The discussion over whether the Constitution expanded or hindered the expansion of slavery continues unabated. Several years ago I read Slavery’s Constitution by David Waldstreicher Whose thesis was that slavery thrived under the Constitution and that was the intent of the southern delegates to the Convention who blocked every compromise until they got more or less what they wanted. The New York Review of Books (June 6, 2019) examines the claims further in a review of Sean Wilentz’s new book, No Property in Man: Slavery and Antislavery at the Nation’s Founding. William Lloyd Garrison certainly agreed with the proposition, denouncing the hypocrisy of a nation which revered “all men are created equal” and then proceeded to keep innumerable numbers in chains. Free states became complicit in the tragedy of the south by belonging to the same union. The conflict finally came to blows following the Dred Scott decision which essentially required free-states to act like slave states by forcing enforcement of the Fugitive Slave Acts. The competition became increasingly bloody in Kansas where you had two competing Constitutions, the Wyandotte Constitution finally winning out. That Constitution borrowed from the Declaration of Independence, an action that would have consequences for abortion more than a century later -- at least in Kansas.
Protections for slavery were numerous. “Beyond the three-fifths rule, the international slave trade was exempted from regulation by the federal government, which otherwise oversaw foreign commerce. Congress was banned from abolishing the trade until 1808 at the earliest. The federal government was prevented from introducing a head tax on slaves, and free states were forbidden from harboring runaways from slave states. The Founders obliged Congress to “suppress insurrections,” committing the national government to put down slave rebellions. The abolitionist Wendell Phillips, an associate of Garrison’s, summarized the work of the Founders in 1845: “Willingly, with deliberate purpose, our fathers bartered honesty for gain, and became partners with tyrants, that they might share in the profits of their tyranny.” That these protections worked is apparent by looking at the numbers. The number of slaves had been decreasing before 1789. The first decades of the nineteenth century saw an explosion of slaves, from 700,000 to four million. “By 1860, enslaved people counted for nearly 20 percent of national wealth and produced nearly 60 percent of the nation’s exports” The elimination of the slave trade in 1808 simply increased the value of slaves and created a demand and push to expand slaves to newly acquired territory in Texas and Kansas.
Wilentz, so the article maintains, places less emphasis on the racist and slave-holding components of the Constitution, and more on its refusal “to validate the principle of ‘property in man. ‘“ (I will tie this to Kansas, shortly.) Wilentz argues that the southern delegates wanted even broader protections and it was the insistence on “freedom” rather than slavery that was the bedrock principle behind the Constitution and that was to become the “Achilles Heel of pro-slavery politics.” That paradox and contrast to the Declaration of Independence eventually resulted in armed conflict, a huge mistake on the part of the south which wound up losing precisely what it claimed it was protecting and fighting to maintain. In fact Wilentz argues that “By declining to make an explicit declaration in 1787 that slavery was a foundational principle of the United States, the Founders had brilliantly facilitated the later Republican cry of “Freedom National, Slavery Sectional.” “Wilentz writes that the exclusion of an explicit guarantee of property in man was not just an accident or “technicality” at the Constitutional Convention. The delegates “insisted” on it, he claims, and he offers a line from James Madison to prove his point: it would be wrong “to admit in the Constitution the idea that there could be property in men.” This quotation is so perfect for Wilentz’s argument that he could not have invented better evidence in support of it.” There is some evidence that Madison tinkered with his notes (he was the sole source of what records we have of the discussions at the convention,) to make himself look better. No matter, that phrase provided ammunition for the anti-slavery movement.
I will leave it to the reader of the entire article to give credence or not to Wilentz’s motivations for so de-emphasizing the pro-slavery aspects of the Constitution. It makes for interesting reading.
The phrase “no property in man” stuck with me and so after reading an article in Justia regarding a decision of the Kansas Supreme Court that said the Kansas Constitution guaranteed the right of women to asn abortion, I decided to do some additional digging and watched the oral arguments before the court (they are available in video as well as audio) and then read the decision. (Links to both below.)
https://www.youtube.com/watch?reload=9&time_continue=2262&v=3sPlvgEoCo8
http://www.kscourts.org/cases-and-opinions/Opinions/SupCt/2019/20190426/114153.pdf
I recommend both highly. The case was resolved 6-1 (and be sure to read Justice Stegall’s dissent for his accusation of and yet support for originalism.) Note that the majority specifically noted their textualist, if not totally originalist, approach to interpretation.
“Kansas courts look to the words of the Kansas Constitution to interpret its meaning. When the words do not make the drafters' and people's intent clear, courts look to the historical record, remembering the polestar is the intention of the makers and adopters of the relevant provisions.”
They also note that “Section 1 of the Kansas Constitution Bill of Rights sets forth rights that are broader than [emphasis added] and distinct from the rights in the Fourteenth Amendment to the United States Constitution.
From those rights, they concluded that
“Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life— decisions that can include whether to continue a pregnancy.”
As a result, while acknowledging that the state has an interest in the life of the fetus, it must have a compelling interest, i.e. strict scrutiny, to interfere with the right of a woman to end a pregnancy. Justice Biles, in fact began his question of the Kansas AG with this hypothetical: “If a woman is told by her doctor that she will die unless she has an abortion, can the state tell her she must die to save the fetus? The AG stumbled all over trying to get out from under the implications of that query. Locke’s observation that “every Man has a property in his own Person.” formed an important part of the judgement in my view and linked directly back to the my earlier discussion of Wilentz’s book.
The section of the dissent I found quite interesting was when Justice Stegall, aside from coming down on the side (at least as he observes it) of the majoritarian view against abortion discussed the problems inherent in the originalist view even while adopting it to some extent himself. (I have to admit to enjoying Stegall’s Scalia-like zingers. For example, “Reading today's majority opinion is a follow-the-white-rabbit experience. One is left feeling like Alice, invited by the Queen to believe "'as many as six impossible things before breakfast.'” He even cites Orwell in his condemnation of the majority’s euphemisms. Then he goes on to highlight the problems with the originalist approach, the “dead hand” problem. “Polsby, Introduction to Panel I: Originalism and the Dead Hand, 19 Harv. J.L. & Pub. Pol'y 243, 243 (1996) ("Why should the thoughts and philosophies of those who have gone before us be considered authoritative in present day life?"). Often, it is claimed, originalist outcomes will—either wittingly or unwittingly—import the repugnant racist or sexist views some of our forebearers held into modern constitutional law. Modern judges, these critics suggest, should not be required to repeat the sins of the past.”
That’s actually a pretty good argument against originalism.
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