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The Anti-Slavery Constitution

September 12, 2019

Was the United States Constitution written to preserve slavery?

That’s certainly the argument many prominent historians and activists make today—most notably in the New York Times’s recent “1619 Project” articles. Although the Times series is well-intended, and includes many important insights, it thoughtlessly repeats the idea that the Constitution was written in order to establish a “slaveocracy.” 

In the latest issue of National Review, I challenge that view. The reality is that from almost the nation’s birth, the constitutional status of slavery was a subject of intense debate, with one side maintaining that slavery was already unconstitutional, or at least that it gave Congress power to restrict or abolish slavery, long before the Civil War was fought. The advocates of this anti-slavery constitutional theory—including such prominent statesmen as Charles Sumner, Frederick Douglass, and Abraham Lincoln—led the Union cause in the Civil War and ultimately amended the Constitution to ensure that their interpretation would forever remain part of the nation’s fundamental law. Yet their efforts go completely unmentioned in the New York Times articles, and are often treated as trivial by historians and scholars of the period. As I write in the article,

Many see these arguments as strained — William Wiecek, a leading scholar of anti-slavery constitutionalism, calls them “flawed and disingenuous” — but this reflects a misunderstanding of how legal arguments work….  Whatever one might conclude about anti-slavery constitutional theory, it was hardly disingenuous or implausible. And as another leading scholar of the subject, law professor Randy Barnett, concludes, it is “superior to the rival theory presented, for example, by Justice Taney in Dred Scott.” That pro-slavery ruling simply ignored the rules of legal interpretation and relied on non-textual assumptions about the Framers’ personal beliefs…  Taney’s argument rested on inferences, just as the abolitionists’ arguments did. And between two theories based on inference, there was no compelling reason to choose one that doomed millions to permanent bondage over one that was consistent with the Constitution’s text, with the nation’s founding principles, and with the longstanding rule that the law must “catch at anything in favor of liberty.”

Slavery was certainly a great stain on America’s founding. It was, as the Founding Fathers acknowledged, a betrayal of the principles of the Revolution. But for today’s writers to ascribe it to the Revolution is absurd, ahistorical, and a shameful betrayal of those heroes who strove to vindicate the Revolution’s promise of freedom for all.

Timothy Sandefur is Vice President for Litigation at the Goldwater Institute.



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