There is no need to rehearse in detail the various debates over the Founders and slavery that have roiled academic and political waters since the mid-twentieth century. Suffice it to say that the main antagonists can plausibly be called Neo-Garrisonians and Neo-Lincolnians, after William Lloyd Garrison, the famous abolitionist, and Abraham Lincoln. Today these two schools have been reborn as partisans of 1619 and partisans of 1776 as the most significant benchmark dates in American history. The debates between them concern two issues in the main. First, how favorable was the Constitution toward slavery? And second, what were the motives upon which the Founding generation acted?
The Neo-Garrisonians answer the first set of questions rather straightforwardly: the Constitution was very favorable to the institution of slavery and gave it a great deal of life-sustaining aid. The Neo-Lincolnians, however, while conceding that the Constitution did indeed make some accommodations to slavery, deny that these were nearly as substantial as the Neo-Garrisonians claim. The Neo-Garrisonians answer the second set of questions by arguing that the Founders were moved by the same complex of motives that led to the establishment and flourishing of the institution in the first place: greed, racism, Christian triumphalism, and moral indifference being the chief items on their list. The Neo-Lincolnians argue that the place of slavery in the constitutional order was due primarily to the press of necessity: without concessions to slavery, the Union would not have been possible. The Neo-Lincolnians frequently point to the expectation—or hope—among the Founders that the process of abolition in the states, begun during and after the Revolution, would continue until the blight of slavery had been removed from the land. As Lincoln himself put it, the founders lived in the expectation of the “ultimate extinction of slavery.”
The scholarly debates on slavery can be very heated. Partisans of the different positions cannot even agree on how many parts of the Constitution are relevant to slavery. One Neo-Garrisonian found in the Constitution eighteen clauses supportive of slavery. Neo-Lincolnians find far fewer—only three: the three-fifths formula for representation and direct taxation, the Slave Trade Clause, and the Fugitive Slave Clause.
Paul Finkelman, a leading Neo-Garrisonian, distinguishes between direct and indirect aids to slavery in the Constitution. In the former group he would include, for example, the Fugitive Slave Clause’s protecting slave owners from losing runaways who made it into free states. An example of the latter would be the Insurrection Clause, which empowered the federal government to come to the aid of any state suffering an insurrection. Finkelman’s classification is helpful, but I would add to it a distinction between constitutional clauses specifically tailored to accommodate the presence of slavery and provisions that most likely would have been in the Constitution even if there were no slaves in North America. The Insurrection Clause is an instance of the latter, for it was a staple of federal theory in the Founding era that this was one of the advantages of federal systems. Many if not all of the “indirect aids” to slavery are of this kind.
On the preliminary question of how many parts of the Constitution bear on slavery, we need to be more refined than the Neo-Garrisonians often are; to say that various provisions of the Constitution might aid slavery (indirectly) does not establish that aiding slavery was the aim or the expected long-term consequence of the constitutional order. It would be perfectly compatible with the Neo-Garrisonian “indirect aids” for the Founders to have aimed and expected to see slavery undone in the medium-range future.
Many generally “neutral provisions” and “indirect aids” may prove to be protective of slavery, but this true observation perhaps proves too much: the Constitution as a whole, if successful in providing peace, security, stability, and prosperity, would tend to provide support for any and all practices and institutions that were part of the established status quo within the states. Thus, we could increase the Neo-Garrisonian tally substantially if we used the test of aid and support to include everything in the Constitution.
The Neo-Garrisonians also do not credit sufficiently the refusal of the text’s drafters to include the words “slavery” and “slave” in it, as something they considered blameworthy and a blemish that they hoped could be removed. James Madison, for example, said at the Constitutional Convention that he “thought it wrong to admit in the Constitution the idea that there could be property in men.” In order to avoid so admitting, the constitutional text deploys awkward circumlocutions so that the first appearance of the word “slavery” in the document appears only in the Thirteenth Amendment’s prohibition of the institution in the United States. The account of motives given by the Neo-Garrisonians comports too little with the embarrassed efforts at circumlocution that mark the constitutional text.
The Neo-Lincolnians also overshoot. The Founders more easily accepted slavery-supporting provisions like the Fugitive Slave Clause than they needed to. Nobody threatened to leave the Union if that clause had not been included. It is true that the delegates accepted several clauses recognizing, and in some measure furthering, the institution. Probably most significant was the dog that didn’t bark: nobody stood up to demand that the Constitution contain provisions prohibiting, or that Congress be empowered to prohibit, slavery in the states. The Neo-Lincolnians are surely correct to note much distaste, even repugnance for slavery at the Constitutional Convention, but their case for concessions under duress is not, as Finkelman and others show, entirely compelling.
As a first step toward understanding the meaning of the slavery provisions in the Constitution, we need to ascend to a somewhat more general level than the specific constitutional clauses and instead take our bearings from those two largest facts about slavery in the Constitution: the failure even to contemplate a power in the United States government to deal with slavery in the states, and the other fact that the words “slave” and “slavery” nowhere appear, but are replaced with awkward circumlocutions. The existence of slavery was accepted but not endorsed. It was accepted as an institution of the states that chose to have it, as the specific constitutional clauses dealing with it made clear. The Fugitive Slave Clause very carefully and deliberately described the slaves as “[p]erson[s] held to Service or Labour in one State, under the Laws thereof.” Stephen Douglas is a good witness to the meaning of the Fugitive Slave Clause. In a speech in 1859, he explicated the clause in a way that highlights the relation between slavery and the Constitution. “Now, by the express provisions of that clause of the Constitution, a slave is a person held to service or labor in one State under the laws thereof—not under the Constitution of the United States—not under the laws of the United States—and by virtue of any federal authority, but in a State under the laws thereof.” The Slave Trade Clause spoke of this trade as involving “such Persons as any of the States now existing shall think proper to admit.” States that had slavery were not for that reason considered unsuitable partners for the Union, but the Constitution is very careful not to endorse or make the institution its own. The text does not support Chief Justice Taney’s view in the infamous Dred Scott case that the Constitution explicitly recognizes and affirms slavery nor does it support the Neo-Garrisonian view that it was a “proslavery compact.” But neither does it declare war on slavery or commit to ending the practice.
To understand the constitutional settlement, we need to look at it with the eyes of 1787, and not those of 1857 or 2027. In making the Constitution, the Framers were making a federation, that is, what the French philosopher Montesquieu called a “society of societies,” a union of otherwise independent political units. Establishing the internal ordering of the members was not one of the purposes of such a union. William Wiecek got it right when he said that “nearly all the fifty-five delegates [who] arrived at Philadelphia [in 1787] shared the common assumption that slavery as such had no place in the deliberations there because it was a ‘domestic institution’ of the states, no different than such things as marriage or ecclesiastical governance, something . . . rather exclusively within the responsibility of the states.” That, in itself, made the largest fact about the constitutional settlement regarding slavery nearly inevitable, that is, the failure of the Constitution to say or do anything about slavery within the states.
Moreover, the new Constitution was not a mere reprise of traditional federalism. The Americans, under the leadership of James Madison, revolutionized the principles of federal design by relating the government of the Union directly to its individual citizens and not merely to its member governments as had been federal practice in the past. That meant that the government of the Union intruded far more deeply into the internal life of the member states than any historic federation had ever done. A precondition for that unprecedented degree of Union intrusion, however, was a very clear line of demarcation between matters of concern to the government of the Union and matters of concern to the states. The vehicle by which this was accomplished was the enumerated powers. The general principle behind the enumeration was the idea characteristic of traditional federalism: matters of internal governance are, with a few exceptions, not matters of concern for the government of the Union.
The American order was innovative also in dedicating itself to a republicanism that reinforced the commitment to the internal autonomy of the states. Republicanism means, at a minimum, self-government. Each unit should be a self-governing entity, which means that in matters concerning itself other political units should not be making decisions for it. Thus the commitments to federal union and to republicanism converged to guarantee that matters like slavery would be regarded as state institutions, largely outside the purview of the government of the Union.
Nevertheless, slavery was not, in fact, left merely as an internal matter for the member states. In at least three places in the Constitution, national account was taken of the institution. Slavery may be a state institution, but there were some matters where it spilled over into the Union, and constitutional provision had to be made for it. That provision was more readily forthcoming than the Neo-Lincolnians admit, but less proslavery than the Neo-Garrisonians assert.
Take the Fugitive Slave Clause, which provided that a slave escaping into another state shall not become free by virtue of being in free territory, but will be returned to his or her owner as established by the laws of the slave’s state of origin. To have the kind of union the Americans sought—a huge free-trade area—meant having open borders between the states, and therefore a porousness that makes slave escape much easier than it would otherwise be. Now in a federation one should attempt to avoid, so far as possible, obvious sources of friction between member states. If slaves could escape with relative ease into free states across open borders, then there surely would be frictions among the states. Thus the Convention had no difficulty accommodating the slave states on the matter of fugitives.
The Fugitive Slave Clause is not, then, a constitutional endorsement of slavery beyond the already noted constitutional principle that the existing state republics were free within the Union to order themselves internally, including free to keep the slavery they already had. The Fugitive Slave Clause’s drafters went far out of their way to emphasize that slavery was a state institution under state law and the accommodation of it was a matter of comity among the states. It was not, to repeat, a constitutional “endorsement of slavery,” but, contrary to the thrust of Neo-Lincolnian thinking, the Clause did represent a degree of toleration toward the institution.
The Constitution thus accepts slavery, as a fact characterizing some of the member units, and makes an accommodation to that fact so far as there are spill-over effects into the Union. It is at most a stance of neutrality toward an institution some members had, but others did not. The other crucial fact—the unwillingness even to speak the name of the practice and to make sure it is identified entirely as a practice of the states—points to a distinct lack of neutrality. If the Constitution were truly neutral or supportive toward slavery it would show no aversion to naming the institution. Consider the Constitution of the Confederate States of America—it showed no such shyness about speaking openly of the peculiar institution by its proper name. Indeed, it prohibited any of the member states from abolishing slavery. This is what a real pro-slavery constitution looks like.
Moreover, the constitutional provisions regarding slavery must be viewed against the backdrop of so much of the rest of the political climate of the day. The colonies, acting together to declare their independence, had expressed a theory of legitimacy, which nearly all members of that generation understood to be contrary to the institution of slavery. Thus, William Wiecek speaks of “the widespread and heartfelt opposition to slavery expressed by so many of the Framers.” He endorses as “doubtless correct” the tendency of the Neo-Lincolnian historians “in ascribing antislavery sentiment to most of them.” Nearly all the new states adopted constitutions reaffirming those same principles of legitimacy. During the Founding era, many of the new states acted on the perceived incompatibility between the received principles of legitimacy and slavery, and moved to abolish the practice. In the states that did not do so, there were strong currents of sentiment to follow the example of the others. Where slavery was retained, the most common defense was the plea of necessity, not the plea that slavery was inherently right or legitimate.
I rehearse these familiar facts in order to propose a formula for the place of slavery in the Constitution that is neither Neo-Garrisonian nor Neo-Lincolnian, but rather Madisonian: within the constitutional order slavery was legal but not legitimate. It was legal within the member states and to a degree within the Constitution itself where it spilled over the borders of the member states and impinged on the Union. It was not legitimate, because the Founding generation accepted a theory of political right as expressed in the Declaration of Independence and related documents that was incompatible with slavery. But that principle of legitimacy did not penetrate or inform the entire political system; it was in this sense an “incomplete constitution.” It is not that the Constitution gave no aid to slavery as an institution, but nothing the Constitutional Framers did was incompatible with the hope, which Neo-Lincolnians discern, that the institution would ultimately pass away. My point is a relatively narrow, but I think an important one: the Constitution did indeed give slavery a place in the established legality, but the institution remained outside the broader consensus on the basic principles of legitimacy upon which the Constitution was erected.
It is problematic for any political-legal system to live with the kind of disparity between legality and legitimacy that marked the American order. Any political community experiencing such a disparity is subject to great pressures to bring legitimacy and legality into greater harmony with each other. As Lincoln said, “A house divided against itself cannot stand.” The antebellum period was indeed deeply marked by the tensions resulting from the disparity between legitimacy and legality; over time that disparity proved more and more difficult to live with.
Three kinds of responses arose during the antebellum era and as they interacted with each other the rift became ever greater and more intense. One response was to attempt to remake legality so as to cohere with legitimacy. Such was the approach of, for example, the various sorts of abolitionists. A second response was to remake legitimacy to match the otherwise anomalous legality of slavery. Such were the efforts of men such as John C. Calhoun, Alexander Stephens, and the entire slavery-as-a-positive-good school. Finally, there were efforts to creatively maintain the tension so as to preserve the original (defective and incomplete but established) constitutional order. Supreme Court Justices Joseph Story and Benjamin Curtis were two who trod this path.
The strain caused by the diremption between legality and legitimacy proved too great for the political system to weather. The result was the Civil War, which in theory settled the issue in the 13th, 14th, and 15th Amendments to the “constitution, but in practice left the issue to fester for another 160 years and counting.
Michael Zuckert is Nancy Reeves Dreux Professor of Political Science at the University of Notre Dame and a Visiting Scholar at Arizona State University.
