Friday, November 23, 2012

Perea on Recognizing, Teaching the Pro-Slavery Constitution

Prof. Juan Perea (Loyola Chicago and visiting Lee Chair at John Marshall) argues in his excellent piece Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution that con law profs, unlike historians, do a bad job with slavery.  In particular, he says that law profs do a bad job even recognizing the pro-slavery origins of our Constitution, much less teaching them.  He says that this neglect and dishonesty about so central a part of our Constitution prevents us all from critically examining how the pro-slavery nature of our Constitution influences contemporary doctrine and debates.  And, importantly, he tells us what we can do about it.

Perea's piece, published in the Michigan Law Review, starts as a book review of George William Van Cleve's A Slaveholders' Union: Slavery, Politics, and the Constitution in the Early American Republic.  But Perea moves quickly into an examination of how--or even whether--contemporary constitutional law instruction addresses anything at all about slavery--the issue that Van Cleve shows played a defining role in our constitutional beginnings.  Perea surveys some of the top casebooks and concludes that they barely touch the issue.  Even when they do, they pay only scant attention to it, apparently assuming either that it wasn't really that important to the framing and ratification, or that that the Reconstruction Amendments solved the problem.  This lack of attention to so critical an issue is particularly vexing in a field that otherwise takes history and tradition so seriously.

Perea argues that the pro-slavery Constitution is reflected in structural racism, Court-crafted doctrine (perhaps most especially the Court's demand for proof of intent to show an equal protection violation, although there are dozens of doctrinal examples), the intentional use of race-neutral language in the law to produce a racially targeted harm, and the consistent sacrifice of black equality rights for the sake of political union.  We may teach these things, and we may even teach them critically.  But we mostly don't teach them as what they are: outgrowths of a pro-slavery foundational document.

Perea has some ideas about what to do about this.  In short: say more.  Casebooks should devote more attention to the pro-slavery Constitution, and to tie it to contemporary doctrine.  Teachers should say more--much more--about it and teach it as part of our history, tradition, and doctrine.  Until the casebooks catch up, Perea offers some suggestions and resources for integrating slavery into their classes.  

The easiest way may just be this: Assign our students Perea's article.


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Unfortunately, the purpose of both the article and book seems to be to establish that the constitution was "pro slavery'. That is the word they want used when thinking of the Constitution. Of course, the situation was much more complicated. The Constitution, of necessity, DEALT WITH the institution of slavery. The three-fifths clause insured that the south would not be overly powerful in the new nation when they did not give full personal rights to slaves. If the south had this weird combination property/person institution why should they be given full credit for each person in the census? The Constitution also provided that laws RESTRICTING slavery could be passed by the new union after 1808.
It is sad that scholarship has now become a game of words, sophistry and politically driven conclusions. The Constitution was what it was. Teach the full reasons why it was that way. There is no need to insist on calling it "pro-slavery" or "anti-slavery". Face it, one part of the country was anti-slavery and one part was pro slavery. If there was going to be a union, that fact had to be accomodated in the Constitution somehow. The idea that the Constitution was "pro slavery" is, on its face, kind of silly. Why where their several constitutional crisis in the period 1800-1865 if the founders agreed to make the Constitution pro-slavery?

Posted by: doug | Nov 24, 2012 8:14:33 AM

Dear Doug:
Unfortunately, your comments betray that you are engaging in the “politically driven” conclusions of which you accuse me. It appears that you made your comments without even reading the article, which is really bad form. You would have learned something from reading the article, which presents much evidence to support my conclusions.
When I write of the proslavery Constitution, I mean that the Constitution encouraged and protected slavery. It did so in many provisions. The apportionment clause increased the representation of the Slave states in the House of Representatives (and in the electoral college) corresponding to 3/5 the number of slaves. (Art. I, S.2, cl.3) It increased the power of the slave states to protect their slave property. Because of the increased political power corresponding to slave property in the slave states, the apportionment clause encourages slave ownership. I have no idea where you got your bizarre interpretation of the apportionment clause. The slave import limitation (Art. I, S.9) provided a twenty-one year window for the importation of slaves. While it provided power for Congress to regulate, and end, United States participation in the international slave trade in 1808, it was understood to affect only the slave trade, and not domestic slavery in slave states. Accordingly, Congress was not understood to have power to end slavery in the slave states, something that took a Civil War to accomplish. The Fugitive Slave Clause (Art. IV, S.2, cl.3) created, for the first time, a national, constitutional right for slaveowners to recapture escaped slaves. This was argued to be a significant boon to slaveowners in the ratification debates in the slave states. Thus the Constitution provided significant protection for both the slave trade and slave ownership. These are only a few of the provisions protecting slavery. While certainly there were vocal opponents of slavery, my understanding of the subsequent congressional debates over slavery is that they were chiefly over the spread of slavery into the new territories, not over the continued existence of slavery in the already-existing slave states.
It is fair and accurate to call the Constitution proslavery because it encouraged and protected slavery. It is also important to call it proslavery, because the Constitution was not neutral. Without an understanding of the proslavery Constitution, it is impossible to understand the subsequent proslavery decisions of the Supreme Court, and impossible to understand Reconstruction and the Reconstruction Amendments. Without an understanding of the politics underlying the proslavery Constitution, it is impossible to understand the re-subjugation of the African American population in the South and many post-Reconstruction ramifications of the bargain struck in the original Constitution.

Posted by: JFP | Nov 27, 2012 1:49:29 PM

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