. . . That Wilentz’s book is explicitly an examination of the antislavery politics of Congress, which necessarily involved exploring “debates among white elites,” is never considered. Ultimately, Guyatt claims, Fredrick Douglass and others were “acting not as historians, but as activists” when they expressed an antislavery constitutionalism. “Wilentz, while approaching us as the former,” Guyatt laments, “is as much the latter as any of his subjects.”
This, and other critical reviews like it, give short shrift to Wilentz’s treatment of the fraught relationship between slavery and the Constitution. His is a balanced case: While he resists the impulse to exonerate the Founders, who granted key concessions to pro-slavery southern delegates that fortified the practice of chattel slavery, he likewise rejects Garrison and his modern exponents who would deem the Constitution exclusively pro-slavery. By refusing to codify the notion of “property in man” in the Constitution, Wilentz argues, the Framers left open the possibility that a future Congress would abolish the practice outright, though they themselves had neither the votes nor the fortitude to do.
In Wilentz’s telling, the secret to understanding the Constitution’s abolitionist subtext lies in James Madison’s notes on the Constitutional Convention of 1787, posthumously published in 1840. In each of the four instances where slavery is implicitly discussed in the Constitution — the three-fifths clause, the Atlantic slave-trade proviso, the privileges-and-immunities clause, and the fugitive-slave clause — the Framers refuse to acknowledge the possibility of holding what Madison calls “property in men,” instead referring to the enslaved as “persons held to service or labor,” a category which, at the time, also included indentured servants and apprentices. Had the slaves, as some southern delegates hoped, been officially recognized as property by the Constitution, it would have put the regulation of slavery beyond future Congresses’ reach.
The refusal to acknowledge property in man was not a later narrative imposed on the founders by would-be abolitionists; it was a present feature in debates at the convention. Charles Cotesworth Pinckney, the Revolutionary War veteran and convention delegate from South Carolina, proposed adding the concept of property in man to the text of the Constitution. Pinckney’s motion was rejected by a vote of 10–1. Other such motions were all defeated as well. Wilentz details how similar disaster was averted in the drafting of the text of the Constitution itself: The first draft written by the Committee of Detail was, in Wilentz’s account, a nakedly pro-slavery document. He relays how the committee, spearheaded by Chairman John Rutledge of South Carolina, “was apparently trying to foster and not merely shield slavery, actively encouraging the Atlantic slave trade,” in spite of abolitionist objections. The majority of the delegation objected to the text of the Committee of Detail’s draft, and it was rewritten by the later-commissioned Committee of Style to explicitly avoid instantiating the notion of “property in man.”
4
And therein lies the point for Wilentz: For all of the concessions made to slaveowners — and they were significant, from the three-fifths clause’s allotment of undue power to southern states, to the inclusion of a fugitive-slave provision — the Constitution contains within it the seeds of abolition. But they were just that — seeds, borne of ugly compromises, not fully developed guarantees that the peculiar institution of slavery would cease to exist over time. Wilentz details how, particularly in the Missouri crisis and the Dred Scott decision, the ambiguity latent in those compromises was wielded by both pro- and anti-slavery voices alike in pursuit of their ends. During the Missouri crisis, pro-slavery elements in the South claimed that the Constitution implicitly supported property in man — a claim made before the release of Madison’s notes in 1840, which would put the convention’s opposition to property in man in more stark relief. But it was the eventual compromise at parallel 36°30′ that would ultimately “buttress . . . antislavery constitutionalism” by confirming Congress’s constitutional authority to regulate slavery’s expansion. That would not, of course, be the end: Chief Justice Roger Taney’s 1857 decision in Dred Scott employed the earlier arguments of pro-slavery constitutionalists and invoked the founding itself to deny Scott his rights as a citizen by denying his citizenship altogether:
We think . . . that [black people] are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.
The decision enraged Frederick Douglass, the former slave, and Abraham Lincoln, both of whom insisted that the Taney court had erred on both moral and constitutional grounds. In 1860, Douglass would “deny that the Constitution guarantees the right to hold property in man,” and insist “that the way to abolish slavery in America is to vote such men into power as will use their powers for the abolition of slavery.” The very fact that the Constitution allowed for the 1808 expiration of the slave trade was proof to Douglass that the founders “looked to the abolition of slavery rather than to its perpetuity.” Lincoln agreed, balking both morally and legally at the institution of slavery. This rhetorical combat portended the Civil War.
Wilentz rejects the view that the Founders were “clairvoyant,” somehow predicting that less than 100 years hence Lincoln and Douglass would invoke the founding documents to support abolitionist causes. Instead, he describes the real tension present at the convention, between a coterie of southern delegates pushing for the explicit codification of chattel slavery on one hand and voices of abolition such as the delegates William Livingston and Rufus King on the other, with a range of men somewhere in the middle harboring various degrees of ambivalence about the moral and political prospects of a nation that would one day be half-slave and half-free. Wilentz thus insists that the Constitution is neither pro-slavery nor anti-slavery in full; it is both, at the same time, imbued with the impressive tradition of abolition that preceded and continued through the founding epoch, but necessarily tainted by the compromises made with the pro-slavery forces in the South. This, he says, is the heart of the matter: that the Constitution provided a clear path for the forces of abolition to prevail, that the best tradition of constitutional interpretation is the one held by Douglass and Lincoln, and that, for all its flaws, our Constitution has allowed us to keep working toward a more perfect union.
