Evaluating a Debate on Slavery and the Constitution

In the New York Times, historian Sean Wilentz argues that slavery was not a national institution but a local one, as the Constitution was not a pro-slavery document; it tolerated but did not actively affirm slavery. The United States was not, contra Bernie Sanders, founded on racism and slavery.

At Vox, Julia Azari has a rebuttal. The headline is “Yes, slavery is a part of our national history.” If this headline is anything to go by, she is debating a different thesis than Wilentz is (and indeed, affirming a claim that nobody would ever dispute). Wilentz is debating the claim that slavery was a national institution, whereas she is debating whether it is part of our national history, which is a much broader thing. For one thing, in the history of America and other nations, the process whereby a group of people comes to see itself as a nation involves much more than their forming a government together, or coming under the jurisdiction of a government, though this can be part of the process.

For another, “part of our national history” can mean simply “a thing that happened in this nation.” If Wilentz thoroughly proved his claims about the Constitution and the Founding, it would be ridiculous to use this to prove “slavery is not part of our national history.”

All this is a long way of saying Vox has created a strawman. Perhaps Azari didn’t write the headline, and Vox’s headline writer made a mistake that made her appear non-responsive. Her article opens with an accurate characterization of Wilentz as saying “that slavery in the original U.S. Constitution was a local, rather than a national institution.” However, in the body of her article Azari writes that she’s “disappointed by [Wilentz’s] characterization of American nationhood and of its struggles over race, past and present.” (emphasis mine.) This is back to the straw man version, treating Wilentz’s thesis as being about our organic, volk history rather than about founding principles and documents.

Azari writes at one point “to suggest that the early American republic was characterized by a clear boundary between national issues and local issues is to miss the basis of much of the political conflict from the Founding to the Civil War.” The clear boundary argument I will deal with shortly. But as for the political conflict from Founding to Civil War- Wilentz’s piece is all about this! Calhoun interpreted the Constitution as positively affirming slavery, Lincoln did not, he says. He doesn’t ignore organic development, or how the interpretations of the founding text shape history. The difference is he also looks to the text itself, and concludes that one side, Lincoln’s was objectively right about the meaning of the text, and makes arguments to support this position. Azari takes Calhoun’s side, but ignores these arguments.

Deliberately ignores, in fact. “Others will, I’m sure, take issue with Wilentz’s reading of the Constitutional text.” Which would be necessary to refute his argument. “But I think far more informative for understanding nationhood and race are the events that breathed governing life into the Constitution in the decades that followed.” There we are again with nationhood.

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Azari’s main argument against Wilentz is to reject a clear boundary between national and state issues, and so weaken the distinction between national and local institutions: “The provisions of the Constitution intended to clarify what should be left to the states and what could fall under national control have never been obvious in their meaning.” She points to debate over the Constitutionality of the national bank, and over control over navigation of waterways (Gibbons v. Ogden.) Let’s grant for the sake of argument that the Constitution was unclear on these matters, specifically: 1) that the necessary and proper clause is ambiguous (does Congress’s action have to be absolutely necessary for “carrying into Execution the foregoing Powers,” in which case the Bank is out? Or does it just have to be necessary in a colloquial sense, by far the most convenient approach, in which case it’s in); and 2) the interstate commerce clause is ambiguous (does commerce include navigation? If so, New York cannot grant a navigation monopoly on an interstate waterway, as that encroaches on a power enumerated to Congress. Note that this is different from New Deal debates over the interstate commerce clause.) Let’s grant her these ambiguities. It doesn’t follow from this that the boundary was unclear on slavery.

And supposing that you did find ambiguity on the boundary between federal and state power on slavery, what would it mean- that the Constitution maybe gave Congress the power to ban slavery? That would make it a maybe anti-slavery document, not a pro-slavery document, and so could hardly be an argument against Wilentz’s thesis, or an argument for the Bernie Sanders/John Calhoun position that the Constitution or the Founding affirmed slavery. Indeed, she ends up supporting her argument that the Constitution involved the federal government in slavery by pointing to the way opponents of slavery used it to try to stop slavery’s expansion, beginning with the Northwest Ordinances. “The Republican Party was formed in the 1850s around the idea of preventing slavery’s expansion, and around a strong concept of nation. But they didn’t invent either of these ideas.” You mean the nation and opposing slavery kind of went hand-in-hand? I’m so confused- which side is she arguing at this point?

Azari then notes that several Presidents owned slaves, the connection to the Constitution being as follows: “one of the most important purposes of the presidency in the early republic was to embody the national character of the Constitution.” Which is a bit of a stretch as a matter of Constitutional interpretation, but no article like this would be complete without an obligatory mention the slave-owning Founders, in case anyone has forgotten this uncomfortable, hushed-up fact. As Azari says, “Thinking about our early presidents as slaveholders isn’t anyone’s favorite patriotic exercise. But it happened.”

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One thing Azari notes is that “it’s not clear what the precise implications of [Wilentz’s thesis] should be, according to Wilentz’s account.” Wilentz gives hints at this in saying it is unfortunate that, in his words, “advocates for racial justice…reject Lincoln and [Frederick] Douglas’s view of the Constitution in favor of Calhoun’s.” I would guess that he finds it unfortunate that they thus leave themselves unable to appeal to the American founding. You can be the sort of radical who demands the consistent application of foundational principles, or the sort who calls for rejecting foundational principles; Wilentz’s article lends support to the view that in this case, the former approach makes more sense than the latter.

But one could argue that this does not make a practical difference, and certainly Wilentz does not spell it out. Then again, Wilentz presents his article as a refutation of those like Bernie Sanders, who asserted at Liberty University that the U.S. “in many ways was created, and I’m sorry to have to say this, from way back, on racist principles, that’s a fact.” Azari and Vox did not run an article saying it wasn’t clear what the implications were of Sanders’ claim.

Wilentz is responding to an idea that is part of common discourse on the left, where people obviously think it has some implications. What these are may indeed be unclear, but if the idea does indeed have implications, then Wilentz’s refutation does, too.

Of course, the Constitution-as-pro-slavery argument is generally just a weapon in the historical portion of the culture wars. For instance, when Republicans had the Constitution read on the House floor after their 2010 takeover, one of the liberals’ objections was that we ought not respect the Constitution so much, due to the three-fifths compromise. Undoubtedly this episode is familiar to everyone writing at Vox, so in a sense it is not necessary for them to be so in-the-dark about what the implications of this argument could be.

But in a sense, the implications really were unclear- okay, the Constitution is bad, what then? We have a U.S. federal government- ought we to dismantle it? Does it have any alternative source of legitimacy, now that the Constitution that brought it into existence and expressed the consent of the governed is debunked?

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And certainly people on the left, particularly at Vox, can be quite fanatical about their historical culture wars- show Matthew Yglesias a Confederate flag and he will fly into a fury, largely because he believes secession is treason. Azari’s argument calls this into question in a number of ways; and, while she is in no way obligated to support the Vox party line, it is not at all likely she has any idea she isn’t doing so.

In the first place, when she argues for a blurred line between state and federal authority, she doesn’t mean merely on the question of what federal powers are, but the meta question of who gets to decide them. “[T]he question of whether the federal government was constituted by a compact of states, or represented a distinct entity on its own – a whole greater than the sum of its parts, legally – was a big controversy in the early republic. Andrew Jackson rejected the ‘compact theory’ approach when he rejected South Carolina’s attempt to nullify tariff laws. Not everyone bought it, as evidenced by the eventual secession of the Confederate states. But to suggest that the early American republic was characterized by a clear boundary between national issues and local issues is to miss the basis of much of the political conflict from the Founding to the Civil War.”

I don’t mean she’s wrong here, only that the implications would disturb her readers if they thought about them. She presents the Civil War as an extension of a legitimate conflict over a genuinely unclear issue (in fact, as genuinely being about states’ rights!) So taking up arms for your state against the United States becomes a complex question, not one justifying righteous fury of bloggers 150 years later.

For Wilentz, by contrast, the Civil War was about “a simple question: Did the Constitution of the United States recognize slavery – property in humans – in national law.” This is surely much more in line with the standard Vox position, and yet Azari tears it down and leaves Calhoun’s position strong.

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