MOOC | Slavery and the Constitution | The Civil War and Reconstruction, 1850-1861 | 1.2.7


>>The Constitution embeds slavery or slavery is embedded in the Constitution, even though the word “slave” or “slavery” is not in the Constitution until the 13th Amendment — which is ratified after the Civil War — which abolishes slavery irrevocably. That is the first time the word “slavery” appears in the Constitution. The founders were — I don’t know, they just didn’t want to put the word “slavery” in. So they used circumlocutions, “persons held to labor,” this kind of thing. But everyone knew what they were talking about. Here just we will talk about this as we go along because the Constitution’s relation to slavery is a key point of debate by the 1850s. But just a couple of things to bear in mind. One, the Three-Fifths Clause — people have heard all about this, the Three-Fifths Clause — this does not say a black person is three-fifths of a man or something like that. This is about allocating representatives in Congress, right? In the House of Representatives, the number of representatives each state has is determined by the population. But what population? How do you count that slave population? Now, here the South basically said, “These are people. We got to count them.” And the North said, “No, no, no. They’re property. You don’t count other forms of property you don’t count land, you don’t count domestic animals.” I don’t know, the slaves are property. So in the end they compromised on this three-fifths representation in the House is based on the free population and three-fifths of other persons. Other persons. Who are these other persons? If you were a man or a woman from Mars and you landed here and you looked and said, “Well, how can there be the people and then other persons?” These are the slaves. By the way, there are three populations talked about in the Constitution: There are the free population; the other persons; and then there are Native Americans, who are also not part of the body politic. They are considered members of their own sovereignties. They’re dealt with by treaty, not by the law of the nation. All right. The so Three-Fifths Clause. Secondly, a clause prohibiting Congress from abolishing the slave trade from Africa for 20 years. It doesn’t say you have to abolish it in twenty years, but laws cannot be — against it’s the importations of persons, that kind of thing. Why — now at this point already, the slave trade from Africa, it has been ended during the revolution because they cut off all trade with England. And it’s already being condemned as a crime against humanity in Enlightened thought. Why give it 20 more years? Again, it’s our old friend South Carolina and Georgia because they had lost so many slaves to the British when Savannah, Charleston when the British left that they said, “We need some more slaves.” They said, “We got to keep bringing slaves in for the next twenty years,” and the rest the colonies said, “All right, all right.” And so South Carolina brings in up to 1808. Twenty years later, Congress does abolish the slave trade, the importation of slaves. There is illegal trading after that, but not that much. But up to that point, South Carolina brings in almost 100,000 new Africans. So there’s a kind of re-Africanization of black culture in South Carolina in — right after the American Revolution. So the Slave Trade Clause. Then another — this is another fugitive slave ad from much later than Jefferson. So runaway slave, here’s the reward. The Fugitive Slave Clause of the Constitution, which basically says — again, it doesn’t use the word, “slave” but “persons held to labor in one state escaping to another shall be returned.” Shall be returned. Now, that’s rather ambiguous. It doesn’t say who is responsible for returning them. This becomes a major point the political debate, as we will see. Is it the states? Is it the federal government? Is it the owner himself who just goes and grabs and guy and brings him back? Some people did that. But the Fugitive Slave Clause is a tremendously important piece of the Constitution. Why? Because this creates what we call extra-territoriality — extra-territoriality for slave law. In other words, New York can abolish slavery, but it cannot extricate itself from the responsibility to help enforce slavery in Virginia, let us say. Any person who enters the state of New York is presumed to be free except for, of course, a fugitive slave. Even though the law of New York after 1827 does not recognize the condition of slavery, you cannot be a slave in New York; nonetheless they have to recognize the legitimacy of Virginia’s slave laws and enforce those laws by apprehending and returning fugitive slaves. In a famous case in 1770-something or other, 1771, or two, or three, the Somerset case in England. A slave, James Somerset sued for — basically didn’t want to go back. His owner was going to take him back. He got some lawyers, he sued for his freedom on the ground that by being brought into England he had become free. And Lord Mansfield — the Chief Judge, the Chief Justice of England — ruled in Somerset’s favor and maybe said, maybe didn’t, we don’t — perhaps he said, “The air of England is too pure for a slave to breathe.” In other words, by entering England, you become free. That doesn’t mean if you’re in the West Indies you’re still a slave, but by entering — this is the so-called Freedom Principle of Law: Slavery is a condition of local law; once you leave the jurisdiction where local law creates the institution, you revert to your natural right to freedom. But in the United States, there was no Somerset Principle, at least as far as fugitive slaves were concerned. They were still considered slaves, even when they entered a free territory. So that is a very important legal principle in the Constitution. And more broadly, it was generally agreed in the 19th century that the Constitution barred any federal interference with slavery in the states where it existed. The Fifth Amendment to the Constitution says that “No person can be deprived of life, liberty or property without due process of law.” Slaves were property. In other words, if the federal government is going to do something about slavery, they’ll have to compensate the owners, which would be an immense, immense expense. Now, the irony here — and here I’m drawing on work by our colleague Professor Barbara Fields and others — is that the contradiction between a revolution for liberty and the existence of slavery actually greatly strengthens racism in the United States. If you believe, as Jefferson says, that all men are created equal and all men are entitled to life, liberty, and the pursuit of happiness, how can you justify the existence of slavery? Well, it is because the slaves are inherently incapable of exercising those natural rights. How do we know? We know because they are members of an inferior race. I’m not saying that everyone was treated the same before this. Of course not. But in the colonial era — excuse me — although there was difference and certainly prejudice, there was no ideological construction of racism. That is the idea that the most important characteristic of a person is their race. That is that the world is divided into groups of people called “races.” Whether there’s three of them — you know, Caucasian, Africa, and Mongolian as they used to say — or a hundred of them like the Dillingham Commission on Immigration published a list in 1911 and 1913. Whatever it is, the way to understand the world is by the different races of mankind, and each race has inherent qualities built in which they can never outgrow. And the quality — and Jefferson explains this again inNotes on the Stateof Virginia, here’s the problem with blacks. They lack rationality, they lack self — they’ve got some nice qualities, he said. They’re kind of happy-go-lucky, musical, that kind of thing. But they lack the qualities that will enable them to actually live in freedom. Therefore, making them slaves does not violate the principle of equality anymore of depriving children of their rights violates the principle of equality. In fact, almost a hundred years, later John Stuart Mill, the great liberal thinker of the mid-19th century, in explaining why the British had — even though he believed in complete equality — well, what gave the British the right to conquer India and rule over the Indians? Because some people, said Mill, are perpetual children — perpetual children. They can never advance to the point of adulthood where they would enjoy these rights. And so the racist ideology is given a big boost by the American Revolution as a way of explaining the existence of slavery in a society dedicated to freedom. And after the revolution, racism throughout the first part the 19th century grows or becomes more and more entrenched. One example of that which is important, remember last time I said, how democracy — the right to vote — becomes an emblem of being an American? In 1790 — in 1790 when the Constitution is going into effect, almost all the states allowed free black men to vote if they could meet the property qualification, which most couldn’t. But there was no racial bar. And that included North Carolina; it included Tennessee, which comes in a little after this and all the northern states. Women could not vote anywhere except New Jersey, by the way, give them credit. Christie — New Jersey. New Jersey allowed women to vote from 1776 to 1804, or five, or six. Something like that. But they had to meet the property qualification, too. And since women couldn’t own property, that was a problem. But widows basically could in their own name. Widows could vote. But anyway, class is the main line of division of voting, along with gender. But as the 19th century goes on, the class distinction falls away. By the 1820s and ’30s, property qualifications for voting are gone. Any adult male — white — can vote. But increasingly, states take away the right to vote from free blacks. So Pennsylvania takes it away, Connecticut takes it away, New York takes it away. And all the states that enter the Union — starting with Ohio in 1803, with the one exception of Maine — in their Constitutions limit voting to white men. So to follow, race replaces class as the line the division among men who can vote. That’s just one sign of a much larger system of racism, which we can talk about that in a little bit.

Author Since: Mar 11, 2019

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