Race and the Constitution: Liberal Historians Correct the Left

No Property in Man

Wilentz adapted No Property in Man from his 2015 Nathan I. Huggins Lectures at Harvard University. The book, an extended essay rather than a monograph, seeks the origins of the Lincolnian argument that the Constitution deliberately avoided recognizing slavery—property in man. This argument contradicted both slaveholders and radical abolitionists, who argued—as the most radical academics still argue—that the Constitution’s euphemisms of person for slave were no more than fig leaves to disguise its essential, damning defense of slavery.

No Property in Man focuses first upon the anti-slavery revolution of the 1780s—the abolitions of New England, Pennsylvania, and the Northwest Ordinance; the temporarily stalled abolition campaigns in New York and New Jersey; and the stillborn abolition movements of Maryland and Virginia. Wilentz emphasizes the extraordinary swiftness of this abolitionist upsurge. In the revolutionary year of 1776 slavery was legal in every English colony in North America. Within a decade, the American Revolution’s idealistic fervor had swept half the newly independent states on the road to abolition. The remaining slave states faced an unprecedented challenge: how to preserve slavery in a coalescing nation where slavery was no longer the uniform law of the land.

Wilentz masterfully evokes this moment’s complex delicacy. The northern states offered crimped abolitions—some delayed, some to apply only to the children of slaves born after abolition, some complemented by strict indenture codes for free blacks not much better than slavery. The northern abolitions generally came without trimmings such as the right to vote or serve on juries, or equal access to schools, jobs, or housing. Northern freedom was not quite the liberty to starve in the street, but abolition offered little beyond brute labor, penury, and scorn.

Yet these abolitions, so dazzlingly swift, so giddily successful, seemed the harbingers of speedy and universal abolition throughout the United States. Surely the southern states would quickly follow the examples of their northern brethren. Tobacco had exhausted Southern soil and clearly had no future in the Southern economy, while the cotton gin was not yet a gleam in Eli Whitney’s eye. A spurt of enlightened Southern gentlemen had already manumitted their slaves. Abolition was a fragile, new, partial revolution—and one all too confident of its imminent success.

This political context framed how the members of the Constitutional Convention of 1787 dealt with slavery—on those occasions when they did. Slavery was not the central topic of discussion. Yet neither was it irrelevant, for it touched on issues such as the apportionment of representatives and taxes and the balance of federal and state powers. On occasion, the precise relationship of slavery to the Constitution came to the fore. Gouverneur Morris of New York delivered a fiery anti-slavery speech, while Pierce Butler of South Carolina declared, “The security the Southern States want is that their Negroes may not be taken from them.” (Wilentz, 66) Southerners fought to secure both slavery and the slave trade within the Constitution by textual warrant—though Virginians did not mind an abolition of the slave trade, as it would secure their own slave exports a domestic monopoly. The Northeners’ sentiments were abolitionist, but not their concerted wills.

Yet the Northeners and the conflicted gentlemen of the upper South tenaciously refused to endorse slavery by mentioning it in the Constitution—and Wilentz establishes that the Founding Fathers used “persons” to avoid Federal endorsement of slavery rather than to euphemize it, to make sure that slavery was tolerated as a creation of state law but received no positive sanction from the Constitution. The same coalition gave the slave trade twenty years immunity from Federal prohibition as the necessary price for the lower South’s acquiescence to the constitutional compact. They accepted the Fugitive Slave Clause, but as an unwilling concession to the South, effectively nullified by the lack of an enforcement mechanism. The South’s representatives tried hard to gain an explicit guarantee of slavery within the Constitution—but failed, foiled by the majority’s obstinate demurrals. Southerners who supported the Constitution willed themselves to believe that it guaranteed slavery—somewhere between the lines.

The Constitution that emerged from these debates and compromises was not an abolitionist document. Neither the Founders nor any succeeding generation agreed about its meaning. But the text contained no explicit guarantee of slavery, proffered no legal or moral justification for that increasingly peculiar institution, and left abolitionists the constitutional capacity to do more to restrict slavery—even to doom it by a chokehold—if only they could summon the political will. True, the Constitution also gave slaveholders the constitutional capacity to do more to protect slavery—but they would have to act by interpretations without textual warrant.

Wilentz hastily narrates the Ratification Debates, the slave trade abolition, and the Compromises of 1820 and 1850, as he traces the political fault line that opened up around the claim that the Constitution allowed no property in man. The slaveholders wax in strength until the early 1840s; thereafter, Northern and abolitionist power rise. James Madison’s notes of the Constitutional Convention, finally published after his death in 1836, allow a new generation to make a constitutional-abolitionist argument upon the prop of the ultimate primary source as to original intent. The Lincolnian argument and moment of 1860—that only state law buttresses slavery, and the federal government may use every constitutional power available to constrain and doom slavery—is indeed plausible, the abolitionist redemption of the Constitution’s refusal to endorse human bondage. It is the redemption likewise of Wilentzian reformist politics as against the radicals, Garrisonian then and woke now, who see nothing in the Constitution but slavery’s indelible stain.

Wilentz notes that slaveholders’ most persuasive argument with Northeners was that indivisible property rights are the necessary foundation of liberty, but he focuses rather on the abolitionist argument that no man may own another. He thus gives short shrift to the argument that one violation of property leads by a slippery slope to another—perhaps because the reformist Wilentz welcomes a slippery slope that has led to all the government takings of our current regime of welfare and regulation. He likewise does not emphasize the fascinating dynamic that the Fugitive Slave Act of 1850 enlisted the federal government in defense of (slave) property rights, with the power to override (Northern) states’ rights. The defense of property had slipped the shackles of states’ rights. Wilentz’s narrative implicitly raises a question: what happened to the defense of property rights, once the Civil War obliterated slavery and permanently enfeebled states’ rights?

The Second Founding

Foner’s The Second Founding does not match Wilentz’s achievement, since it only rehashes his previous work. Foner also mars his narrative with far too many references to modern politics—the unredeemed promise of Reconstruction marvelously mirrors the to-do list of contemporary radicals. So Foner takes the application of the Fourteenth Amendment’s establishment of birthright citizenship to the children of illegal aliens (“undocumented immigrants”) to be uncomplicated—an easy accommodation to present-day progressive politics that should be checked against Michael Anton’s excellent counterargument.1 Where Wilentz provides a vital alternative to the 1619 Project view of history, Foner merely reminds the reader that the older left sometimes lags behind the newer one.

Foner narrates in workman-like fashion how and why the Republican coalition enacted the Thirteenth, Fourteenth, and Fifteenth Amendments between 1863 and 1870. These Amendments successively abolished slavery (Thirteenth Amendment, ratified 1865), defined American citizenship as individual claims to a bundle of rights and equal protection under the law, which the Federal government could now protect against the states (Fourteenth Amendment, ratified 1868), and guaranteed the right to vote (Fifteenth Amendment, ratified 1870). The Amendments made sure that slavery could not slip back into the union, distinguished citizenship from race, and made the vote the palladium of a citizen’s rights. Foner notes that the Reconstruction Amendments could only pass by means of a black vote protected by the occupying Northern army—a financial burden and political commitment that Northern whites did not care to sustain for long.

The alternative, of course, was the terror of the Redemptionist Democrats—white supremacists by a tight definition of the phrase. Terror's lamentable triumph set the stage for America's cruel abandonment of its black citizens—and of the ideals embodied by the Second Founding. As the North’s sympathy for freedmen waned from its Reconstruction high point, and Northern troops decamped toward the Indian frontier, only the Supreme Court remained as a potential champion to protect black citizens’ rights from the scant mercies of the strengthening Jim Crow regimes. Foner appends to his main narrative a swift summary of how the Gilded Age Supreme Court’s pinching interpretations of the Reconstruction Amendments vitiated their radical power. By Plessy v. Ferguson (1896) they had become a dead letter—to be only partly revived during the Civil Rights Era. Foner notes that the Fourteenth Amendment has continued to expand the guarantees the Federal judiciary provides to individual citizens, whose rights as federal citizens now also apply as citizens of the several states. Yet he emphasizes the glass half empty, and the necessity for the full redemption of the Reconstruction Amendments by the enactment of a broad range of modern progressive policy goals:

There is no reason why the Thirteenth Amendment cannot be reinvigorated as a weapon against enduring inequalities rooted in slavery, or the Fourteenth’s clause related to the privileges or immunities of citizens must remain a dead letter, why it cannot be understood to encompass rights denied by slavery and essential to full membership in American society today, such as access to an adequate education, or even to the “reasonable wages” to which Lincoln said the freed slaves were entitled in the Emancipation Proclamation. (Foner, 175)

No one but a power-hungry progressive is likely to endorse Foner’s idiosyncratic contention that judges might invoke the Reconstruction Amendments to mandate equality of economic outcomes.

Foner, in an odd lacuna, scarcely mentions how the Supreme Court came in the 1880s to apply the Fourteenth Amendment’s protection of persons to corporations, as corporate persons. (Foner, 160) This is a pity, for here lies the answer to how property rights would be defended after the Civil War—no longer by states’ rights and slavery, but rather by the federal judiciary, the ultimate patron and arbiter of the ever-multiplying corporate persons of modern America. Persons, that polysemous term of constitutional art, would animate the corporate revolution forever metamorphosing modern America—and establish our current regime’s co-dominium of federal power, judicial power, and corporate power. The judicial penumbras of the Fourteenth Amendment contain both Citizens United v. FEC (2010) and Obergefell v. Hodges (2015).

Jacksonians would say their nightmares have come true, that the true Second Founding of our Republic, which finally grounded property rights in everything but man within the Constitution, also shackled democracy to chains of elite power exercised on behalf of the individual rights of clients who once were citizens. That thesis is too sweeping. The New Deal constitutional revolution, our Third Founding, in turn authorized substantial governmental restrictions on property rights. Yet that Third Founding modified the terms of the Second Founding’s co-dominium rather than overturning it. Foner, alas, is silent about the enduring conjunction of his radical dream and the corporate revolution.

Advantage Wilentz

Both Wilentz and Foner ultimately champion America and its Constitution for their radical potential—where “radical” implies fealty to various liberal-to-progressive nostrums of our day. This makes both their works useful talking points against the 1619 Project’s hate-reading of American history. Yet I think only Wilentz would acknowledge that other Americans might rightfully cherish a different Constitution—a businessman’s Constitution or a libertarian’s Constitution or a states’ rights Constitution. Wilentz might even extend his fellowship to those conservatives who disdain all radicalism and seek, rather, in all our Constitution’s Articles and Amendments, to preserve our Republic and our liberties.

That more generous spirit makes Wilentz’s book the better history.