by George Anastaplo
Professor George William Van Cleve, in his learned history, A Slaveholders’ Union: Slavery, Politics and the Constitution in the Early American Republic (University of Chicago Press, 2010), speaks of the Constitution of 1787 as “proslavery in its politics, in its economics, and its law.” In effect, the Van Cleve account (“The Price of Independence” The University of Chicago Magazine, September-October 2010) challenges thus the understanding of the American regime offered by Abraham Lincoln, among others.
Lincoln said in the 1858 Lincoln-Douglas Debates what he had said before (as in his House Divided Speech) about Slavery and the Constitution and what he was to say many times thereafter. Thus, in the first of the Debates (on August 21, 1858), he
look[ed] at the position in which our fathers originally placed [slavery]—restricting it [in the Northwest Ordinance of 1787] from the new Territories where it had not gone and legislating to cut off [after 1807] its source by the abrogation of the slave trade, thus putting the seal of legislation against its spread. The public mind did rest in the belief that [slavery] was in the course of ultimate extinction. . . . Now, I believe if we could arrest the spread [of slavery], and place it where Washington, and Jefferson, and Madison placed it, it would be in the course of ultimate extinction and the public mind would, as for eighty years past, believe it was in the course of ultimate extinction. The [current] crisis would be past and the institution might be let alone for a hundred years, if it should live so long, in the States where it exists, yet it would be going out of existence in the way best for both the black and the white races.
We can see here a master politican at work. And, of course, it should never be forgotten that Lincoln repeatedly insisted that the Declaration of Independence, the founding constitutional document of this Nation, was grounded in principles that constantly challenged any permanent toleration of chattel slavery. Lincoln’s Gettysburg Address of 1863 and his Second Inaugural Address of 1865 provided eloquent testimony to this understanding of the First Principles of the American regime, principles which led to early measures (such as the Northwest Ordinance of 1787) which persuaded thoughtful citizens to believe, as Lincoln would say many times, that slavery “was in the course of ultimate extinction.”
When the would-be Secessionists of 1861 undertook to revise the 1787 Constitution to suit their by-then desperate circumstances, they displayed (by many of the changes they made in the original Document) what a “proslavery” constitution really looks like.
Alexander H. Stephens of Georgia, the Vice-President of the Confederate States of America and perhaps the most learned expositor of Southern Principles during the Civil War, insisted upon the uniqueness of the Confederate Constitution of 1861. He argued that it was based “upon the great physical, philosophical, and moral truth [that the Negro is not equal to the white man].”
In effect, Stephens conceded, in a famous address (The Corner Stone Speech of March 1861), the Lincoln position about the fundamental anti-slavery position of “the fathers”:
The ideas entertained by [Jefferson] and most of the leading statesmen at the time of the formation of the old constitution was that the enslavement of the African was in violation of the laws of nature, that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. . . . Our new government [of 1861] is founded upon exactly the opposite idea; its foundations are laid, its cornerstone rests upon the great truth, that the Negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.
It is curious, if the United States Constitution of 1787 was indeed as pro-slavery as Professor Van Cleve seems to suggest, that the politically-necessary compromises, for the time being, with slavery in that document should have been made without once using the words “slave,” “slaves,” “slaveholding,” and “slavery,” of which there are almost a dozen uses in the Confederate Constitution of 1861.
An abridged version of these remarks was published in The University of Chicago Magazine, Volume 103, Number 2, November-December 2010, pages 6-7. George Anastaplo’s slavery-related publications include a book, Abraham Lincoln: A Constitutional Biography (Rowman & Littlefield, 1999), and law review collections about Lincoln in the Valparaiso University Law Review (2000) and in the Oklahoma City University Law Review (2010). See, also, Anastaplo, “Slavery and the Constitution: Explorations,” 19 Texas Tech Law Review 677 (1989). A second Abraham Lincoln book is in course of preparation.