislation more damaging to slavery are still a
real potency under the Constitution. Consider George Mason 's reply
to Madison's assurance, delivered to Virginia ratifyers, that tying
direct taxes to the census proportions would protect property in
slaves:
... gentlemen might think themselves secured by that restriction,
in the 4th clause [Art. 1, Sec. 9], that no capitation or other direct tax
should be laid but in proportion to the census before directed to be
taken; but that when maturely considered, it would be found to be
no security whatsoever. It was nothing but a direct assertion, or
mere confirmation of the clause which fixed the ratio of taxes and
representation. It only meant that the quantum to be raised of each
state should be in proportion to their numbers, in the manner
therein directed. But the general government was not precluded
SLAVERY PROVISIONS OF THE CONSTITUTION
251
from laying the proportion of any particular state on any one species
of property they might think proper.
For instance, if five hundred thousand dollars were to be raised,
they might lay the whole of the proportion of the Southern states on
the blacks, or any one species of property; so that, by laying taxes too
heavily on slaves, they might totally annihilate that kind of property.
The key to a responsible emancipation program would appear to be
tax legislation not requiring a constitutional amendment. Instead of a
capitation Congress might simply lay a tax on the total value of the
master's holding in slaves, thereby obliging the master to pay dearly
for every slave while he should see an ever diminishing benefit in the
suffrage bonus as new (free) states formed from the Western territories. Taxation would also have the effect of undermining Southern unity since it would foment resentment on the part of the plantations whose operation was marginal against those more able to
shoulder the levy. An added benefit to regulating slavery by taxing it
rather than abolishing it directly would be that the costs of emancipation (including dispersion and relocation of freed blacks) could be
partly paid out of these revenues. The prospect would be for encouraging gradual emancipation voluntarily undertaken by masters in
response to increasingly onerous taxation.
But of course the condition for a taxing policy that should discriminate against slaveholders was dominance of the Congress by
free states. 13 This could be counted upon to occur only if there were
some design in the Constitution favoring the formation of new free
states, and indeed one may discern such a design. The United States
was at this time becoming the disposer of huge tracts of land in the
West ceded by the individual states. Part of the work of the Constitutional Convention was to affirm the principle enunciated in the
12. Elliot, Debates, III, 457-58
13. In 1797 the Fourth Congress voted in favor of a proposal that would have imposed
a tax on Southern landholders computed partly by numbering their slaves. The aim
at this time was to raise much needed revenue, not to regulate slavery by taxation, and
eventually an indirect tax bill was preferred. But the bill met no resistance on constitutional grounds, and Congress's actions indicate the means it had at its disposal to
set taxes on slaves whatever the constraints on "direct" taxes of Art. 1 Sec. 10. On July
14, 1789 President Adams signed into law a bill calling for a tax on slaves and
landholdings. Once again the purpose of the tax was revenue and the amount not sufficiently severe to encourage manumissions. See Robinson, Slavery in the Structure of
American Politics, 257-63.
Northwest Ordinances of 1784 and 1787 that the new territories
were not to be maintained as colonies but were to be prepared for
participation in the Union on the same terms as the original thirteen
states. This decision in itself was an important application of the
Framers' dedication to a society based upon the acknowledgment of
equal rights. Article 4, Sections 3 and 4 incorporate the doctrine of
consent and representation affirmed by the Declaration and adhered
to in the second organic law of the new nation, The Northwest Ordinance of 1787:
In his draft of the Northwest Ordinance of 1784 Jefferson placed
the prohibition of slavery immediately after the stipulation that the
territorial governments "shall be in republican forms." In fact he did
not regard the prohibition of slavery as an ordinary law, but rather
deemed it one article of a fundamental "compact" between the people of the new state and the United States (The Papers of Thomas Jefferson, Boyd, ed., VI;608). The requirement of republican government for all states would of course find its way into the Constitution as
Article 4, Section 4. At law the provision has been inert because
judges have held the language lacks determinate content. But one
could argue that Jefferson's precedent gives determinate substance
to the guarantee of "republican government," at least for the new
states. Some antislavery constitutionalists appealed to this section
when they contested Congressional acts sanctioning new slaveholding states. 14
In the same spirit the Constitution deals with the problem of
slavery in the territories. First, by virtue of Art. 4, Sec. 3 Congress is
given power to "make all needful Rules and Regulations respecting
"
the Territory or other Property belonging to the United States and to
admit new states into the Union. This means that in the process of exercising its authority to regulate territories Congress could regulate
slavery or exclude it altogether (as it just had in the Northwest Or dinance of July 1787), and in arranging for admission into the Union
of the new states formed in the territories Congress might prohibit
slaveryas a condition of statehood (as subsequently Congress in some
cases did).15 Second, besides providing these powers adequate to the
14. See William M. Wiecek, The Sources of Antislavery Constitutionalism
1760-1848 (Ithaca: Cornell University Press„ 1977), 119-20.
in America
15. From 1798 to 1822 five territorial acts excluded slavery while an equal number
permitted the introduction of slaves. The result of these territorial policies was seven
states admitted as slaveholding (Tennessee in 1796, Louisiana in 1812, Mississippi in
1817, Alabama in 1819, Missouri in 1821, Arkansas in 1836, and Florida in 1845); five
'
SLAVERY PROVISIONS OF THE CONSTITUTION
253
task of excluding slavery from the territories, the Philadelphia Constitution gives a positive impetus to the project of keeping the
territories free. The step is taken i n Art. 1, Sec. 9. Joined to the
language empowering Congress to interdict the importation of slaves
(after 1808) are the words The Migration ... of such Persons as any
of the states now existing shall think proper to admit....
The entire provision contains three marks of disapprobation to
each of which attaches a potential for inflicting damage upon
slaveholding. First, the ocean-going traffic is put on notice. Although
Congress is not thereby positively enjoined to terminate the African
trade, the singling out of this one species of commerce brands the
practice with odium, and it was in fact prohibited at the earliest date
permitted by the Constitution. When Madison speaks of the intent of
the provision in Federalist No. 42 he says it should be considered as a
great point gained in favor of humanity, that a period of twenty years
may terminate forever, within these States, a traffic which has so long
and so loudly upbraided the barbarism of modern policy." That the
trade would certainly be halted was treated as a foregone conclusion
in the North and not seriously contested in the Southern ratifying
conventions. The compromise was only in the suspension of the exercise of the prohibiting power for the twenty years. Moreover, the
qualification limiting the application of the term of suspension to
any of the states now existing" meant that slave imports from abroad
need not be permitted at any time in any of the territories or the new
states. Such importations were in fact prohibited by acts of Congress,
prohibited even to those new states where slavery was legal,. Thus at
least one door was closed to the admission of slaves into new
lands.
The other entrance was by way of interstate traffic. For this also a
means of prevention is, made available. A second. power over the
spread of slavery accrues to Congress by virtue of the inclusion of
"migration" within the same clause that deals with the foreign trade.
By withholding Congress from exercising for twenty years an authority to regulate the movement of slaves within the original states the
Constitution puts Congress in possession of a power to make such
regulations after 1807. It thereby equips the new federal government
states came in free (Ohio in 1803, Indiana in 1816, Illinois in 1818, Michigan in 1837,
and Iowa in 1846). Illinois at the time of statehood contained an enclave of slaves
whose emancipation was fixed for 1825. See Wiecek, Sources, 109-10.
5
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with the means of striking much more directly at slaveholding than by
terminating importations. The regulations would take the form of
commerce restrictions. In the House debates over Missouri a representative from Illinois argued that slavery could be abolished by so
fettering the interstate movements of slaves as to prevent the
necessary adjustments to the changing slave populations. '
More likely to prove enforceable is the third weapon protruding
from the sheath of restrictions. The same qualification confining the
operation of the provision to "states now existing " operates with respect to migration as with respect to importation, and with the same
salutary result. That is, Congress may not for twenty years put clogs
upon the traffic in slaves among states existing at the time of ratification, but Congress is left free to interdict movements of slaves from
those already existing states into territories or into the new states to
be formed from the territories. Note that there is no constitutional
sanction for a slaveholder taking his slaves into a territory of the
United States. This is consistent with the axiom borne out by the
"Fugitive Slave" clause that slavery under the new Constitution is to
be solely the creature of the positive law of those states which continued to carry slave codes on their statute books. On the supposition
that no new state would enact codes protecting slavery if it had not
already in residence slaves to be protected, one might have predicted
in 1787 that no new states dedicated to preserving slavery would be
added to the Union.' '' Thus, the long-term effect of protecting in16. See Wiecek, Sources of Antislavery Constitutionalism, 118.
17. The full anti-slavery potential of the clauses under consideration can be gathered
by noting how the Confederate Constitution recasts the language so as to remove
every handle for emancipators. Here are the corresponding clauses regarding slaveholding in territories as incorporated into the Confederate Constitution:
The Confederate States may acquire new territory; and Congress shall have
power to legislate and provide governments for the inhabitants of all territory
belonging to the Confederate States, lying without the limits of the several
States; and may permit them, at such times and in such manner as it may by law
provide, to form States to be admitted into the Confederacy.
In all such territory, the institution of negro slavery, as it now exists in the
Confederate States and Territories shall be recognized and protected by Congress and by the territorial government; and the inhabitants of the several Confederate States and Territories shall have the right to take to such Ter ritory any
slaves lawfully held by them in any of the States or Territories of the Confederate States.
The draftsmen of the Confederate Constitution sought to provide for just those rights
of emigration into the territories which are not secured for slaveholders in the United
States Constitution.
SLAVERY PROVISIONS OF THE CONSTITUTION
255
terstate slave movement only within the original states would be to
encourage the gradual aggregation of new free states and, hence, the
eventual development of Congresses that could be expected to employ all the other constitutional weapons harmful to slaveholding.
I have presented Art. 1 Sec. 9 in such a light as to emphasize its of
ficacy as an instrument for confining slaveholding to the original
states. The construction here proposed finds its grounds in syntaxnnd
conformity with other sections of the Constitution: Turning to the
evidence provided by contemporaneous opinion one encounters uncertainties. The debates in the Convention do make it clear that
slavery and not immigration as such, was the matter to be regulated
by the provision, but the records do not make it clear exactly what the
Framers expected to happen in the territories. The state conventions
are similarly ambiguous on the subject. James Wilson could assure the
Pennsylvania ratifiers that slavery would be confined to areas where
it then existed and be permitted nowhere else, yet he does not explain what constitutional mechanism will ensure this development.
Southerners cite no constitutional guarantees for extending slavery,
but neither do they acknowledge that they are prevented from moving their slaves, or selling them, into the territories. We can say that,
as evidenced by their agreement to the Northwest Ordinance,
Southern congressmen acknowledged Congress's authority to forbid
slave movements into the regions north of the Ohio River.
Not until 1819 was there a real joining of the issue in regard to the
constitutionality of slave migrations to the territories. The Missouri
crisis gave practical urgency to the question while it also marked an
important threshold introducing a new constitutional situation. Rufus
King brought out the significance of passing beyond the bounds of
the. original states:
Slavery cannot exist in Missouri without the consent of Congress;
the question therefore may be considered in certain lights as a
new one; it being the first instance in which an inquiry respecting
slavery, in a case so free from the influence of ancient laws,
and usages,
and manners of the country, has come before the
,
Sen
18. The Substance of Two Speeches On the Missouri Bill Delivered by Mr. King in
Charles R. King, ed., Life and Correspondence of Rufus King (New York: G. P. Putnam's
Sons, 1894-1900), Appendix IV, 702.
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THE POLITICAL SCIENCE REVIEWER
The novelty of Missouri consisted in its being a territory not tied in
any way to the laws of any of the original states. In all the earlier cases
of a region passing from territorial government to statehood some
previously existing state had exercised its authority over the area and,
in every case where the territory had passed over into statehood as a
slaveholding state, the original governing state had permitted slaveholding while the inhabitants were still living under the temporary
territorial government. Hence, it could be argued, for instance, that
since property in slaves was permitted by North Carolina in the
region that became the Tennessee territory, slaveholding must continue there during the territorial period. This claim on behalf of
slaveholders could accommodate to Art. 1 Sec. 9 provided one
stretched the meaning of the reservation "states now existing" to include all territorial possessions of the original thirteen states, whether
ceded already or not. Apparently some such consideration prompted
Congress to treat differently territories ceded by Southern as distinct
from Northern free states. But even if one allows that the old laws of
the original slaveholding states should extend their influence
through the territorial stage of statehood, that allowance would not
affect Missouri which had never been under the authority of any
state. So Missouri was indeed, as King maintained, a new departure
and therefore a decisive test of the nation ' s will regarding the future
of slavery.
King also grasped the principle that would bring the national will
into conformity with the purpose that had originally been served by
the Constitutional provisions on slavery. In arguing against the idea of
extending the "Federal ratio" to a Missouri admitted as a slaveholding
state King formulated a sensible guiding rule. The counting of slaves
towards representation was a "concession " among the original states
and limited thereunto:
Great, however, as this concession was, it was definite, and its full
extent was comprehended. It was a settlement between the original
thirteen states. The considerations arising out of their actual condition, their past connection, and the obligation which all felt to promote a reformation in the federal government, were peculiar to the
time and to the parties, and are not applicable to the new States
I9
which Congress may now be willing to admit into the Union.
19. Chas. King, ed., Life and Correspondence, 699.
SLAVERY PROVISIONS OF THE CONSTITUTION
257
King correctly perceived that admitting Missouri as a slave state
would put the nation on a new footing with respect to slavery. The
concessive, and therefore temporary, character of the slaveholding
provisions of the Constitution would be obscured. If new states were
allowed the same means of protecting property in slaves as the
original states had been accorded then the net effect of the Federal
ratio and the fugitive slave clauses would no longer be that of securing a gradual and orderly transition to a free society. Instead, those
concessions would become powerful weapons for perpetuating and
extending slavery. Even if (as proved possible for a time) a line could
be drawn northwards of which free soil prevailed, still, the
emergence of new slaveholding states south of this line would ensure
the perpetuation of slavery perhaps indefinitely into the future. Only
by adhering resolutely to the intent of the Framers could this prospect be forestalled. King tried to restore this intent by recalling the
original reasons for the concessions to slaveholders and, with those
reasons, the limits beyond which no concessions ought to be carried.
We can gather part of the reason who King's efforts failed if we
turn to consider what Madison was saying in 1819. King had maintained in his Senate speeches that Congress had authority to prohibit
movements of slaves into territories. He referred explicitly to the
powers conferred in Art. 1 Sec. 9:
Since the year 1808 Congress have possessed power to prohibit and
have prohibited the further emigration or importation of slaves into
any of the old thirteen states, and at all times under the constitution
have had power to prohibit such migration or importation into any
of the new states or territories of the United States.'
Madison complains against what he claims to be the novelty of these
doctrines. To Robert Walsh he writes on Nov. 27, 1819:
The great object of the Convention seemed to be to prohibit the increase [of slave population] by the importation of slaves... 21
Madison now even recollects that the Framers " disclaimed" a power
to emancipate slaves. But, on the other hand, he cannot recall their
having indicated any " view to control the distribution of [slaves]
20. Chas. King, ed., Life and Correspondence, 691.
21. Gaillard Hunt, ed., The Writings ofJames Madison (New York: G. P. Putnam's Sons,
1900-1910), vol. IX, 9.
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THE POLITICAL SCIENCE REVIEWER
within the country." 22 In this same letter Madison remarks that Congress has not interdicted slavery in any of the territorial governments
it has established. He attempts to explain away the Northwest Ordinance interdiction by observing that it was enacted by the old Congress still under the Articles of Confederation. Yet that enactment
was reaffirmed in the first Congress under the Constitution, a Congress in which Madison sat! As for the intent of the slavery prohibition
in the Ordinance, Madison assures Walsh that it was only meant to inhibit importations from abroad by excluding one region into which
the imported slaves might be sent (this peculiar expedient being required supposedly because Congress did not yet have authority to
stop slave importations at the ports of entry). What then was the intent of the clause permitting Congress to regulate migration beyond
the boundaries of the original states? Madison now thinks the clause
has reference only to immigrants from abroad. One can appreciate
how drastically Madison has changed his position by recalling Fed eralist No. 42 in which speaking of precisely the interpretation he
now offers Madison had then judged2ait to have been a "misconstruction" not deserving of an answer.
22. Walter Berns, "The Constitution and the Migration of Slaves, " Yale Law Journal,
LXXVIII (1968); 209, cites two accounts of speeches by Madison that indicate how different was his official position just after ratification of the Constitution. In the First
Congress Madison spoke upon a Quaker petition to abolish slavery:
He admitted, that Congress is restricted by the Constitution from taking
measures to abolish the slave trade; yet there are a variety of ways by which it
could countenance the abolition, and regulations might be made in relation to
the introduction of them into the new states to be formed out of the Western
Territory: (1 Annals of Congress, 1246 [1790])
Berns also cites this reporting of the same speech from 4 Elliot, 408:
He [Mr. Madison] entered into a critical review of the circumstances respecting the adoption of the Constitution; the ideas upon the limitation of the powers
of Congress to interfere in the regulation of the commerce in slaves, and showing, that they indeniably were not precluded from interposing in their importation; and generally, to regulate the mode in which every species of business
shall be transacted. He adverted to the western country and the cession of
Georgia, in which Congress have certainly the power to regulate the subject
of slavery.
In No. 42 Madison had complained:
Attempts have been made to pervert this clause into an objection against the
Constitution, by representing it on the one side as a criminal toleration of an il
licit practice, and on another, as calculated to prevent voluntary and beneficial
emigrations from Europe to America. I mention these misconstructions, not
with a view to give them an answer, for they deserve none; but as specimens of
the manner and spirit in which some have thought fit to conduct their opposition to the proposed government. (Jacob Cooke, ed., 282)
SLAVERY PROVISIONS OF THE CONSTITUTION
259
I don't think, however, that in 1819 Madison intended to misrepresent the issue to Walsh. When a few months later he writes Monroe
he expresses his astonishment over recent arguments ascribing to the
Convention the intent of circumscribing slavery by fencing it out of
the territories. He asks Monroe to contemplate what would have
been the reaction of slaveholding states if they had thought Art. 1
Sec. 9 were designed to prevent their carrying their slaves west ward.24 Although Madison's indignation seems genuine, it is no less
difficult to imagine antislavery men accepting tranquilly the notion
that all new states should be allowed to come in slave states. But,
however that may have been, the clause got into the Constitution and
must be explained by reference to some intention more in keeping
with the immediate context than Madison's 1820 reversal of his first
opinion. As Walter Berns has observed, Madison's own notes on the
Convention establish that the preceding debates have reference to
slavery, not immigration. The logic of the clause does not point to immigration (why should the immigration laws be reserved to the states
but only prior to 1808?). And the tell-tale euphemism such persons
governs grammatically the entire construction, migration as well as
importation. The balance of evidence favors the conclusion that the
clause gives Congress a double weapon suitable for use against inter nal as well as foreign slave traffic and empowers Congress to exclude
both mischiefs from the westward movement of the nation.
It soon became apparent to Americans that the prospects for extirpating slavery in this country could be read in the fate of slavery in
the territories. The constitutional status of slaveholding in the Western regions was therefore the question upon which pro and antislavery forces joined issue in the first half of the nineteenth century.
The classic rendition of this struggle were, of course, the LincolnDouglas debates and the immediate occasion of the debates was
Taney's decision in Died Scot which had the effect of committing the
federal government to protecting slaveholders in their ownership of
slaves wherever they might take them in territory possessed by the
United States.
Lincoln sought to reinstate the Missouri Compromise by contending against Taney that the federal government did have the authority
to exclude slavery from a territory. Lincoln argued only that Congress
was entitled to take such action, not that it was expressly bound by the
Constitution to do so. He evidently thought (or at least he refrained
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THE POLITICAL SCIENCE REVIEWER
from denying) that Congress might also act within its constitutional
authority when permitting slaves to be introduced into some of the
territories. Lincoln was certainly right to proclaim that Taney's decision abused the Constitution and set the supreme law of the land
against the principles of the Declaration. He could have gone further
(perhaps he was prudent not to have gone further) to demonstrate
that judged on the basis of Art. 1 Sec. 9 Taney had turned the Constitution inside out. Not only was Congress entitled to keep the
territories free of slaves, the design of interconnections among the
slavery provisions encourages, if it does not positively prescribe, confinement of slaveholding to the narrowest limits consistent with
maintaining the Union.
A consistent federal policy following the model of the Northwest
Ordinance and forbidding the migration of slaves to the territories
would have revealed the full potency of the constitutional instruments for extirpating slavery. To recapitulate, those instruments
are: (1) a power to end the importation of slaves from abroad; (2) a
prohibition of slaves from the territories that would predictably lead
to Congresses dominated by representatives from free states; (3)
powers over commerce, territorial regulation and taxation sufficient
in the hands of antislavery Congresses to make slaveholding ever
more harassed and expensive while making manumissions ever more
attractive and bringing in revenues to help relocate (in Western
territories) the number of freed blacks sufficient to assure whites of
their safety.
Unhappily the key to setting in motion these instruments is a condition contrary to fact. Early Congresses did not produce a policy of
consistently forbidding slaveholding in the territories. Instead Congress permitted slavery to become established in Kentucky, Alabama, Tennessee, and Mississippi having acquiesced to conditions
proposed by the southern states who ceded the lands out of which
these new states were formed. 25 This compliance to the demands of
25. North Carolina first ceded its western lands without attaching conditions then,
having taken alarm, withdrew its cession offering the lands once again (Dec. 22, 1789)
on condition that slaveholding should be allowed therein. Virginia and New York in
ceding their holdings relinquished "all right, title and claim as well of soil as of jurisdiction." Congress nevertheless agreed to North Carolina's stipulation and thus Jefferson ' s 1784 proposed prohibition of slavery from all western territories was compromised to extend only to the northern territories. Actually the serpent first entered
the garden with the Ordinance of 1787 which although it adopted Jefferson's prohibition confined its operation to regions north of the Ohio River leaving open the question
SLAVERY PROVISIONS OF THE CONSTITUTION
261
the Southern states put the Congresses in violation not of the letter
but of the spirit of the Constitution. Nonetheless the consequent
policy of allowing slaveholding southwards while prohibiting northwards assumed a sort of unofficial status representing an intersectional consensus until it, in turn, was set aside by the still more
egregiously unconstitutional fiat of the Taney court. That this national
consensus lacked constitutional justification did not prevent it from
holding sway over minds justifiably grateful for the intersectional
peace it helped to sustain.
The desire of most parties to keep the peace largely accounts for
the failure of the federal government to exclude slavery from newly
forming states. Other considerations colluded. In the first place, the
meaning of the all important clause of Art. 1 Sec. 9 discountenancing
territorial slave migration must be discerned by thinking about the
related parts of the document. If the Constitution had been made to
state flatly Involuntary servitude shall be confined to those states
wherein it is now provided for by law the spread of slavery would have
met with a clearer opposition. As it was, Art. 1 Sec. 9 had to suffer the
impositions of the latter-day Madison and Charles Cotesworth
Pinckney whose constructions of the provision artfully legitimated
the expansion of slaveholding. That this construction contradicts
Madison in Federalist No. 42, did not prevent its being adopted by
Joseph Story in his prestigious Commentaries on the Constitution of
the United States in 1847. The ferocious slave rebellion in Santo
Domingo hardened resistance in the South to any measures that
might make Southerners vulnerable to the bloody scenes enacted in
the Caribbean. After Santo Domingo many Northerners seemed to
feel they could not press antislavery measures against Southerners
convinced that the lives of all their dependents were in imminent
danger from the numerous slaves in their midst. In March 1798
Albert Gallitin proved an accurate prophet when he pleaded (vainly)
during the House debates on establishing a government for the Mississippi territory that this would be the last chance to check slave expansion into the Southwest.
One further element in an explanation why slavery was not set on
of the status of slavery in the territories to the south. See the discussion of the western
lands and slavery in Arthur Bestor, "State Sovereignty and Slavery: A Reinterpretation
of Proslavery Constitutional Doctrine, 1846-1860," Journal of the Illinois State Historical Society, vol. 54 (Summer, 1961) 147-62.
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THE POLITICAL SCIENCE REVIEWER
the course of gradual extinction chalked forth in the Constitution
comes to sight if one reflects upon a remark Walter Berns offers in
support of the interpretation of Art. 1 Sec. 9 as a barrier to introducing slaves into United States territories. Berns contends that no purpose would be served by prohibiting the importation of slaves from
abroad if they could, prior to 1808, be imported into South Carolina
and then sent on to a new state of territory. 26 Perhaps no honorable
purpose would be served by so doing, yet charges were made during
the federal Convention against Virginia planters that they aimed to
benefit from terminating the foreign trade by supplying to other
states and new states slaves from Virginia in the place of further im ports from Africa. The idea of a Virginian project to seal off importation from the sea while increasing the state's own traffic in
slaves southwards and westwards makes some sense of Madison's
reassuring the ratifying convention of the safety of their property in
slaves after having argued powerfully against slave importations at
Philadelphia. The idea is the more plausible when it is understood
that ends more creditable than commercial speculation called for
such a plan. Jefferson for a time believed that the South's only hope
lay in dispersing its slave population. Exporting blacks to the new
lands might bring about the "voluntary" relocation that would enable
the Southern plantation owner to let go the ears of his wolf, or at least
hold onto one less dangerous. 27 Madison and Jefferson voiced the
same opinion, and in almost the same words. In the same correspon dence that documents his change of position on the meaning of Art.1
Sec. 9 we find Madison putting this rhetorical question to Walsh:
Will the aggregate strength, security, tranquility and harmony of the
whole nation be advanced or impaired by lessening the proportion of
slaves to free people in particular sections of it?" After endorsing this
theory of amelioration by dispersion, Madison goes on to make a
26. Berns, "The Constitution and the Migration of Slaves, " 219.
27. To John Holmes, Jefferson wrote on April 22, 1820:
Of one thing I am certain, that as the passage of slaves from one State to another,
would not make a slave of a single human being who would not be so without it,
so their diffusion over a greater surface would make them individually happier,
and proportionally facilitate the accomplishment of their emancipation, by
dividing the burden on a greater number of coadjutors. "
Andrew A. Lipscomb, ed., The Writings of Thomas Jefferson (Washington, D.C.:
Thomas Jefferson Memorial Assoc., 1903), vol. XV, 249-50. See also Jefferson ' s
speculations on the Missouri Compromise as a "Tory" plot got up to secure the election
of a Federalist President in his letter to the Marquis de La Fayette (Nov. 4, 1823) and
correspondence with James Monroe of March 3, 1820.
SLAVERY PROVISIONS OF THE CONSTITUTION
claim that a nationwide allowance of slaveholding will be necessary to
prevent civil war. Indeed he seems to go so far as to suggest that
besides enlarging the sphere of republican government and encouraging diversity of interests a third necessary element in a cure for
the republican malady of factions is to be found in expanding the
reach of slaveholding:
Parties under some denomination or other must always be expected
in a government as free as ours. When the individuals belonging to
them are inter-mingled in every part of the whole Country, they
strengthen the Union of the whole, while they divide every part.
Should a state of parties arise, founded on geographical boundaries
and other physical and permanent distinctions which happen to
coincide with them, what is to control those great repulsive masses
from awful shocks against each other? 28
The classic defense of popular government worked out in Federalist
No. 10 now takes on this strange refinement: the "republican"
remedy for the evils incident to republican government is the un limited opportunity for owning slaves!
In Madison's view the same means will serve two benign intents: in
order to prevent warring factions, permit Virginia and her sister
Southern states to disperse their surplus slaves into the territories; in
order to improve the conditions of black and white alike, permit
Virginia to disperse her slaves into the territories.
It is hard to say to what degree this will-o'-the-wisp of a solution by
dispersion contributed to Southern intransigency regarding slavery
in the territories. Did this false hope prevent resolute confrontation
of hard truths by aJefferson who in 1784 had drafted policy intended
to prevent the introduction of slavery into all territories but who, by
1820, was willing to see slavery permitted throughout the new lands
he had purchased from France, and did the same mirage distract
Madison who, in the Constitutional Convention, was anxious to prevent even the mention of slavery from sullying the new constitution
but who, in 1819 was willing to see the reality of chattel slavery extended across the entire nation? Evidently the lure of dispersion
served to enervate the statesmanship of the two Virginia presidents
whose stature might have been sufficient to have gained a hearing for
a call to return to the antislaveholding provisions of the first Northwest Ordinance.
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THE POLITICAL SCIENCE REVIEWER
However we sort out the causes and whatever the circumstantial
justification for permitting the expansion of slavery, it remains true
that within thirty years of the ratification of the Constitution slaveholding had been extended into every territory of the United States
south of the Mason-Dixon line, including the nation's capital. Nevertheless, this history of constitutional abuse does not demonstrate an
inadequacy of the Constitution to secure equal rights for all. Slaveholding procured a longer term of life than the Framers expected
because the spirit of the Constitution was not heeded while the provisions meant to contain slaveholding and strangle it were ignored,
emasculated, or, as in the case of Art. 1 Sec. 9, positively misconstrued.
We return to the question posed at the outset: Are the provisions
regarding slavery in the U. S. Constitution consistent with the principles of liberty and equality set forth in the Declaration of Independence? We ought not forget that in a sense the entire frame of
government established by the Constitution is a provision against
slavery. The idea of a written higher law, of limitations upon the
powers of those who govern, of responsibility to the people, and of
separation of executive, legislative, and judicial powers, all answer to
the one great theme of rule of law. The essence of the ideal of rule of
law is the conception of the act of governing as the product of reason
rather than will. The arrangements of the Constitution aim to secure a
political life under which no man will be subject to the unrestrained
will of another, while every man will be subject to the salutary restraint of uniformly operating laws and regular, deliberative procedures. In the Declaration the equality proposition looks to the
foundation of law in man's nature. Human nature can be regarded
positively as ordained to rationality or negatively as inclined to prefer
its will to any restraint. Men are equal in that their dual nature predominates over every other class feature. Another way of stating this
truth is to say that all men stand intermediate between beasts and
angels. This moral equality points towards rule of law. Laws uniform
in their application and protection and arrived at by consent answer
to the dual aspect of human nature. Both the positive aspect of man's
nature-his capacity to obey reason-and the negative-his inclination to indulge willfulness-both aspects require that all men be
deemed to possess an equal claim to justice or to live under law.
Stated negatively, the equality proposition means that it is impossible
to identify any class of men as possessed of a natural right to rule. Efforts to certify classes with such a right bring mischief upon everyone
including the corruption of the class on behalf of whom the claim is
SLAVERY PROVISIONS OF THE CONSTITUTION
265
made. Constitutionalism, or rule of law, is the realization of this moral
understanding of equality. Viewed negatively as freedom from the arbitrary will of others, rule of law is political liberty. By providing for a
political experience in which every man submits his native willfulness
to correction by a common rationality the United States Constitution
gives form to equality and liberty. That form causes the institution of
slavery to reveal fully its anomalous character. Slavery is precisely antithetical to the notion of rule of law, because slavery is a condition which
places every restraint on the will of the slave while it places no restraint
on the will of the slavemaster. Both master and servant are thus impaired in their political liberty, the slave by being treated as less than a
man, the master by being treated as though he were more than a man.
A regime dedicated to the principles of rule of law and moral
equality is the best hope for eliminating slavery. Such a regime we
might say is bound sooner or later to produce men who perceive
slavery to be repugnant to the very essence of the creed that in the
first instance produced the national constitution and thereafter was
in turn sustained by the habits and convictions daily fostered by those
constitutional arrangements. The education in respect for legal restraint inculcated by the Constitution was bound to produce, we
might think, a Lincoln who would hold the Union to its proper purpose of freeing slaves, even through the unexpectedly terrific costs in
blood that such a purpose required. Lincoln's achievement and the
sacrifices endured by those who fought for the Union is an inspiring
proof of the capacity of men to prefer fidelity towards a moral idea
over the pursuit of lower interests or even at the expense of the most
compelling interests of self-preservation. Lincoln's achievement may
serve even better than Churchill's to define the utmost attained by
Western man since Churchill could muster his people by appealing
to the motive of self-preservation whereas Lincoln had to sustain a
moral cause in the teeth of that all but decisive motive. Impassioned
respect not solely for the ideals of the Declaration but also for a constitutional Union that embodied the ideal set forth in the Declaration
appears to have given Lincoln the resolve to carry through that moral
cause. The Constitution certainly gave him the necessary instrument
in a citizenry habituated to self-government. The Constitution taken
as a whole inculcates respect for government by consent and thereby
nurtures habits hostile to slavery while its particular provisions are
adequate to promote the eradication of slavery in a manner that would
preserve at the same time peace, and safety, and the rule of law.
University of Dallas
JOHN ALMS