Varied Connotations and Varied Interpretations: Reconsidering the US Constitution’s Position on Slavery
In his New York Times op-ed from 2015, Sean Wilentz argues that “slavery is no national institution” because the Constitution does not directly state that enslaved people were their master’s property. His book No Property in Man (2018) explores this argument further, giving detailed accounts of the debates led by the delegates during the Constitutional Convention of 1878. These detailed accounts are accompanied by Wilentz’s interpretations of the debates and the language in the Constitution. Since the release of his op-ed and book, several historians including Nicholas Guyatt, David Waldstreicher, and Lawrence Goldstone, have responded to his writings. According to them, Wilentz interprets the Constitution and several of the delegates’ proclamations during the debate in a much more antislavery manner than how they were intended. They dissect Wilentz’s arguments and provide alternative interpretations, ultimately arguing that the Constitution did consider enslaved people as property. In this essay, I will investigate the language of the Constitution regarding slavery and consider how different interpretations in the discourse surrounding this issue contribute to different understandings of the American Revolution.
The opening statement of Wilentz’s op-ed is as follows: “The civil war began over a simple question: Did the Constitution of the United States recognize slavery—property in humans—in national law?”. This is neither a “simple” question nor a question that can be answered easily. The decisions made during the Constitutional Convention have affected millions of people’s lives and different interpretations of the language in the Constitution shape how society thinks about the American Revolution. Secondly, another consideration here is that of the statement’s truthfulness: did the Civil War start over whether the Constitution recognized slavery in national law, or did it start because of the economic and political ramifications that slavery, as ordained by the Constitution, had on the United States? Nonetheless, in his article, Wilentz states that “it is one of the most destructive falsehoods in all of American history” that the United States was created on racist principles.
Wilentz’s op-ed prompted responses by historians who were surprised by his ignorance. Three days after Wilentz’s op-ed was published, David Waldstreicher wrote in The Atlantic: “Of the 11 clauses in the Constitution that deal with or have policy implications for slavery, 10 protect slave property and the powers of masters … this is well known, it’s astounding to see Wilentz try to pooh-pooh it” (Waldstreicher). Waldstreicher argues that the Constitution was unquestioningly pro-slavery since it protects slave property even if it did not explicitly state that there was “property in man”. Another critic, Lawrence Goldstone, published an op-ed in The New Republic only one day after Wilentz’s op-ed was released. While confessing that the Constitution did not “specifically anoint slavery as a national institution,” he argues that “clause after clause” the Constitution made sure that slavery would persist as one (Goldstone).
Despite these critic’s responses, Wilentz went on to write his book No Property in Man where he further argues for the Constitution’s anti-slavery stance. In the introduction to his book, he addresses the critics who believe that the Constitution saw enslaved people as property, and says that their claims “are based on meager evidence, suspect logic, and at times sheer supposition” (Wilentz, 8). Instead, he offers the following reasoning:
Sanctioning slavery … in the modern sense of condoning it … would have entailed formally pronouncing property in man the national standard and freedom as the exception. This the convention firmly rejected … Instead, by refusing to credit the legitimacy of slavery, the convention left open the possibility of declaring freedom as the national standard and slavery the exception (Wilentz, 6).
This reasoning is ambiguous because of the words “credit” and “left open”. Using “credit” in the sense of “explicitly state” is exactly what the debate is about; the Constitution may not have explicitly stated that it protected slavery as property, and Wilentz may unintentionally be supporting this by using the word “credit” so ambiguously. “Left open” suggests that there are other interpretations possible than the one Wilentz proposes, which shows how thin his argument is; as mentioned by Waldstreicher, Wilentz twists facts like the three-fifths clause so as to interpret the Constitution in a much more anti-slavery way. This theory is supported by the following statement from Wilentz which he fails to effectively support: “The convention majority certainly did not wish to stain the Constitution, but there is scarce reason to believe that the delegates intended their wording to conceal the concessions to slavery and deflect criticism by antislavery advocates” (Wilentz, 9). This is another one of his interpretations that is not based on fact but on his own bias.
In chapter 2 of his book, Wilentz mentions a quote James Madison said during the Constitutional Convention which inspired his way of thinking. According to Wilentz, Madison had said “it would be wrong to admit in the Constitution the idea that there could be property in man” (Wilentz, 97). In this passage, Madison coins the phrase “property in man” that Wilentz based his entire book on; however, historian Nicholas Guyatt points out that Madison may not have said this during the convention at all. Guyatt, astounded by Wilentz’s refusal to consider positions different to his own, published an op-ed titled “How proslavery was the Constitution?” in The New York Review (2019). He mentions Mary Sarah Bilder’s award-winning book Madison’s Hand: Revising the Constitutional Convention (2015) which exposes the ways in which Madison reshaped the debates of the convention in the decades after it took place. Bilder suspects that the phrase “property in man” was added a while later for Madison to appear more antislavery than he actually was (Guyatt). This would mean that No Property in Man was based on a fake premise, undermining the validity of his arguments completely.
Guyatt did not agree with Wilentz in many respects. He states that No Property in Man “will not convince historians of the early republic who have struggled to find antislavery sentiments in the Founder’s intentions” despite promising that it would (Guyatt). But besides Guyatt’s personal opinion, to determine whether or not the Constitution was pro- or anti-slavery it is important to consider how slavery developed in the decades that followed. Guyatt believes that the Constitution protected slavery and that this is a fact that can be measured by the growth of the institution over the years following the signing of the Constitution: “Between the formation of the federal government in 1789 and the secession of South Carolina in 1960 … the number of enslaved people in the United States increased from 700,000 to four million” (Guyatt). Evidently, the constitution protected slavery.
As mentioned earlier, there were multiple clauses protecting property in slaves, the most widely known of which being the three-fifths clause (Art. 1, Sec. 2, Clause 3). The clause reads:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons (Constitution Annotated).
As Finkelman puts it, the three-fifths clause rendered enslaved people three-fifths of all white people for purpose of representation in Congress and taxation (190). In itself a racist consideration, this clause ties back to the debate out “property in man”. During the Constitutional Convention, the delegates could not agree on whether to include enslaved people in the representation and taxation count for it would make the Southern states comparatively large but would at the same time cost them a lot of money they did not want to pay (Finkelman 195-201). The Southern states, as Goldstone points out, “who previously had insisted that slaves were property” had to consider them people so they would count towards apportionment; Northern states, “who had denounced the enslavement of human beings,” had to insist they were property so they would not count towards apportionment (Goldstone). After weeks of debate, they landed on the three-fifths clause, leaving enslaved people not only 40% less worthy than white people but also legally in a space between person and property. Coming back to Wilentz’s argument, then, it was more than clear that enslaved people were seen as property and only for the sake of apportionment were they considered (three-fifths) human.
Another important clause that protected slavery was the fugitive slave clause (Art IV, Sec. 2, Clause 3) which also considered slaves property of their masters. The fugitive slave clause prohibited free states to emancipate fugitive slaves and “required that runaways be returned to their owners ‘on demand’” (Finkelman 191). The Constitution uses ambiguous language because the clause reads: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due” (Constitution Annotated). In other words, enslaved people who had run away to a free state were not free themselves, and should, in fact, expect to be searched and returned to their masters when found. It is clear that enslaved people belonged to their masters. Wilentz dismisses this fact by proposing that “the clause’s treatment of fugitive slaves ‘functionally as property’ was scarcely the same thing as enshrining property in man in the Constitution” (Wilentz 109). But when an enslaved person is expected to return to their master after escaping their captivity, it cannot be argued that that person is not property.
It is interesting to consider the language used in these clauses as well as in the other clauses regarding slavery. As Finkelman points out, “throughout the main body of the Constitution, slaves are referred to as ‘other persons,’ ‘such persons,’ or in the singular as ‘a person held to Service or Labour’” (190). Indeed, this can be seen in the quotations above. In fact, the word ‘slavery’ appears only in the Thirteenth Amendment, where it states that slavery is abolished (Finkelman 190). As opposed to Wilentz’s claim in his op-ed, the addition of the thirteenth amendment in itself proves that slavery was a national institution—whether explicit language said so or not—since it required a Constitutional amendment to abolish it. Waldstreicher is of the opinion that the “refusal to mention slavery as property or anything else in the Constitution” points at “embarrassment—and damage control” (Waldstreicher). The Constitution was deliberately ambiguous but clearly protected the institution of slavery.
In conclusion, while it is true that the Constitution does not explicitly state that enslaved people were property, the Constitution didprotect slaveowner’s rights to their slaves and consider enslaved people property. These are facts supported by several clauses of the Constitution as well as numbers proving how much slavery developed over the decades following 1787. The Constitution deliberately omits the words “slave” and “slavery” but that is not to say that there were no slaves and was no slavery; why they chose to omit these words cannot be said exactly, but regardless of this decision, the fact is that there were slaves, slavery was condoned by the Constitution, and the Constitution protected it. The exact language of the Constitution is, therefore, not as important as what the Constitution ordained. Historian’s perspectives shape how we look back on the American Revolution. It is easy to adopt a historian’s opinion such as Wilentz’s when he has written an entire book to convince people of his argument, but it is important to consider how this work was received by other historians and what they argue about the subject. Op-eds such as the ones by Waldstreicher, Goldstone, and Guyatt provide different perspectives which is necessary to form an informed opinion on a legal document as important as the U.S. Constitution.
Works Cited List
David Waldstreicher, “How the Constitution was Indeed Pro-Slavery.” The Atlantic, 19 September 2015.
Goldstone, Lawrence. “Constitutionally, Slavery Is Indeed a National Institution.” The New Republic, 17 September 2015.
Guyatt, Nicholas. “How Proslavery Was the Constitution.” New York Review of Books, 6 June 2019.
Paul Finkelman, “Slavery and the Constitutional Convention: Making a Covenant with Death,” in Richard Beeman, Stephen Botein, Edward C. Carter II, eds., Beyond Confederation: Origins of the Constitution and American National Identity (1987).
Wilentz, Sean. “Constitutionally, Slavery Is No National Institution.” The New York Times, 16 September 2015.
——. No Property in Man: Slavery and Antislavery at the Nation’s Founding, 2018.
Constitution Annotated. Article I, Section 2, Clause 3. https://constitution.congress.gov/browse/article-1/section-2/clause-3/. Accessed 28 October 2024.
——. Article IV, Section 2, Clause 3. https://constitution.congress.gov/browse/article-4/section-2/clause-3/. Accessed 28 October 2024.
Iris Elske 