Wednesday, September 23, 2015

Three Views on Slavery as a National Institution: Why Dred Scott Matters

In the wake of Constitution Day 2015, two writers debated the role of slavery in the original Constitution. In a New York Times op-ed, Sean Wilentz argues that "the myth that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America's racist past." Wilentz argues that the fact that the Framers refused to create a property right in slavery demonstrates an "antislavery outcome." In his words:

Far from a proslavery compact of “racist principles,” the Constitution was based on a repudiation of the idea of a nation dedicated to the proposition of property in humans. Without that antislavery outcome in 1787, slavery would not have reached “ultimate extinction” in 1865.

Lawrence Goldstone rebuts Wilentz in a New Republic essay. Although it may be correct to say the Constitution does not formally establish slavery as a national institution, Goldstone argues, it nevertheless "in clause after clause . . . tried to make certain that slavery would endure as one." 

This exchange helps to forward the ongoing discussion about the relationship between America and eighteenth century chattel slavery. It helps to shatter the myths we have about the nobility and purity of the Founders' motives. This is a vital discussion in considering the meaning of race in America, as the recent Confederate flag debates have shown.  

Yet this exchange is incomplete. Neither Wilentz nor Goldstone consider Dred Scott v. Sanford in their analysis of how the Framers' structure ultimately impacted the state of slavery or empowered the antislavery movement. To the point, Dred Scott helps to demonstrate how the Constitution's "repudiation of slavery" (if such a repudiation can credibly be found in the original Constitution) was far from total.

Dred Scott made explicit what was implicit in 1787--that slaveholders had a property right in their slaves and that slaves could not become citizens short of an act of Congress. The Founders, in facilitating the operation of slavery, tying slavery to the South's political power, and at the same time creating mechanisms for protecting property rights from state domination in the Fifth Amendment, created a scheme that preserved space for, and protected the political economy of, slavery.  As others have pointed out, this logic is consistent with the view of the majority of the Founders.  This protection of slavery was strongly implied in 1787; the Dred Scott decision made this explicit in 1857.

Dred Scott completes Goldstone's argument and demonstrates the flaw in Wilentz's apologetic. What is needed is further public intellectual conversation of this sort about the Constitution and slavery.

H/T Ruthann Robson at ConLawProf Blog

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