February 1, 2016

Private: The Proslavery Constitution

ACSblog Symposium recognizing Black History Month, Juan Perea

by Juan Perea, professor of law, Loyola University Chicago School of Law

*This post is part of ACSBlog's Symposium Recognizing Black History Month.

Most contemporary historians conclude that the American Constitution is a proslavery document. When I speak with historians about teaching constitutional law, often they are shocked that law professors typically do not teach the Constitution as proslavery. I think the general failure to teach the Constitution as a proslavery document does a major disservice both to students and to society.

So what do I mean when I label the Constitution “proslavery?” I mean that the Constitution protected slavery and promoted slave ownership. The Constitution’s text contains several proslavery clauses. The Apportionment Clause, Article I, Section 2, added three-fifths of “all other Persons” ‒ slaves ‒ to the number of free inhabitants of a state for purposes of representation. This clause, by boosting the number of representatives in Congress for the slave states, guaranteed political protection for slavery. The same three-fifths ratio boosted the representation of slave states in the Electoral College during presidential elections. The slave import limitation, Article I, Section 9, prohibited Congress from regulating the international slave trade until 1808, 21 years after ratification of the Constitution. Not only was Congress forbidden from regulating the transoceanic slave trade, but Article V of the Constitution explicitly forbids amending the slave import limitation, one of only two such forbidden matters in the whole document. Lastly, the Fugitive Slave Clause, Article IV, Section 2, guaranteed nationally, for the first time, the right of slave owners to pursue and reclaim their slaves anywhere throughout the land.

The Constitution thus protected slavery by increasing political representation for slave owners and slave states; by limiting, stringently though temporarily, congressional power to regulate the international slave trade; and by protecting the rights of slave owners to recapture their escaped slaves. The Constitution also promoted slave ownership by promising increased political representation while keeping unregulated the flow of slaves through the international slave trade for 21 years. Pretty significant protections, don’t you think?

At this point one might ask, didn’t Reconstruction abolish slavery and require equal protection of the laws? Yes, the Reconstruction amendments did accomplish these things. However, the formal abolition of slavery only changed the rules of play, not the game of white domination itself. Slave codes became black codes, which became Jim Crow laws, which became race-neutral laws with outsized, unfair disparate impacts on people of color. Formal equal protection has yielded, in the main, only ostensibly race-neutral laws with heavily disparate racial impacts.

So why does recognition of the proslavery Constitution matter today? For starters, the fact that most historians recognize the Constitution as proslavery should give us all pause. What good reason do law professors have for ignoring or rejecting the views of most historians, supported by evidence? I can think of none. If the reason is an ideological commitment to some noble, racially egalitarian view of the Constitution, then this commitment is simply unsupported by the available evidence. There is no evidence that the original Constitution was intended to promote racial equality. Indeed, the evidence demonstrates the opposite ‒ that the Constitution actually promoted slavery. The Constitution was not about racial equality at all. To believe otherwise leads to a significant misidentification of our early traditions and a consequent distortion of what our society may stand for today.

If the reason is fear and discomfort about engaging in an evidence-based discussion of the racism of the founding generation and its handiwork in the Constitution, then we must learn to do better. Discussions about race and racism are hard and uncomfortable for everyone. But avoidance of this subject only promotes ignorance and adds to the taboos surrounding discussions of race. It is deeply ironic that legal education, by selective omission, promotes ignorance about racial injustice.

Recognition of the proslavery Constitution would lead us to explore new and important themes in constitutional law. We could explore the role of the Supreme Court in enforcing the proslavery Constitution, both before and after Reconstruction, by promoting racial inequality and resisting racial equality. Over the course of its history, the Court has done much more harm than good to the cause of racial equality. We could explore the use of ostensibly race-neutral language to accomplish racially targeted harm, a practice well demonstrated in the Constitution’s use of euphemisms for slavery: “all other Persons” or persons “held to Service or Labour.” We could explore meaningfully the limits of law and constitutional change in accomplishing racial justice, using the example of the Reconstruction amendments.

We could also begin to ponder the deep roots of American racism. In Federalist 54, James Madison defended the Apportionment Clause, writing that:

“The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixt character of persons and of property. . . . Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants; which regards the slave as divested of two fifth of the man.”

We could consider the connections between this constitutional compromise on black lives, three-fifths of a person, and the continuing need for the Black Lives Matter movement.

The failure to engage with the evidence of a proslavery Constitution is quite mystifying and remarkable, in its own way. Critical thinking, and the careful analysis of evidence, lie at the heart of what lawyers do and what we teach to law students. Yet with regard to exploring the evidence and ramifications of racial injustice and inequality in the Constitution, we ignore or omit evidence and fail to engage with justice much at all.

Constitutional Interpretation, Equality and Liberty, National Security and Civil Liberties, Racial Justice