A SLAVEHOLDERS' UNION: SLAVERY, POLITICS, AND THE CONSTITUTION IN THE EARLY AMERICAN REPUBLIC. By George William Van Cleve. Chicago and London: The University of Chicago Press. 2010. Pp. 391. Cloth, $39; paper $22.50.
The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixt character of persons and of property.... Let the compromising expedient of the Constitution be mutually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants; which regards the slave as divested of two fifth of the man.
--James Madison, Federalist No. 54 (1)
James Madison's defense of the Constitution's treatment of slaves as part human and part property--less than a man by two-fifths--may surprise many readers. This is not The Federalist we're used to seeing. Madison was responding to robust attacks on the Three-Fifths Clause that were published during debates on the ratification of the Constitution. (2)
Presenting the views of "our Southern brethren," (3) Madison made several arguments in response to criticisms of the Three-Fifths Clause. First, Madison described the status of slaves under the laws of the slave states:
The true state of the case is that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property.... The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixt character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion.... (4) Furthermore, since the same three-fifths ratio was used in calculating taxation, Southern states would not agree to be burdened by counting slaves for tax purposes without a corresponding benefit in representation:
It is agreed on all sides that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants when the shares of representation were to be calculated, and inserted them on the lists when the tariff of contributions was to be adjusted? Could it be reasonably expected that the Southern States would concur in a system which considered their slaves in some degree as men when burdens were to be imposed, but refused to consider them in the same light when advantages were to be conferred? (5) Madison also argued that it was proper to apportion representation in part based on wealth:
After all, may not another ground be taken on which this article of the Constitution will admit of a still more ready defense? We have hitherto proceeded on the idea that representation related to persons only, and not at all to property. But is it a just idea? Government is instituted no less for protection of the property than of the persons of individuals. (6) Madison's response failed to answer, however, why only slave property and not other forms of property would count toward representation. The inclusion of slave property as a basis for representation was a major flaw in republican theory and was recognized as such both during the Constitutional Convention and during ratification debates. Madison's justifications in Federalist No. 54 have been described appropriately as "pretextual" (p. 136), since, as this Review discusses below, they had little to do with the reasons why slave property was protected under the Constitution.
Federalist No. 54 shows that part of Madison's public defense of the Constitution included the defense of some of its proslavery provisions. Madison and his reading public were well aware that aspects of the Constitution protected slavery. These aspects of the Constitution were publicly debated in the press and in state ratification conventions.
Just as the Constitution's protections for slavery were debated at the time of its framing and ratification, the relationship between slavery and the Constitution remains a subject of debate. Historians continue to debate the centrality of slavery to the Constitution. (7) The majority position among historians today appears to he that the Constitution was proslavery, in the sense that slavery and slavery protection played a central role in the formation of the Constitution. (8) Furthermore, these historians argue that several of its provisions protected and promoted slavery. As George Van Cleve, (9) the author of A Slaveholders' Union, concludes, the Constitution "was pro-slavery in its politics, its economics, and its law" (p. 270).
Despite this majority position among historians, the authors of constitutional law casebooks sometimes ignore or, more generally, minimize the proslavery interpretation of the Constitution. Certain casebook authors, while acknowledging the importance of slavery before and after the Constitution's ratification, adopt a more benign interpretation of the Constitution itself as "neutral" on slavery. Accordingly, a significant divergence exists between the proslavery interpretation held by many historians and the interpretation promulgated by many constitutional law casebook authors. As this Review explores, the failure of many constitutional law casebooks to engage prominently with the proslavery interpretation of the Constitution has important consequences for our understanding of the relationship between slavery and the Constitution and our understanding of how these origins of the Constitution may make a difference today. (10)
Part I of this Review considers George Van Cleve's A Slaveholders' Union and describes his contributions to our understanding of the proslavery origins of the Constitution. Part II then explores how leading constitutional law casebooks treat the proslavery origins discussed by Van Cleve. Part III discusses some of the many historical sources that could be used in casebooks to expose readers to the evidence of the proslavery Constitution. Finally, Part IV examines the significant difference that a proslavery interpretation of the Constitution makes in our understanding of how the Constitution structures race relations and racial inequality, past and present.
ESTABLISHING THE PROSLAVERY CONSTITUTION
Van Cleve's A Slaveholders' Union is a meticulously researched account of the proslavery Constitution's creation. Van Cleve identifies two powerful forces that shaped the Constitution. First, slaveholders wielded considerable power to shape the law to protect their slave property. (11) Second, Northern support for abolition was limited, constrained by Northern racism, property interests, and unwillingness to bear the costs of abolition. (12) The importance that Van Cleve gives to both of these forces in shaping the Constitution is contrary to general understanding but consonant with the importance of slavery in early America.
Slavery was a central economic institution in the American colonies, particularly in the South (p. 22). By 1770, slaves accounted for 30 percent of Southern wealth, a proportion roughly equivalent to the value of the land in Southern colonies themselves (p. 23). By contrast, slaves accounted for less than 1 percent of wealth in the New England colonies (p. 23).
Van Cleve demonstrates that the relatively wealthy Southern slave states were able to exert considerable influence on the Articles of Confederation (p. 41). The "[s]lave states insisted that the Confederation should have no power to control slavery or slave property, even to support the war effort" (p. 45). Their insistence was effective, even dispositive, because of credible threats by Southern delegates of "an end of the confederation" in response to Northern delegates' attempts to tax slaves or limit slave imports. (13) Slavery thus had enormous influence on the Articles of Confederation (p. 57).
Van Cleve then describes the politics of abolition and manumission in the North and the South preceding the Constitutional Convention (pp. 62-99). Since slavery was a minor feature of the New England economy, white nonslaveholders controlled the balance of political power in many Northern states. They limited severely the scope, speed, and economic investment of the North in black freedom and equality. Van Cleve portrays the motivations of Northern white nonslaveholders as follows:
They supported abolition for various reasons, but most supported it only if they could be assured that they would bear none of its economic or social costs. Many northern white citizens, even those who opposed slavery, were either racists who were hostile to blacks or indifferent to their fate, or viewed free blacks, like the rest of the poor, as unwanted economic and social burdens. Many whites who were antislavery also believed that any responsibility that their states had toward blacks ended at the state boundaries.... Northern majorities were unwilling to support either state or national government expenditures or other political trade-offs needed to limit slavery outside their borders. (p. 60) Politically the stage was set for the proslavery compromises forged during the Constitutional Convention. The South was deeply committed to slavery for economic and cultural reasons. The North, though generally opposed to slavery, was unwilling to pay the economic and social costs of abolition outside the borders of Northern states.
In Part Two of A Slaveholders' Union, Van Cleve describes the sectional economic interests and politics underlying the major proslavery provisions, including the three-fifths compromise over representation in the House, the limitation on congressional commerce power to ban slave imports, and the Fugitive Slave Clause (pp. 114-72). Van Cleve argues convincingly that the Three-Fifths Clause was a compromise intended to secure additional...