THE CONSTITUTIONAL STATUS OF SLAVERY: A LAWYER'S INTERPRETATION.

• Author: Fiandach, Edward L.

INTRODUCTION

American slavery commenced in 1619 with the sale of twenty Africans in Jamestown, Virginia (1) and Constitutionally ended in 1865 with the ratification of the Thirteenth Amendment (2) which thereby completed, as a legal proposition, the course undertaken by Abraham Lincoln when he issued the Second Emancipation Proclamation in 1863. (3) Despite these enactments and a brutal civil war fought largely to purge this ancient and barbaric practice, (4) slavery nonetheless remains both a lingering curse and a paradox for a nation ostensibly dedicated to the proposition "that all men are created equal." (5) In the century and a half since its elimination, historians and political scientists have taken varied approaches in attempting to reconcile the practice with our stated principles. (6) Likewise, scholars have wrestled with the manner in which Abraham Lincoln chose to emancipate some, but not all of the slaves, both on the grounds of his professed authority and the seemingly incomplete scope of his action. (7) Each of these discussions has shared a common theme; they have assumed that slavery was constitutionally tolerable. (8) Although Antebellum legal scholars freely discussed the unconstitutionality of the practice, (9) its eradication by means of a horrific civil war has served to isolate the Constitution from a forthright discussion as to the antecedent legality of the practice while allowing ready access to custom, economics, religion, and ignorance as a means of explaining slavery's perpetuation. (10)

But what if slavery, although permitted in several states, (11) was organically ostracized from the moment the American nation came into being? Simple logic seems to say that the Thirteenth Amendment represents a constitutional declaration that the intellectual underpinnings of the American nation were insufficient to prevent the creation and prolongation of a system of human bondage. But were they?

What if the textual foundation of the nation was sufficient to ban involuntary servitude? What if this nation, as declared by Lincoln, was founded upon the proposition that "all men are created equal" (12) and that "men" included African Americans? (13) Answering these questions in the affirmative could have profound consequences in terms of how we view race relations, our courts, the role of the Constitution both past and present, and indeed, our very nation.

What follows is premised upon a belief that, at the time the Constitution was drafted, the continuance of slavery in the southern states was an unfortunate given. I posit that at the time the Constitution was drafted, the delegates accepted this fact, but nevertheless created a document that could have enabled slavery's ultimate elimination. While nowhere did the Constitution clearly delineate the unconstitutional status of slavery, (14) nor was it successful in bringing about its end, (15) I maintain that it nonetheless established a textual foundation that acknowledged African American humanity and steadfastly refused to acknowledge slavery's constitutionality. Most importantly, it left untouched the fundamental declaration of Natural Law (16) which established the basis for American sovereignty and philosophically imposed a ban upon any form of involuntary servitude.

1. The Declaration of Independence

   In July of 1776, the Continental Congress drafted a resolution setting forth grievances the colonies shared with the British Empire and declared independence. (17) Formally known as the Declaration of Independence, this document is widely understood for what it did, though not necessarily for what it said. (18) As this initial document declared both the existence and character of the American nation, it is essential that we analyze its creation, content and execution in depth.

   1. The Preamble

      The Declaration of Independence opens with the Preamble. (19) Familiar to past generations of school children, the Preamble exists not only to set the tone of what is to follow, but declares the legal basis upon which the Congress would thereafter act. (20) Crucial to my proposition is the pronouncement that the Congress was not only breaking with Britain, but was "assum[ing] among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them." (21) The stated purpose, therefore, was to empower the colonies with sovereign status. (22) Nor did the colonists, turned revolutionaries, view "separate and equal station," or sovereignty, as a goal to be achieved by itself. (23) The preamble was very specific since the paramount concern was the type of sovereign nation that would be established. (24) Accordingly, the nation that would follow would be constructed along the lines of what was then the popular theory of Natural Law.

   2. Statement of Legal Principles

      Having defined the applicable legal basis, Jefferson, in the next paragraph, moved to an explanation of the manner in which the Congress (25) viewed the application of Natural Law to government. (26) Crucially, the document proceeds to initially declare that "all men are created equal."27 Equality, however, will not endure in a vacuum since there must be "rights" which define the parameters of man's equality. Jefferson recognized this need and continued with his well-known proclamation that all men "are endowed by their Creator with certain unalienable Rights," which he broadly described as "Life, Liberty and the pursuit of Happiness." (28) Inasmuch as we are human, the existence of rights mandates laws through which the people can enforce their claim to those rights. Since laws prevail over those to whom such rights are granted as a product of sovereignty, law entails the creation of a sovereign government. Accordingly, the Declaration sets forth "[t]hat to secure these rights, Governments are instituted among Men." (29) This grant of sovereignty, however, is not unlimited. Government is but a means to an end. As the means through which rights are secured, it can never become preeminent over those rights. Jefferson makes clear that if and when such governmental preeminence should be achieved, the people may lay claim to another limited or contingent right, "the Right of the People to alter or to abolish [the existing form], and to institute new Government." (30)

      The effect of this logical construction is profound. Creation of the new government hinges upon two elements. First, recognition that all mankind is free. Second, that the purpose of government is to ensure that this essential principle is carried out. Thus, from the moment of commencement, the legitimacy of any form of government that thereafter follows will depend upon strict obedience to these principles of freedom. Stated differently, no government founded as a result of that document could in any manner withdraw from the people the freedoms which they have been expressly granted inasmuch as such actions will become the quid pro quo of revolution.

   3. The "Rough Draft"

      A mere statement of the relevant principles, of course, is not a sufficient basis upon which to mandate a revolution. Accordingly, the Declaration proceeds to set out in considerable detail those acts of the British government that violated inherent legal principles. (31) While most of these grievances deal with governmental relations, taxation, military actions, and the like, one paragraph, contained in the so-called "Rough Draft" (32) and eventually deleted in the final version stands out:

      [H]e has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. [T]his piratical warfare, the opprobrium of infidel powers[,] is the warfare of the Christian king of Great Britain. [D]etermined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another. (33) This paragraph is telling indeed. In essence, it provides us with unique insight into Jefferson's mind when he drafted the Declaration. While his future actions may be criticized as duplicitous, in that he eventually owned 199 slaves, (34) and his feelings, as can be seen in his later writings, viewed as somewhat ambivalent, (35) the sum of his thinking at the time he authored the Declaration of Independence seems to unquestionably be that slavery, despite its entrenchment, was morally intolerable (36) and a violation of Natural Law. When read with his unmistakable attempt to indict the English government for their actions in bringing about the institution of slavery, we can see that when Jefferson wrote, "all men are created equal," he meant just what he said. (37) He planted what he knew would be a seed, with full knowledge of how it would mature.

      True, his paragraph deploring the introduction of slavery was struck, however the mere act of removal in and of itself cannot undermine the fact that at the moment he authored the Declaration he considered the introduction of slavery to be an abhorrent act.

      This paragraph is also useful in firmly resolving yet another debate: whether African American slaves were considered "men" by Jefferson at the time he drafted the Declaration. Note that Jefferson said, "determined to keep open a market where MEN should be bought & sold." (38) With emphasis upon "MEN," he has described African-American...