Did the Constitution Lay the Groundwork for Abolition?

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Welcome to FedSoc Forums, a Federalist Society podcast. I'm Elizabeth Slattery,
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Vice President of Practice Groups. Be sure to subscribe wherever
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you get your podcasts so you won't miss an episode. Now,
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please enjoy today's conversation.
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Hello, everyone, and welcome to this FedSoc Forum webinar. Today,
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September 8th, 2026, we are delighted to host a conversation
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as a part of our The Founders Gave Us the
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Tools series entitled Did the Constitution lay the groundwork for abolition?
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My name is Emma Blakemore, and I'm an Associate Director
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of Practice Groups at the Federalist Society. As always, please
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note that all expressions of opinion are those of the
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experts on today's call, as the Federalist Society takes no
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position on particular legal or public policy issues. In the
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interest of time, I will keep the introductions brief, but
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if you would like to know any more about any
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of our panelists, you can access their impressive full bios
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at fedsoc.org. Today, we are fortunate to have Timothy Sandefur
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and Professor Kenneth Williams as our panelists, with the Honorable
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Corey Liu serving as moderator.
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Mr.
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Sandefur is the Vice President for Legal Affairs at the
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Goldwater Institute's Scharf Norton Center for Constitutional Litigation, and he
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holds the Duncan Chair in Constitutional Government. Professor Williams is
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the Fred Gray Endowed Chair for Civil Rights and Constitutional
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Law at Texas Tech University School of Law, where he
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teaches race, racism in the law, civil rights, constitutional law,
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and capital punishment. And Judge Liu is a state district
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judge in Austin, Texas.
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And I will leave it there.
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One last note throughout the panel, if you have any questions,
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we ask that you please submit them through the question
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and answer feature below so that we will have access
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to them when we get to that portion of the webinar.
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We also do ask that these questions submitted both pertain
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to this discussion and end with a question mark. And
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with that, thank you for being with us today. And
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I will turn things over to Judge Liu to start
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the conversation.
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All right.
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Well, thanks so much.
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It's really been exciting to view and now be a
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part of all of these events of the Federalist Society
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for the 250th anniversary of the Declaration of Independence, to
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have these opportunities for those of us who study constitutional law,
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who are interested in it, to really look back on
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the founding and both consider questions that they struggled with
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back then, as well as some more contemporary questions that
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we still have today. And I'm honored to be moderating.
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I'm going to start with opening remarks from both of
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our guests here. They'll set forth their positions and what
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they have to say on whether the Constitution laid the
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groundwork for abolition of slavery. We'll have reactions from each
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of them to each other's remarks, and then we'll go
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over to questions. I may have a few, and then
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we'll take some questions from the audience. So we'll start
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with Timothy Sandefur, who is also the author of the
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book Proclaiming Liberty, which, again, in the spirit of the
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250th anniversary, looks back at the founding and the ideas
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of that animated.
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Founders wrote that declaration. So we'll start with Mr.
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Sandefur.
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Thank you very much, Ajlu.
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Since I'm taking the affirmative position that the founders did
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indeed give us the tools to abolish slavery, I wanted
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to start with a few observations. Of course, I can't
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do or hope to do any better than the greatest
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articulator of the idea that the Constitution laid the groundwork
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for abolition, and that was, of course, Abraham Lincoln. who
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said that the Constitution had been designed to allow the
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public mind to rest assured that slavery lay in the
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course of ultimate extinction. And before getting to the anti-slavery
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constitutionalist views of the influential abolitionists, let's start with a
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few observations. The first, of course, is that at the
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time of the authorship of the Constitution, intellectual leaders pretty
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much universally agreed that slavery was evil. Nobody at the
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Constitutional Convention of 1787 tried to offer a substantial defense
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of slavery. There was one person who spoke in defense
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of slavery, and he simply said, well, it's been the
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practice of all of history, which, of course, is true.
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But there was no intellectual argument in defense of slavery.
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That wasn't to come about until about the 1830s, when
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the rise of the pro-slavery positive good school, as it's called,
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really got underway in the South, led by Southern politicians
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such as John C.
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Calhoun.
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At the time of the Constitution's authorship, it appeared that
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slavery was on its way out already. It seemed to
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be disappearing. Several states were already moving to abolish it
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or had already moved to abolish it. And no state
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had created slavery where it had not previously existed. And
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so if you're an intellectual in 1788, you look around you,
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it appears to you that slavery is on its way out.
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And for good reason, right? Economists such as Adam Smith
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had been pointing out that slavery was economically inefficient, and
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there was really no economic reason for it to persist, although,
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of course, those who already had slaves were obviously unwilling
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to let go of their slave property. Second, note that
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the Constitution makes no textual reference to slavery. It would
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have been very easy for the Founding Fathers to have
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inserted a clause in the Constitution to say, slavery shall
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be protected. But not only did they not do that,
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but they don't even use the word slave or slavery
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in the documents. Frederick Douglass was later to remark that
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those claiming that the Constitution protected slavery were in the
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position of a man claiming that he owned a piece
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of property, and then when he showed the deed contained
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no reference to the location of the property, right? That
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really forces defenders of slavery to bear the burden of
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proof to justify slavery's existence as opposed to forcing the
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anti-slavery forces to justify the restriction of slavery. Nothing in
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the Constitution had to be changed for slavery to be ended.
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This was a point that abolitionists made very frequently prior
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to the ratification of the 13th Amendment. The Constitution was
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compatible with the abolition of slavery as it was, which
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is a very important point. Finally, the Constitution gives Congress
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power over the Western territories, over new territories that are
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added to the Union. And that power is unlimited, that
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Congress has the power in all cases whatever to legislate
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for this territory. And of course, one of the very
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first things that Congress did upon its organization was to
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pass the Northwest Ordinance restricting slavery. Now, with those ideas
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in mind in the background, let's take a look at
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the pro-Constitution, pro-abolition arguments. that was put forward by abolitionists
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such as Frederick Douglass, who argued that slavery was already
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unconstitutional even before the ratification of the 13th Amendment. An
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extreme argument, I admit, but nevertheless a very interesting one.
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They begin with the starting point, which is how do
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you interpret the Constitution? You have to have rules of interpretation.
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After all, everybody does. The first rule of interpretation that
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they offer is only the text is the law. not
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the subjective intentions of the framers, not some background historical context,
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but the actual words on the page are the only
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thing that are the Constitution. Second, the Constitution should be
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interpreted as pro-freedom whenever possible. Now, they weren't just making
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up that rule. That was a rule that the U.S.
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Supreme Court had already announced in the 1800s. So pro-Constitution,
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anti-slavery forces said, OK, these are our rules of interpretation.
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Only the text is the law. And if we can
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interpret the text as pro-freedom, we should do so. Now
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look at the Constitution through those lenses. As I mentioned,
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the Constitution makes no explicit reference to slavery, and it
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only has four passing references to slavery in the document.
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The Three-Fifths Clause, the Fugitive Slave Clause, the Import-Export Clause,
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and the Insurrections Clause. Anti-slavery pro-constitutional theorists like Douglass pointed
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out that you could interpret all of these as innocent,
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with innocent explanations, or pro-freedom, anti-slavery explanations. The Three-Fifths Clause
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did not protect slavery. In fact, if anything, it rewarded
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states that might abolish slavery. It simply recognized that slavery
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existed and accommodated its existence. The import-export clause not only
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did not protect slavery, but it actually put a deadline
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on the importation of slaves of 1808, only 20 years
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after the ratification of the Constitution. And, by the way,
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Congress had abolished the slave trade almost instantly the moment
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that became legally possible. Insurrections Clause could easily be interpreted
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as with an innocent non-pro-slavery explanation, which is that you
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had insurrections sometimes, right? You had the Shays' Rebellion, for example,
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the Whiskey Rebellion, which were not slave rebellions. And it
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obviously made sense for the federal government to have control
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in those kinds of situations. And then the so-called Fugitive
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Slave Clause, which again does not use the word slave,
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but refers to persons held for a term of service.
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And that, of course, included apprentices. At the time, indentured
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servants and apprentices were quite common, and their agreements specified
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that they could not leave their jobs for a certain
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amount of time. Many did, however, illegally fleeing their term
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of labor. Probably the most famous of these is Benjamin Franklin,
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who fled his term of service as an apprentice in
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Massachusetts and illegally was, well, you might say, an illegal
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immigrant to Pennsylvania as a young man. Those clauses persisted.
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therefore don't protect slavery, the anti-slavery pro-constitutional forces said. And
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other clauses are incompatible with slavery, such as the due
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process clause of the Fifth Amendment that prohibits a person
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from having their liberty taken away without due process of law. Obviously,
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slavery violated that. The bill of attainder clause. Slavery is
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a kind of bill of attainder, the abolitionists argued. And
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most importantly, the privileges and immunities clause of Article 4.
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This is the most important of them.
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Privileges and immunities clause recognized that there are two kinds
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of citizenship. federal and state, and prohibited the states from
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interfering with federal citizenship. Pro-Constitution abolitionists like Douglass pointed out
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that Black people could be citizens of states, for example, Massachusetts.
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And because of that, they could be federal citizens because
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at that time, you were a citizen of the federal
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government if you were a citizen of a state. And
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that meant that Black individuals could be citizens of the
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United States and therefore protected by the Privileges and Immunities
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Clause that prohibited states from depriving them of the privileges
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and immunities of federal citizenship. When you put all those
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things together, what you have is an instrument that gives
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the government sufficient power to end slavery if it chooses
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to do so. But of course, that last clause is
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really the big catch, right? Because after the founding and
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particularly beginning in about 1800, what you had was a
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series of politicians elected to Congress and the presidency and
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placed on the U.S.
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Supreme Court who were pro-slavery.
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And who, in the abolitionists' eyes, were perverting the fundamentally
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pro-freedom document that is the Constitution into a pro-slavery document
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which was never its intention. As Frederick Douglass said, interpreted
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as it ought to be interpreted, the Constitution is a
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glorious liberty document. But both Congress, the presidency, and also
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the courts instead chose to interpret the Constitution perversely as
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a pro-slavery document. The most infamous example of this is
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Dred Scott. If you boil down Dred Scott, and that's
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kind of hard to do because it is a very
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long opinion. It was one of the longest opinions in
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the history of the Supreme Court. But if you boil
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it down to its essence, what the court says is
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it cannot be the case that the declarations reference to
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all men includes black individuals, because if that were the case,
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the Congress would have abolished slavery on July 4th, 1776.
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But as Abraham Lincoln pointed out in his response to
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the Dred Scott decision, that isn't really a good argument
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at all, because there are all sorts of reasons why
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the Continental Congress did not abolish slavery on July 4th, 1776,
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none of which prove that the authors of the Declaration
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did not think that all men included black individuals as well.
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And since that's the only piece of evidence, and it's
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a really lame one, I believe the Dred Scott opinion
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was incorrectly decided. I think it's rather shocking how many
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intellectual leaders in the United States today think Dred Scott
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was correctly decided. They are the ones who argue that
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the Constitution was not intended to encompass black citizenship, that
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the Declaration of Independence did not really mean all men
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and only actually meant white men, which the founders did
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not in fact say or believe. I think it's really shocking,
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and it's my hope that conversations like this may persuade
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Americans that, in fact, Dred Scott was wrongly decided. The
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Constitution is for all people, and the Declaration of Independence
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means what it says.
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All men are created equal.
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Thank you, Professor Sandifer.
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And then we have Professor Kenneth Williams, a fellow Texan,
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myself from Texas Tech.
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Okay, thank you for inviting me to this very important discussion.
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So a few points I want to make on the
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other side of this debate. that the Constitution was actually pro-slavery.
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The first thing I would point out is that the
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Constitution could have abolished slavery, but it did not. There
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were certain practices that were abolished under the Constitution. For instance,
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the ex post facto provision in the Constitution prohibited that
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practice of ex post facto laws. Bills of retainer were
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also prohibited under the Constitution. But the framers did not
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prohibit slavery in the original Constitution. And that is evidence,
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I think, that the Constitution was definitely designed to be anti-slavery.
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The second point I would make is that there's actually
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no mention in the original Constitution of the principle of equality.
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Of course, it's mentioned in the Declaration of Independence, but
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it was not mentioned in the Constitution. If the Constitution
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is supposed to be anti-slavery, why would you mention the
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principle of equality, which is pretty clearly stated in the
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Declaration of Independence? One of the main arguments I'd make
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in terms of the Constitution, I would disagree with Professor
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Sander on the Fugitive Slave Clause. The only type of property,
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private property that is protected specifically in the Constitution is
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protected through the Fugitive Slave Clause, what is known as
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the Fugitive Slave Clause. There's no other type of property
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that has any sort of special protection under the Constitution.
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someone's wheat or someone's horses or someone's cotton or someone's
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rice was taken. There was no provision for having that
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property returned to the owner of the property. the only
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type of property that received any sort of special protection
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was through the fugitive slave clause. Well, why would that
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type of property be protected other than the fact that
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it was designed to promote slavery? I'd also point out
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the justice story in Prick v. Pennsylvania said, quote, that
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it is well known that the object of this clause,
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the fugitive slave clause, was to protect the interests of
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citizens of the slaveholding states. So I think it's pretty
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clear through the to the slave clause, even though the
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term slavery was never mentioned, that was the design of
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the clause to protect slavery and the slave-owning states. Then
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I would also point out the Three-Fifths Clause. The Three-Fifths
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Clause was very important because of the fact that it
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gave a lot of power to the southern and slave-holding
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states in two ways, basically. It enhanced representation in the
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House of Representatives of the slave-holding states. I'll give you
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an example. So, If the slaves had not been counted
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at all, then Pennsylvania would have been the largest state
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in the country. But because the slaves were counted as
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three-fifths of a person, that made Virginia the largest state.
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in the country, and it enhanced the representation that the
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southern states had in the Congress. Well, why is that important?
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Because that's important because they basically, they were given a
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veto over any attempt to abolish or even to modify
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the institution of slavery through the Three-Fifths Clause. The other
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important aspect of the Three-Fifths Clause is the election of
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the president, of course. We elect presidents through the Electoral College. Well,
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it gave more representation in electoral college than slaveholding states.
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So it turns out that we had what eight of
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the first 12 presidents of the United States were slave owners.
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And that is because of the design of the Three-Fifths Clause.
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And then also just the simple fact that the Three-Fifths
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Clause existed, that if you were white, you were counted
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as no matter what your station in life was. You
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could be an indentured servant. You could be any, no
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matter what your position in life was, you were counted,
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if you were a white person, as a person. Who
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was not counted as people, as a person, full person?
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It was only the slaves. Well, I think the design
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there was pretty clear. Then you also had the insurrection clause.
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He mentioned that clause. Well, it provided the federal government
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with the opportunity and the power to basically put down
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slave insurrections, which the The federal government actually did in
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the case of the Nat Turner rebellion and also the
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John Brown rebellion at Harpers Ferry. The federal power was
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used to suppress those insurrections. So it gave the authority
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of the federal government to intervene on the behalf of slavery.
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And then also you had the export, the ban on
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the Constitution forbade any sort of export taxes. And that
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was done to promote slavery. What the southern states were
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concerned about was that Congress if it could actually impose
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export taxes, that it would end up doing so on
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exports that were produced by the slaves and the slave states.
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And so they were insistent on inserting this clause into
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the Constitution to ban on export taxes. Then also I
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would point out the Congress did actually abolish the importation
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of slaves But what they did was they abolished it
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in the original Constitution in 1776, but it didn't go
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into effect until 1808, 21 years after the Constitution was ratified.
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And also they provided that date could not be changed.
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So it protected for a 21-year period the importation of
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slaves into the United States. So I think that further
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happens that the Constitution was designed to be pro-slavery. Then
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I also point out in terms of, of course, a
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separate provision, the three-fourths clause of the Constitution, that the
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Constitution could only be ratified through a vote of three-fourths
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of the states. That also helped to protect slavery. In
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response to President Lincoln and also Frederick Douglass, I would
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point out, yes, they did argue that the Constitution was anti-slavery,
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but I would say that they were being good lawyers
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in that circumstance. What do you do if you're a
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lawyer and you're trying to move Back then in the 1860s,
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you're trying to abolish slavery. Well, you argue what you have.
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What do they have at their disposal? They had the
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Constitution and they had the Declaration of Independence. So I
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think that's why they took the position that they didn't
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have the 13th Amendment. They didn't have the 14th Amendment.
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They didn't have the 15th Amendment. They didn't have civil
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rights laws on the books that they could argue. The
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only thing they could argue was the Constitution and also
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the Declaration of Independence. So I think they were being
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good lawyers. in making the argument that the Constitution was anti-slavery.
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My view is that the Constitution was deliberately ambiguous, but
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functionally pro-slavery. I would also point out that the Constitution,
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had it been anti-slavery, never would have been ratified. The
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southern slaveholding states and delegates from those states would not
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have ratified the Constitution that was in any way anti-slavery.
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And these accommodations to slavery were made in order to
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get the southern delegates in the southern states to join
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the Union and to sign on to the Constitution.
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All right. Thank you, Professor.
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I mentioned each side would have a chance to respond.
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So, Mr.
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Sandefur, is there anything you want to say in response? Sure.
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Thank you.
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First, I want to begin with a correction. The Fugitive
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Slave Clause does not protect property. The text of the
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Fugitive Slave Clause says, no person held for service or
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labor in one state under the laws thereof escaping into
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another shall.
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In consequence, etc., etc.
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But it, along with the other clauses in the Constitution,
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refers to the enslaved as persons, which I think is
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not a small point. I think it's really significant that
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the Constitution refers to them as persons. And it is
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as does the three fifths clause, which does not say
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that they are not persons. It says all other persons
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and referring to those who are enslaved. And it is,
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of course, true that the three fifths clause served the
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interests of the pro-slavery powers beginning after the turn of
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the century, beginning in the 1800s. But remember that the
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text rewarded states if they were to end slavery. I
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think it was intended by its authors as one of
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these subtle devices intended to try and push the public
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in a certain direction. I think that right there is
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really the important point. Of course, it was politically impossible
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to abolish slavery in 1787. The founding fathers were, to
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use a term that has a pejorative nowadays, the founding
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fathers were elitists. They firmly believe that there were those
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who are better educated and are more able to act
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as statesmen than others, and they expected the leadership class
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of the new country to lead public opinion in a
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beneficial direction. We see that, for example, in the very
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existence of the Electoral College and in the Senate. The
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structure of the Senate is to refine, I think it's
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to refine the public view, if I remember the line
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from the Federalist Papers. So the founders hoped that the
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intellectual leaders of the new country would push the public
390
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in a pro-freedom, anti-slavery direction. They did, however, primarily expect
391
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the states to and not the federal government to be
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in the driver's seat of this or really any other policy.
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I think that it's relevant that the South, and by
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the way, Frederick Douglass considered this as really definitive proof
395
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that he was right, that in 1861, the South is
396
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the one that had to abandon the Constitution and in
397
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order to preserve slavery. Remember that Lincoln did not even
398
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suggest that he would abolish slavery in those states where
399
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it existed. He simply wanted to restrict its spread to
400
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the West, which would then have the consequence of ultimately
401
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outnumbering the slave states in Congress, allowing for the possibility
402
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of restrictions and the ultimate abolition of slavery. And that alone,
403
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that clearly is within the federal government's authority. Obviously, the
404
00:22:45.359 --> 00:22:48.359
federal government has power to restrict slavery in the Western Territories.
405
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And so that is precisely why the South felt it
406
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necessary to abandon the Constitution in order to preserve slavery.
407
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If it were the fact that the Constitution is a
408
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pro-slavery document, that would not have been the case. Finally,
409
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on this point about Lincoln and Douglass being lawyers, although
410
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technically speaking, Douglass was not a lawyer, but that, of course,
411
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we're all lawyers, right? What we're engaged in here is
412
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a legal argument. And remember that what legal argument tries
413
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to do is straddle the positive and the normative, the
414
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descriptive and the normative realms. As Ronald Dworkin pointed out,
415
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what lawyers try to do is give the best account
416
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of the law that puts it in the direction which
417
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is honorable. That's not a disparagement of what lawyers do.
418
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It's not saying that they're unobjective. Of course, they're objective.
419
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What they're trying to do, however, is give the morally
420
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best count of the law as they find it, which,
421
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of course, is a pro-freedom, anti-slavery argument. It was, in fact,
422
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the pro-slavery arguments, the pro-slavery lawyers who had a far
423
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harder burden. in justifying the perpetuation of slavery. That required
424
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federal intervention on a degree that was not precedented and
425
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not authorized by the Constitution. It ultimately, they believed early on,
426
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required a constitutional amendment to preserve slavery and ultimately required
427
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a rebellion against constituted authorities and a brand new constitution
428
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for the Confederacy. It was they who really had the
429
00:24:16.069 --> 00:24:16.609
weaker of.
430
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The two arguments. Anyway, I'll leave it at that. Okay,
431
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I'll just make a point. It is correct that the Constitution,
432
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of course, does not refer to the slave clause or
433
00:24:27.299 --> 00:24:31.269
in the three-fifths clause does refer to persons, but it
434
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was well understood in the slaveholding states. In fact, they
435
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define the slaves as property and that's what they were
436
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actually interested in protecting at the time. They were not,
437
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the slaveholding states were not concerned with returning an insured
438
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servant because that's not, that was not a common arrangement
439
00:24:51.680 --> 00:24:55.039
in the southern states. The common arrangement was, of course, slaves,
440
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and that's what they were actually concerned with.
441
00:24:57.880 --> 00:24:58.079
All right.
442
00:24:58.400 --> 00:25:00.440
Thank you. We've got a few questions in the.
443
00:25:00.400 --> 00:25:03.019
Chat, and I'll try to maybe combine those with questions
444
00:25:03.039 --> 00:25:05.059
that I came to my mind as I was listening
445
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to your remarks and maybe trying to challenge what each
446
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side said and try to.
447
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See maybe where the agreement or disagreement is.
448
00:25:12.109 --> 00:25:14.349
Maybe I'll start with, I guess for both of you,
449
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but maybe I'll start with Professor Williams.
450
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Would you what do you have to say.
451
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In response to, or would you agree that there are
452
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aspects in how the issue of slavery was discussed or
453
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treated at the time of the founding of the constitution
454
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that did reflect some recognition that slaves are people. I
455
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think there's personhood. It's not treated the same as say, whatever,
456
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livestock or something, right? That they're, that you've had these
457
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provisions in the constitution that explicitly address it and show
458
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some discomfort, right? Could one be a slave owner and
459
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look at the slave and still have some identification with
460
00:25:56.170 --> 00:25:59.700
that person as you're actually a human being. And yes,
461
00:25:59.799 --> 00:26:03.880
you're in a subordinate position in the legal system that
462
00:26:03.920 --> 00:26:06.680
we have, but just the, the recognition of that person
463
00:26:06.740 --> 00:26:10.119
as human, as we don't, maybe don't treat them the
464
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same as you might physical property, right?
465
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Like a lot or something.
466
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Right.
467
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So they're, There are things that have happened, and the
468
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terminology and the way it was used, that sort of
469
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at least, even if it was.
470
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Tolerated or wasn't abolished, seemed.
471
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To reflect, going to, I think this kind of goes
472
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to the first question in the chat, this concept of
473
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natural law, that we have moral principles embedded in our
474
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hearts that we know, right? Is it possible that even
475
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some of these people own slaves or signed on to
476
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the Constitution in their heart, so when they looked at
477
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a slave, they would say, that's another human being And
478
00:26:42.599 --> 00:26:44.859
there's something about that, even if we haven't gotten to
479
00:26:44.880 --> 00:26:48.839
the point of fully recognizing equality, that there's something that
480
00:26:48.880 --> 00:26:52.150
needs to be grappled with that is causing folks to
481
00:26:52.190 --> 00:26:53.269
have these moral concerns.
482
00:26:54.690 --> 00:26:57.369
Well, I would just point out that the views of
483
00:26:57.430 --> 00:27:00.670
the southern states and the slave owners were, I think,
484
00:27:01.089 --> 00:27:03.890
how they viewed the slaves was reflected in their own
485
00:27:03.970 --> 00:27:07.259
state laws and their own state constitutions. And in those
486
00:27:07.420 --> 00:27:11.579
constitutions and laws, they referred to them. slaves did not
487
00:27:11.619 --> 00:27:15.059
refer to them as persons. They were considered properties. I
488
00:27:15.079 --> 00:27:17.599
would say that's a better reflection of how the slave
489
00:27:17.680 --> 00:27:22.440
owners in the southern slave-holding states, how they viewed the slaves,
490
00:27:22.460 --> 00:27:24.779
they viewed them as property. Another thing I'd point out
491
00:27:24.920 --> 00:27:27.680
regarding the slave clause is that I'm not aware of
492
00:27:27.720 --> 00:27:30.000
the fact that there was a problem in the country
493
00:27:30.039 --> 00:27:35.680
at the time of indentured servants escaping their servitude. What
494
00:27:35.700 --> 00:27:38.690
they were clearly concerned about was the problem of slaves
495
00:27:38.730 --> 00:27:43.390
who were fleeing slave owners. So I don't think the
496
00:27:43.430 --> 00:27:46.990
motivation for the future slave clause was to stop indentured
497
00:27:47.029 --> 00:27:50.089
servants from escaping. I think it was pretty clear that
498
00:27:50.109 --> 00:27:52.230
the problem was, what they viewed as a problem at
499
00:27:52.269 --> 00:27:54.869
the time, was the fact that there were slaves who
500
00:27:54.910 --> 00:27:58.339
were fleeing from slave owners. And that was a problem
501
00:27:58.359 --> 00:28:00.529
they were tempted to address, and they addressed it in
502
00:28:00.549 --> 00:28:04.329
the Constitution. And it also required and enabled federal power
503
00:28:04.369 --> 00:28:07.650
to be used to return slaves. Again, I'm not aware
504
00:28:07.670 --> 00:28:09.130
of the fact that there were a lot of indigenous
505
00:28:09.150 --> 00:28:12.309
servants who were being returned to their servitude. Most of
506
00:28:12.349 --> 00:28:16.359
the readings I've read, there were slaves who were being
507
00:28:16.480 --> 00:28:20.460
returned under the Fugitive Slave Clause, not indigenous servants. So
508
00:28:21.019 --> 00:28:24.480
I don't think the motivation there was to ensure the
509
00:28:24.500 --> 00:28:28.740
return of fugitive slaves. servants, I think it was pretty
510
00:28:28.799 --> 00:28:35.099
clear the motivation was to return slaves to their owners. Mr. Sandifer?
511
00:28:37.319 --> 00:28:40.509
Now, keep in mind our rules of interpretation, and that is,
512
00:28:40.549 --> 00:28:44.069
number one, only the text is the law, not the
513
00:28:44.109 --> 00:28:47.309
subjective motivations of those who wrote the text. And so
514
00:28:47.329 --> 00:28:50.190
what Douglass would have said in response to that point is, yes,
515
00:28:50.250 --> 00:28:53.369
it may be true that the authors had contemplated both
516
00:28:53.880 --> 00:28:57.880
escaped slaves and escaped apprentices and indentured servants. And escaped
517
00:28:57.920 --> 00:29:01.900
indentured servants was a common problem in early America. But
518
00:29:02.099 --> 00:29:05.160
obviously they had in mind also escaped slaves. But the
519
00:29:05.220 --> 00:29:08.349
fact that did not make it into the text means
520
00:29:08.410 --> 00:29:11.410
that it is not the law. Now, one criticism of
521
00:29:11.450 --> 00:29:14.009
that position is obviously that if you interpret the text
522
00:29:14.170 --> 00:29:17.769
that narrowly, then you're ignoring context and therefore doing violence
523
00:29:17.809 --> 00:29:19.950
to the text. And I think that argument is subject
524
00:29:19.970 --> 00:29:22.210
to that criticism. And that's why you find that people
525
00:29:22.269 --> 00:29:26.059
like Lincoln did not go as far as Douglas and
526
00:29:26.140 --> 00:29:31.309
the pro-Constitution abolitionists in claiming that slavery was already unconstitutional
527
00:29:31.369 --> 00:29:34.049
prior to the ratification of the 13th Amendment. I think they,
528
00:29:34.369 --> 00:29:36.430
or another one is Salmon Chase, who later became Chief
529
00:29:36.470 --> 00:29:38.650
Justice of the United States, also did not go as
530
00:29:38.730 --> 00:29:43.599
far as the pro-Constitution abolitionists. abolitionists precisely for those kinds
531
00:29:43.640 --> 00:29:46.460
of reasons. But if the question is whether the Constitution
532
00:29:46.539 --> 00:29:49.799
put the country in a direction toward the abolition of slavery,
533
00:29:50.279 --> 00:29:53.000
I think the answer has to be yes, even if
534
00:29:53.059 --> 00:29:56.480
you accept that criticism. Incidentally, I think it's worth pointing
535
00:29:56.579 --> 00:29:59.259
out that at the time of the founding, the American
536
00:29:59.299 --> 00:30:04.700
founding fathers did not regard the enslaved population as inhuman.
537
00:30:05.559 --> 00:30:08.859
The idea that the enslaved individual is not a human
538
00:30:08.980 --> 00:30:14.690
being was really an advent of the pro-slavery argument that began,
539
00:30:14.809 --> 00:30:18.170
as I mentioned, in the 1820s, 1830s era with people
540
00:30:18.210 --> 00:30:21.170
like Calhoun and John Hammond and other advocates for the
541
00:30:21.210 --> 00:30:24.849
pro-slavery position. At the time of the founding, what you
542
00:30:24.910 --> 00:30:27.289
find is quite the opposite. You find a remarkable degree
543
00:30:27.309 --> 00:30:32.410
of sympathy by white leaders toward insurrections by slaves. So,
544
00:30:32.470 --> 00:30:35.720
for example, Jefferson in Notes on Virginia says, says, I
545
00:30:35.839 --> 00:30:38.269
tremble for my country when I reflect that God is
546
00:30:38.369 --> 00:30:41.869
just and his justice cannot sleep forever. Jefferson literally says
547
00:30:42.450 --> 00:30:45.750
that if it came down to a fight between black
548
00:30:45.789 --> 00:30:49.130
slaves and white masters, God would side with the slaves.
549
00:30:49.730 --> 00:30:54.049
That's an amazingly radical position to take in print at
550
00:30:54.089 --> 00:30:56.910
the time of after the revolution and before the ratification
551
00:30:56.930 --> 00:31:00.500
of the Constitution. Later on, when Jefferson was retired from
552
00:31:00.519 --> 00:31:04.559
the presidency, When there was Gabriel Prosser's rebellion in Virginia,
553
00:31:04.940 --> 00:31:08.480
Jefferson writes a letter to then-Governor James Monroe and says,
554
00:31:09.109 --> 00:31:12.769
you should not... execute them. You should not execute the
555
00:31:12.789 --> 00:31:16.170
captured rebels. You should find some way to send them
556
00:31:16.319 --> 00:31:19.380
to Haiti or something like that instead. And the reason
557
00:31:19.430 --> 00:31:23.400
why is because they are fundamentally justified in fighting for
558
00:31:23.440 --> 00:31:26.440
their freedom. I think it's really remarkable that, and Jefferson,
559
00:31:26.460 --> 00:31:27.920
of course, is far from the only one to say
560
00:31:27.940 --> 00:31:30.039
things like this, it's really remarkable that the American founding
561
00:31:30.059 --> 00:31:35.019
fathers openly admitted that slaves were justified in rebelling against
562
00:31:35.039 --> 00:31:37.779
their masters. It was really the next generation, beginning in
563
00:31:37.799 --> 00:31:41.160
the 1830s, or 1820s or so, that you see the
564
00:31:41.279 --> 00:31:45.420
rise of this pro-slavery argument that denies the humanity of
565
00:31:45.500 --> 00:31:47.960
slaves and argues that they are on a moral par
566
00:31:47.980 --> 00:31:48.700
with livestock?
567
00:31:50.900 --> 00:31:53.660
Well, yeah, I guess just trying to use my own observations,
568
00:31:53.680 --> 00:31:57.259
I think obviously there's a lot of compromises and differing views.
569
00:31:57.299 --> 00:32:00.640
And so probably there were some, you know, some who
570
00:32:00.660 --> 00:32:04.470
were more outspoken against slavery and some who maybe they
571
00:32:04.509 --> 00:32:06.660
never lost a night of sleep on it. But At
572
00:32:06.700 --> 00:32:10.019
least it seems there's enough sources, enough debates going on.
573
00:32:10.039 --> 00:32:13.579
And the way these compromises had to be made, there's
574
00:32:13.619 --> 00:32:16.690
a framers perspective that showed that I think at least
575
00:32:16.710 --> 00:32:19.650
there's an understanding, even if they weren't, they didn't have
576
00:32:19.670 --> 00:32:21.529
the political will to move there, that there was something
577
00:32:21.630 --> 00:32:24.410
different in terms of the recognition of the humanity.
578
00:32:25.049 --> 00:32:28.329
And if I may, I think this is it's really hard,
579
00:32:28.529 --> 00:32:30.930
very hard. Thank God it's hard for us to put
580
00:32:30.970 --> 00:32:34.299
ourselves in the mental position of somebody at that time
581
00:32:34.339 --> 00:32:39.160
of a political leader, in, say, 1790, because we are
582
00:32:39.259 --> 00:32:42.539
so accustomed to the idea that slavery is so colossally evil,
583
00:32:42.579 --> 00:32:44.700
it's difficult for us to imagine living in such a
584
00:32:44.740 --> 00:32:48.160
society where it is pervasive, where it's everywhere, right? The
585
00:32:48.220 --> 00:32:51.259
closest analogy you might think of is a strict vegan
586
00:32:52.079 --> 00:32:55.380
looks around at all of the abuse that animals are
587
00:32:55.509 --> 00:32:58.529
prone to in factory farms and all that sort of thing.
588
00:32:59.089 --> 00:33:01.880
How would you go about putting an end to that
589
00:33:01.950 --> 00:33:05.160
when you are one of the few enlightened individuals who
590
00:33:05.240 --> 00:33:07.880
sees how evil this thing is and how pervasive it is?
591
00:33:08.359 --> 00:33:12.220
Most people don't care or they have selfish reasons for
592
00:33:12.279 --> 00:33:15.480
not taking action. And so they stifle their moral conscience.
593
00:33:15.900 --> 00:33:18.140
How would you what would you do about it? I
594
00:33:18.180 --> 00:33:21.220
think it's really hard to imagine being in such a
595
00:33:21.240 --> 00:33:23.720
position and the kind of compromises that we today regard
596
00:33:23.759 --> 00:33:27.400
as morally reprehensible. are ones that if we were in
597
00:33:27.440 --> 00:33:30.329
those positions, frankly, I'd like to see us do a
598
00:33:30.349 --> 00:33:32.670
better job if we were to get a time machine
599
00:33:32.690 --> 00:33:33.569
and go back to that time.
600
00:33:34.609 --> 00:33:38.890
I would also refer again to Justice Story. Justice Story was,
601
00:33:38.950 --> 00:33:43.049
of course, an abolitionist. He was very anti-slavery, but he
602
00:33:43.089 --> 00:33:45.250
did write, and it was pretty clear what he said
603
00:33:45.329 --> 00:33:49.819
in Pre-Versus Pennsylvania. He said specifically, quote, it is well
604
00:33:49.920 --> 00:33:53.359
known the object of the Fugitive Slave Clause was to
605
00:33:53.380 --> 00:33:56.559
protect slavery. So I think we have to give some
606
00:33:56.599 --> 00:33:59.359
deference to what he was saying. He certainly had no interest.
607
00:33:59.599 --> 00:34:02.519
He would have preferred the opposite view. He would have
608
00:34:02.559 --> 00:34:05.160
preferred the view that fugitive slave clause, he made that
609
00:34:05.220 --> 00:34:08.289
pretty clear. In pre-British Pennsylvania, he would have preferred the
610
00:34:08.389 --> 00:34:11.429
opposite view, that it wasn't designed to protect slavery. But
611
00:34:11.489 --> 00:34:13.469
he says it was pretty clear that that was the
612
00:34:13.610 --> 00:34:16.849
object of this fugitive slave clause. So I think we
613
00:34:16.889 --> 00:34:19.719
have to consider that. Also in terms of Jefferson, of course,
614
00:34:19.980 --> 00:34:22.559
he said a lot of things, but his life, of course,
615
00:34:22.699 --> 00:34:26.500
contradicted with a lot of his statements. He made a
616
00:34:26.500 --> 00:34:29.349
lot of statements regarding the humanity of the slaves, but
617
00:34:29.369 --> 00:34:32.690
of course he owned over 600 slaves. And I think
618
00:34:32.730 --> 00:34:36.809
he's freed only about five or six of them. He died.
619
00:34:36.989 --> 00:34:40.019
He obviously very conflicted on that issue.
620
00:34:41.099 --> 00:34:42.800
Yeah, and going back to this point of natural law,
621
00:34:42.840 --> 00:34:46.400
which this question raises, right, you go into different contexts, let's.
622
00:34:46.300 --> 00:34:47.119
Say murder, right?
623
00:34:47.460 --> 00:34:50.429
Does the murderer know that what they're doing is wrong
624
00:34:50.510 --> 00:34:52.230
and sometimes see the fact that they feel a need
625
00:34:52.250 --> 00:34:54.989
to offer some sort of justification or they deny it.
626
00:34:54.969 --> 00:34:55.630
Or something, right?
627
00:34:55.650 --> 00:34:58.630
It shows that in their heart, they know there's something,
628
00:34:58.969 --> 00:35:01.639
something that they don't even feel the need to deny, right?
629
00:35:01.679 --> 00:35:04.139
And so it seems like, for instance, let's say with Jefferson, right?
630
00:35:04.619 --> 00:35:07.980
His actions reveal certain decisions he made, and yet the
631
00:35:08.000 --> 00:35:09.860
fact that they felt a need to say something, or
632
00:35:09.980 --> 00:35:13.340
maybe once the owner has deceased, do you free some
633
00:35:13.380 --> 00:35:16.519
of the slaves or things like that, that reflect perhaps,
634
00:35:17.000 --> 00:35:19.769
even though it's the ultimate consequence of still.
635
00:35:19.570 --> 00:35:22.409
Continuing the institution, reflect something.
636
00:35:22.429 --> 00:35:25.590
Is it something that's morally coded in our hearts that
637
00:35:25.670 --> 00:35:28.670
we as humans, that all people universally.
638
00:35:28.449 --> 00:35:29.530
Can recognize as wrong?
639
00:35:29.630 --> 00:35:31.230
I take that in some way as a science that
640
00:35:32.300 --> 00:35:34.940
Even those who were practicing slavery, many of them still
641
00:35:35.139 --> 00:35:38.800
were internally conflicted because something in their conscience, you look
642
00:35:38.820 --> 00:35:42.079
at another human being and you can offer whatever rationalizations
643
00:35:42.119 --> 00:35:44.639
you have, but there's still this sort of recognition that
644
00:35:45.139 --> 00:35:48.460
you're human. I owe you something, even though this is
645
00:35:48.559 --> 00:35:50.300
obviously an unjust institution, right?
646
00:35:50.340 --> 00:35:53.000
Some sense of obligation through whatever terminology.
647
00:35:53.039 --> 00:35:55.780
This reminds me of a remark by Lincoln, right? He
648
00:35:55.840 --> 00:35:58.650
used to tell this old story about two clergymen who
649
00:35:58.690 --> 00:36:01.969
were arguing over the meaning of a piece of scripture.
650
00:36:02.489 --> 00:36:04.550
And finally, they get down the Bible and open it
651
00:36:04.630 --> 00:36:06.949
up to look up the actual wording. And one of
652
00:36:06.969 --> 00:36:09.070
them points to the verse and he says, there, do
653
00:36:09.090 --> 00:36:11.039
you see it? Is it clear now? And the other
654
00:36:11.099 --> 00:36:13.139
one takes out a gold coin and lays it on
655
00:36:13.199 --> 00:36:15.179
top of the verse so you can't see the verse.
656
00:36:15.659 --> 00:36:18.280
And he says, there, can you see it now? And
657
00:36:18.340 --> 00:36:21.090
Lincoln's point was, we may in the North think we
658
00:36:21.130 --> 00:36:23.690
see slavery clearly, but in the South, they see it
659
00:36:23.809 --> 00:36:28.309
through the lens of millions and millions of dollars. And
660
00:36:28.349 --> 00:36:31.489
then he went on to say, they are exactly as
661
00:36:31.590 --> 00:36:34.610
we would be if we were in their position. So
662
00:36:34.809 --> 00:36:37.230
one of the really remarkable things about Lincoln's character is
663
00:36:37.289 --> 00:36:40.039
how effectively he was able to put himself in that
664
00:36:40.099 --> 00:36:45.039
position and see the rationalizations and the intellectual compromises that
665
00:36:45.059 --> 00:36:48.739
have been concocted to justify slavery. And instantly on that point,
666
00:36:48.840 --> 00:36:50.949
I would say I've been defending the founders. I do
667
00:36:50.989 --> 00:36:53.710
think there is one point which would be more complicated
668
00:36:53.750 --> 00:36:56.550
to discuss, and I think where the founders deserve much
669
00:36:56.590 --> 00:36:59.389
harsher criticism than on the slavery point, and that is
670
00:36:59.909 --> 00:37:03.380
they did not envision slavery. at least many of them
671
00:37:03.420 --> 00:37:07.760
did not envision, a multiracial democracy. Ending slavery in their
672
00:37:07.800 --> 00:37:13.059
minds was the first relatively easy step, actually, compared to
673
00:37:13.099 --> 00:37:16.380
the idea of having a multiracial democracy. That had never
674
00:37:16.420 --> 00:37:19.340
been done before. And a lot of the founders, including Jefferson,
675
00:37:19.699 --> 00:37:22.340
thought it was probably impossible. And that's why you see
676
00:37:22.380 --> 00:37:24.880
all these schemes for, well, we'll free the slaves and
677
00:37:24.920 --> 00:37:26.840
then send their children to Africa, or all these sort
678
00:37:26.860 --> 00:37:29.579
of nonsensical colonization schemes that prop up in the early
679
00:37:29.880 --> 00:37:33.500
19th century, because they couldn't imagine that happening. And that,
680
00:37:33.599 --> 00:37:36.860
I think, is something where they do deserve criticism because
681
00:37:36.909 --> 00:37:39.710
they had a hard time seeing through history to the
682
00:37:39.869 --> 00:37:41.829
necessity of realizing their principle.
683
00:37:43.590 --> 00:37:46.289
We'll go to the second question and also put it
684
00:37:46.329 --> 00:37:48.590
to the left of some thoughts I had. But so
685
00:37:49.159 --> 00:37:52.340
the question for Mr. Sandifer, so we can say that
686
00:37:52.360 --> 00:37:54.679
they were morally conflicted, but then we also go back
687
00:37:54.699 --> 00:37:57.920
to the way this prompt is framed. Did the Constitution
688
00:37:57.960 --> 00:38:00.880
lay the groundwork for abolition? So go back to legal
689
00:38:00.960 --> 00:38:03.380
argument and how you think of the actual document that
690
00:38:03.420 --> 00:38:08.460
was created, obviously the slaveholding states made it very clear
691
00:38:08.480 --> 00:38:10.260
that they were not going to sign on unless they
692
00:38:10.280 --> 00:38:13.730
felt they had enough assurances that their institutions, their property,
693
00:38:13.769 --> 00:38:16.190
their wealth was going to be preserved.
694
00:38:15.849 --> 00:38:16.710
Enough, right?
695
00:38:16.750 --> 00:38:19.369
And so, for instance, talking about the slave trade, right,
696
00:38:19.389 --> 00:38:21.590
it was this idea, well, maybe they'll have already had
697
00:38:21.650 --> 00:38:26.019
enough slaves already that are in the population.
698
00:38:25.500 --> 00:38:27.559
On the continent that they won't need it anymore, right?
699
00:38:27.579 --> 00:38:30.519
So the people who signed on to the Constitution who
700
00:38:31.400 --> 00:38:35.019
wanted to preserve slavery, right? Presumably, they felt they had
701
00:38:35.059 --> 00:38:39.230
negotiated whatever the compromise was enough that their interests would
702
00:38:39.250 --> 00:38:40.750
be preserved. And then, of course, you just look at
703
00:38:40.789 --> 00:38:44.010
how things unfolded later on, as this question points out,
704
00:38:44.030 --> 00:38:46.389
when you count the number of states needed to amend
705
00:38:46.429 --> 00:38:48.860
the Constitution, right? Clearly, there was always a thought of
706
00:38:48.880 --> 00:38:52.480
the balance of power and making sure there were enough votes,
707
00:38:52.500 --> 00:38:54.820
there were enough states, right? All these compromises that kind
708
00:38:54.840 --> 00:38:57.070
of were made leading up to the Civil War, that
709
00:38:57.329 --> 00:39:00.469
their expectation and hope was to preserve the institutions. You
710
00:39:00.510 --> 00:39:04.349
really would need some kind of explosive conflict and ultimately
711
00:39:04.369 --> 00:39:07.750
an amendment to the Constitution. And so, I guess, does
712
00:39:07.789 --> 00:39:11.500
the legal document, the structure, and also just what we
713
00:39:11.559 --> 00:39:14.039
know about the negotiations and kind of the expectations of
714
00:39:14.059 --> 00:39:17.679
the people involved, that ultimately what was created was perhaps
715
00:39:17.719 --> 00:39:22.269
a document that had some recognition that slavery is a problem,
716
00:39:22.309 --> 00:39:27.130
a contested moral issue, one where there are even at
717
00:39:27.170 --> 00:39:31.409
the time, effective, compelling moral arguments against it, and yet
718
00:39:32.110 --> 00:39:33.849
the decision was nonetheless to allow it.
719
00:39:33.949 --> 00:39:36.190
In the spirit of the goal was to have a
720
00:39:36.369 --> 00:39:36.829
union of.
721
00:39:36.909 --> 00:39:39.210
All of these states, and some states were not going
722
00:39:39.230 --> 00:39:42.409
to join that union unless they felt they had enough assurances.
723
00:39:42.550 --> 00:39:45.670
So in that sense, the groundwork was laid to ultimately
724
00:39:45.949 --> 00:39:49.369
preserve the institution absent some sort of civil war constitution.
725
00:39:51.519 --> 00:39:52.960
Well, I think one thing we have to bear in
726
00:39:53.000 --> 00:39:56.150
mind is that the America of those days was, in
727
00:39:56.369 --> 00:40:00.210
important respects, far more diverse than the America of today.
728
00:40:00.289 --> 00:40:02.969
We like to say that we're diverse, but culturally we're
729
00:40:02.989 --> 00:40:06.230
a lot more homogenous nowadays than you were in the 1780s.
730
00:40:07.559 --> 00:40:11.409
And so when we talk about having some concerted political
731
00:40:11.489 --> 00:40:13.409
solution to the problem, remember that they're at the same
732
00:40:13.449 --> 00:40:16.590
time trying to sort out the idea of national sovereignty itself.
733
00:40:16.989 --> 00:40:19.050
So it's not a question of giving the national sovereignty
734
00:40:19.090 --> 00:40:21.860
of power. It's the question of creating a national sovereignty
735
00:40:21.980 --> 00:40:25.559
in the first place. And then what powers will it enjoy?
736
00:40:25.579 --> 00:40:27.840
And that's a lot more tender subject because, as you said,
737
00:40:27.920 --> 00:40:30.139
some people are going to say no because they're afraid
738
00:40:30.159 --> 00:40:31.639
of what that power is going to be done next.
739
00:40:32.139 --> 00:40:33.099
How it's going to be used.
740
00:40:33.179 --> 00:40:36.079
And of course, at the time, I think you had, obviously,
741
00:40:36.139 --> 00:40:38.239
you had many different schools of thought about how to
742
00:40:38.280 --> 00:40:40.519
deal with the slavery problem, because we have the gift
743
00:40:40.559 --> 00:40:44.130
of hindsight, and they did not. Take Thomas Jefferson. Jefferson
744
00:40:44.230 --> 00:40:46.889
thought that the way that slavery would be abolished was
745
00:40:46.989 --> 00:40:50.510
something along the lines of the following. Slavery would spread
746
00:40:50.550 --> 00:40:53.769
to the West and It would spread throughout the country.
747
00:40:54.070 --> 00:40:56.800
People would see how terrible it is. They would be
748
00:40:56.860 --> 00:40:59.719
so disgusted by it that they would abolish slavery through
749
00:40:59.760 --> 00:41:02.679
gradual means, by which I mean they would pass laws
750
00:41:02.699 --> 00:41:06.789
saying that the children born after January 1st, et cetera,
751
00:41:06.849 --> 00:41:09.769
shall be free or something along those lines. Gradual manumission laws.
752
00:41:10.550 --> 00:41:14.159
And that would be followed by some sort of colonization
753
00:41:14.219 --> 00:41:17.099
scheme so that you didn't have the different races fighting
754
00:41:17.139 --> 00:41:20.539
amongst each other, something along those lines. On the other hand,
755
00:41:20.679 --> 00:41:23.719
you had people who thought slavery needed to be restricted.
756
00:41:23.739 --> 00:41:27.139
That's people like Lincoln. Slavery needs to be restricted because
757
00:41:27.659 --> 00:41:32.210
that will allow Congress to become gradually dominated by anti-slavery
758
00:41:32.250 --> 00:41:35.769
forces who can then take action to eliminate slavery. And
759
00:41:35.789 --> 00:41:40.159
that action would be something like compensated emancipation the taking
760
00:41:40.179 --> 00:41:43.219
of private property with just compensation, that sort of thing. Now,
761
00:41:43.440 --> 00:41:45.840
these are all unrealistic goals. The amount of money it
762
00:41:45.860 --> 00:41:51.889
would have cost for compensated emancipation in the 1860s would
763
00:41:52.230 --> 00:41:55.010
bankrupt the country. Same with colonization. You could not possibly
764
00:41:55.030 --> 00:41:58.869
have afforded that. So these are all pie-in-the-sky schemes, but
765
00:41:58.989 --> 00:42:01.210
they're better than nothing is basically the idea that they
766
00:42:01.250 --> 00:42:04.469
have at the time. And as I like to point
767
00:42:04.590 --> 00:42:09.599
out to some of my lost cause friends, the only politician...
768
00:42:10.119 --> 00:42:15.050
In 1860, running for the presidency, who had a scheme
769
00:42:15.489 --> 00:42:19.050
for the gradual, peaceful elimination of slavery was Abraham Lincoln.
770
00:42:19.110 --> 00:42:22.670
He was the only one who had an idea for
771
00:42:22.710 --> 00:42:25.800
the peaceful elimination of slavery. And the South chose to
772
00:42:25.949 --> 00:42:29.719
throw away the Constitution of the United States instead of
773
00:42:29.780 --> 00:42:33.619
allowing that to happen. I think that really speaks for itself.
774
00:42:35.590 --> 00:42:37.989
I would just point out that structurally, the way the
775
00:42:38.030 --> 00:42:41.389
Constitution was structured, it would have been virtually impossible to
776
00:42:41.409 --> 00:42:45.349
abolish slavery, given the three-fifths clause and the power that
777
00:42:45.389 --> 00:42:48.030
it gave to the southern states. And also given the
778
00:42:48.050 --> 00:42:52.070
three-fourths ratification clause, it just would have been impossible to
779
00:42:52.110 --> 00:42:56.679
accomplish any sort of abolition. Short of the Civil War, obviously,
780
00:42:56.719 --> 00:42:58.920
occurred to abolish slavery constitutions.
781
00:43:00.130 --> 00:43:02.570
Or short of the states taking action on their own,
782
00:43:02.610 --> 00:43:04.940
which I think was another pie in the sky notion,
783
00:43:05.079 --> 00:43:07.530
but was one of the ideas motivating them in the 1780s.
784
00:43:09.219 --> 00:43:12.739
Right. And you did mention when the Constitution was written
785
00:43:12.760 --> 00:43:15.230
that it is true that slavery was under decline. But
786
00:43:15.250 --> 00:43:18.269
my understanding is that with the discovery of the cotton gin,
787
00:43:18.289 --> 00:43:22.050
that kind of reinvigorated the whole institution of slavery and
788
00:43:22.130 --> 00:43:25.710
actually gave the states less of a motivation to abolish slavery.
789
00:43:25.750 --> 00:43:29.539
So I'm not sure that slavery became much more profitable
790
00:43:29.780 --> 00:43:33.599
after the Constitution was actually written. I'm not sure then
791
00:43:33.699 --> 00:43:36.199
the southern states would have had the slaveholder states would
792
00:43:36.219 --> 00:43:39.500
have had any incentive to abolish slavery. Given the fact
793
00:43:39.539 --> 00:43:40.440
that it was so lucrative.
794
00:43:41.760 --> 00:43:43.739
Yeah, I think if I remember right, Lincoln said something
795
00:43:43.760 --> 00:43:46.139
to the effect that that slavery had originally been on
796
00:43:46.179 --> 00:43:48.190
a temporary basis and then it was put on the
797
00:43:48.230 --> 00:43:49.210
cotton gin basis.
798
00:43:49.590 --> 00:43:50.769
Sure. All right.
799
00:43:50.789 --> 00:43:53.030
We've got a lot more questions. I'll try to get
800
00:43:53.050 --> 00:43:53.969
to as many as I can.
801
00:43:54.030 --> 00:43:57.010
This one is a little specific, but I think it
802
00:43:57.030 --> 00:44:00.809
gets to some interesting topics of how the debate continued on.
803
00:44:00.829 --> 00:44:04.590
So this question asks, Sean Wilentz and Lance Banning argue
804
00:44:04.610 --> 00:44:09.269
the Senate was the more pro-slavery chamber. It defeated anti-slavery
805
00:44:09.349 --> 00:44:12.849
legislation from the House. Do you guys have any insights
806
00:44:12.909 --> 00:44:16.369
or thoughts on how the debate over the efforts to
807
00:44:16.409 --> 00:44:20.329
abolish slavery continued throughout the country leading up, as I say,
808
00:44:20.349 --> 00:44:23.750
between the Constitution and the Civil War, the various efforts,
809
00:44:24.010 --> 00:44:26.289
the debates, different positions that were taken?
810
00:44:28.070 --> 00:44:28.989
You mean in a setting?
811
00:44:30.369 --> 00:44:32.550
Yeah, I guess I haven't read this book, but I
812
00:44:32.570 --> 00:44:35.000
think he's representing... And probably you count based on the
813
00:44:35.320 --> 00:44:38.019
states in terms of two senators per state. He's mentioning
814
00:44:38.039 --> 00:44:42.239
that the Senate defeated. So I guess there was pro-slavery,
815
00:44:42.559 --> 00:44:45.760
anti-slavery legislation from the House that was defeated in the Senate.
816
00:44:45.780 --> 00:44:47.500
I don't know if there's anything you want to say,
817
00:44:47.639 --> 00:44:50.760
your insights or thoughts on, if not, that's fine.
818
00:44:50.780 --> 00:44:52.119
I haven't read the book either, but.
819
00:44:52.039 --> 00:44:56.539
How different legislated efforts to, including those that were defeated
820
00:44:56.579 --> 00:44:58.579
and what that kind of shows about the intent of
821
00:44:59.679 --> 00:45:02.340
the legislature, but also what ideas were on the table
822
00:45:02.510 --> 00:45:05.199
during that. time period in the Civil War.
823
00:45:07.340 --> 00:45:10.880
I'm not sure what anti-slavery legislation he's actually referring to.
824
00:45:10.900 --> 00:45:13.619
It was passed through the House. Could have happened.
825
00:45:14.070 --> 00:45:16.809
Well, one thing that comes to mind is the petition
826
00:45:16.829 --> 00:45:20.130
crisis of the 1830s and 40s. And this was what
827
00:45:20.230 --> 00:45:24.829
occurred when Congress made it against the rules to receive
828
00:45:25.010 --> 00:45:29.159
petitions seeking the abolition of slavery. Beginning in the 1820s
829
00:45:29.159 --> 00:45:35.079
and 1830s, Anti-slavery forces throughout the states, but especially in Massachusetts,
830
00:45:35.159 --> 00:45:39.179
began petitioning Congress to take action to restrict or abolish slavery.
831
00:45:39.760 --> 00:45:43.000
This was at the time that the pro-slavery ideology was
832
00:45:43.199 --> 00:45:47.510
really getting underway. And so Southern congressmen led a successful
833
00:45:47.550 --> 00:45:50.690
effort to get rules adopted in Congress to prohibit the
834
00:45:50.730 --> 00:45:54.429
receipt of these petitions. And this was, of course, the
835
00:45:54.469 --> 00:45:57.860
dramatic moment when John Quincy Adams was serving in the
836
00:45:57.889 --> 00:46:01.610
House of Representatives. And he denounced this rule, rightly, as
837
00:46:01.670 --> 00:46:03.929
a violation of the First Amendment, which guarantees your right
838
00:46:03.949 --> 00:46:06.329
to petition the government for redress of grievances. And for
839
00:46:06.489 --> 00:46:11.880
almost a decade, John Quincy Adams led this virtually one-man
840
00:46:11.980 --> 00:46:15.539
crusade in defense of the right to petition, even though
841
00:46:15.559 --> 00:46:18.780
he was himself not an abolitionist. He believes in gradual emancipation,
842
00:46:18.880 --> 00:46:21.889
not immediate emancipation. So he was not, technically speaking, an abolitionist.
843
00:46:22.309 --> 00:46:25.840
But he was the foremost spokesman for abolition in the
844
00:46:25.920 --> 00:46:28.480
capital at that time because he would get up and
845
00:46:28.519 --> 00:46:30.860
insist on the right of the people to petition the
846
00:46:30.900 --> 00:46:34.460
government for abolition. This story is very dramatic. It is
847
00:46:34.539 --> 00:46:36.780
one of the best stories in American history. And there's
848
00:46:36.820 --> 00:46:40.699
a marvelous book out there called Arguing About Slavery by
849
00:46:40.780 --> 00:46:43.619
William Lee Miller that is on this subject. And I
850
00:46:43.880 --> 00:46:45.820
cannot recommend this book highly enough. It's one of my
851
00:46:45.889 --> 00:46:48.449
favorite books of all time. I urge you strongly all
852
00:46:48.489 --> 00:46:51.030
to get a copy of this marvelous book, Arguing About Slavery.
853
00:46:51.409 --> 00:46:55.630
that dramatizes the kinds of pressures that were going on between,
854
00:46:55.650 --> 00:46:57.670
as you said, the ratification of the Constitution and the
855
00:46:57.690 --> 00:47:01.090
Civil War, and what Miller calls the Pearl Harbor of
856
00:47:01.150 --> 00:47:04.690
the Civil War, was basically this fight over the right
857
00:47:04.730 --> 00:47:07.760
to petition for Congress to take some kind of action.
858
00:47:08.510 --> 00:47:11.260
And the Southerners preferred to close their eyes and ears
859
00:47:11.719 --> 00:47:15.760
and pretend there was nothing going on while they manifested
860
00:47:15.800 --> 00:47:17.880
their ideology of racial superiority.
861
00:47:19.190 --> 00:47:20.449
As I'm thinking, as you were talking, I was trying
862
00:47:20.469 --> 00:47:22.170
to think through the question a little more, and I
863
00:47:22.190 --> 00:47:24.110
think I understand the point. I don't know if this helps,
864
00:47:24.190 --> 00:47:26.150
but I think what he seems to be pointing out
865
00:47:26.210 --> 00:47:28.949
is that in terms of counting the political power in
866
00:47:28.969 --> 00:47:32.489
the legislature and Congress. to preserve slavery, it ended up
867
00:47:32.570 --> 00:47:35.489
being the two senators per state, which in that sense
868
00:47:35.510 --> 00:47:38.869
is actually anti-democratic or anti-proportional to the population.
869
00:47:39.269 --> 00:47:39.699
That's right.
870
00:47:39.719 --> 00:47:41.360
And of course, the Senate was supposed to be the
871
00:47:41.420 --> 00:47:46.599
conservative restraint on the more democratic forces in the government.
872
00:47:46.639 --> 00:47:50.340
And so they were supposed to cool down the public temper. Unfortunately,
873
00:47:50.840 --> 00:47:52.760
as I think William Lloyd Garrison would have said, this
874
00:47:52.820 --> 00:47:54.460
is an issue on which the public temper could not
875
00:47:54.639 --> 00:47:56.860
and should not be cooled down. Remember, he said, I
876
00:47:56.900 --> 00:47:58.969
have need to be all on fire, for I have
877
00:47:59.030 --> 00:48:00.590
mountains of ice about me to melt.
878
00:48:01.849 --> 00:48:03.510
I guess if that goes to your point, Mr. Sandefur,
879
00:48:03.530 --> 00:48:08.969
about what was the trajectory of the country on the framework?
880
00:48:09.010 --> 00:48:12.900
And I guess you've argued that different structural aspects would say,
881
00:48:12.920 --> 00:48:16.840
to the extent that demographics are changing, there's more and
882
00:48:16.860 --> 00:48:20.300
more support, at least the popular branch of the Congress.
883
00:48:21.059 --> 00:48:22.679
for anti-slavery sentiment.
884
00:48:22.780 --> 00:48:23.320
That's right.
885
00:48:23.440 --> 00:48:27.760
That's right. And the pro-slavery side was increasingly an elite position.
886
00:48:27.820 --> 00:48:30.090
And this was a point, again, that Lincoln made very frequently,
887
00:48:30.150 --> 00:48:34.449
that the pro-slavery and pro-secession movement was really a small
888
00:48:34.510 --> 00:48:38.840
minority among the South. Unfortunately, it was a very politically powerful,
889
00:48:38.880 --> 00:48:41.860
concentrated minority. I think If I remember, it's, oh my gosh,
890
00:48:41.900 --> 00:48:44.119
I'm blanking on the name of the author, but William Freeling,
891
00:48:44.139 --> 00:48:46.579
I think it is, it's in his book, Secessionists at Bay,
892
00:48:47.079 --> 00:48:50.079
covers how in the South during this period is more
893
00:48:50.099 --> 00:48:54.219
and more anti-democratic restrictions on the voting power at the
894
00:48:54.280 --> 00:48:58.369
state level. And it becomes much more badly apportioned in
895
00:48:58.389 --> 00:49:01.670
the state legislature so that the elite, the planter elite,
896
00:49:02.070 --> 00:49:04.369
The slave power, as they were called at the time,
897
00:49:04.869 --> 00:49:07.800
gets more and more politically powerful within the states. And
898
00:49:07.840 --> 00:49:09.699
of course, that means they control the Senate. So they're
899
00:49:09.719 --> 00:49:14.559
able to restrict the anti-slavery popular attitudes that are increasingly
900
00:49:14.559 --> 00:49:18.369
spreading in the country. And so that's why Lincoln says well,
901
00:49:18.389 --> 00:49:21.070
the Southerners would not have seceded except that they were
902
00:49:21.170 --> 00:49:24.219
persuaded by, some of them were persuaded that it was
903
00:49:24.260 --> 00:49:25.900
the right thing to do, because you can't get people
904
00:49:25.920 --> 00:49:28.019
to do bad things unless you first persuade them that
905
00:49:28.059 --> 00:49:31.619
it's the right thing. And secondly, because they were so anti-democratic.
906
00:49:33.079 --> 00:49:37.000
An interesting question here points out and invites discussion. Are
907
00:49:37.039 --> 00:49:41.260
there aspects of the Constitution that apart from the slavery-specific
908
00:49:41.920 --> 00:49:46.730
provisions that we've been discussing, the broader structure that lent
909
00:49:46.769 --> 00:49:49.730
itself to the move toward abolition of slavery, so this
910
00:49:49.769 --> 00:49:52.989
person points out free speech, for example, certainly the debates
911
00:49:53.309 --> 00:49:57.489
that happened to the extent, the structure of different states
912
00:49:57.590 --> 00:50:02.239
having different autonomy right to it. You have both states
913
00:50:02.280 --> 00:50:04.719
that are able to abolish slavery, but then also, of course,
914
00:50:04.780 --> 00:50:08.619
slaves that were able to preserve it through the way
915
00:50:08.659 --> 00:50:12.349
our Constitution was structured to allow particular states to have
916
00:50:12.369 --> 00:50:15.869
their own policies. But are there any structural comments you
917
00:50:15.889 --> 00:50:18.210
have or other provisions of the Constitution that come to
918
00:50:18.230 --> 00:50:19.489
mind that you want to discuss?
919
00:50:20.769 --> 00:50:26.269
The Three Fords Clause made it very difficult or impossible, basically,
920
00:50:26.389 --> 00:50:32.550
to abolish slavery or to have any real anti-slavery legislation
921
00:50:32.570 --> 00:50:35.409
get through Congress. And in terms of the Constitution, it
922
00:50:36.070 --> 00:50:38.780
made it very difficult three-fourths clause. And of course, you
923
00:50:38.800 --> 00:50:42.840
needed two-thirds of Congress to enact any sort of constitutional amendment.
924
00:50:42.940 --> 00:50:47.449
So through the amendment process, it's been virtually impossible to
925
00:50:48.449 --> 00:50:49.329
abolish slavery.
926
00:50:50.150 --> 00:50:52.210
On this point, I think it's worth pointing out, there's
927
00:50:52.250 --> 00:50:55.280
this sort of general attitude sometimes that the South at
928
00:50:55.320 --> 00:50:59.719
the time was the small government party and the state's
929
00:50:59.820 --> 00:51:01.239
rights party and stuff like that.
930
00:51:01.280 --> 00:51:02.119
And that's all a myth.
931
00:51:02.260 --> 00:51:06.960
In fact, The slave power was demanding a massive increase
932
00:51:07.059 --> 00:51:11.300
in federal power in the country. They wanted a nationwide
933
00:51:11.340 --> 00:51:15.489
black code that would force states to return fugitive slaves,
934
00:51:15.530 --> 00:51:18.190
including northern states that didn't want to, that what the
935
00:51:18.230 --> 00:51:22.880
South was demanding was enormous federal subsidies for slavery. And
936
00:51:22.920 --> 00:51:26.480
they had no particular concern about states' rights. They insisted
937
00:51:26.500 --> 00:51:28.539
that if a state had a moral objection to returning
938
00:51:28.559 --> 00:51:32.179
fugitive slaves, that didn't matter. And as Professor Alan Guelzo
939
00:51:32.199 --> 00:51:35.769
has pointed out, Lincoln, during the war, Lincoln consulted with governors.
940
00:51:36.429 --> 00:51:39.829
Jefferson Davis never did that. Because the state's rights was
941
00:51:39.869 --> 00:51:42.849
really not a part of the movement until— that' s a myth
942
00:51:42.869 --> 00:51:44.090
that came about after the war.
943
00:51:44.429 --> 00:51:46.130
What the South was demanding.
944
00:51:45.630 --> 00:51:49.469
Was more federal support for slavery, and they objected to
945
00:51:49.510 --> 00:51:51.909
the fact that they weren't getting it. That's what led
946
00:51:51.969 --> 00:51:54.610
to the war. I would totally agree with that.
947
00:51:54.639 --> 00:51:56.219
All right.
948
00:51:56.400 --> 00:51:57.219
Maybe last question.
949
00:51:57.239 --> 00:51:59.360
See, we ended on a note of agreement. A note
950
00:51:59.380 --> 00:51:59.860
of agreement.
951
00:52:00.219 --> 00:52:01.639
So I totally agree with that.
952
00:52:02.590 --> 00:52:04.090
So trying to squeeze in one more question and I'll
953
00:52:04.219 --> 00:52:06.380
turn it back over to Emma Blake Moore from FedSoc.
954
00:52:06.400 --> 00:52:08.800
So this person asks, do you think that the founders
955
00:52:09.679 --> 00:52:12.300
could have foreseen that it would ultimately lead to a
956
00:52:12.340 --> 00:52:13.030
civil war?
957
00:52:13.289 --> 00:52:13.690
Oh, yes.
958
00:52:13.829 --> 00:52:14.510
Oh, absolutely.
959
00:52:14.690 --> 00:52:17.610
Oh, no question about it. Thomas Jefferson in 1820 at
960
00:52:17.630 --> 00:52:20.340
the Missouri crisis says that it woke him like a
961
00:52:20.429 --> 00:52:23.190
fire bell in the night. And what he meant was
962
00:52:23.329 --> 00:52:27.190
that by drawing a geographical boundary around slavery at the
963
00:52:27.190 --> 00:52:30.570
3630 line, what you were doing was essentially creating the
964
00:52:30.610 --> 00:52:32.659
conditions for a civil war. And I think he went
965
00:52:32.679 --> 00:52:34.260
to his grave expecting.
966
00:52:33.820 --> 00:52:34.780
A civil war to come.
967
00:52:35.159 --> 00:52:38.360
Now, his prescriptions for avoiding it, I think, are very
968
00:52:38.400 --> 00:52:40.739
much subject to debate. But there's no question that the
969
00:52:40.780 --> 00:52:44.780
Founding Fathers, their greatest nightmare was that Americans would fall
970
00:52:44.820 --> 00:52:48.320
to fighting amongst themselves the way that European countries had
971
00:52:48.340 --> 00:52:50.619
been fighting amongst themselves for generations out of mind.
972
00:52:51.639 --> 00:52:54.199
I've been reading this summer, I read the new book,
973
00:52:54.579 --> 00:52:59.010
a professor at Harvard, Jefferson or Race. And Jefferson believed
974
00:52:59.050 --> 00:53:01.570
that on the issue of slavery, that he was in
975
00:53:01.610 --> 00:53:05.880
favor of a period for emancipation. But he actually didn't
976
00:53:05.900 --> 00:53:09.539
think ultimately the races could live together. His view was
977
00:53:09.579 --> 00:53:11.920
that white people would never be able to get over
978
00:53:11.940 --> 00:53:14.860
their prejudices, and that Black people would never be able
979
00:53:14.889 --> 00:53:16.719
to get over the fact that they were enslaved by
980
00:53:16.760 --> 00:53:20.550
white people. So he thought that ultimately the solution would
981
00:53:20.590 --> 00:53:24.710
have been to remove African Americans and the former slaves
982
00:53:24.769 --> 00:53:26.829
from the United States, that we could not actually live
983
00:53:26.889 --> 00:53:29.210
in the same multiracial society.
984
00:53:30.230 --> 00:53:32.889
Yes, that was Jefferson's view, and I think it is
985
00:53:33.690 --> 00:53:36.800
very poignant that it is up to us in today's world,
986
00:53:36.860 --> 00:53:39.639
as it is to every generation of Americans, to answer
987
00:53:39.679 --> 00:53:42.719
the question of whether we can, in fact, live together
988
00:53:42.760 --> 00:53:46.219
in a multiracial democracy and respect each other's rights to
989
00:53:46.260 --> 00:53:48.000
pursue life and liberty in the pursuit of happiness.
990
00:53:49.210 --> 00:53:52.210
Well, yes, that's a good note to end on for 250th.
991
00:53:52.329 --> 00:53:55.070
And I'll just say, as myself, a son of immigrants,
992
00:53:55.869 --> 00:53:58.070
I think we do a pretty good job in this country.
993
00:53:58.409 --> 00:54:01.739
Certainly we're Those same concerns that I'm sure the founders
994
00:54:01.760 --> 00:54:03.719
were concerned about, we still have them today in terms
995
00:54:03.780 --> 00:54:06.969
of discrimination and inequality. But at least when you look
996
00:54:06.989 --> 00:54:09.289
at how every other country in the world is, I
997
00:54:09.329 --> 00:54:12.070
think the U.S. is still at the forefront in terms
998
00:54:12.130 --> 00:54:15.590
of coming up with even the vocabulary, the legal and
999
00:54:15.610 --> 00:54:20.460
moral framework for how to cooperate harmoniously in a multiracial society.
1000
00:54:20.500 --> 00:54:22.820
And at least still seems like folks from all over
1001
00:54:22.840 --> 00:54:24.820
the world want to come here. It's a good note
1002
00:54:24.840 --> 00:54:26.840
to end on. And of course, every generation is going
1003
00:54:26.860 --> 00:54:29.199
to have to confront their own challenges. It's I don't
1004
00:54:29.219 --> 00:54:32.369
think the issue ever somehow just magically goes away. I mean,
1005
00:54:32.389 --> 00:54:34.969
I think about it, but that's why we have each
1006
00:54:35.010 --> 00:54:38.929
generation having these discussions, these dialogues and revisiting these issues
1007
00:54:39.389 --> 00:54:41.090
and teaching the next generation as well. So thank you
1008
00:54:41.130 --> 00:54:44.329
both for everything you've done to contribute to our understanding,
1009
00:54:44.369 --> 00:54:47.389
our scholarship on this issue and for all the dialogue
1010
00:54:47.409 --> 00:54:47.789
we've had today.
1011
00:54:48.630 --> 00:54:52.030
My pleasure. Thank you. so much.
1012
00:54:52.190 --> 00:54:56.389
We really appreciate it. I certainly myself enjoyed such a
1013
00:54:56.409 --> 00:54:59.739
thought-provoking conversation. And on behalf of the Federalist Society, I
1014
00:54:59.780 --> 00:55:03.300
want to thank our experts for just the benefit of
1015
00:55:03.340 --> 00:55:05.699
their valuable time. Thank you for your expertise today. I
1016
00:55:05.880 --> 00:55:09.019
also want to thank our audience for joining and participating.
1017
00:55:09.059 --> 00:55:11.070
There were lots of questions in the chat, and we
1018
00:55:11.110 --> 00:55:15.210
really appreciate your engagement there. We also welcome listener feedback
1019
00:55:15.269 --> 00:55:20.489
if you're interested by email at fedsocforums at fedsoc.org. As always,
1020
00:55:20.570 --> 00:55:22.590
please keep an eye on our website and on our
1021
00:55:22.690 --> 00:55:26.510
emails for any announcements about upcoming virtual events. And so
1022
00:55:26.550 --> 00:55:28.570
I just thank you all for joining today, and we
1023
00:55:28.610 --> 00:55:29.070
are adjourned.
1024
00:55:29.769 --> 00:55:33.530
Thanks for listening to FedSoc Forums, a Federalist Society podcast.
1025
00:55:33.929 --> 00:55:36.449
Be sure to subscribe wherever you get your podcasts so
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00:55:36.469 --> 00:55:40.730
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